I Www \\\\\\\\\\\\\ Jill i l ill Pill! ! ffiOHii UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY PEINCIPLES LAW OF REAL PROPERTY, INTENDED AS J± FIRST book: THE USE OF STUDENTS IN CONVEYANCING. BY JOSHUA WILLIAMS, ESQ. OF LINCOLN'S INN, ONE OF HER MAJESTY'S COUNSEL. Dmtlj mtvm, LONDON: EL SWEET, 3, CHANCERY LANE, ELEET STREET, ?iato ISoolwlIcr antr H)ut>IisJ)rr; HODGES, FOSTER & CO., GRAFTON STREET, DUBLIN. 1871. •y -*» v* (o r LONDON: rillNTED BT C. ROWORTH AND SONS, NEWTON STREET, W.C. ADVERTISEMENT TO THE NINTH EDITION. In this Edition the alterations which have taken place in the law since the publication of the last Edition have been incorporated in the text. 3, Stone Buildings, Lincoln's Inn, Feb, 1871, PREFACE TO THE FIRST EDITION. The Author had rather that the following pages should speak for themselves, than that he should speak for them. They are intended to supply, what he has long felt to be a desideratum, a First Book for the use of students in conveyancing, as easy and readable as the nature of the subject will allow. In attempting this object he has not always followed the old beaten track, but has pursued the more difficult, yet more interesting, course of original investigation. He has endea- voured to lead the student rather to work out his knowledge for himself, than to be content to gather fragments at the hand of authority. If the student wishes to become an adept in the practice of conveyancing, he must first be a master of the science ; and if he would master the science, he should first trace out to their sources those great and leading principles, which, when well known, give easy access to innumerable minute details. VI PREFACE. The object of the present work is not, therefore, to cram the student with learning, but rather to quicken his appetite for a kind of knowledge which seldom appears very palatable at first. It does not profess to present him with so ample and varied an entertainment as is afforded by Blackstone in his " Commentaries;" neither, on the other hand, is it as sparing and frugal as the " Principles" of Mr. Watkins; nor, it is hoped, so indigestible as the well-packed " Compendium" of Mr. Burton. This work was commenced many years ago ; and it may be right to state that the substance of the intro- ductory chapter has already appeared before the public in the shape of an article, " On the Divi- sion of Property into Real and Personal," in the "Jurist" newspaper for 7th September, 1839. The recent Act to simplify the transfer of property has occasioned many parts of the work to be re-written. But as this Act has so great a tendency to bewilder the student, the Author has since lost no time in committing his manuscript to the press, in hopes that he may be the means of bringing the minds of such beginners as may peruse his pages to that tone of quiet perseverance which alone can enable them to grapple with the increasing difficulties of PREFACE. Vll Real Property Law. From the elder members of his profession he requests, and has no doubt of ob- taining, a candid judgment of his performance of a most difficult task. To give to each principle its adequate importance, — from the crowds of illus- trations to present the best, — to write a book read- able, yet useful for reference, — to avoid plagiarism, and yet abide by authority, — is indeed no easy matter. That in all this he has succeeded he can scarcely hope. How far he has advanced towards it must be left for the profession to decide. 3, New Square, Lincoln's Inn, 2dth November, 1844. TABLE OF CONTENTS. — ♦ — PAGE INTRODUCTORY CHAPTER. Of the Classes of Property 1 PART I. OF CORPOREAL HEREDITAMENTS 13 CHAP. I. Of an Estate for Life 16 CHAP. II. Of an Estate Tail 34 CHAP. III. Of an Estate in Fee Simple 59 CHAP. IV. Of the Descent of an Estate in Fee Simple 96 CHAP. V. Of the Tenure of an Estate in Fee Simple 113 CHAP. VI. Of Joint Tenants and Tenants in Common 128 CHAP. VII. Of a Feoffment 136 X CONTENTS. PAGE CHAP. VIII. Of Uses and Trusts 151 CHAP. IX. Of a Modern Conveyance 172 CHAP. X. Of a Will of Lands 195 CHAP. XL Of the mutual Rigiits of Husband and Wife 214 PART II. OF INCORPOREAL HEREDITAMENTS 229 CHAP. I. Of a Reversion and a Vested Remainder 231 CnAP. II. Of a Contingent Remainder 252 CHAP. III. Of an Executory Interest 277 Section 1. Of the Means by which Executory Interests may be created 277 Section 2. Of the Time within which Executory Interests must arise 303 CHAP. IV. Of Hereditaments purely Incorporeal 307 CONTENTS. XI PAGE- PART III. OF COPYHOLDS 333 CHAP. I. Of Estates in Copyholds c 337 CHAP. II. Of the Alienation of Copyholds 356 PART IV. OF PERSONAL INTERESTS IN REAL ESTATE 370 CHAP. I. Of a Term of Years 372 CHAP II. Of a Mortgage Debt 403 PART V. OF TITLE 423 Appendix (A.) 443 A i'I'kndix (B.) 449 Appendix (C.) 463 Appendix (D.) 485 Appendix (E.) 491 Appendix (F.) 502 Ari-KNDix (G.) 504 Index « 507 INDEX TO CASES CITED. PAGE Abemethy, Boddington v. . . 368 Ackroyd v. Smith . . . . 313 Acocks v. Phillips . . . . 235 Adams, Doe d. Barney v. . . 406 Rowley v 380 v. Savage . . . . 301 Smith v 369 Adsetts v. Hives . . . . 145 Ainslie v. Harcourt . . . . 392 Albans, Duke of St., v. Skipwith 24 Albany's case . . . . 298 Aldborough, Lord, v. Trye . . 437 Aldous r. Cornwell . . 145 Allan v. Backhouse , . . . 392 Allen v. Allen . . . . 58, 65 Festing v. . . . . 261 Alston r. Atlay . . . • 328 Ambrose, Hodgson and Wife v. 203 Amcotts, Ingilby v 267 Amey, Doe v. . . . . 83 Amherst, Earl of, Duke of Leeds v. . . .. . . 25 Andrew v. Motley . . .. 200 Andrews v. Hulse . . . . 336 Annesley, Tooker v. . . 25 Anon. v. Cooper . . 389, 390 Anson, Lord, Winter v. . . 414 Anstey, Saward v.. . .. 318 Arcber's case .. .. .. 254 Armitage, Earl of Cardigan v. 14 Armstrong, Tullett v. Arnold, Cattlcy v. .. . Arthur, Vyvyan v.. . Ashton v. Jones Aston, Yates v. Atherstone, Nickells v. Atkinson o. Baker Atlay, Alston v. Att.-Gcn. v. Lord Braybrooke Casberd'9. .. p. Chambers c. Floyer v. Hallett •. Glyn 92, 216 29 380 418 392 20 328 27.-, 88 812 298 276 72 Att.-Gen. v. Hamilton v. Lord Middleton PAGE 134 275 v. Parsons v. Sibthorpe . . v. Sitwell v. Smythe . , Audley, Jee v. Austin, Webb v. Aveline v. Whisson Awdry, Cloves v. Backhouse, Allan v. . Bonomi v. Few v. Baggett v. Meux . . Bagot v. Bagot . . . Bailey v. Ekins Keppel v. Bainbridge, Hall v. Baird v. Fortune Baker, Atkinson v. v. Gostling Thorn borough v. Banks, Bight d. Taylor v. Barber, Mackintosh v. Barker v. Barker ■ Pavne v. . . Re" Barlow v. Rhodes . . Wright v. . Barnes v. Mawson . . Barnett, Muggleton v. . Barrett v. Rolph . . Barrington r. Liddell . Barrow v. Wadkin . . Bartholomew, Drybuttcr v. Bartle, Doc d. Nethercote Bartlctt, Rose v. Bassctt, Upton v. . . Bates r. Johnson . . Baxter, Mainwaring v. Hciilc v. Synionds Bcardinore r. Wilson 115, 334 275 328 275 53 378 148 290 392 14 315 216 23 78 379 144 313 20 389 371 350 301 218 447 298 313 285 483 98, 443 389 306 161 8 861 386 7G 420 50 h;i 888 \1V INDEX TO CASES CITED. PAGE Bearpark v. Hutchinson . . 319 Beaufort, Duke of, v. Mayor, &c. of Swansea . . .. 312 Beaufort, Duke of, v. Phillips 83 Beaumont v. Marquis of Salis- bury . . . . . . . . 388 Beavan v. Earl of Oxford. . 84 Bee vor v. Luck . . .. »• 422 Bclaney v. Belancy . . 10 Bell, Consett v. . . . . 25 Bellamy v. Sabine . . . . 89 Bennet v. Bishop of Lincoln . . 329 v. Box .. .. 164 Bennett v. Reeve . . 464, 467 Benson v. Chester . . .. 473 Bcntlev, Poole v. . . . . 376 Berridgc v. Ward .. .. 311 Beverley, case of the Provost of 248 Bewit, Whitfield v. . . 23 Bewley, Noel v. . . . . 271 Bickett v. Morris .. .. 312 Biggs, Mestayer v. . • .. 315 Bingham v. Woodgate . . 340 Bird V. Higginson .. .. 375 Birkbeck, Cort v 484 Blackall, Long v 304 Blackburn, Harrison v. . . 176 r. Stables . . . . 260 Blackmore, Mathew v. .. 418 Blagrave, Powys v 24 Blake, Perrin v 205, 245 Shrapncll V. »• .. 411 Bligh v. Brent . . . < Bliss, Dean of Ely v. . . Blissett, Chapman v. . . Blood, Creagh v. Blunt, Griffith v Blythe, Westbrook v. . . Boddington v. Abemethy. , Boen, Yates v. .. Bolton, Lord, v. Tomlin . . Bond v. Kosling Bonham, Parley v. Bonifaut v. Greenfield Bonomi v. Backhouse • . Boothby, Tunstall v. . . Boraston's case . . . . 434 275 392 305 387 368 65 375 375 227 301 14 92 255 Borman, Scarborough v. 92, 216 Bosanquet, Williams v. . . 379 Bousfield, Doe d. Bobinson v. 338 Bovey's, Sir Ralph; case . . 396 Bower r. Cooper . . . . 160 Bowker v. Burdekin . . 144 Bowie's, Lewis, case . . . . 25 Bowler, Matthew v. . . 415 Bowser v Colby . . . . 236 v. Maclean . . . . 338 Box, Bennet r 164 PAGE Brace r. Duchess of Marlbo- rough 82,420 Bradford v. Brown John . . 392 Brandon v. Robinson 91, 92, 216 Brandreth, Lucas v. 19 Braybrookc, Lord, Att.-Gen. v. 275 Brent, Bligh r 8 Bridge v. Yates .. .. 131 Bridgewater, Welden v. . . 473 Bridgman's, Sir Orlando, case and opinion of . . Bristow v. Warde . . . . Broeklehurst, Wardle v. . . Brogden, Humphries v. Brookes, Millership v. Broughton v. James . . . . Brown, Caldecott v. Cattlin v. . . . . ■ Scratton v. . . Willis v Browne v. Browne. . Brown john, Bradford v. Brownlow, Earl, Smith v. Pate v. Brudenell v. Elwes Brummell v. Macpherson Brydges v. Brydges . . Buckeridge v. Ingram . . Buckland v. Pocknell Buckley, Earl of Stafford v. Erend v. v. Howell . . Burdekin, Bowker v. Burdett v. Doe d. Spilsbui-y Burges, Hare v. v. Lamb . . 473 .. 265 313 .. 14 144 .. 306 31 .. 264 312 .. 187 261 .. 892 463 .. 473 50, 263 .. 381 170 .. 8 415 .. 41 429 .. 297 144 .. 286 391 .. 25 18, 161 Burgess v. Wheate Burlington, Earl of, Doe d, Grubb v 339 Burrell v. Dodd . . 339, 340 Burroughes, Wright v. . . 236 Burt, Edwards, v 437 Busher, app., Thompson, resp., 340 Bustard's case . . . . . . 425 Buttery v. Robinson .. 31S Butts, Trower v 260 Byron, Doe d. Wyatt v. .. 236 C. Cadell v. Palmer .. .. 51,304 Caldecott v. Brown .. .. 31 Calmady v. Rowe . . .• 312 Calvin's case . . . . . . 64 Cann, Ware v. . . . . 18 Canning v. Canning . . . • 100 Cardigan, Earl of, V. Armitage 14 Carleton v. Leighton .. ..267 INDEX TO CASES CITED. XV PAGE Carr v. Lambert • ■ . . 473 Carter, Parker v 220 Casberd v. Attorney-General 88 Cattley v. Arnold . . . . 29 Cattlin r. Brown . . . . 264 Cattling, Wills v 390 Cballis v. Doe d, Evers . . 264 Chamberlain, Cox v. . . 290 Chambers, Attorney-General v. 312 Champion, Edwards v. . . 58 Chandless, Hall v 145 Chapman v. Blissett . . 275 r. Gatcombe .. 331 v. Tanner . . 414 Charlesworth, Manners v. . . 134 Cheetham, Lloyd v. . . 92 Cherry v. Heming .. .. 148 Cheslyn, Pearce V..t .. 376 Chester, Benson v. . . ,. 473 Bishop of, Fox v. . . 329 v. Willan .. ..132 Cheyne, Eccles v 203 Chichester, Rawe v. . . . . 392 Cholmeley, Cockerell v. . . 295 v. Paxton . . 25 Chndleigh's case . . 155, 254 Clark, Doe d. Spencer v. . . 346 Clarke, Doe v 261 v. Franklin . . 227, 292 Clay v. Sharpe . . . . 410 Clegg v. Fishwick . . . . 392 Clements v. Sandaman . . 94 Clere's, Sir Edward, case .. 290 Clifton, Doe d. Hurst v. . . 407 Cloves v. Awdry . . . . 290 Cockerell v. Cholmeley . . 295 Colby, Bowser v 236 Cole, Doe d. Ware v. 174, 233 v. Sewell . . . . 263, 264 V. West London and Crys- tal Palace Railway Company 13 Coles, Hunt v 166 Collins, Doe d. Clements r. . . 13 Eddleston >:. . . 368 Colt, Pratt v 164 Colvilc v. Parker . . . . 76 Complin, Goddard v 420 Consett v. Bell . . . . 25 Cooch v. Goodman .. ..118 Cooke, dem . . . . . . 14 Hibbert v 31 Cooper, Bower v. . . .. 160 ■ Davies v. .. .. A'M ■ ■v.Emery .. 128,437 r. France . . . . 449 v. Stephenson . . 439 Anon. v. .. 389,390 Copper Miners' Company, Wood v 171 PAGE Coppinger v. Gubbins . . 24 Corbet's, Sir Miles, case . . 476 Corbett, The Queen v. . . 367 Corder i\ Morgan . . . . 410 Comwallis, case of Lord . . 350 Cornwell, Aldous v. . . . . 145 Come, Preece v. ,. . . 389 Cort v. Birkbeck . . . . 484 Cottee r. Richardson . . 388 Court, Earl of Sefton v. . . 468 Courtenay, Doe d. Earl of Egre- mont v. .. .. . . 391 Cousins v. Phillips .. 239 Coventry, Earl of, Hay v. 50, 263 Cowbridge Railway Company, Guest v. . . . . . . 85 Cowell, Vickers v 416 Cowley, Earl, v. Wellesley . . 23 Cox v. Chamberlain . . 290 Doe d. Bastow v. . . 373 Crachroode and Foiston's case 483 Creagh v. Blood . . . . 392 Crump d. Woolley v. Norwood 125 Curling v. Mills . . . . 375 Curtis v. Lukin . . . . 306 r. Price . . . . 250 Cuthbertson v. Irving . . 406 D. Dallaway, Hyde v 433 Dallingham, Lady of Manor of, Regina v. . . . . . . 336 Dalton, Re 65 Damerell v. Protheroe. . 351, 482 Danvers, Doe d. Cook •, 339, 340 Darby, Right d. Flower v. 373, 374 Darke, Tutton v 235 Davall v. New River Company 161 Davies v. Cooper . . . . 437 Doe d. Dixie v. . . 373 Jones v. . . . . 397 v. Wescomb . . . . 25 Davison v. Gent . . . . 392 Dawes v. Hawkins .. ..811 Day, Doe d. Parsley v. . . 405 Duberley v. .. . . 391 Jeffs v 171 v. Merry . . . . . . 25 Death, Smith v 298 De Beauvoir v. Owen . . . . 434 De Burgh, Lock v. . . 29 De Molej-n's case .. .. 82 Dee, Parker v 78 Dandy, Simpson ♦. .. .. 311 Dennett v. Pass .. .. 321 Dennison, Lucas v. .. .. 488 Dent v. Dent .. .. '2'A INDEX TO CASES CITED. i-Aci: Dering, Moneypenny r. 264, 266 Dii -kin V. I lamer .. .. 224 Dimes v. Grand Junction Canal Company .. .. 363 Dixon, Doe d. Crosthwaite r. . . 100 V. < ia\ IVrc .. .. 415 Dodd, r.unvl'l v 839,340 Dodds r. Thompson . . 318 Doe v. Aiiiev . . . . . . 83 d. Barney v. Adams.. 406 d. Nethercote v. Bartle.. 361 d. Robinson r. Bousfield 338 d. Spilabury, Burdeti »... 286 (/. Grubb v. Earl of Bur- lington .. .. 339 d. Wyfttt r. Byron .. 236 d. Evers, Challis v. . . 264 d. Spencer v. Clark . . 346 v. Clarke 260 d. Hurst V. Clifton . . 407 d. Were v. Cole . . 174, 233 d. Clements v. Collins 13 d. Earl of Egrcmont V. Courtenay . . 390 d. Bastow p. Cox . . 373 d. Cook v. Danvers 339, 340 d. Dixie v. Davies d. Parsley V. Day . . d. Crosthwaitc v. Dixon. . d. Curzon v. Edmonds d. Bloomfield v. Eyre . . d. Davies v. Gatacre d. Fisher v. Giles d. Mii-ton v. Gladwin d. Walker v. Groves d. Riddell r. Gwinnell d. Harris v. Howell d. Keay v. Huntingdon d. Baker r. Jones . . d. Duroivre v. Jones d. Wigan v. Jones . . d. Barrett v. Kemp d. Garnons v. Knight d. Winder v. Lawes 373 405 100 433 288 269 407 383 376 369 281 339, 340 383 64 291 311 144 359, 366 d. De Rutzen v. Lewis 383 d. Roylance v. Lightfoot 405 d. Johnson v. Liversedge 432 d. Lushingtonf. Bishop of Llandaff.. .. 331 d. Roby v. Maisey . . 407 d. Bruno r. Martyn .. 140 d. Biddulph v. MeaMn . . 14 d. Twining v. Muscott 363 Nepean v. . . . . 432 d. Christinas V. Oliver 266 r. Freestone v. Parratt . . 218 d. Lloyd v. Passingham 156 PAGE Doc d. Mansfield v. Peach . . 285 d. Pring v. Pcarsey . . 311 d, Flower v. Peck . . 383 d. Blight r. Pctt . . 397 d. Church v. Pontifex . . 315 d. Biddulph v. Poole 391 d. Starling v. Prince . . 194 d. Griffith v. Pritchard 66 d. Ilavne and his Majesty v. Eedfern . . 123 d. Molesworth v. Sleeman 483 d. Pearson v. Kics . . 376 d. Dixon v. Roe . . . . 235 d. Lumley r. Earl of Scar- borough . . . . 266 (1. Foster v. Scott . . 342 d. Strode v. Seaton . . 378 d. Blesard v. Simpson 345 d. Clarke v. Smaridge . . 374 d. Guttcridge v. Sowerby 360 d. Shaw v. Steward . . 390 d. Rayer p, Strickland 357 d. Peed v. Taylor . . 138 d. Lord Downe v. Thomp- son 406 d. Tofield v. Tofield . . 359 d. Bover v. Trueman . . 362 d. Lord Bradford v. Wat- kins 374 d. Leach r. Whittaker 360 d. Gregory v. Whichelo 101, 453, 462 d. Perry v. Wilson . . 350 d. Daniell V. Woodroffe 194 Donne v. Hart Dowman's case Downing College, Flack v. .. Downshire, Marquis of, v. Lady Sandys Drake, Souter v. .. Drybutter v. Bartholomew . . Duberley V. Day Du Hourmelin v. Sheldon Duke, Shcppard v. Dumpor's case 390 25 367 25 429 .. 8 391 .. 161 434 262, 381 Dungannon, Lord, Ker v.. . 306 Dunne r. Dunne .. ..32 Dunraven, Lord, v. Llewellyn 115, 310, 463, 474, 476, 478, 482, 484 Dunstan v. Tresider .. .. 484 Dyke v. Rendall . . . . 226 Eccles r. Cheyne Eddleston v. Collins 203 368 INDEX TO CASES CITED. Edmonds, Doe d. Curzon v Hilly. .. Edwards v. Burt v. Champion Ex parte Nanny v. Palmer v. v. Tuck . . Egerton v. Massey Ekins, Bailey v. Ehvell, Wainewright v. Elwes, Brudenell v. Elworthy, Tanner v. . . Ely, Dean of, v. Bliss Emery, Cooper v. Ennismore, Lord, Phipps Evans, Greenwood v. Siggers v. Exton v. Scott . . Eylet r. Land and Pers Eyre, Doe d. Blomfield v. v. Hanson Faithful, Warman v. . . Earebrother, Wodehouse v Farley v. Bonham Faulkner, Johnson v. r. Lowe Fenwick, In the Goods of Fernandes, Hemingway v Ferrers, case of Earl Festing v. Allen Few v. Backhouse Fishwick, Clegg v. Fitch v. Weber Flack v. Downing College Flarty r. Odium .. Fletcher v. Fletcher . Flight v. Gray Floyer, Attorney-General Flyn, Nash v. Foiston and Crachroode's Follett v. Moore . . r, Boneywood v. Fortune, Baird v. . . Fox V. Bishop of Chester France, ( looper /•. . . Franklin, Clarke >•. Freeman v. Phillippa Frend v. Buckley Fry o. Noble . . Fntroye, Kcnnard v. ■ ■ B.P. 42 PAGE . 433 390 . 437 58 . 120 409 . 388 306 . 271 78 . 361 50, 263 392 434 8, 437 91 392 209 114 344 288 409 376 171 227 318 181 200 379 8 261 315 392 64 367 92 144 171 298 144 483 416 364 313 829 449 292 •is I 429 292 419 227, 227, G. PAGE . 203 Gale, Griffiths v Gann v. The Freefishers of Whitstable Garland v. Jekyll Lester v. . . Garnett, Biley v. Gatacre, Doe d. Davies v. Gatcombe, Chapman v. Gathercole, Hawkins v. ■ . Gayfere, Dixon v. Gee, The Queen v.. . v. Smart Gent, Davison v. . . v. Harrison Gerrard, Grugeon v. .. ■ Gibbons v. Snape Gibbs, Wells v Gibson, Thibault r Gidding v. Gidding Giles, Doe d. Fisher v. Gimson, Worthington v. . . Gladwin, Doe d. Muston v. .. Glass v. Richardson Glasscock, Smith v. . - Glyn, Attorney-General v. Goddard v. Complin Goodman, Cooch v. Goodright d. Burton v. Rigby Goold, McCarthy v. ■ v. White Gordon v. Graham v. Whieldon Gostling, Baker v. Gower, Yellowly v. Grafton, case of Duke of . . Graham, Gordon v. — v. Graham . . . . Grand Junction Canal Com- pany, Dimes v. .. .. 363 Grange, Hill v 468 Grant, Ex parte .. .. 21 v. Mills .. .. 414 Graves v. Weld . . 27, :)7;{ Gray, Flight v 171 ( i razebrook, Rogers v. 405 Greaves v. Wilson .. .. 417 Green v. James . . . . 40G Miller v 318, 377 Re 387 Greenfield, Bonif ant v. .. 301 <. eenwood V. Evans .. 392 i .n\ , Pickersgill v. . . . . 366 Griffith v. Blnnt .. .. 305 Wynne?' 290 Griffiths v. Gale .. .. 203 Grose v. West :;i l 312 335 91 261 269 331 92 415 312 171 292 25 144 364 83 415 392 407 313 383 367 366 72 420 148 46 92 346 421 217 389 24 53 4^1 144 INDEX TO CASES CITED. PAGE Grosvenor, Lord, v. Eampstead Junction Railway Company 13 Groves, 1 >oe d. Walker v. .. 376 Grugeon v. Gerrard . . 144 Gubbins, Coppinger v. ■ • 24 Guesl r. Cowbndge Railway Company •• •• 86 Gnrney r. Gnrney . . . • 199 Gwinnell, Doe d. Riddel] v. 369 Gyde, Lingwood v. . • •• 364 II. Hackctt, Legg a 374 Badleston v. Whelpdale .. 392 Eaggerston v. Hanbury .. 193 Eaigb, Ex parte .. . • '■ I -I Bale r. Pew .. .. . • 265 Halford v. Stains . . . . 306 Hall r. Bainbridge . . . . 144 v. Cbandless .. .. 145 ■ Keech v. . . . . . . 407 v. Watcrhouse . . 216 Hallett, Attorney-General v. .. 276 Earner, Dickiu v. . . .. 224 Hamilton, Attorney-General v. 134 Hampstead Junction Railway Company, Lord Grosvenor v. 13 Hanbnry, Eaggerston v. .. 193 Handcock, Jolly v. .. 438 Hanson, Bj re o. .. . . 409 1>. Keating.. .. 391 Harconrt, Ainslie r. .. . . ."'J2 Harding v. Wilson .. 313 llanHnirc, Thompson v. .. 339 Harev. Bnrges .. .. 391 Hargreave, Scholes v. . . .. i~;5 Harnett v. Maitland . . 373 Harris v. Pugh . . . . 166 Harrison V. Blackburn .. 17(! ■ Gent v. . . . . 25 Norris v. . . 29 Rooper v. . . . . 328 Hart, Donne v 390 Hatch, Holford v 390 Hatchell, Morgan ». .. 119 Hatfield v. Thorp .. ..198 Hawkins, Dawes v. .. 311 /■. Gathercolc . . 92 Hay v. Karl of Coventry . . 50, 263 — - Eeald v 92 Haygarth, Taylor v. .. 161 Hayward, Williams v. . . 389 Eeald o. Hay .. . . 92 Helps v. Hereford . . . . 266 Heming, Cherry v. . . 148 Hemingway v. i'eraandes . . 379 PAGE Hereford, Helps v. . . 266 licit lord, Marquis of, Lord Southampton r. . . . . 306 Bibbert r. Cooke .. .. 31 Eiernw. Mill 89 Eigginson, Bird v. . . 375 Hill, Duke of Portland v. .. 340 v. Edmonds . • . . 390 v. Grange . . . . 468 W.Saunders .. .. 378 Stephenson v. .. 339,340 Woolf v 25 Ilinchcliffe v. Earl of Kinnoul 313 Hives, Adsetts v. .. .. 145 Ilobson, Stansficld v. . . . . 433 Hodgkinson v. Wyatt .. 415 Eodgson and Wife v. Ambrose 203 , 19, 63 .. 390 301 .. 389 261 .. 364 125 156, 275 421 .. 31 213 .. 298 285 .. 297 .. 281 .. 144 312 336 14 16G Hogan v. Jackson . . Eolford r. Hatch Holland, Rawley v. Holmes, Poultney v. . v. Prescott . . Honeywood v. Eorster Hook v. Hook Hopkins v. Hopkins . Ilopkinson, Rolt v. Horlock v. Smith Horn v. Horn Horner v. Swann Hovenden, Majoribanks v. Howell, Buckley v. Doe d. Harris v. Hughes, Rami v. Hull and Selby Railway, re Hulse, Anikews v. Humphries y. Brogden Hunt v. Coles Hunt in -don, Doe d. Reay v. 339, 340 Hurst V. Hurst 410 Hutchinson, Bearpark v. .. 319 Hyatt, Spyerw. .. .. 368 Hyde V. Dallaway . . . . 433 Iggulden v. ]\Iay .. .. "91 lngilby v. Amcotts . . 267 Ingram, Buckeridge v. . . 8 Irving, Cuthbertson v. .. 406 Isaac, re .. . . ..21 [sherwood v. Oldknow .. 236 Ives' case . . . . . . 391 . J. Jackson, Hogan r. .. 19,63 Lane v. . . 84 Oates d. Ilattcrlcy v. 131 INDEX TO CASES CITED. X).\ Jackson, Pitt v. James, Brougkton v. • Green v. r. Plant . . Komilly v. Jee v. Audley Jeffs v. Day Jekvll, Garland v. . . Jenkin v. Vivian John, Lewis v. Johnson, Bates v. v. Faulkner v. Johnson . . Shaw v. . . Johnston, Salkeld v. . . Jolly v. Handcock.. Jones, Ashton v. v. Davies Doe d. Baker v. . . Doe d. Duroure v. Doe d. Wigan v. . . v. Jones . . 22 • ». Robin . . Roe d. Perry r. v. Smith . . v. Tripp V. Williams Youle v. Jope r. Morshead Jordan, Whitbread v. PAGE .. 266 306 .. 406 313 .. 277 53 .. 171 335 .. 474 414 .. 420 318 .. 203 402 .. 434 438 .. 72 397 .. 383 64 .. 291 392, 420 .. 483 267 .. 411 421 .. 83 182 .. 352 414 K. Keating, Hanson v. Keech v. Hall Kemp, Doe d. Barrett v. Kennard v. Pntvoye Kenworthy v. Ward Keppel v. Bailey Ker v. Lord Dungannon Kerr v. Pawson King, The, v. Lord of the Manor of Oundle The, ■>■. Lord Yarborough King v. Smith . . . . 88, v. Tnrner.. Vandcrplank v. 265, Kbmoul, Earl of, Hinchcliffe r. Kite and Qucinton's case Knight, ]><»" d . Garnonfl v. Knowles, Stroyan v. .. L. Lamb, Purges v. Lambert, Cai i i . 391 407 311 419 131 379 306 354 368 312 166 350 266 313 359 111 14 25 173 PAGE Lampet's case . . . . 267 Lane v. Jackson . . . . 84 and Pers, Eylett v. . . 344 Thomas v. .. 13 Langford v. Selmes . . 388, 390 Lansley, Major v. .. .. 215 Law v. Urlwin . . . . 397 Lawes, Doe d. Winder v. 359, 366 Leak, Melling v. . . . • 373 Leeds, Duke of,«. Earl Amherst Legg v. Hackett . . v. Strudwick Leighton, Carleton v. Leman, Minet v. Leon, Rollason v. .. Lester v. Garland Lewis, Doe d. De Rutzen v. v. John Liddell, Barrington v. Lightfoot, Doe d. Roylance v. Lincoln, Bishop of, Bennett v. Lingen, re . . Lingwood v. Gyde Lisle, White v. Liversedge, Doe d. Johnson v. Llandaff, Bishop of, Doe d. Lushington v. .. •• 331 Llewellyn, Lord Dnnraven v. 115, 310, 463, 474, 476, 47S, 482, 484 374 374 267 310 375 91 383 414 306 405 329 21 354 482 432 v. Rous Lloyd v. Cheetham Lock v. De Burgh Lockyer v. Savage Long v. Blackall . . v. Storie Lowe, Faulkner ?•. . . Lucas v. Brandreth r. Dennison Lucena v. Lucena Luck, Beevor v. Lukin, Curtis r. Lumley, Lord Ward v. . Lyon v. Reed M. Machell v. Weeding . . Mackintosh v. Barber Mackretb v. Symmons Maclean, Bowser v. Macpherson, Brummell v, Magnay, Mines Royal cietiea v. Mainwaring v, Baxter Major v. Lansley Majoribanks '■. llovendcn Nairn V. • • 12 29 92 29 91 304 92 181 19 433 287 422 306 145 392 207 301 414 338 381 171 50 215 285 31 INDEX TO CASES CITED. Maisey, Doe A. Robey v. . . 4u7 Maitland, Harnett r. . . . . 373 Mandeville's case . . . . 25 1 Manners v. Charlesworth .. L34 Marks v. Marks . . . ■ 267 Marlborough, Duchess of, Br ice r 82, 120 Marston v. Roe d. Fox .. - i|f| .Martin v. SwanneU .. .Martvii, Doe d. Brune r. . . 1 10 r. Williams .. ..380 Massey, Egerton v. . . -71 Mathew v. Blackmore . . .. 418 Matthew v. Bowler .. ; 1 5 Maundrel] v. Maundrell Mawson, Barnes v. . . B3 May, Iggulden v. . . ..391 M'Carthy.0. Goold.. .. 92 M'Culloch, Russell v. . . 417 M'Donnell r. Pope.. .. 392 M'Gregor v. M'Gregor .. 131 Meads, Taylor v 216 Meakin, Doe d. Biddulph v. .. 14 Melling r. Leak . . . . 373 Mellor v. Spateman .. 464,467 IS Terry, Day i: Merryweather, Saunders v. Mestayer v. Biggs . . Metcalfe's Trusts, re . . Mens, Baggett v. . . Micklethwait o. Micklethwait Mid Kent Railway, Be, Ex parte Sty an Middleton, Lord, Attorncy-Ge ueral o. Mildmay, Bex v. . . Mill, Hiemr 89 Miller r. Green .. 318,377 Millership v. Brookes . . . . 144 Mills, Curling v. .. .. 375 Grant v. .. .. ..414 Paterson V. . . . . 456 Mines Royal Societies v. Mag' nay Minct v. Leman Minshull r. Oakcs Mogg v. Mogg Moleyn's, Sir John de, case . Mollett, Tidy r Monypenny v. Dering.. 26 Moore, Pollctt v. . . Pollexfen v. . . Morgan, Corder v.. v. flatchell Morrell, Scoonc-s v. Morris, Bickett v. r. Morris . Morshead, Jope v. 406 315 23 216 261 171 310 379 260 82 375 265 Mil '1 1 410 119 311 : L2 25 PAGE Morton, Smart v. .. . . I I Motley, Andrew v 200 Mnggleton v. Barnett .. 98, 443 Muscott, Doe d. Twining v. .. 363 N. Nairn r. Majoribanks . . .. 31 Nanny r. Edwards. . • • 409 Nash r. Elyn .. . . . . 144 Nepeanv. Doe .. •• 132 Newman v. Newman .. .. 305 r. Selfe .. .. 410 New Kiver Company, Davall v. 161 Newton v. Rieketts . . . . 286 Nickells v. Atherstone . . 392 Nicolson v. Wordsworth 93, 209 Nixon, Scott v. . . . • 434 Noble, Fry v 227,292 Noel v. Bewley .. ..271 Soke's case .. .. 425 Norris v. Harrison .. ..29 Robertsons. .. 214 North, Potter v 484 Norton, Simmons v. .. 24 Norwood, Crump d. Wooley v. 125 O. Oakcs, Minshull r 379 < lates d. Hatterley r. Jackson 131 Odium, Flarty r 92 Oldknow, Isherwood V. . . 236 Oliver, Doe d. Christmas v. 266 ( bundle, Lord of Manor of, The King r 368 Oxford, Earl of, Beavan v. . . 84 Owen, De Beauvoir r. . . 431 Padget, Vint v. .. ..122 Page, Wilson r 483 Pain, Ridout v. .. . . 7 Paine's case . . . . 192 Palmer, Cadell v. . . 51,304 r. Edwards .. 388 Parker v. Carter .. .. 220 Colvile v 76 v. Dee . . . . . . 78 v. Taswell . . . . 375 Parmenter v. Webber .. . . 388 Parratt, Doe d. Freestone v. 218 Parsons, Attorney-General '•. 1 1 •">, 334 INDEX TO CASES CITED. Parsons, Zouch v. . . Pascoe v. Pascoe Pass, Dennett v. . . Passingham, Doe d. Lloyd v. ■ app., Pitty, resp. Pate r. Brownlow Patrick, Shedden v. Patterson v. Mills Pawson, Kbit v. .. Paxton, Cholmeley v.. . Payne v. Barker Peach, Doe d. Mansfield v. Peacock, Whitton v. Pearce r. Cheslyn Pearsey, Doe d. Pring v. . . Peck, Doe d. Flower v. Pepler, Taunton v. Peppercorn v. Wayman . . Perrin v. Blake . . 20." PeiTvman's case Pett," Doe d. Blight r. . . Pettitt, Stratton v. Petty v. Styward Pew, Hale v. Pheysey v. Vicary Phillips, Acocks v. Cousins r. ————— Duke of Beaufort v. v. Phillips . . v. Smith PAGE 65 389, 300 321 156 341 473 64 456 354 25 447 285 406 376 311 383 148 367 245 341 397 375 416 265 313 235 239 83 361 23 484 91 336 23 145 420 L93 266 340 313 29 415 414 389 Phillipps, Freeman v. • • Phipps v. Lord Ennismore Pickersgill v. Grey Pidgeley v. Pawling Pigot's case Pike, Wilmot v. . . Pincke, Shove v. Pitt v. Jackson Pitty, resp., Passingham, app. Plant, James v. Plummer v. Whiteley . Pocknell, Buckland v. Pollexfen v. Moore Pollock r. Stacy . . Ponifret, Earl of, r. Lord Wind- sor .. .. .. 373 Pontifex, Doe d. Church v. 316 Poole v. Bentley .. .. 376 Doe d. Biddulph v. . . 39 1 Pope, M'Donnell v 392 Portington's, Mary, ca , . 46 Portland, Duke of, v. Hill .. 340 Potter v. North .. Ponltnej v. I [olmea . . . . 389 Powell, Pritchard v. ..' Powya v. Blagrave . . . . '-' I Prat».CoU .. •• 161 Preece *•. Corrie . . •• 389 PAGE Prescott, Holmes v. . . 261 Price, Curtis v 250 v. Worwood . . . . 383 Prickett, Steel v. . . 312, 483 Prince, Doe d. Starling v. 194 Pritchard, Doe d. Griffith r. . . 66 v. Powell . . 466, 482 Shaw v 92 Protheroe, Damerell v. . . 351, 4S2 Provost of Beverley's case .. 248 Pugh, Harris v 166 Pung, Pay v 291 Purvis v. Payer . . . . 429 Q- Queen, The, v. Corbett v. Lady of Manor Dallingham v. Gee v. Wilson Queen's College, Warwick % Queinton, case of Kite and of 367 366 312 367 463 359 K. Rabbits, Wiltshire v 420 Pandfield v. Randfield . . 366 Eann v. Hughes . . . . 1 44 Rawe v. Chichester . . 392 Rawley v. Holland . . . . 301 Rawling, Pidgeley v. . . 23 Ray v. Pung .. .. .. 291 Rayer, Purvis v. . . . . 429 Redfern, Doe d. Hayne and His Majesty r 123 Reed, Lyon r 392 Reeve, Bennett v. .. 464,467 Regina v. Lady of Manor of Dallingham .. .. 366 Rendall, Dyke v 226 Rex v. Mildmav, Dame Jane St. John.. .. 359 V. Oundle, Lord of Manor of .. .. 368 r. Lord Yarborough . . 312 Reynolds v. Wright .. 319 Rhodes, Barlow v. .. .. 313 v. Whitehead .. 261 llicliardson, Cottcc r. . . Glass v. .. ;;t'>7 Walker v. .. 72 Rickett's Trusts .. .. ^f, Ricketts, New Inn v. ■ ■ 286 Riddel! r. Riddel! .. •• 426 Rider v. Wood.. .. 126,447 INDEX TO CASES CITED. PAGE Eidout r. Bain . . . . 7 Eics, Doc d. rcarsnii /•. .. 376 Rigby, Goodrigbt d. Barton o. 46 Elight \\ botham v. Wilson.. Rowe, Calmady v. . • Rowley v, Adams Rudall, Warren v. . . Russell v. M'Culloch . . r. Russell . . Webb r. 318 391 235 200 267 405 14 375 389 421 277 328 386 375 306 29 14 312 3S0 24 417 414 239 S. Sabine, Bellamy* 89 Salisbury, Marquis of, Beau- mont «... . . • ■ 388 Salkeld, Johnston r. . . ..434 Sandaman, Clements v. .. 94 Sandys, Lady, Marquis of Downshire v. Saunders, Hill v. . . Merryweather Savage, Adams v. Lockyer v. Saward v. Anstey , Scarborough v. Borman Earl of, Doc Lumley v. Scarisbrick ?•. Skelmersdalc Scholcs v. Hargreaves .. 25 378 .. 406 301 .. 91 318 92, 216 d. 266 .. 30G 473 TAGE Scoones v. Morrell .. ..311 Scott, Exton v. .. .. 144 Doe d. Foster v.. . . . 3 I -' v. Nixon . . . . 434 Scratton v. lb-own . . . . 312 Seaton, Due <1. Strode r. .. 378 Seaward v. Willock .. ..265 Sefton, Earl of, v. Court . . 468 Self e, Newman v. .. -• 400 Selmes, Langford v. . . 388, 390 Sewell,Cole« 263,264 Sharpc, Clay r 410 Sbaw v. Jobnson .. .. 402 v. Pritchard .. .. !»-' Sbedden v. Patrick . . . . (>4 Sheldon, Du Hourmclin v. 161 Shelley's case 243, 246, 25 1 , 254 Sbeppard v. Duke . . .. 434 Shove v. Bincke .. ..193 Shrapncll r. Blake.. .. Ill Shum, Taylor v. . . . . 380 Sibthorpe, Attorney-General v. 275 Siggers v. Evans . . . . 209 Simmons v. Norton . . 24 Simpson, Doe d. Blesanl v. . . 345 r. Dendy . . 311 Sims v. Thomas . . . . 166 Sitwell, Attorney-General v. 328 Skelmersdale, Scarisbrick v. . . 306 Skipwith, Duke of St. Albans v. 24 Sleeman, Doe d. Molesworth v. 483 Smaridge, Doe d. Clarke v. 374 Smart, Gee v. .. .. ..171 v. Morton .. .. 14 Smith, Ackroyd v 313 v. Adams . . . . 369 r. Earl Brownlow . . 463 v. Death . . . . 298 v. Glasscock . . . . 366 Ilorlock v. . . . . 32 Jones v. . . . . 414 Ring v. . . 88, 166 Phillips V 23 r. Watts . . . . 390 Wilcox v. . . . . 275 Smyth, ex parte . . . • 28 Suiythe, Attorney-General v. 275 Snape, Gibbons r. . . . . 364 Sodor and Man, Bishop of, Vincents. .. .. .. 285 Souter v. Drake . . . . 429 Southampton, Lord, v. Marquis of Hertford 306 Sowerby, Doe d. Gutteridge v. 360 Sparke, Weeks v. . . . . 466 Spateman, Mellor v. . .404, 467 Spencer's case . . . . 379, 425 Spilsbury, Doc d. Burdctt v. 286 INDEX TO CASES CITED. Spyer v. Hyatt Stables, Blackburn v. . . Stacy, Pollock v Stafford, Earl of, r. Buckley Stains, Halford v. Stansfield v. Hobson . . Steel v. Prickett . . StephensoD, Cooper v. v. Hill PAGE 368 . 200 389 . 41 306 .. 433 312, 483 .. 439 .339,340 .. 390 Steward, Doe d. Shaw i Stordy, Rittson v. . . . . 161 Storie, Long v. . . . . 92 Stratton v. Pettitt . . . . 375 Strickland, Doe d. Raver v. . . 357 v. Strickland . . 210 Stroyan v. Knowles . . . . 14 Strudwick, Legg v. . . 374 Stvan, Ex parte . . . . 261 Styward, Petty v 416 Swann, Horner v. . . . . 298 Swannell, Martin v. . . 208 Swansea, Mayor, &c. of, Duke of Beaufort v. . . . . 312 Swift v. Swift . . . . 10 Symmons, Mackreth v. . . 414 Symonds, Beale r. . . . . 161 T. Tabor v. Tabor . . . . 371 Taltarum's case . . . . 43 Tanner, Chapman r. . . .. 414 v. Elworthy . . 392 Taswell, Parker v. . . . . 375 Taunton v. Pepler . . . . 148 Taylor v. Hay garth .. ..161 Doe d. Reed v. . . 138 v. Meads . . . . 216 i Rogers v. .. . . 14 v. Shum . . . . 380 Tempest v. Tempest .. 199 Tetley v. Tetley .. ..315 Tliibault v. Gibson .. 415 Thomas v. Lane .. .. 13 Sims v. . . . . 166 Thompson, resp., Busher, ay)]). 340 Doe d. Lord Downer. 406 Doddst» 318 • v. Hardinge .. 839 Thorn v. Woollcombe.. .. 388 Thornborongh v. Baker .. 371 Thorp, Eatfield r 198 Tidy v. Mollett .. .. 376 Tierney r. Wood . . .. L62 Tiverton Marker, Act, in re 129 Tofield, Doe d. Tofield v. .. 869 Tollcmache V. Tolleinaehe 26 PAGE Tomlin, Lord Bolton v. .. 375 Tooker v. Annesley 25 Tresider, Dunston v. . . .. 484 Tripp, Jones v. 421 Trower v. Butts .. 260 Trueman, Doe d. Bovcr v. 362 Trulock v. Robey .. 433 Trye, Lord Aldborough v. 437 Tuck, Edwards v. .. 306 Tullett v. Armstrong . 92,216 Tunstal v. Boothhy .. 92 Turner, King v. 350 Tutton v. Darke .. 235 Twyne's case 76 Tyrringham's case 473, 475, 476 IT. Upton v. Bassett Urch r. Walker Urlwin, Law v. 76 209 397 V. Vanderplank v. King 265 266 Vaughan, Viner v. . . 24 Vicary, Pheysey v. 313 Vickers v. Cowell . . 416 Vincent v. Bishop of Sodor and Man . . . . 285 Viner v . Vaughan 24 Vint v. Padget . . 422 Vivian, Jenkin v. 474 Vyvyan v. Arthur .. 380 w. Wadham, Roach v 290 Wadkin, Barrow v. .. 161 Wainewright v. Elwcll . . 361 Wakeford, Wright v. 285, 286 Waldo w.Waldo .. ..25 Walker v. Richardson . . 72 Urch v. . . . . 209 Ward, Berridge v.. . . . 311 Kenworthy v. . . ..131 Lord, v. Luniley . . 145 Warde, Bristow v. .. . . 265 Wardle v. Brocklehurst .. 313 Ware /■. Cann . . . . . . 18 Warman v. Faithful! . . 376 Warren v. Budall .. .. 24 Warwick y. Queen's College 463 Waterhouse, Hall v 216 Watkins, \)>m : .. 261 Wbiteley, Plummer v. . . 29 Whitfield r. Bewit .. .. 23 Whitstable, The Freefishers of, r. Gann 312 Whittaker, Doe d. Leach v. . . 360 Whitton v. Peacock . . 406 Wilcox v. Smith .. .. 275 Willan, Chester v. . . 132 Williams v. Bosanqnet .. 379 v. Hayward . . 389 Jones v. . . 83 Martyn v. . . 380 Willis v. Brown .. ..187 Willock, Seaward v. . . 265 Willoughby v. Willonghby .. 490 Wills v. Cattling . . '. . 390 Wilmot v. Pike .. ..420 Wilson, Bcardmore v. . . 388 Wilson, Doe d. Perry v. Greaves v. Harding v. r. Page Rowbotham v. The Qneen v. v. Wilson Wiltshire v. Rabbits Windsor, Lord, Earl of fret v. Winter v. Lord Anson Wishart v. Wylie .. AYodehouse v. Farebrother Wood v. Copper Miner pany Rider v. Tieniey v. Woodgate, Bingham v. Woodroffe, Doe d. Daniell Woolf v. Hill WooUcombe, Thorn v. Wordsworth, Nicolsou v. Worthington v. Gimson Worwood, Price v. Wright v. Barlow ■ v. Burroughes Reynolds v. r. Wakeford Wyatt, Hodgkinson v. Wylde, re . . Wylie, Wishart v. Wynne v. Griffith . . I'Ai.i; . . 350 417 , . 313 483 . 14 367 ,. 306 420 Pom- 373 414 312 171 Com- .. 171 126,447 .. 162 340 »... 194 25 .. 388 93, 209 .. 313 383 .. 285 236 .. 319 285, 286 .. 415 217 .. 312 290 Tarborough, Lord, Rex v. . . 312 Yates v. Aston . . . . 418 v. Boen .. .. ,.65 Bridge r 131 Yellowly v. Gower . . . . 24 York, Ai - chbishop of, Roe d. Earl of Berkeley . . . . 391 Youle v. Jones . . . . 182 Zouch v. Parsons . . . . 65 PRINCIPLES LAW OF EEAL PKOPEBTY, INTRODUCTORY CHAPTER. OF THE CLASSES OF PROPERTY. In the early ages of Europe, property was chiefly of a Property at substantial and visible, or what lawyers call, a corporeal ^f 1 ^ l y kind. Trade was little practised (a), and consequently debts were seldom incurred. There were no public funds, and of course no funded property. The public wealth consisted principally of land(i), and the houses and buildings erected upon it, of the cattle in the fields, and the goods in the houses. Now land, which is im- Land inde- moveable and indestructible, is evidently a different structlb e - species of property from a cow or a sheep, which may be stolen, killed, and eaten ; or from a chair or a table, which may be broken up or burnt. No man, be he ever so feloniously disposed, can run away with an acre of land. The owner may be ejected, but the land re- mainfi where it was; and he, who has been wrongfully turned out of possession, may be reinstated into the identical portion of land from which he had been re- moved. Not so with moveable property ; the thief Moveables destructible. (a) 3 Ilallam's Middle Ayes, (b) 1 Ilallaui's Middle Ages, 867—369, 158. E.P. B INTRODUCTORY CHAPTER. may be discovered and punished; but if lie has math; away with the goods, no power on earth can restore them to their owner. All he can hope to obtain is a compensation in money, or in some other article of equal value. Moveable and immoveable. Moveable and immoveable (c) is then one of the sim- plest and most natural divisions of property in times of but partial civilization. In our law this division has been brought into great prominence by the circum- stances of our early history. The Xorman conquest. By the Norman conquest, it is well known a vast number of Norman soldiers settled in this country. The new settlers were encouraged by their king and master; and whilst the conquered Saxons found no favour at court, they suffered a more substantial griev- ance in the confiscation of the lands of such of them as had opposed the Conqueror (d). The lands thus confiscated were granted out by the Conqueror to his followers, nor was their rapacity satisfied till the greater part of the lands in the kingdom had been thus disposed of (e). In these grants the Norman king and his vassals followed the custom of their own country, or what is called the feudal system (f). The lands granted were not given freely and for nothing ; but they were given to hold of the king, subject to the performance of cer- tain military duties as the condition of their enjoy- ment {g). The king was still considered as in some sense the proprietor, and was called the lord para- mount (A) ; while the services to be rendered were (c) Quandoque res mobiles, ut 2 Black. Com. 48. cattalla, ponuntur in vadium, quandoque res Unmobiles, ut ter- ra', et tcnementa, et redditus. Glanville, lib. x. c. 6. See also lib. vii. c. 16, 17. (d) Wright's Tenures, 61, 62 : (e) 2 Hallam's Middle Ages, 424. (/) Wright's Tenures, G3. (//) 1 Hallam's Middle Ages, 178, 179, note. (/;) Coke upon Littleton, 05 a. OF THE CLASSES OF PEOPERTY. i regarded as incident or annexed to the ownership of the land ; in fact, as the rent to be paid for it. This feudal system of tenures, or 'holding of the Introduction (. . -ni^iT of the feudal knag, was soon afterwards applied to ail other lands, system. although they had not been thus granted out, but re- mained in the hands of their original Saxon owners. How this change was effected is perhaps a matter of doubt. Sir Martin Wright (i), who is followed by Blackstone (k), supposes that the introduction of tenures, as to lands of the Saxons, was accomplished at a stroke by a law(Z) of William the Conqueror, by which he required all free men to swear that they would be faithful to him as their lord. " The terms of this law," says Sir Martin Wright, " are absolutely feudal, and are apt and proper to establish that policy with all its consequences." Mr. Hallam, however, takes a different view of the subject ; for while he considers it certain that the tenures of the feudal system were thoroughly established in England under the Conqueror (m), he yet remarks that by the trans- action in question an oath of fidelity was required, as well from the great landowners themselves as from their tenants, " thus breaking in upon the feudal com- pact in its most essential attribute, the exclusive de- pendence of a vassal upon his lord "(?*). The truth 0") Wright's Tenures, 64, 65. (») 2 Hallam's Middle Ages, (k) 2 Black. Com. 49, 50. 430. Mr. Hallam refers to the (I) The 52nd. Statuimns ut Saxon Chronicle, which gives the mimes liberi homines fcedere et following account: — Fostea sic sacramento affirment, quod intra itinera disposnit ut p'ervenerit in et extra aniversnm regnnm An- festo Primitiaram ad Searebyrig gUte Wilhelmo regi domino suo (Sarnm), obi ei obviam veneront fideles esse rolunt; terras ei ho- ejus proceres; et munis pradia nores illins omni fidelitate nbiqne tenentes, quotquot essent notes reenmeo, el contra inimicos melioris per totam Angliam, liu- et alienigenas defendere. jusTiri servi Enernnt,omnesqnese (m) 2 Hallam's .Middle Ages, illi Bnbdidere, ejnsqne facta sunt, 129, \a.--ali, ac ei iidclkatis juiaincuta b2 INTRODUCTORY CHAPTER. appears to be that Norman customs, and their up- holders and interpreters, Norman lawyers, were the real introducers of the feudal system of tenures into the law of this country. Before the conquest, land- owners were subject to military duties (0); and to a soldier it would matter little whether he fought by reason of tenure, or for any other reason. The distinc- tion between his services being annexed to his land, and their being annexed to the tenure of his land, would not strike him as very important. These matters would be left to those whose business it was to attend to them ; and the lawyers from Normandy, without being particularly crafty, would, in their fondness for their own profession, naturally adhere to the precedents they were used to, and observe the customs and laws of their own country ( p). Perhaps even they, in the time of the Conqueror, troubled themselves but little about the laws of landed property. The statutes of William are principally criminal, as are the laws of all half-civilized nations. Life and limb are of more im- portance than property ; and when the former are in danger, the security of the latter is not much regarded. AYhen the convulsions of the conquest began to subside, the Saxons felt the effects of the Norman laws, and cried out for the restoration of their own ; but they were the weaker party and could not help themselves. By this time the industry of the lawyers had woven a net from which there is no escaping (y). But in prsestiterunt se contra alios quos- England, vol. ii. 115, appendix ii. cunque illi fidos futures. — Sax. on the Feudal and Anglo-Norm an Chron. anno 1086. government and manners. A spe- (0) Sharon Turner's Anglo- cimen of this language, which was Saxons, vol. ii. app. iv. c. 3, 560 ; often curiously intermixed by our 2 Hallam's Mid. Ages, 410. lawyers with scraps of Latin and (jj) The Norman French was pure English, will be given in a introduced by the Conqueror as future note, the regular language of the courts (q) 2 Hallam's Middle Ages, of law. See Hume's History of 468. OF TIIE CLASSES OF PROPERTY. O what precise manner tenures crept in, was a question perhaps never asked in those days ; and if asked, it could not probably, even then, have been minutely answered. The system of tenure could evidently only exist as to lands and things immoveable (r). Cattle and other moveables were things of too perishable and insigni- ficant a nature to be subject to any feudal liabilities, and coidd therefore only be bestowed as absolute gifts. No duty or service could well be annexed as the con- dition of their ownership. Hence a superiority became attached to all immoveable property, and the distinction between it and moveables became clearly marked; so that, whilst lands were the subject of the disquisitions of lawyers (s), the decisions of the Courts of justice (t) and the attention of the legislature (u), moveable pro- perty passed almost unnoticed (x). Lands, houses, and immoveable property, — things Lands, tene- capable of being held in the way above described, — hereditaments were called tenements or tilings held(y). They were also denominated hereditaments, because, on the death of the owner, they devolved by law to his heir (z). So that the phrase, lands, tenements and hereditaments, was used by the lawyers of those times to express all sorts of property of the first or immoveable class ; and the expression is in use to the present day. The other, or moveable class of property, was known Goods and chattels. (r) Co. Litt. 191 a, n. (1), II. 2. (y) Constitutions of Clarendon, (a) See Treatises of Glanvillc, Art. 9 ; Glanville, lib. ix. cap. 1, Bracton, Britton, and Flcta; the 2, 3, passim; Bracton, lib. 2, fol. Old Tenures, and the Old Natura 2G a; stats. 20 Hen. III. c. 4 ; 13 Brevium. Edw. I. c. 1; Co. Litt. 1 b; Shep. (t) See the Ycar-Books. Touch. 91. (//; Sic the Statutes. (z) Co. Litt. G a; Shep. Touch. (x) 2 Black. Com. 384. 91. 6 INTRODUCTORY CHAPTER. by the name of goods or chattels. The derivation of the word chattel has not been precisely ascertained (a). Both it and the word goods arc well known to be still in use as technical terms amongst lawyers. Tenements. So great was the influence of the feudal system, and so important was the tenure or holding of lands, whe- ther by the vassals of the crown, or by the vassals of those vassals, that for a long time immoveable property was known rather by the name of tenements than by any other term more indicative of its fixed and inde- structible nature (6). In time, however, from various causes, the feudal system began to give way. The growth of a commercial spirit, the rising power of towns, and the formation of an influential middle class, t f, I 'combined to render the relation of lord and vassal any- thing but a reciprocal advantage ; and at the restora- tion of King Charles II. a final blow was given to the whole system (e). Its form indeed remained, but its spirit was extinguished. The tenures of land then became less burdensome to the owner, and less trouble- some to the law student ; and the Courts of law, in- stead of being occupied with disputes between lords and tenants, had their attention more directed to contro- versies between different owners. It became then more obvious that the essential difference between lands and goods was to be found in the remedies for the depri- vation of either ; that land could always be restored, but goods could not ; that, as to the one, the real land itself could be recovered ; but as to the other, proceed- ings must be had against the person who had taken them away. The two great classes of property accord- ingly began to acquire two other names more charac- teristic of their difference. The remedies for the («) See 2 Black. Com. 385. 13 Edw. I. c. 1 ; sec Co. Litt. (b) It is the only word used in 19 b. the important statute Dc Donis, (c) By statute 12 Car. II. c. 24. OF THE CLASSES OF PROPERTY. recovery of lands had long been called real actions, and the remedies for loss of goods personal actions (d). But it was not until the feudal system had lost its hold, Real and that lands and tenements were called real -property, P crSLJlla • and goods and chattels personal property (e). It appears then, that lands and tenements were de- signated, in later times, real property, more from the nature of the legal remedy for their recovery than simply because they are real things ; and, on the other hand, goods and chattels were called personal property because the remedy for their abstraction was against the person who had taken them away. Personal pro- perty has been described as that which may attend the owner's person wherever he thinks proper to go(f), but goods and chattels were not usually called things personal till they had become too numerous and im- portant to attend the persons of their owners. The terms real property and personal property are now more commonly used than the old terms tenements and hereditaments, goods and chattels. The old terms were, indeed, suited only to the feudal times in which they originated ; since those times great changes have (d) Glanville, lib. x. c. 13; personalis the expression "things, Bracton, lib. iii. fol. 101 b, par. 1 ; -whether real, personal or mixed," 102 b, par. 4; Britton, lb; Fleta, in Co. Litt. 1 b and 6 a, and in lib. i. c. 1; Litt. sects. 444, 492; Touchstone, p. 91, an expression Co. Litt. 284 b, 285 a ; 3 Black. which has an obvious reference to Com. 117. the division of actions into the (c) The terms lands and tene- same three classes. In the early ments, goods and chattels, are part of the last century, the terms iitly used in Coke upon real and personal, as applied to Littleton and Sheppard's Touch- property, were in common use. stone, both of them works coin- See 1 P. Wms. 563, 575, anno piled in the early part of the 17th 1719; Ridout v. Pom, 3 Atkyns, century. The nearest approxima- 486, anno 1717. tiun the writer can find in either (/) 2 Black. Com. 16, 834; of the above books bo the now 3 Black. Comm. 144. common division into real and INTRODUCTORY CHATTER. taken place, commerce lias been widely extended, loans of money at interest have become common (g), and the funds have engulfed an immense mass of wealth. Both classes of property have accordingly been increased by fresh additions ; and within the new names of real and personal many kinds of property are now included, to which our forefathers were quite strangers ; so much so that the simple division into immoveable tenements and moveable chattels is lost in the many exceptions to which time and altered circumstances have given rise. Thus, shares in canals and railways, which are suffi- ciently immoveable, are generally personal property (A); funded property is personal ; whilst a dignity or title of honour, which one would think to be as locomotive as its owner, is not a chattel but a tenement (i). Canal and railway shares and funded property are made per- sonal by the different acts of parliament under the authority of which they have originated. And titles of honour are real property, because in ancient times such titles were annexed to the ownership of various lands (A). But the most remarkable exception to the original ride occurs in the case of a lease of lands or houses for a term of years. The interest which the lessee, or person who has taken the lease, possesses, is not his real(Z), but his personal property; it is but a chattel (m), though the rent may be only nominal, and the term ninety or even (g) Such loans were formerly (0 Co. Litt. 20 a, n. (3) ; Earl considered unchristian. Glanville, Ferrer's case, 2 Eden, Appendix, lib. 7, c. 16; lib. 10, c. 3; 1 p. 373. Reeves's History, 119, 2G2. (k) 1 Hallam's Middle Ages, (/() New River shares are an 158. exception, Drybutter v. Bartho- (J) Bracton, lib. 2, fol. 27 a, lomerv, 2 P. Wms. 127; see also par. 1, Buckeridge v. Ingram, 2 Ves. (w) Co. Litt. 46 a; correct Lord jun. 6.12 ; Bllgh v. Brent, 2 You. Coke's reference at note (?«.), from & Coll. 268. ass. 82 to ass. 28. OF THE CLASSES OF PROPERTY. a thousand years. This seeming anomaly is thus ex- plained. In the early times, to which we have before referred, towns and cities were not of any very great and general importance ; their influence was local and partial, and their laws and customs were frequently pe- culiar to themselves (?i). Agriculture was then, though sufficiently neglected, yet still of far more importance than commerce ; and from the necessities of agriculture arose many of our ancient rules of law. That the most ancient leases must have been principally farming leases, is evident from the specimens of which copies still re- main (o), and also from the circumstance that the word farm applies as well to anything let on lease, or let to farm, as to a farm house and the lands belonging to it. Thus, we hear of farmers of tolls and taxes, as well as of farmers engaged in agriculture. Farming in those days required but little capital (p), and farmers were regarded more as bailiffs or servants, accountable for the profits of the land at an annual sum, than as having any property of their own (q). If the farmer was ejected from his land by any other person than his landlord, he could not, by any legal process, again obtain possession of it. His only remedy was an action for damages against his landlord (r), who was bound to warrant him quiet possession (5). The farmer could therefore be scarcely said to be the owner of the land, even for the term of the lease ; for his interest wanted the essential incident of real property, the capability of being restored to its owner. Such an interest in land had, moreover, (n) See as a specimen, Bac. 349. Abr. tit. Customs of Loudon. (q) Gilb. Tenures, 39, 40; (0) See Madox's Formulare Watkins on Descents, 108 (113, Anglicanum, tit. Demise for Years, 4th edit.); 2 Black. Com. 141. in which the great majority of (/•) 3 Black. Com. 157, 158, leases given are farming leaf 200. (/;) See as to the bad state of (.<;) Bac. Abr. tit. Leases and agriculture, 3 Dallam's Middle Terms for Years, and Covenant, Ages, 305; 2 Hume's Hist, Eng. (B). 10 INTRODUCTORY CHARTER. nothing military or feudal in its nature, and was, con- sequently, e\< in] it from the feudal rule of 'descent to the eldest son as heir at law. Being thus neither real pro- perty, nor feudal tenement, it could be no more than a chattel ; and when leases became longer, more valuable, and more frequent, no change was made ; but to this day the owner of an estate for a term of years possesses in law merely a chattel. His leasehold estate is only his personal property, however long may be the term of years, or however great the value of the premises comprised in his lease {t). There is now perhaps as much personal property in the country as real ; possibly there may be more. Real property, however, still retains many of its ancient laws, which invest it with an interest and importance to which personal property has no claim. Of these ancient laws one of the most conspicuous is the feudal rule of descent, under which, as partially modified by amending acts(w), real property goes, when its owner dies intestate, to the heir, while personal property is distributed under the same circumstances, amongst the next of kin of the in- testate by an administrator appointed for that purpose by the Court of Probate (x). Corporeal and Besides the division of property into real and per- incorporeaL sonal, there is another classification which deserves to be mentioned, namely, that of corporeal and incorporeal. It is evident that all property is either of one of these classes, or of the other ; it is either visible and tangible, (t) Qvwre, however, whether v. Bclaney, L. R., 2 Ch. Ap. 138. Lord Coke would have agreed (u) 3 & 4 Will. IV. c. 10G, that a lease for years is personal amended by stat. 22 & 23 Vict. property or personal estate, though c. 35, ss. 19, 20. it is now clearly considered as (,*•) Established by stat. 20 & such; and see Swift v. Swift, 1 De 21 Vict. c. 77, amended by stat. Gex, F. & J. 1G0, 173 ; Belaney 21 & 22 Vict. c. 95. OF TIIE CLASSES OF PROPERTY. 1 1 or it is not (;/). Thus a house is corporeal, but the annual rent payable for its occupation is incorporeal. So an annuity is incorporeal ; " for, though the money, which is the fruit or product of this annuity, is doubt- less of a corporeal nature, yet the annuity itself, winch produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand"(z). Corporeal property, on the other hand, is capable of manual transfer; or, as to such as is immoveable, possession may actually be given up. Fre- quently the possession of corporeal property necessarily involves the enjoyment of certain incorporeal rights; thus the lord of a manor, which is corporeal property, may have the advowson or perpetual right of presen- tation to the parish clnu'ch ; and this advowson, which, being a mere right to present, is an incorporeal kind of property, may be appendant or attached, as it were, to the manor, and constantly belong to every owner. But, in many cases, property of an incorporeal nature exists apart from the ownership of anything corporeal, form- ing a distinct subject of possession ; and, as such, it may frequently be required to be transferred from one person to another. An instance of this separate kind of incor- poreal property occurs in the case of an advowson or right of presentation to a church, when not appendant to any manor. In the transfer or conveyance of in- The distinction corporeal property, when thus alone and self-existent, wa s , * n jr e formerly lay the practical distinction between it and transfer. corporeal property. For, in ancient times, the impossi- bility of actually delivering up any thing of a separate incorporeal nature, rendered some other means of con- veyance necessary. The most obvious was writing; which was accordingly always employed for the pur- pose, and was considered indispensable to the separate (y) I'.nicf. lib. 1, C. 12, par. •'! ; c. 1, sec. I. lil.. -J, c. 5, par. 7; Fleta, lib. ::, (z) 2 li lack. Com. 20. 1 2 INTRODUCTORY CHAPTER. transfer of every thing incorporeal (a) ; whilst the transfer of corporeal property, together with such in- corporeal rights as its possession involved, was long permitted to take place without any written docu- ment (b). Incorporeal property, in our present highly artificial state of society, occupies an important posi- tion ; and such kinds of incorporeal property as arc of a real nature will hereafter be spoken of more at large. But for the present, let us give our undivided attention to property of a corporeal kind ; and, as to this, the scope of our work embraces one branch only, namely, that which is real, and which, as we have seen, being descendible to heirs, is known in law by the name of hereditaments. Estates or interests in corporeal here- ditaments, or what is commonly called landed property, will accordingly form our next subject for consideration. (a) Co. Litt. 9 a. (b) Co. Litt. 48 b, 121 b, 143 a, 271 b, n. (1). ( 13 ) PART I. OF CORPOREAL HEREDITAMENTS. Before proceeding to consider the estates which may Terms of the be held in corporeal hereditaments or landed property, law - it is desirable that the legal terms made use of to de- signate such property should be understood; for the nomenclature of the law differs in some respects from that which is ordinarily employed. Thus a house is A messuage. by lawyers generally called a messuage ; and the term messuage was formerly considered as of more extensive import than the word house (a). But such a distinc- tion is not now to be relied on (b). Both the term messuage and house will comprise adjoining outbuild- ings, the orchard, and curtilage, or court yard, and, according to the better opinion, these terms will include the garden also (c). The word tenement is often used Tenement. in law, as in ordinary language, to signify a house : it is indeed the regular synonym e which follows the term messuage ; a house being usually described in deeds as " all that messuage or tenement." But the more comprehensive meaning of the word tenement, to which we have before adverted (d), is still attached to it in legal interpretation, Avhenever the sense requires (e). {a) Thomas v. Lane, 3 Cha. Hempstead Junction Railway Ca. 26 ; Keilw. 57. Company, 1 I)e Gex & Jones, (7/; Doe d. Clements v. Collins, 446; Cole v. West London and 2 T. Rep. 489, 602 ; I Jarman on Crystal Palace Hallway i Wills, 70'.), 1st ed. ; 666, 2nd ed. ; pany, 27 Beav. 242. 740, :;rded. (,/) Ante, p. 5. (c) Shcp. Touch. !il ; Co. Litt. (e) 2 lilack. Com. 1C, 17, 59. 5 b, n. (1); Lord Qrosvenor y. 14 Land. Mines. Chambers. Premises. OF CORPOREAL HEREDITAMENTS. Again, the word land comprehends in law any ground, soil, or earth whatsoever (f) ; but its strict and primary import is arable land (r/). It will, however, include castles, houses, and outbuildings of all kinds ; for the ownership of hind carries with it every tiling both above and below the surface, the maxim being cujus est solum, ejus est usque ad caelum. A pond of water is accord- ingly described as land covered with water (A); and a grant of land includes all mines and minerals under the surface (i). This extensive signification of the word land may, however, be controlled by the context ; as where land is spoken of in plain contradistinction to houses, it will not be held to comprise them (/t). So mines lying under a piece of land may be excepted out of a conveyance of such land, and they will then remain the corporeal property of the grantor, with such inci- dental powers as are necessary to work them (7), and subject to the incidental duty of leaving a sufficient support to the surface to keep it securely at its ancient and natural level (m). In the same manner, chambers may be the subjects of conveyance as corporeal property, independently of the floors above or below them (w). The word premises is frequently used in law in its proper etymological sense of that which has been before mentioned (o). Thus, after a recital of various facts in a deed, it frequently proceeds " in consideration of the premises" meaning in consideration of the facts before (/) Co. Litt. 4 a ; Shep. Touch. 92; 2 Black. Com. 17; C'ooke,dem., 4 Bing. 90. O) Shep. Touch. 92. (A) Co. Litt. 4 b. (i) 2 Black. Com. 18. (/-) 1 Jarman on Wills, 707, 1st id.; 664, 2nd ed.; 738, 3rd ed. (I) Earl of Cardigan v.Armir tage, 2 Barn. & Cress. L97, 211. (m) Humphries v. Brogden, 12 Q. B. 739 ; Smart v. Morton, 5 E. & B. 30 ; Rogers v. Taylor, 2 H. & N. 828 ; Bofvbothamx. Wilson, 8 E. & B. 123; Bonomi v. Back- house, E. B. & E. G22; Stray an v. Knowles, 6 H. & N. 454. O) Co. Litt. 48 b ; Shep. Touch. 206. See 12 Q. B. 757. (o) Doc (t.Biddulphv. Meakin, 1 East, 45G; 1 Jarman on Wills, 707, 1st ed.; 665, 2nd ed.; 739, 3rd ed. OF COItrOEEAL HEREDITAMENTS. 15 mentioned ; and property is seldom spoken of as 'pre- mises, unless a description of it is contained in some prior part of the deed. Most of the words used in the description of property have however no special tech- nical meaning, but are construed according to their usual sense (p) ; and, as to such words as have a tech- nical import more comprehensive than their ordinary meaning, it is very seldom that such extensive import is alone relied on ; but the meaning of the parties is generally explained by the additional use of ordinary words. (/>) As farm, meadow, pasture, &c. ; Shep. Touch. 93, 94. 16 OF CORPOREAL HEREDITAMENTS. CHAPTER I. OF AN ESTATE FOR LIFE. It seldom happens that any subject is brought fre- quently to a person's notice, without his forming con- cerning it opinions of some kind. And such opinions carelessly picked up are often carefully retained, though in many cases wrong, and in most inadequate. The subject of property is so generally interesting, that few persons are without some notions as to the legal rights appertaining to its possession. These notions, however, as entertained by unprofessional persons, are mostly of a wrong kind. They consider that what is a man's own is what he may do what he likes with; and with this broad principle they gene- rally set out on such legal adventures as may happen to lie before them. They begin at a point at which the lawyer stops, or at which indeed the law has not yet arrived, nor ever will ; but to which it is still continually approximating. Now the student of law must forget for a time that, if he has land, he may let it, or leave it by his will, or mortgage it, or sell it, or settle it. He must humble himself to believe that he knows as yet nothing about it ; and he will find that the attainment of the ample power, which is now pos- sessed over real property, has been the work of a long period of time ; and that even now a common pur- chase deed of a piece of freehold land cannot be ex- plained without going back to the reign of Henry VIII. (a),' or an ordinary settlement of land without (a) Stat. 27 Hen. VIH. c. 10, the Statute of Uses. OF AN ESTATE FOR LIFE. 17 recourse to the laws of Edward I. (b). That such should be the case is certainly a matter of regret. History and antiquities are, no doubt, interesting and delightful studies in their place ; but their perpetual intrusion into modern practice, and the absolute ne- cessity of some acquaintance with them, give rise to much of the difficulty experienced in the study of the law, and to many of the errors of its less studious practitioners. The first thing then the student has to do is to get Absolute rid of the idea of absolute ownership. Such an idea is ownerb ^ quite unknown to the English law. No man is in law the absolute owner of lands. He can only hold an estate in them. The most interesting, and perhaps the most ancient An estate for of estates, is an estate for life ; and with this we shall begin. Soon after the commencement of the feudal system, to which, as Ave have seen, our laws of real property owe so much of their character, an estate for life seems to have been the smallest estate in con- quered lands which the military tenant was disposed to accept (c). This estate was inalienable, unless his lord's consent could be obtained (d). A grant of lands to A. B. was then a grant to him as long as he could hold them, that is, during his life, and no longer (e) ; for feudal donations were not extended beyond the precise terms of the gift by any presumed intent, but were taken strictly (f) ; and, on the tenant's death, (h) Stat. 13 Edw. I. c. 1, De Blackstone (2 Black. Com. 55) Donis Conditionalibus to which and by Butler (Co. Litt. 191 a, n. estates tail owe their origin. (1), vi. 1). (r) Walk. Descents, I07 (113, (d) Wright's Tenures, 29; 2 4th ed.); 1 Hallam's Middle Ages, Black. Coin. .".7. 1<;<). There seems no ;rood reason (r) Bracton, lib. '2, fol. 92 b, ppose that feuds were at any par. 6. time held at will, as stated by (/) Wright's Tenures, 17, 151'. B.P. C 18 OF CORPOREAL HEREDITAMENTS. the lands reverted to the lord or grantor. If it was intended that the descendants of the tenant should, at his decease, succeed him in the tenancy, this intention was expressed by additional words of grant; the gift being then to the tenant and his heirs, or with other words expressive of the intention. The heir was thus a nominee in the original grant ; he took every thing from the grantor, nothing from his ancestor. So that, in such a case, " the ancestor and the heirs took equally as a succession of usufructuaries, each of whom during his life enjoyed the beneficial, but none of whom pos- sessed, or could lawfully dispose of, the direct or abso- lute dominion of the property" ( r/). The feudal system, however, had not long been introduced into this country before the restriction on alienation began to be re- laxed (/<). Subsequently, by a statute of Edward I. (/), the right of every freeman to sell at his own pleasure his lands or tenements, or part thereof, was expressly recognized ; at a still later period the power of testa- mentary alienation was bestowed (/t), until, at the pre- sent day, the right to dispose of property is not only established, but has become inseparable from its pos- session ( / ). Moreover, the old feudal ride of strict construction has long since given way to the contrary maxim, that every grant is to be construed most strongly against the grantor (m). Yet so deeply rooted are the feudal principles of our law of real property, that, in Blackstone's reason for the estate 191 a, n. (1), vi. (». being for life— that it shall be (i) Stat. 18 Edw. I. c. I. construed to be as large an estate (k) By stat. 32 Hen. VIII. c. 1, as the words of the donation will as to estates in fee simple, and by bear (2 Black. Com. 121) — is stat. 29 Car. II. c. 3, s. 12, as to quite at variance with this rule of estates held for the life of another construction. person. See 1 Jarm. on Wills, 54, (g) Co. Litt. 191 a, n. ( 1 ), vi. 5 ; 1st ed. ; 49, 2nd ed. ; 55, 3rd ed. JBurgessY. Wheate, lWm. Black. (?) Litt. sect. 360; Co. Litt. 133. 223 a; Ware v. Cann, 10 Barn. (70 Leg. Hen. I. 70; 1 Reeves's & Cress. 433. Hist, Eng. Law, 43, 44 ; Co. Litt. (w) Shep. Touch. 88. OF AX ESTATE FOR LIFE. 19 the case before us, the ancient interpretation remains unaltered; and a grant to A. B. simply now confers A grant to but an estate for his life(rc), which estate, though he ^nlm^ya may part with it if he pleases, will terminate at his life estate, death, into whosesoever hands it may have come. The most remarkable effect of this antiquated rule This rule has has been its frequent defeat of the intentions of un- testators' learned testators (o), who, in leaving their lands and intentions. houses to the objects of their bounty, were seldom aware that they were conferring only a life interest ; though, if they extended the gift to the heirs of the parties, or happened to make use of the word estate, or some other such technical term, their gift or devise included the whole extent of the interest they had power to dispose of. " Generally speaking," says Lord Mansfield (p), " no common person has the smallest idea of any difference between giving a horse and a quantity of land. Common sense alone would never teach a man the difference ; but the distinction, which is now clearly established, is this : — If the words of the testator denote only a description of the specific estate or land devised, in that case, if no words of limitation are added, the devisee has only an estate for life. But if the words denote the quantum of interest or property that the testator has in the lands devised, then the whole extent of such his interest passes by the gift to the devisee. The question, therefore, is always a question of construction, upon the words and terms used by the testator." Such questions, as may be imagined, have been sufficiently numerous. Happily by the act of parliament for the amendment of the laws O) Litt. sect. 283; Co. Litt. 1st cd.; 219, 2nd cd.; 247, 3rd ed., 42 a; 2 Black. Com. 121 ; Ivucasv. and the cases there cited. Brandreth, 28 Bear. 274 (//) In J Injun v. Jackson, O) 2 Jarman on Wills, 170, Cowp. 30G. c2 20 OF CORTOltEAL HEREDITAMENTS. with respect to wills (q), a construction more accordant with the plain intention of testators is now given in such cases. An estate pur autre vie. General occu- pant. Special occu- pant. Statute of Frauds. If the owner of an estate for his own life should dis- pose thereof, the new owner will become entitled to an estate for the life of the former. This, in the Norman French, with which our law still abounds, is called an estate pur autre vie (r) ; and the person for whose life the land is holden is called the cestui que vie. In this case, as well as in that of an original grant, the new owner was formerly entitled only so long as he lived to enjoy the property, unless the grant were expressly extended to his heirs ; so that, in case of the decease of the new owner, in the lifetime of the cestui que vie, the land was left without an occupant so long as the life of the latter continued, for the law woidd not allow him to re-enter after having parted with his life estate (s). No person having therefore a right to the property, anybody might enter on the land ; and he that first entered might lawfully retain possession so long as the cestui que vie lived (t). The person who had so en- tered was called a general occupant. If, however, the estate had been granted to a man and his heirs during the life of the cestui que vie, the heir might, and still may, enter and hold possession, and in such a case he is called in law a special occupant, having a special right of occupation by the terms of the grant (u). To remedy the evil occasioned by property remaining with- out an owner, it was provided by a clause in a famous (q) 7 Will. IV. & 1 Vict. c. 26, s. 28. (?•) Litt. sect. 56. (,v) In very early times the law was otherwise. Bract, lib. ii. c. 9, fol. 27 a; lib. iv. tr. 3, c. 9, par. iv. fol. 2G3 a ; Fleta, lib. iii. c. 12, s. G ; lib. v. c. 5, s. 15. (t) Co. Litt. 41 b; 2 Black. Com. 258. («) Atkinson v. Baker, 4 T. Rep. 229. OF AN ESTATE FOR LIFE. 21 statute passed in the reign of King Charles II. (v), that the owner of an estate pur autre vie might dispose , thereof by his will ; that if no such disposition should \ be made, the heir, as occupant, should be charged with the debts of his ancestor ; or, in case there should be no special occupant, it should go to his executors or admi- nistrators, and be subject to the payment of his debts, of course only during the residue of the life of the cestui que vie. In the construction of this enactment a ques- tion arose, whether or not, supposing the owner of an estate pur autre vie died without a will, the adminis- trator was to be entitled for his own benefit, after paying the debts of the deceased. An explanatory act was accordingly passed in the reign of King George II. (x), by which the surplus, after payment of debts, was, in case of intestacy, made distributable amongst the next of kin, in the same manner as personal estate. By the Modem enact- siatute for the amendment of the laws with respect to ment- wills (?/), the above enactments Avere both replaced by more comprehensive provisions to the same effect. When one person has an estate for the life of another, Cestui qve vie it is evidently his interest that the cestui que vie, or he toYeorodueed for whose life the estate is holden, should live as long as possible ; and, in the event of his decease, a tempta- tion might occur to a fraudulent owner to conceal his death. In oi'der to prevent any such fraud, it is pro- vided, by an act of parliament passed in the reign of Queen Anne (z), that any person having any claim in remainder, reversion or expectancy, may, upon affidavit that he hath cause to believe that the cestui que vie is (?•) The Statute of Frauds, 29 (-) Stat. 6 Anne, c. 18. See Car. II. c. 3, s. 12. /•> parte Grant, 6 Ves. 512; Ex (.,■) Stat. II Geo. IF. c. 20, b. 9; parte WMlley, A Rubs. 561 ; Re Bee Co. Litt. 41 b, n. (5). Isaac, I Mvl. & Craig, 18; Re (,/, Stat. 7 Will. IV. & I Vict. Lingen, 12 Sim. 104. < . 26, bb. 3, 6. 22 OF CORPOREAL HEREDITAMENTS. dead, or that his death is concealed, obtain an order from the Lord Chancellor for the production of the cestui que vie in the method prescribed by the act; and, if such order be not complied with, then the cestui que vie shall be taken to be dead, and any person claiming any interest in remainder, or reversion or otherwise, may enter accordingly. The act, moreover, provides (a), that any person having any estate pur autre vie, who, after the determination of such estate, shall continue in possession of any lands, without the express consent of the persons next entitled, shall be adjudged a trespasser, and may be proceeded against accordingly. A tenant for life- hath a free- hold. Estate during widowhood. The owner of an estate for life is called a tenant for life, for he is only a holder of the lands according to the feudal principles of our law. A tenant, either for his own life, or for the life of another (pur autre vie), hath an estate of free Ji old, and he that hath a less estate cannot have a freehold (b). Here, again, the reason is feudal. A life estate is such as was considered worthy the acceptance of a, free man ; a less estate was not(c). And it is worthy of remark, that in the earlier periods of our law an estate for a man's own life was the only life estate considered of sufficient importance to be an estate of freehold: an estate for the life of another per- son was not then reckoned of equal rank(r/). But this distinction has long since disappeared ; and there are now some estates which may not even last a life- time, but are yet considered in law as life estates, and are estates of freehold. Thus, an estate granted to a woman during her widowhood is in law a life estate, though determinable on her marrying again (e). Every (a) Stat. 6 Anne, c. 18, s. 5. (b) Litt. s. 57. (c) Watk. Desc. 108 (113,4th ed.) ; 2 Black. Com. 104. (rf) Bract, lib. 2, c. 9, fol. 2G b; lib. 4, tr. 3, c. 9, par. 3, fol. 263 a ; Fleta, lib. 3, c. 12, s. G ; lib. 5, c. 5, s. 15. 0) Co. Litt. 42 a; 2 Blank. Com. 121. OF AN ESTATE FOR LIFE. 23 life estate also may be determined by the civil death of the party, as well as by his natural death ; for which reason in conveyances the grant is usually made for the term of a man's natural life (/). Formerly a person, Natural life. by entering a monastery, and being professed in religion, became dead in law ((/). But this doctrine is now in- applicable; for there is no longer any legal establish- ment for professed persons in England (A), and our law never took notice of foreign professions (?'). Civil death may, however, occur by outlawry (J). It was formerly occasioned also by attainder for treason or felony ; but all attainders are now abolished (7c). Every tenant for life, unless restrained by covenant Timber. or agreement, has the common right of all tenants to cut wood for fuel to burn in the house, for the making and repairing of all instruments of husbandry, and for repairing the house, and the hedges and fences (/), and also the right to cut underwood and lop pollards in due course (?/i). But he is not allowed to cut timber, or to Waste, commit any other kind of ivaste{n)-, either by voluntary destruction of any part of the premises, which is called voluntary waste, or by permitting the buildings to go (/) Co. Litt. 132 a; 2 Black. Watk. n. 123 to Gilb. Ten. Com. 121. (k) By Stat. 33 & 34 Vict. c. 23. (y) 1 Black. Com. 132. (I) Co. Litt. 41 b ; 2 Black. (A) Co. Litt. 3 b, n. (7), 132 b, Com. 35, 122. n. (1); 1 Black. Com. 132 ; stat. (»t) Phillips v. Smith, 14 M. & 31 Geo. III. c. 32, s. 17 ; 10 Geo. W. 589. As to thinnings of young IV. c. 7, ss. 28—37; 2 & 3 Will. timber, see Pidyeley v. Rowling, IV. c. 115, s. 4. See also Anstey's 2 Coll. 275; Bagot v. Bayot, 32 Guiilc to the Laws affecting Ko- Beav. 509, 518; Earl Cowley v. man Catholics, pp. 24—27 ; 23 & Wellesley, M. R., Law Rep., 1 Eq. 24 Vict. c. 134, s. 7; Re Metcalfe's C50 ; 35 Beavan, <;.T>. Trusts, 2 De Gex, Jones & Smith, (n) Co. Litt. 53 a; M'hi/jiettl 122. v. Bewlt, 2 P. Wins. 211; 2 (i) Co. Litt. 132 b. Black. Com. 122, 281; 3 Black. O) I Black. Com. 319, 380; Com. 224. 24 OF CORPOREAL HEREDITAMENTS. to ruin, which is called permissive waste (o). Of late, however, doubts have been thrown on the liability of a tenant for life for waste which is merely permissive ; and the Courts of Equity have refused to interfere in such cases (/?). But there appears to be no sufficient ground for doubting the tenant's liability in a court of law (q). So a tenant for life cannot plough up ancient meadow land (r) ; and he is not allowed to dig for gravel, brick, or stone, except in such pits as were open and usually dug when he came in (s); nor can he open new mines for coal or other minerals, nor cut turf for sale on bog lands; for all such acts would be acts of voluntary waste. But to continue the working of existing mines, or to cut turf for sale in bogs already used for that purpose, is not waste; and the tenant may accordingly carry on such mines and cut turf in such bogs for his own profit (t). By an old statute (u) the committing of any act of waste was a cause of for- feiture of the thing or place wasted, in case a writ Writ of waste °f waste was issued against the tenant for life. But abolished. ^his writ is now abolished (u); and a tenant for life is now liable only to damages in an action at law or suit in equity (iv) for waste already done, or to be restrained by an injunction obtained by a suit in equity from cutting the timber or committing any other act of waste, which he may be known to contemplate. And where an action at law has been brought a writ of injunction may uoav be obtained, from the court of law 0) Co. Litt. £8 a. Yavglmn, 2 Beav. 466. (]>) Powys v. Blagrave, 4 De (t) Co. Litt. 54 b; Coppmger Gex, it. & G. 448, 458 ; Warren v. Gubbins, 3 Jones & Lat. 397. v. liudall, 1 John. & Hem. 1. («) The Statute of Gloucester, (q) Yellonbjv. Goiver, 11 ~Ex. G Edw. I. c. 5; 2 Black. Com. 274, 293. 283 ; Co. Litt. 218 b, n. (2). (;■) Simmons v. Norton, 7 Bing. (r) By stat. 3 & 4 Will. IV. c. 648. See Bulte of St. Albans v. 27, s. 36. Skipmith, 8 Beav. 354. (w) Stat. 21 & 22 Vict. c. 27, (s) Co. Litt. 53 bj Yincr v. ss. 2, 3. OF AN ESTATE FOR LIFE. 25 in which the action has been brought, against the re- petition or continuance of the injury (.r). If any of the timber is in such an advanced state that it would take injury by standing, the Court of Chancery will allow it to be cut, on the money being secured for the benefit of the persons entitled on the expiration of the life estate ; and the Court will allow the interest of the money to be paid to the tenant during his life (y). And the act to facilitate leases and sales of settled estates (z) now em- powers the Court of Chancery, if it think proper, to authorize a sale of any timber, not being ornamental timber, growing on any settled estates. If, however, without im- the estate is e*iven to the tenant by a written instru- P ea chment of & m J waste, ment («) expressly declaring his estate to be without impeachment of waste, he is allowed to cut timber in a husbandlike manner for his own benefit, to open mines, and commit other acts of waste with impunity (i); but so that he does not pull down or deface the family man- sion, or fell timber planted or left standing for orna- ment, or commit other injuries of the like nature; all of which are termed equitable waste ; for the Court of Equitable Chancery, administering equity, will restrain such pro- waste - ceedings (c). 0*0 Stat. 17 & 18 Vict. c. ]25, & Cress. 5G4; DaviesY. Wescomb, s. 7! I. 2 Sim. 425 ; Wool/ v. Hill, 2 (y) looker v. Anneslcy, 5 Sim. Swanst. 149 ; Waldo v. Waldo, 12 235; Waldo v. Waldo, 7 Sim. Sim. 107. 261 ; 12 Sim. 107 ; Tollemache v. (o) 1 Fonb. Eq. 33, n.; Marquis Tollemaehe, 1 Hare, 456 ; Contett of Downslure v. Lady Sandys, G v. Bell, 1 Tom & Coll. New Cases, Ves. 107; Surges v. Lamb, If; 569; (lint v. Harrison, Johnson, Ves. 183; Day v. Merry, 16 Ves. ■"'17. 375 a; Wellesley v. Wellesley, 6 (.-) Stut. II) & 20 Vict. c. 120, Sim. 497; Duke of /.rods v. Karl s. 11. Amherst, 2 Phil. 117; Mori-is v. (a\ Do ir m on'* case, 9 Eep. 10 b. Morris, 15 Sim. 505; 3 Dc Gcx ili) Lends Bowie's case, 11 Hep. & .lone,:, ::l':: ; WicTtletlvmait v. 32 b j l' Black. Com. 283; Burgos MicMethwait, I DcGcx& Jones, v. Lamb, LG Ves. L86; Cholmeley 504, PaxtOU,S Bin-. 21 1 ; lo I3am. 26 OF CORPOREAL HEREDITAMENTS. Leases by As a tenant for life lias merely a limited interest, he cannot of course make any disposition of the lands to take effect after his decease ; and, consequently, he can make no leases to endure beyond his own life, unless he be specially empowered so to do by the deed under which he holds. It is however provided by the act to facilitate leases and sales of settled estates (77), that when the instrument by which the estate is limited (e) is made after that act came in force, which was on the 1st of November, 1856 {/), and does not contain an express Modern declaration to the contrary, every tenant for life may tenants for life d em i se the premises or any part thereof (except the may demise , x , _ for twenty-one principal mansion-house and the demesnes thereof, and years " other lands usually occupied therewith) for any term not exceeding twenty-one years, to take effect in possession ; provided that every such demise be made by deed, and the best rent that can reasonably be obtained be thereby reserved, without any fine or other benefit in the nature of a fine, which rent shall be incident to the imme- diate reversion ; and provided that such demise be not made without impeachment of waste, and do contain a covenant for payment of the rent, and such other usual and proper covenants as the lessor shall think fit, and also a condition of re-entry on non-payment, for a s - period of not less than twenty-eight days, of the rent thereby reserved, and on non-observance of any of the covenants or conditions therein contained ; and pro- vided a counterpart of every deed of lease be executed by the lessee ((j). But the execution of the lease by the lessor is to be deemed sufficient evidence that a counterpart of such lease has been duly executed by the lessee as required by the act (/<). Leases may also be made by the authority of the Court of Chancery, on (d) Stat. 19 & 20 Vict. c. 120, s. 1. amended by stat. 21 & 22 Vict. (/) Sects. 44, 46. c. 77. Qf) Sect. 32. (<■) Stat. 19 & 20 Vict. c. 120, (/<) Sect. 34. OF AN ESTATE FOR LIFE. 27 clue application, whatever may be the date of the settle- ment, for terms not exceeding twenty-one years for an agricultural or occupation lease, forty years for a mining lease, or a lease of water, water mills, way- leaves, waterleaves, or other rights or easements, sixty years for a repairing lease (?'), and ninety-nine years for a building lease, subject to the conditions prescribed by the act (k). And where the Court shall be satisfied that it is the usual custom of the district, and bene- ficial to the inheritance, to grant leases for longer terms, any of the above leases, except agricultural leases, may be granted for such term as the Court shall direct (7). If a tenant for life should sow the lands, and die Emblements, before harvest, his executors will have a right to the emblements or crop (m). And the same right will also belong to his under-tenant ; with this difference, how- ever, that if the life estate should determine by the tenant's own act, as by the marriage of a widow holding during her widowhood, the tenant would have no right to emblements; but the under-tenant, being no party to the cesser of the estate, would still be entitled in the same manner as on the expiration of the estate by death (?/). And with respect to tenants at rack rent, it Enactment as is now provided (o), that where the lease or tenancy f to tenants at any farm or lands held by such a tenant shall determine by the death or cesser of the estate of any landlord en- titled for his life, or for any other uncertain interest, instead of claims to emblements, the tenant shall con- tinue to hold and occupy such farm, or lands until the (!) Stat. 21 & 22 Vict. c. 77, (m) 2 Black. Com. 122; see s. 2. proves v. Wield, 5 Barn. & Adol. (A) Stat. 10 & 20 Vict, c 120, 105. s. 2, amended by Btat. 27 & 28 («) 2 Black. Com. 12a, 124. . I"-. («) Stat. II & 16 Vict. c. i'.'., (/) Slat 21 & 22 Vict. <•. 77, B. I. I. 28 OF CORPOREAL HEREDITAMENTS. expiration of the then current year of his tenancy, and shall then quit upon the terms of his lease or holding, in the same manner as if such lease or tenancy wi-w then determined by effluxion of time, or other lawful means, during the continuance of his landlord's estate ; and the succeeding owner will be entitled to a fair pro- portion of the rent from the death or cesser of the estate of his predecessor to the time of the tenant's so quitting. And the succeeding owner and the tenant respectively will, as between themselves and as against each other, be entitled to all the benefits and advantages, and be subject to the terms, conditions and restrictions to which the preceding landlord and the tenant respec- tively would have been entitled and subject in case the lease or tenancy had determined in the manner before mentioned at the expiration of the current year ; and no notice to quit shall be necessary from either party to determine such holding. Apportion- As a consequence of the determination of the estate merit of rent. of a tenant f or ]jf e t ] ie m0 ment of his death, it was held in old times, that if such a tenant had let the lands reserving rent quarterly or half-yearly, and died between two rent-days, no rent w T as due from the under- tenant to anybody from the last rent day till the time of the decease of the tenant for life. But in the reign of King George II. a remedy for a proportionate part of the rent, according to the time such tenant for life lived, was given by act of parliament to his executors or administrators (/?). Formerly also, when a tenant for life had a power of leasing, and let the lands ac- cordingly, reserving rent periodically, his executors had no right to a proportion of the rent, in the event of his decease between two quarter days ; and, as rent is not (p) Stat. HGeo.ILc. 19,s. 15, 1 Swanst. 337, and the learned explained by stat. 4 & 5 Will. IV. editor's note. c. 22, s. 1. See Ex parte Smyth, OF AN ESTATE FOR LIFE. 29 due till midnight of the day on which it is made pay- able, if the tenant for life had died even on the quarter dav, but before midnight, his executors lost the quarter's rent, which went to the person next entitled (q). But by a modern act of parliament (r), the executors and administrators of any tenant for life who had granted a lease since the 16th of June, 1834, the date of the act, might claim an apportionment of the rent from the person next entitled, when it should become due. This X act, however, did not apply unless the demise were made by an instrument in writing (s). But the Ap- Apportion- portionment Act, 1870 (t), now provides (u), that after 1870 c ' the passing of that act, which took place on the 1st of August, 1870, all rents and other periodical pay- ments in the nature of income (whether reserved or made payable under an instrument in writing or other- wise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly. By an act of the present reign (a:) tenants for life, and Draining, some other persons having limited interests, are em- powered to apply to the Court of Chancery for leave to make any permanent improvements by draining the lands with tiles, stones or other durable materials, or by warping, irrigation, or embankment in a permanent manner, or by erecting thereon any buildings of a permanent kind incidental or consequential to such draining, warping, irrigation or embanking, and im- mediately connected therewith (y). And if, in the (j) Norritr. Morrison, 2 Mad. W., 6 Jur., N. S. 301; 7 W. 268. Rep. 245; 1 Johns. & Bern. 651. (r) Stat. 4 & 5 Will. IV. c. 22, (7) Stat. 33 & 34 Vict. c. 35. b. 2 ; Lock v. De Burgh, 4 I)c Gex («) Sect. 2. & Smale, 170; PlummerT. White- (./■) Stat. 8 & 9 Vict. c. SO, rc- ley, Johnson, 585; Llewellyn r. pealing a prior act for the same Rous, M. I;., Law Rep., - Eq. 27; purpose, slat. 3 & 4 Vict. c. 55. 35 Bear. 591. (y) Sect. 3. (*; BeeCattley v. Arnold,V.-C. 30 OF COPPOuEAL HEREDITAMENTS. Government advances for draining. Private Money Drainage Act, 1849. now repealed. Improvement of Land Act, 1864. opinion of the Court, such improvements will be bene- ficial to all persons interested (z), the money expended in making such improvements, or in obtaining the au- thority of the Court, Avill be charged ou the inheritance of the lands, with interest at such rate as shall be agreed on, not exceeding five per cent, per annum, payable hall- yearly (a) ; the principal money to be repaid by equal annual instalments, not less than twelve nor more than eighteen in number; or in the case of buildings, by equal annual instalments, not less than fifteen nor more than twenty-five in number (7/). And under the pro- visions of more recent acts of parliament (c), called the Public Money Drainage Acts, tenants for life and other owners of land may obtain advances from government for works of drainage, which may be completed within five years (d) ; such advances to be repaid by a rent- charge on the land, after the rate of 61. 10s. rent-charge for every 100/. advanced, and to be payable for the term of twenty-two years (e). By another act of parliament called the Private Money Drainage Act, 1849 (/), the owner of any land in Great Britain or Ireland was em- powered to borrow or advance money for the improve- ment of such land by works of drainage ; such money, with interest not exceeding five per cent, per annum, to be charged on the inheritance of the land, in the shape of a rent-charge, for the term of twenty-two years. This act, however, is now repealed by the Improvement of Land Act, 1864 ((/), which gives a very wide definition to the phrase " improvement of land," and contains provisions for facilitating the rais- (z) Stat. 8 &9 Vict. c. 56,88.4,5. O) Sect. 8. (&) Sect, 9. (Y) Stat. 9 & 10 Vict. c. 101, explained and amended by stats. 10 & 11 Vict. c. 11, 11 & 12 Vict, c. 119, 13 & 14 Vict. c. 31, and 19 & 20 Vict. c. 9. (77) Stat. 10 & 11 Vict. c. 11, s. 7. (e) Stat. 9 & 10 Vict. c. 101, s. 34. (/) Stat. 12 & 13 Vict. c. 100, amended by stat. 19 & 20 Vict, c. 9. (ff) Stat. 27 & 2S Vict. c. 114. OF AN ESTATE FOR LIFE. 31 ing of money by way of rent-charge for that pnrpose. The rate of interest to be charged is not to exceed five per cent, per annum, and the term for repayment is not to exceed twenty-five years (A). These loans are under the superintendence of the Inclosure Commis- sioners for England and Wales, and in Ireland under that of the Commissioners for Public Works in Ireland. But the authority to issue certificates of the redemption of the loans of public money belongs to the Board of Inland Revenue (i). An act, styled the " Limited Limited Owners Residences Act, 1870"(A), now provides (7) dencesAct that the following shall be improvements within the 1870 « meaning of the Improvement of Land Act, 1864, namely, the erection of mansion-houses and such other usual and necessary buildings, outhouses and offices as are commonly appurtenant thereto and held and en- joyed therewith, and completion of mansion-houses and smh appurtenances as aforesaid, and improvement of and addition to mansion-houses and such appurtenances as af ore-aid already erected, or the improvement of and addition to houses which are capable of being converted into mansion-houses suitable to the estate on which they stand, so as such improvement and addition be of a per- manent nature; provided the mansion-houses so erected or enlarged or converted are suitable to the estate on which they stand as residences for the owners of such estate. But the sum charged on any estate under settlement in respect of mansion and other buildings before mentioned is not to exceed two years' net rental of the whole estate (m). In all other respects, improve- Other improve- ment which a tenant for life may wish to make must ments ' be paid for out of his own pocket (?/). (h) Stat. 27 & 28 Vict. c. Ill, (/) Sect. 3. I. 26. (//') s.-.-t. 4. (i) Stat. 19 & 20 Vict. c. 9, («) Nairn v. Major! banks, 3 B. 10. Ross. 682; Hibbert v. CooJte, 1 (*) Stat. 88 & 84 Vict. c. 56, Sim. & Stu. 562; Caldecott t. 32 ►RPOREAL BEREDITAMENTS. Conveyance. Tenants for life under wills are empowered, by recent nets of parliament, to convey in certain cases, under the direction of the Court <>t* Chancery, the whole estate In the lands of which they are tenants for life. Such conveyances are made only when the concurrence of the other parties cannot be obtained, and a sale or mortgage of the hinds is required for the payment of the debts of the testator (0). These powers, however, are given to the tenant for life for the sake of making :i title to the property; and are more for the benefit of the creditors of the late testator, than for the advantage of the tenant for life, who is, in these cases, merely the instrument for carrying into effect the decree of the Court ; and the powers given by these acts are now in a great measure superseded by the provisions of the act to consolidate and amend the laws relating to the con- veyance and transfer of real and personal property Sale of settled vested in mortgagees and trustees ( p ). More recently, however, an act has been passed, to which we have already referred (q), to facilitate leases and sales of settled estates (r). Under this act, if the Court of Chancery should deem it proper and consistent with a due regard for the interest of all parties entitled, a sale of any settled estate may be ordered to be made. And the money to be raised on any such sale is to be paid either to trustees of whom the Court shall approve, or into Court, and is to be applied to the following pur- poses, namely, the redemption of the land tax, or of any incumbrance affecting the hereditaments sold or any other hereditaments settled in the same way, or the purchase of other hereditaments to be settled in the estates. Brown, 2 Hare, 144; Hbrloekv. Smith, 17 Beav. 572; Dunn, y. Dunne, 7 De Gex, M. & G. 207; Dent v. Dent, 30 Beay. 363. (o) Stat. 11 Geo.IV. & 1 Will. IV. c. 47, s. 12; 2 & 3 Vict. c. GO. (p) Stat, 13 & 14 Viet. c. GQ, s. 29. (q) Ante, pp. 25,26. (r) Stat. 19 & 20 Vict. c. 120, amended by stat. 21 & 22 Vict. c. 77, and 27 & 28 Vict. c. 45. OF AN ESTATE FOR LIFE. 33 same manner, or in the payment to any person be- coming absolutely entitled (s). And the money is in the meantime to be invested in Exchequer Bills or Consols, and the interest or dividends paid to the tenant for life (7). But the powers of the act are not to be exercised if an express declaration or manifest intention that they shall not be exercised is contained in the settlement, or may reasonably be inferred there- from or from extrinsic circumstances or evidence (u). In addition to estates for life expressly created by the acts of the parties, there are certain life interests, created by construction and operation of law, possessed by husbands and wives in each other's land. These interests will be spoken of in a future chapter. There are also certain other life estates held by persons sub- ject to peculiar laws ; such as the life estates held by beneficed clergymen. These estates are exceptions from the general law ; and a discussion of them, in an elementary work like the present, would tend rather to confuse the student than to aid him in his grasp of those general principles, which it should be his first object to comprehend. (*).Stat. 19 & 20 Vict. c. 120, (7) Sect. 25. s. 23. O) Sect. 26. B.P. 1) 34 <»F CORPOREAL HEREDITAMENTS. CHAPTEK II. OF AN ESTATE TAIL. Estate tail. The next estate we sliall notice is an estate tail, or an estate given to a man and the heirs of his body. This is such an estate as will, if left to itself, descend, on the decease of the first owner, to all his lawful issue, — children, grand-children, and more remote descendants, so long as his posterity endures, — in a regular order and course of descent from one to another : and, on the other hand, if the first owner should die without issue, General or his estate, if left alone, will then determine. An estate special. ^ ma ^ T ^ e e ^] ier g enera l 3 that is, to the heirs of his body generally and without restriction, in which case the estate will be descendible to every one of his lawful posterity in due course; or special, Avhen it is restrained to certain heirs of his body, and does not go to all of them in general ; thus, if an estate be given to a man and the heirs of his body by a particular wife ; here none can inherit but such as are Iris issue by the wife Male or fe- specified. Estates tail may be also in tail male, or in tail female : an estate in tail male cannot descend to any but males, and male descendants of males ; and cannot, consequently, belong to any one who does not bear the surname of his ancestor from whom he in- herited : so an estate in tail female can only descend to females, and female descendants of females («). Special estates tail, confined to the issue by a particular wife, are not now common : the most usual kinds of estates tail now given are estates in tail general, and in tail male. Tail female scarcely ever occurs. (a) Litt. ss. 13, 14, 15, 10, 21 ; 2 Black. Com. 113, 114. OF AN ESTATE TAIL. 35 The owner of an estate tail is called a donee in tail, Donee in tail. and the person who has given him the estate tail is called the donor. And here it may be remarked, that such correlative words as donor and donee, lessor and lessee, and many others of a like termination, are used in law to distinguish the person from whom an act pro- ceeds, from the person for or towards whom it is done. The owner of an estate tail is also called a tenant in Tenant in tail. tail, for he is as much a holder as a tenant for life. But an estate tail is a larger estate than an estate for life, as it may endure so long as the first owner of the estate has any issue of the kind mentioned in the gift. It is An estate tail consequently an estate of freehold. We shall now pro- 1S a freenold - ceed to give a short history of this estate ; in doing which it will be necessary to advert to the origin and progress of the general right of alienation of lands. It will readily be supposed that a mere system of Feudal tenan- life estates, continually granted by feudal lords to their hereditary. tenants, would not long continue ; the son of the tenant Avould naturally be the first person who would hope to succeed to his father's tenancy : accordingly Ave find that the holding of lands by feudal tenants soon became hereditary, permission being granted to the heirs of the tenant to succeed on the decease of their ancestor. By the term " heirs " it is said that the issue of the tenant were at first only meant ; collateral relations, such as brothers and cousins, being excluded (b) ; the true feudal reason of this construction is stated by Black- stone to be, that what was given to a man for his per- sonal service and personal merit ought not to descend to any but the heirs of his person (c). But in our own country it appears that, at any rate in the time of Henry II. (d), collateral relations were admitted to (i) Wright's Tenures, 18. (tl) 1 Kecves's Hist. Eng. Law, (<■) 2 Black. Com. 221. 108. I) 2 36 OF CORPOREAL HEREDITAMENTS. succeed as heirs; so that an estate which had been granted to a man and his heirs descended, on his de- cease, uo1 < > ii I \ to his offspring, but also, in default of offspring, to his other relations in a defined order of suc- c< -inn. Hence if it were wished to confine the inherit- ance to the offspring of the donee, it became necessary to limii the estate expressly to him and the heirs of his To the donee body (e), making what was then called a conditional ofhtabodv™ 9\ft> ' )V reason of the condition implied in the donation, a conditional thai if the donee died without such particular heirs, or k Mlt - in case of the failure of such heirs at any future time, the land should revert to the donor (jf). The most usual species of grant appears, however, to have been that to a man and his heirs generally; but, as the right of alienation seems to have arisen in the same manner with regard to estates granted in both the above methods, it will be desirable, in considering the origin of this right, to include in our remarks as w r ell an estate granted to a man and his heirs, as an estate confined to the heirs of the body of the grantee. Two other In wdvichever method the estate might have been rested the ex- granted, it is evident that, besides the tenant, there pectantheir were two other parties interested in the lands: one, ami the Lord. l . the person who was the expectant heir oi the tenant, and who had, under the gift, a hope of succeeding his ancestor in the holding of the lands; the other, the lord, who had made the grant, and avIio had a right to the services reserved during the continuance of the tenancy, and also a possibility of again obtaining the lands on the failure of the heirs mentioned in the gift. An alienation of the lands by the tenant might there- fore, it is evident, defeat the rights of one or both of the above parlies. Let us, therefore, consider, in the first O) Bracton, lib. 2, cap. G, fol. 290 b, n. (1), V. 1. 17 b: cap. 19, Eol. 17 a; Co. Lit t. (/) 2 Black. Com. 110. OF AX ESTATE TAIL. 37 place, the origin and progress of the right of alienation as it affected the interest of the expectant heir; and, secondly, the origin and progress of this right as it affected the interest of the lord. The right of an ancestor to defeat the expectation Right of alien- of his heir was not fully established at the time of [^ heir. & Henry II. For it appears from the treatise of Glan- ville, written in that reign (g), that a larger right of alienation was possessed oyer lands which a man had acquired by purchase, than over those which had de- scended to him as the heir of some deceased person : and even over purchased lands the right of alienation was not complete, if the tenant had any heir of his own body (A) ; so that if lands had been given to a man and his heirs generally, he was able to disappoint the expectation of his collateral heirs, but he coidd not entirely disinherit the heirs sprung of his own body. For certain purposes, however, alienation of part of the lands was allowed to defeat the heirs of his body ; thus part of the lands might be given by the tenant with his daughter on her marriage, and part might also be given for religious uses(f). Such gifts as these were, however, as we shall presently see, almost the only kinds of alienation, in ancient times, which occa- sioned any serious detriment to the heir ; and the allowing of such gifts may accordingly be considered as an important step in the progress of the right of alienation. For, Avhen lands were given to a daughter on her marriage, the daughter and her husband, or the donees in frank-marriage, as they were called, held the land- granted, to them and the heirs of their two bodies free from all manner of service to the donor or his Frank-mar- heira (a mere oath of fealty or fidelity excepted), until ruv,5C ' (,,) l Beeves' Hi t. Eng Law, (i) Glanville, lib. 7, c. 1; I i,v. vt -'- Hist. 104. (h) [bid, 105. 38 OF CORPOREAL HEREDITAMENTS. the fourth degree of consanguinity from the donor was passed (A); and when lands were given to religious Frankalmoign, uses, the grantees in frankalmoign, as they were called, were for ever free from every kind of earthly or tem- poral service (/). Little or nothing, therefore, in these Other modes ••a-"-, remained for the heir of the grantor. But the "' alienation. ther modes of alienation which then prevailed were very differenl in their results, as well from such gifts as above described, as from the ordinary sales of landed property which occur in modern times. Ready money was then extremely scarce; large fortunes, acquired un- commercial enterprise, were not then expended in the purchase of country seats. The auction mart was not then established; such a thing as an absolute sale for a sum of money paid down was scarcely to be met with. The alienation of lands rather assumed the form of perpetual leases, granted in consideration of certain sendees or rents to be from time to time per- formed or paid. This method w r as, in feudal language, Snbinfenda- termed subinfeudation. In all the old conveyances, almost without exception, the lands are given to the grantee and his heirs, to hold as tenants of the grantor and his heirs, at certain rents or sendees (wz); and when no particular service was reserved, it was under- stood that the grantee held of the grantor, subject to the same services as the grantor held of his superior (/.•) Litt. sects. 17, 19, 20. questions mentioned in Glanville (0 Litt. sect. 135. (lib. 7. c. 1) as to the descent of (m) All the forms of feoffments lands which had been granted by given in Madox's Formnlare An- a father to one of his younger sons, glicanum, with the exception of or by a brother to his younger Nos. 318 and 325, are in this brother, clearly show that grants form. No. 318 is a gift in frank- of land were then made by snbin- almoign, ami was afterwards con- iVudation. Mr. Reeves's obser- Grmed by the son of the grantor ration (1 Hist. Eng. Law, 10G, n. (see title, Confirmation, No. 119); ("')), that the reservation of ser- and No. 32~> appears to have been vices was most commonly made to a family transaction between a the feoffor, appears to be scarcely father and his son. The curious strong enough. tion OF AN ESTATE TAIL. 39 lord(ra). As, therefore, it cannot be supposed that gifts should be made without some fair equivalent, and as such equivalent, in the shape of rent or service, ■would descend to the heir in lieu of the land, we may fairly presume that alienation, as ordinarily practised in early times, was not so great a disadvantage to the heir as might at first be supposed : and this circum- The power of stance may perhaps help to account for that which at over th c e expec . any rate is an undoubted fact, that the poAver of an tations of his licirs becomes ancestor to destroy the expectation of his heirs, whether absolute. merely collateral or heirs of his body, soon became absolute. In whichever way the grant were made, whether to the ancestor and his heirs, or to him and the heirs of his body, we find that by the time of Henry III. the heir was completely in his ancestor's power, so far as related to any lands of which the an- cestor had possession. Bracton, who wrote in this reign, expressly lays it down, that the heir acquires nothing from the gift made to his ancestor (0). The very circumstance that land was given to a person and his heirs, or to him and the heirs of his body, enabled him to convey an interest in the land, to last as long as his heirs in the one case, or the heirs of his body in the other, continued to exist. And from the time of Bracton, a gift to a man and his heirs generally has enabled the grantee, either entirely to defeat the ex- pectation of his heir by an absolute conveyance, or to prejudice his enjoyment of the descended lands by obliging him to satisfy any debts or demands, to the value of the lands, according to his ancestor's discre- tion. With respect to lands granted to a man and the heirs of his body, the power of the ancestor is not now so complete. The means by which this right of alien- ation was in this case curtailed will appear in the («) Perkins's Profitable Book, 17 a. Nihil acquirit ex donatione sects. 629, 663. facta antecessor!, quia cum dona- Co) Bracton, lib. 2, cap. 6, fol. torio non est feoffatus. 40 OF COnrOKKAL IIKUF.niTAMENTS. Alienation as affecting the interests of the lord. [uteres! of the lord in the vent and ser- \ ices til >t affected. Infringement on the lord's interest ex- pectant on failure of heirs. accounl we shall now give of the origin and progress of the right of alienation as it affected the interest of the lord. The interest of the lord was evidently of two kinds ; his interest in the rent and sendees during the con- tinuance of the tenancy, and his chance or possibility of again obtaining the land on failure of the heirs of his tenant. On the former of these interests, the in- road of alienation appears to have been first made. The tenants, by taking upon themselves to make grants of part of their lands to strangers to hold of themselves, prejudiced the security possessed by the lord for the due performance of the services of the original tenure. And Accordingly we find it enacted in Magna Charta (jo), that bo freeman should give or sell any more of his land than so as what remained might be sufficient to answer the ser- vices he owed to his lord. The original services reserved on any conveyance were, however, always a charge on the laud while in the hands of the under-tenants, and could be distrained for by the lord (. 5. The tendency towards the alienation of lands was perhaps V OF AX ESTATE TAIL. 41 as it were, part of his land, then, on his decease and failure of his heirs, the tenant's grantee had still a right to continue to hold as tenant of the superior lord ; and such superior lord then took the place of landlord, which the original tenant or his heirs would have occu- pied had he or they been living (t). And if the tenant, instead of thus underletting part of his land, chose to dispose of the whole, he was at liberty so to do, by sub- stituting, if he thought fit, a new tenant in his own place (u). Grants of lands with liberty of alienation, as they became more frequent, appear in process of time to have furnished the rule by which all grants were construed. During the long and feeble reign of Henry III. this change to the disadvantage of the lord appears to have taken place ; for at the beginning of the next reign it seems to have been established that, in whatever form the grant were made, the fact of the The fact of existence of an expectant heir enabled the tenant to of an^xMctant alienate, not only as against his heirs, but also as against heir enables the lord. If therefore lands were given to a man and a ii en ate. his heirs, he could at once dispose of them (x) ; and^if lands were granted to a man and the heirs of his body, he was able, the moment he had issue born — that is, the moment he had an expectant heir of the kind men- tioned in the gift — to alienate the lands. And the alienee and his heirs had a right to hold, not only during the existence of the issue, but also after their failure (y). The original intention of such gifts was fostered by the spirit of crusading; had at least an equal right. See see 1 "Watkins on Copyholds, pp. however Co. Litt. 43 a, n. (2) ; 149, 150. Wright's Tenures, 155, note. (t) Bract, ubi sup. (//) Fit/.ht arbert's Abr. title For- di) Seestat. I Edw. I. c. 6. medon, 62, 65 ; Britton, 93 b, 94 a ; (as) Park. sec. 667-670; Co. Tlowd. Comm. 24G; 2 Inst. 333; Litt. 43 a. If a tenant of a con- Co. Litt. 19 a; Year Book, 43 ditional fee had a righl of alien- Edw. IIT. :', a, pi. 13. Earl oj ation mi having issue born, sorely Stafford v. Buckley, 2 Ves, sen. a tenant in fee simple most have 171. 42 OF CORPOREAL HEREDITAMENTS. therefore in a greai measure defeated; originally, on failnre of the issue the lands reverted to the donor; 1ml now nothing was requisite but the mere birth of issue to give the donee a complete power of disposition. The mere existence of an expectant heir having thus grown up into a reason for alienation, the barons of the time of Edw. I. began to feel how small was the possi- bility, that the lands, which they had granted by con- ditional gifts (z) to their tenants and the heirs of their bodies, should ever revert to themselves again ; whilst at the same time they perceived the power of their own families weakened by successive alienations. To remedy these evils, and to keep up that feudal system, which landlords ever held in high esteem, but on which the necessities of society ever made silent yet sure en- I croaches, it was enacted in the reign of Edw. I. by the Statute Be famous statute De Donis Conditionalibus (a), — and no doubt as was then thought finally enacted, — that the will of the donor, according to the form in the deed of gift manifestly expressed, should be from thenceforth observed ; so that they, to whom the tenement was given, should have no power to alien it, whereby it should fail to remain unto their own issue after their death, or to revert unto the donor or his heirs, if issue should fail. Fee tail. Since the passing of this statute, an estate given to a man and the heirs of his body has been always called an estate tail, or, more properly, an estate in fee tail (feudum talliatum). The word^ee {feudum) anciently meant any estate feudally held of another person (b) ; but its meaning is now confined to estates of inherit- (:) Ante, p. 36. (b) Bracton, lib. 4, fol. 263 b, (a) Stat. 13 Edw. I.e. 1, called par. 6; Selden, Tit. of Honour, also the Statute of Westminster part 2, c. l,s. 23, p. 332; "Wright's the Second. Tenures, p. 5. OF AN ESTATE TAIL. 43 ance, — that is, to estates "which may descend to heirs; so that a fee may now be said to mean an inheritance (c). The word tail is derived from the French word tailler, to cut, the inheritance being, by the statute De Donis, cut down and confined to the heirs of the body strictly (d) ; but, though an estate tail still bears a name indicative of a restriction of the inheritance from any interruption in its course of perpetual descent from father to son, we shall find that in fact the right to establish such exclu- sive perpetual descent has long since been abolished. When the statute began to operate, the inconvenience Inconvenience of the strict entails, created under its authority, became ° s rlc en ai s ' sensibly felt : children, it is said, grew disobedient when they knew they could not be set aside ; farmers were deprived of their leases; creditors were defrauded of their debts ; and innumerable latent entails were pro- duced to deprive purchasers of the land they had fairly bought ; treasons also were encouraged, as estates tail were not liable to forfeitures longer than for the tenant's life ( 0- 44 OF I nUPOREAL HEREDITAMENTS. pose of evading the statutes of Mortmain, by which open conveyances <>f lands to their religious houses had been prohibited; and this device they had practised -with considerable success till restrained by act of par- liament (7m. In the case of which we are now speak- ing, the law would not allow the entail to be destroyed simply by the recovery of the lands entailed, by a friendly plaintiff on a fictitious title; this would have been too barefaced: and in such a case the issue of the tenant, claiming under the gift to him in tail, might have recovered the lands by means of a writ of forme- Formcdon. don (i), so called because they claimed per forma.ni doni, according to the form of the gift, which the statute had declared should be observed. The alienation of the lands entailed was effected in a more circuitous mode, by judicial sanction being given to the following pro- ceedings, which afterwards came into frequent and open use, and had some little show of justice to the issue, A recovery. though without any of its reality. The tenant in tail, on the collusive action being brought, was allowed to bring into Court some third person, presumed to have been the original grantor of the estate tail. The tenant then alleged that this third person had warranted the Warranty. title ; and accordingly begged that he might defend the title which he had so warranted. This third person was accordingly called on ; who, in fact, had had nothing to do with the matter ; but, being a party in the scheme, he admitted the alleged warranty, and then allowed judgment to go against him by default. Whereupon judgment was given for the demandant or plaintiff, to recover the lands from the tenant in tail ; and the tenant in tail had judgment empowering him to recover a recompence in lands of equal value from the defaulter, who had thus cruelly failed in defending his title (/«). (h) Statute of Westminster the S, k ■ ni.l, 13 Edw. I. c. 32 ; 2 Black. Com. 271. (/) Litt. ss. 688, 690. (k) Co. Litt. 361 b; 2 Black. Com. 358. OF AN ESTATE TAIL. 45 If any such lands had been recovered under the judg- ment, they would have been held by the tenant for an estate tail, and would have descended to the issue, in lieu of those which were lost by the warrantor's de- fault (/). But the defaulter, on whom the burden was thus cast, was a man who had no lands to give, some man of straw, who could easily be prevailed on to under- take the responsibility ; and, in later times, the crier of the Court was usually employed. So that, whilst the issue had still the judgment of the Court in their favour, unfortunately for them it was against the wrong person ; and virtually their right was defeated, and the estate tail was said to be barred. Not only were the issue Entail barred, barred of their right, but the donor, who had made the grant, and to whom the lands were to revert on failure of issue, had his reversion barred at the same time (?w). The reversion So also all estates which the donor might have given to ane ' other persons, expectant on the decease of the tenant in tail without issue, (and which estates are called re- And remain- mainders expectant on the estate tail,) were equally eis " barred. The demandant, in whose favour judgment was given, became possessed of an estate in fee simple in the lands ; an estate the largest allowed by law, and bringing with it the fullest powers of alienation, as will be hereafter explained : and the demandant, being a friend of the tenant in tail, of course disposed of the estate in fee simple according to his wishes. Such a piece of solemn juggling could not long have held its ground, had it not been supported by its sub- stantial benefit to the community; but, as it was, the progress of events tended only to make that certain which al lir-t was questionable; and proceedings on the principle of those above related, under the name of Common re- Buffering common recoveries, maintained their ground, covenes - (1) 2 Black. Com. 360. (to) 2 Black. Com. 360; Cruise on Recoveries, 2o8. 46 OF (JOKI'OKKAL HEREDITAMENTS. Tenant to the praecipe. Demandant. "S' c tlfl 1 lTlg tO warranty. and long continued in common use as the undoubted privilege of every tenant in tail. The right to suffer a conn i ion recovery was considered as the inseparable incident of an estate tail, and every attempt to restrain this right was held void (w). Complex, however, as the proceedings above related may appear, the ordi- nary forms of a common recovery in later times were more complicated still. The lands were in the first place conveyed, by a deed called the recovery deed, to a person against whom the action was to be brought, and who was called the tenant to the praecipe or writ(o). The proceedings then took place in the Court of Com- mon Pleas, which had an exclusive jurisdiction in all real actions. A regular writ was issued against the tenant to the praecipe by another person, called the demandant; the tenant in tail was then required by the tenant to the praecipe to warrant his title according to a supposed engagement for that purpose ; this was called vouching the tenant in tail to warranty. The tenant in tail, on being vouched, then vouched to war- ranty in the same way the crier of the Court, who was called the common vouchee. The demandant then craved leave to imparl or confer with the last vouchee in private, which was granted by the Court ; and the vouchee, having thus got out of Court, did not return ; in consequence of which, judgment was given in the manner before mentioned, on which a regular writ was directed to the sheriff to put the demandant into pos- session (p). The proceedings, as may be supposed, («) Mary Partington's case, 10 Rep. 36 ; Co. Litt. 224 a ; Fearne on Contingent Remainders, 2G0 ; 2 Black. Com. 116. O) By stat. 14 Geo. II. c. 20, commonly called Mr. Pigott's Act, it was sufficient if the conveyance to the tenant to the praecipe ap- peared to be executed before the end of the term in which the re- covery was suffered, 1 Prest. Con. 61, et seq. ; Goodright d. Burton v. Mgoy, 6 T. Rep. 177. Reco- veries, being in form judicial pro- ceedings, could only be suffered in term time. (p) Cruise on Recoveries, ch. 1, p. 12. OF AN ESTATE TAIL. 47 necessarily passed through numerous hands, so that mistakes were not unfrequently made and great ex- pense was always incurred (§-). To remedy this evil, an act of parliament (r) was accordingly passed in the year 1833, on the recommendation of the commissioners on the law of real property. This act, which in the Recoveries wisdom of its design, and the skill of its execution, is a ° lb ct ' quite a model of legislative reform, abolished the whole of the cumbrous and suspicious-looking machinery of common recoveries. It has substituted in their place a simple deed, executed by the tenant in tail and inrolled in the Court of Chancery (s) : by such a deed, a tenant in tail in possession is now enabled to dispose of the lands entailed for an estate in fee simple ; thus at once defeating the claims of his issue, and of all persons having any estates in remainder or reversion. A common recovery was not, in later times, the only way in which an estate tail might be barred. There was another assurance as effectual in defeating the claim of the issue, though it was inoperative as to the remainders and reversion. This assurance was a fine. A fine. Fines were in themselves, though not in their operation on estates tail, of far higher antiquity than common recoveries (t). They Avere not, like recoveries, actions at law carried out through every stage of the process ; but were fictitious actions, commenced and then com- promised by leave of the Court, whereby the lands in question were acknowledged to be the right of one of the parties (u). They were called fines from their having anciently put an end, as well to the pretended (<>7, a work of profound philo- (/) Fearne's Contingent Re- sophy, except where a hardened reminders, 430, et seq. The period OF AN ESTATE TAIL. 51 Whenever an estate tail is not an estate in posses- When the sion, but is preceded by a life interest to be enjoyed by preceded by a some other person prior to the possession of the lands ^ fe interest. by the tenant in tail, the power of such tenant in tail to acquire an estate in fee simple in remainder ex- pectant on the decease of the tenant for life is subject to some limitation. In the time when an estate tail, The concur- together with the reversion, could only be barred by ^"£ tenant f or a recovery, it was absolutely necessary that the first life required, tenant for life, who had the possession of the lands, should concur in the proceedings ; for no recovery could be suffered, unless on a feigned action brought against the feudal holder of the possession (A). This technical rule of law was also a valuable check on the tenant in tail under every ordinary settlement of landed property ; for, when the eldest son (who, as we have seen, is usually made tenant in tail) came of age, he found that, before he could acquire the dominion expectant on the decease of his father, the tenant for life, he must obtain from his father consent for the pur- pose. Opportunity was thus given for providing that no ill use should be made of the property (/). When recoveries were abolished, the consent formerly re- quired was accordingly still preserved, with some little modification. The act abolishing recoveries has esta- blished the office of protector, which almost always Protector. exists during the continuance of such estates as may precede an estate tail. And the consent of the pro- His consent re- tector is required to be given, either by the same deed T^jnjerslnd by which the entail is barred, or by a separate deed, reversions, to lie executed on or before the day of the execution of the former, and to be also inrollcd in the Court of Chancery at or previously to the time of the inrolment of gestation is also included, if See however stat. 14 Geo. II. c. gi-Matiun '■■■■i-l ; Cadell v. l'ul- L'<». mer, 7 BEgh, N. S. 202. (I) See First Report of Krai (A) Cruise on Recoveries, 21. Property Commissioners, p. 32. E2 ol OF CORPOREAL BEREDITAMENTS. of the deed which bars the entail(?w). Without such con- sent, the remainders and reversion cannot be barred (n). In ordinary cases the protector is the first tenant for life, in analogy to the old law(o); but a power is given by the act, to any person entailing lands, to appoint, ia the place of the tenant for life, any number of per- sons, not exceeding three, to be together protector of the settlemenl during the continuance of the preceding estates (]>)', and, in such a case, the consent of such persons only need be obtained in order to effect a complete bar to the estate tail, and the remainders and reversion. The protector is under no restraint in giving or withholding his consent, but is left entirely The issue may to his own discretion {q). If he should refuse to con- out protector's" sen ^> the tenant in tail may still bar his own issue ; as consent. h e might have done before the act by levying a fine ; but he cannot bar estates in remainder or reversion. The consequence of such a limited bar is, that the tenant acquires a disposable estate in the land for so long as he has any issue or descendants living, and no longer ; that is, so long as the estate tail would have lasted had no bar been placed on it. But, when his issue fail, the persons having estates in remainder or reversion become entitled. "When the estate tail is in possession, that is, when there is no previous estate for life or otherwise, there can very seldom be any protec- tor (r), and the tenant in tail may, at any time by deed duly inrolled, bar the entail, remainders, and reversion at his own pleasure. Estates tail The above-mentioned right of a tenant in tail to crown as the ^ ,;u ' tne ( ' n ^ a ^ i* object to a few exceptions; which, reward of pub- though of not very frequent occurrence, it may be as lie services. (to) Stat. 3 & 4 Will. IV. e. 74, ( p) Sect. 32. ss. 12-47. (q) Sects. 36, 37. O) Sects. 34, 35. (r) See Sugd. Vend, and Pur. 0) Sect. 22. 593, 11th ed. OF AN ESTATE TAIL. 53 well to mention. And, first, estates tail granted by the crown as the reward for public services cannot be barred so long as the reversion continues in the crown. This restriction was imposed by an act of parliament of the reign of Henry VIII. (s), and it has been con- tinued by the act by which fines and recoveries were abolished (£), and by the act to facilitate leases and sales of settled estates (u), so far as regards any sale or lease beyond the term of twenty-one years. There are also some cases in which entails have been created by parti- cular acts of parliament, and cannot be barred. Again, an estate tail cannot be barred by any person Tenant in tail who is tenant in tail after possibility of issue extinct. bility^oHssue This can only happen where a person is tenant in extinct. special tail. For instance, if an estate be given to a man and the heirs of his body by his present wife ; in this case, if the wife should die without issue, he would become tenant in tail after possibility of issue ex- tinct (r); the possibility of his having issue who could inherit the estate tail would have become extinct on the death of his wife. A tenancy of this kind can never arise in an ordinary estate in tail general or tail male ; for, so long as a person lives, the law considers that the possibility of issue continues, however improbable it may be from the great age of the party (.r). Tenants in tail after possibility of issue extinct were prohibited from suffering common recoveries by a statute of the reign of Elizabeth (3/), and a similar prohibition is contained in the act for the abolition of fines and re- (.?) Stat. 34 & 35 Hen. VIII. (v) Litt. sects. 32, 33; 2 Black, c. 20; Cruise on Recoveries, 318. Com. 124. (1) Stat. 3 & 4 Will. IV. c. 74, (./•) Litt. sect. 34; Co. Litt. 40 a; s. 18 ; Dnlte of Grafton's case, 5 2 Black. Com. li'."<; Jee v. Audley, New Cases, 27. I Cox, 324. (//) Stat. 19 & 20 Vict. c. 120, (y) 14 Elk. c. 8. s. 42. 54 OF CORPOREAL HEREDITAMENTS. coveries (r). But, as we have before remarked (a). tenancies in special tail arc not now common. In modern times, when it is intended to make a provision for (he children of a particular marriage, estates are given directly to the unborn children, which take effect as they come into existence ; whereas in ancient times, as we shall hereafter see(Z>), it was not lawful to give any estate directly to an unborn child. Tenant in tail ex provisione The last exception is one that can only arise in the case of grants and settlements made before the passing of the Act for the Abolition of Fines and Recoveries ; for the future it has been abolished. It relates to women who are tenants in tail of lands of their hus- bands, or lands given by any of his ancestors. After the decease of the husband, a woman so tenant in tail ex provisione viri was prohibited by an old statute (c) from suffering a recovery without the assent, recorded or inrolled, of the heirs next inheritable to her, or of him or them that next after her death should have an estate of inheritance, (that is, in tail or in fee simple,) in the lands: she was also prohibited from levying a fine under the same circumstances by the statute which confirmed to fines their force in other cases (d). This kind of tenancy in tail very rarely occurs in modern practice, having been superseded by the settlements now usually made on the unborn children of the marriage. An estate tail canm >t l>e barred by will or contract. It is important to observe that an estate tail can only be barred by a proper deed, duly inrolled according to the act of parliament by which a deed was substituted for a common recovery or fine. Thus every attempt by a tenant in tail to leave the lands entailed by his 0) 3 & '1 Will. IV. c. 71, s. 18. (r/) Ante, p. 34. (b) See the Chapter on a Con- tingent Remainder. 0) 1 1 Hen. VII. c. 20. (//) Stat. 32 Hen. VIII. c. 36, 8. 2. OF AN ESTATE TAIL. 55 will (e), and every contract to sell them, not completed in his lifetime by the proper bar (f), will be null and void as against his issue claiming- under the entail, or as against the remaindermen or reversioners, (that is, the owners of estates in remainder or reversion,) should there be no such issue left. A tenant in tail may cut down timber for his own Timber, benefit, and commit what waste he pleases, without the necessity of barring the entail for that purpose ((/). A Leases, tenant in tail was moreover empowered by a statute of Henry VIII. (h) to make leases, under certain re- strictions, of such of the lands entailed as had been most commonly let to farm for twenty years before ; but such leases were not to exceed twenty-one years, or three lives, from the day of the making thereof, and the accustomed yearly rent was to be reserved. This power was however of little use ; for leases under this statute, though binding on the issue, were not binding on the remainderman or reversioner (7), and conse- quently had not that certainty of enjoyment which is the great inducement to the outlay of capital, and the consequent improvement of landed property ; and this statute has been recently repealed (/e). The Act for New enact- the Abolition of Fines and Recoveries now empowers men ' every tenant in tail in possession to make leases by deed, without the necessity of inrolment, for any term not exceeding twenty-one years, to commence from the date of the lease, or from any time not exceeding twelve calendar months from the date of the lease, where a (e) Cro. Eliz. 805; Co. Litt. (It) Stat. 32 Hen. VIII. c. 28; Ilia; stat. 3 & 4 Will. IV. c. 74, Co. Litt. 44 a; Bac. Abr. tit. B. M). Leases and Terms for Years, (/) Bac. Abr. tit. Estate in Tail (D) 2. CD;; stat. 3&4 Will. IV. c. 74, (/') Co. Litt. 45 b; 2 Black. B. t<>. Com. 310. (?/) Co. Litt. 224 a; 2 Black. (A) Stat. 19 & 20 Vict. c. 120, Com. 1 15. s. 35. 56 OF CORPOREAL HEREDITAMENTS. rent shall be thereby reserved, which, at the time of granting Buch lease, shall be a rack-rent, or not less than five-sixth parts of a rack-rent {t). Forfeiture Eoi treason. New enact- ment. Attainder. Debts to the crown. It has been observed that, in ancient times, estates tail were not subject to forfeiture for high treason beyond the life of the tenant in tail(w). This privi- lege they were deprived of by an act of parliament passed in the reign of Henry VIII. (n), by which all (states of inheritance (under which general words estates tail were covertly included) were declared to be forfeited to the king upon any conviction of high treason (o). Bnt the act "to abolish forfeitures for treason and felony and to otherwise amend the law relating thereto" (p) now provides (q), that after the passing of that act, which took place on the 4th July, 1870, no confession, verdict, inquest, conviction or judgment of or for any treason or felony or felo de se shall cause any attainder or corrup- tion of blood or any forfeiture or escheat. The attainder of the ancestor did not of itself prevent the descent of an estate tail to his issue, as they claimed from the original donor, per formam doni{r) ; and, therefore, on attainder for murder, an estate tail still descended to the issue. By virtue of another statute of the reign of Henry VIII. (s), estates tail are charged, in the hands of the heir, with debts due from his ancestor to the crown, by judgment, recognizance, obligation, or other specialty, although the heir shall not be comprised therein. And all arrears and debts due to the crown, by accountants to the crown, whose yearly or total receipts exceed three hundred pounds, were, by a later (0 Stat. 3 & 4 Will. IV. c. 74, ss. 15, 40, 41. (to ) Ante, p. 43. («) 26 Hen. Vin. c. 13, s. 5; see also 5 & 6 Edw. VI. c. 11, 8. 9. O) 2 Black. Com. 118. GO Stat. 33 & 34 Vict. c. 23. (q) Sect, 1. O) 3 Rep. 10; 8 Rep. 165 b; Cro. Eliz. 28. 0) Stat. 33 Hen. VIII. c. 39, s. 75. OF AX ESTATE TAIL. 57 statute of the reign of Elizabeth (t), placed on the same footing. But estates tail, if suffered to descend, were not subject to the debts of the deceased tenant owing to private individuals (u). By an act passed at the com- Judgment mencement of Her present Majesty's reign debts, for e t& " the payment of which any judgment, decree, order or ride had been given or made by any court of law or equity, were made binding on the lands of the debtor, as against the issue of his body, and also as against all other persons whom he might, without the assent of any other person, cut off and debar from any remainder or reversion (x). But a more recent statute has enacted that no such judgment, decree, order or rule to be entered up after the 29th of July, 1864, the date of the act, shall affect any land until such land shall have been actually delivered in execution (?/). An estate tail may Bankruptcy. also be barred and disposed of on the bankruptcy of a tenant in tail, for the benefit of his creditors, to the same extent as he might have barred or disposed of it for his own benefit (z). In addition to the liabilities above mentioned are the Husband and rights which the marriage of a tenant in tail confers on e " the wife, if the tenant be a man, or on the husband, if the tenant be a woman ; an account of which will be contained in a future chapter on the relation of husband and wife. But, subject to these rights and liabilities, Descent of an an estate tail, if not duly barred, will descend to the issue of the donee in due course of law; all of whom will be necessarily tenants in tail, and will enjoy the same powers of disposition as their ancestor, the original donee in tail. The course of descent of an estate tail (0 Stat. 13 Eliz. c. 4; and sec (y) Stat. 27 & 28 Vict. c. 112, 11 Eliz. c. 7; 25 Geo. IJI. c. 35. ss. 1, 2. («) Com. Dig. Estates (B) 22. (z) Stat. 3 & 4 Will. IV. c. 74, (x) Stat. 1 & 2 Vict. c. 110, ss. 66—78; 32 & 33 Vict. c. 71, ss. 13, 18. 8. 25. 58 OF CORPOREAL HEREDITAMENTS. is similar, so far as it goes, to that of an estate in fee simple, an explanation of which the reader will find in the fourth chapter. ( t >tt/isi entail. jf an estate pur autre vie should be given to a per- son and the heirs of his body, a quasi entail, as it is called, will be created, and the estate will descend, during its continuance, in the same manner as an or- dinary estate tail. But the owner of .such an estate in possession may bar his issue, and all remainders, by an ordinary deed of conveyance (a), without any inrolment under the statute for the abolition of fines and recoveries. If the estate tail be in remainder expectant on an estate for life, the concurrence of the tenant for life is neces- sary to enable the tenant in tail to defeat the subsequent remainders (ft). O) Fcame, Cont. Rem. 495, War. 307, 324, 332 ; Edwards v. et seq. Champion, 3 De Gex, M. & G. (&) Allen v. Allen, 2 Dru. & 202. OF AN ESTATE IN FEE SIMPLE. 59 CHAPTER III. OF AN ESTATE IN FEE SIMPLE. An estate in fee simple (feudum simplex) is the greatest estate or interest which the law of England allows any person to possess in landed property (a). A tenant in Tenant in fee fee simple is he that holds land or tenements to him hin^andhis 8 and his heirs (b); so that the estate is descendible, not heirs; merely to the heirs of his body, but to collateral rela- tions, according to the rules and canons of descent. An estate in fee simple is of course an estate of free- and has an hold, being a larger estate than either an estate for life, j^jj 6 of free " or in tail(c). It is not, however, the mere descent of an estate in Eight of alien- fee simple to collateral heirs, that has given to this a lon ' estate its present value and importance : the unfettered right of alienation, which is hoav inseparably incident to this estate, is by far its most valuable quality. This right has been of gradual growth : for, as we have seen (7/), estates were at first inalienable by tenants, without their lord's consent; and the heir did not derive his title so much from his ancestor as from the loiil, who, when he gave to the ancestor, gave also to his heirs. In process of time, hoAvever, the ancestor acquired, as we have already seen (e), the right, first, of disappointing the expectations of his heir, and then of defeating the interests of his lord. The alienations (,i) Lift. s. 11. (d) Ante, pp. 17, 18. (b) lAtb. s. 1. {fi) Ante, pp. 87—41. (c) Ante, pp. 22, 36 GO OF CORPOREAL HEREDITAMENTS. by which these results were effected were, as will be remembered, either the subinfeudation of parts of the land, to be holden of the grantor, or the conveyance Pail of any of the whole, to be holden of the superior lord. It was anciently be impossible to make a grant of part of the lands to be granted to hold ] 10 ]J en of the superior lord without his consent: for, of the superior , L lord. the services reserved on any grant were considered as entire and indivisible in their nature (/"). The tenant, consequently, if he wished to dispose of part of his lands, was obliged to create a tenure between his grantee and himself, by reserving to himself and his heirs such services as would remunerate him for the services, which he himself was liable to render to his superior lord. In this manner the tenant became a lord in his turn ; and the method, which the tenants were thus obliged to adopt, when alienating part of their lands, was usually resorted to by choice, when- ever they had occasion to part with the whole ; for the immediate lord of the holder of any lands had advan- tages of a feudal nature {g), which did not belong to the superior lord, when any mesne lordship intervened ; it was therefore desirable for every feudal lord, that the possession of the lands should always be holden by Subinfeuda- his own immediate tenants. The barons at the time tapeous to the °^ Edward I. accordingly, perceiving, that, by the superior lords, continual subinfeudations of their tenants, their privi- leges as superior lords were gradually encroached on, proceeded to procure an enactment in their own favour with respect to estates in fee simple, as they had then already done with regard to estates tail (///). They did not, however, in this case attempt to restrain the prac- tice of alienation altogether, but simply procured a prohibition of the practice of subinfeudation ; and at the same time obtained, for their tenants, facility of (/) Co. Litt. 43 a. See Bract, lib. ii. c. 19, par. 2. (#) Such as marriage and ward- (A) By the stat. De Donis, 13 ship, to be hereafter explained. Edw. I. c. 1, ante, p. 42. OF AX ESTATE IN FEE SIMPLE. 61 alienation of parts of their lands, to be liolden of the chief lords. The statute by which these objects were effected is The statute of known by the name of the statute of Quia emptor es(i)\ tJ."^ 6 " 1 ^' so called from the words Avith which it commences. It enacts, that from thenceforth it shall be lawful to every freeman to sell at his own pleasure his lands and tenements or part thereof, so nevertheless that the feoffee (or purchaser) shall hold the same lands or tenements of the same chief lord of the fee, and by the same services and customs, as his feoffor held them before. And it further enacts (k), that, if he sell any part of such his lands or tenements to any person, the feoffee shall hold that part immediately of the chief lord, and shall be forthwith charged with so much ser- vice as pertaineth, or ought to pertain, to the said chief lord, for such part, according to the quantity of the land or tenement so sold. This statute did not extend to those who held of the king as tenants in capite, who were kept in restraint for some time longer (I). Free liberty of alienation was however subsequently acquired by them ; and the right of disposing of an estate in fee simple, by act inter vivos, is now the undisputed privi- lege of every tenant of such an estate (m). The alienation of lands by will Avas not allowed in Alienation by this country, from the time the feudal system became completely rooted, until many years after alienation inter vivos had been sanctioned by the statute of Quia emptores. The city of London, and a feAv other favoured places, formed exceptions to the general ■ i nt on the power of testamentary alienation of estates in fee simple (n); for in these places tenements (i) Stat. 18 Edw. I. c. 1. (m) Wright's Tenures, 172 ; Co. (k) Chap. 2. Litt. Ill b, n. 1. (/) Wright's Tenures, 162. (ti) Litt. sect. L67; Perk, sects. 628, 537. G2 OF CORPOREAL II KKEDITAMENTS. might be devised by will, in virtue of a special custom. !n process of time, however, a method of devising lands by will was covertly adopted by means of conveyances to other parties, to such uses as the person conveying should appoint by his will (a). This indirect mode of devising lands was intentionally restrained by the operation of a statute, passed in the reign of King Henry VIII. (p), known by the name of the Statute of Uses, to which we shall hereafter have occasion to make frequent reference. But only five years after the passing of this statute, lands were by a further statute ex | nessly rendered devisable by will. This great change in the law was effected by statutes of the 32nd and 34th of Henry VIII. (a). But even by these statutes the right to devise Avas partial only, as to lands of the then prevailing tenure ; and it was not till the restora- tion of King Charles II., when the feudal tenures were abolished (r), that the right of devising freehold lands by will became complete and universal. At the present day, every tenant in fee simple so fully enjoys the right of alienating the lands he holds, either in his lifetime or by his will, that most tenants in fee think themselves to be the lords of their own domains ; whereas, in fact, all landowners are merely tenants in the eye of the law, as Avill hereafter more clearly appear. Blackstone's explanation of an estate in fee simple is, that a tenant in fee simple holds to him and his heirs for ever, generally, absolutely and simply, without mentioning what heirs, but referring that to his own pleasure, or the disposition of the law (s). But the idea (o) Tcrk. nbi sup. Litt, 111 b, n. (1). (/>) Stat. 27 Hen. VIII. c. 10, (r) By stat. 12 Car. II. c. 24. intituled "An Act concerning (.?) 2 Black. Com. 104. See Ims and Wills." however 3 Black. Corn. 224, where (//) Stat. 32 Hen. VIII. c. 1 ; the correct account is given. 34 & 35 Hen. VIII. c. 5; Co. OF AN ESTATE IN FEE SIMPLE. 63 of nominating an heir to succeed to the inheritance has no place in the English law, however it might have obtained in the Roman jurisprudence. The heir is The heir is always appointed by the law, the maxim being Solus JJJJ° mted by Deus hceredem facer e potest, non homo(t); and all other persons, whom a tenant in fee simple may please to appoint as his successors, are not his heirs but his assigns. Thus, a purchaser from him in his lifetime, Assigns. and a devisee under his will, are alike assigns in law, claiming in opposition to, and in exclusion of the heir, who would otherwise have become entitled (ii). sons. Alien. "With respect to certain persons, exceptions occur to Excepted per- the right of alienation. Before the Naturalization Act, 1870 (y), if an alien or foreigner, under no allegiance to the crown (x), purchased an estate in lands, the crown might at any time have asserted a right to such estate ; unless it were merely a lease taken by a subject of a friendly state for the residence or occupation of himself or his servants, or the purpose of any business, trade, or manufacture, for a term not exceeding twenty-one years (g). For the conveyance to an alien of any greater estate in lands in this country, was a cause of forfeiture to the Queen, who, after an inquest of office had been held for the purpose of finding the truth of the facts, might have seized the lands accordingly (z). Before office found, that is, before the verdict of any such inquest of office had been given, an alien might have made a conveyance to a natural-born subject ; and such conveyance would have been valid for all pur- poses (a), except to defeat the prior right of the crown, (t) 1 Reeves's Hist. Eng. Law, (y) Stat. 7 & 8 Vict. c. 66, s. 5. i05j Co.Litt.l91a»n.(l),TL3. (-') Co. Litt. 2 b, 42 b ; I Black. (u) Hog an v. Jacltxon, Cowp. Com. 371, 372; 2 Black. Com. 306; Co. Litt. 191 a,n. (1), vi. 10. 249, 274, 298. (/•) Stat. 33 Vict. c. 14. (a) Shop. Touch. 232; 4 Leo. (./■) Litt. B. 198. 84. G4 I >F CORPOREAL BEREDITAMENTS. which would have si ill continued. Xo person is con- sidered an alien who is born within the dominions of the crown, even though such person maybe the child of an alien, unless such alien should be the subject of a Calvin's case, hostile prince (b). And in Calvin's case (c), a person born in Scotland after the accession of James I. to the crown of England, was held to be a natural-born sub- ject, and consequently entitled to hold lands in England, although the two kingdoms had not then been united. Again, the children of the Queen's ambassadors are natural-born subjects by the Common Law (7/); and, by several acts of parliament, the privileges of natural- born subjects have been accorded to the lawful children, though born abroad, of a natural-born father, and also to the grandchildren on the father's side of a natural- born subject (e); and more recently, the children of a natural-born mother, though born abroad, were rendered capable of taking any real or personal estate (f). It was also provided that any woman, who should be married to a natural-born subject or person naturalized, should be taken to be herself naturalized, and have all the rights and privileges of a natural-born subject ( g\ And by a statute of the reign of AVilliam the Third all the King's natural-born subjects were enabled to trace their title by descent through their alien ancestors (A). Denizen. Any foreigner may be made a denizen by the Queen's letters patent, and capable as such of acquiring lands by purchase, though not by descent (7), or may be naturalized by act of parliament. But the Xaturaliza- The Natural ization Act, 1870. (b) 1 Black. Com. 373; Bacon's Abr. tit. Aliens (A). (r) 7 Rep. 1. (>/) 7 Rep. 18 a. 0) Stat. 25 Edw, III. stat. 2 ; 7 Anne, c. 5; 4 Geo. II. c. 21; 13 Geo. III. c. 21. Doe dem. Dnrowre v. Jones, 4 T. Rep. 300; Shedden v. Patrick, 1 M'Queen's H. of L. Cas. 535; Fitch \. Weber, 6 Hare, 51. (/) Stat. 7 & 8 Yict. c. 66, s. 3. Cff) 7 & 8 Vict. c. 6G, s. 16. (A) Stat. 11 & 12 Will. III. c. 6, explained by stat. 25 Geo. II. c. 39. (i) 1 Black. Com. 374. OP AX ESTATE IN FEE SIMrLE. 65 tion Act, 1870 (j), noAv provides (k) that real and personal property of every description may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born British subject ; and a title to real and personal property of every description may be derived through, from or in succession to an alien in the same manner in all respects as through, from or in succession to a natural-born British subject. This act repeals many of the former statutes with respect to aliens, and contains several im- portant amendments of the general law on this subject. Infants, or all persons under the age of twenty-one Infants, idiots, years, and also idiots and lunatics, though they may hold lands, are incapacitated from making a binding disposition of any estate in them. The conveyances of infants are generally voidable only (7), and those of lunatics and idiots appear to be absolutely void, unless they were made by feoffment with livery of seisin before the year 1845 (in). But by a recent act of parlia- Infants' mar- ment (n), every infant, not under twenty if a male, and me nts. not under seventeen if a female, is empowered to make a valid and binding settlement on his or her marriage, with the sanction of the Court of Chancery. If, how- ever, any disentailing assurance shall have been exe- cuted by any infant tenant in tail under the provisions of the act, and such infant shall afterwards die under age, such disentailing assurance shall thereupon become absolutely void (o). Under certain circumstances, also 0') Stat. 33 Vict. c. 14, passed 1104; Sugd. Pow. C04, 8th ed. ; 12th May, 1870, amended by stat. Bac. Abr. tit. Idiots and Lunatics 33 & 34 Vict. c. 102. (F) ; stat. 7 & 8 Vict. c. 76, s. 7 ; (A) Sect. 2. 8 & 9 Vict. c. 106, s. 4. (0 2 Black. Cora. 291; Bac. («) Stat. 18 & 19 Vict. c. 43, Abr. tit. Infancy and Age (13); extended to the Court of Chancery Zoueh \. Parsons, 8 Burr. L794; in Ireland by stat. 23 & 24 Vict. Allen v.Allen, 2 Dm. & War. c.88; Re Dalton, 6 De Gex, Mac. 807,1 & Gor. 201. (ot) Fates v. Bom, 2 Strange, (o) Sect. 2. (JO OF COrcrOKKAL HEREDITAMENTS. for the sake of making a title to lands, infants have been empowered, by modem acts of parliament, to make conveyances of fee-simple and other estates, under the direction of the Court of Chancery (/>). And more extensive powers, with respect to the estates of idiots and lunatics, have been given to their committees, or the persons who have had committed to them the charge of such idiots and lunatics {(f). Power is also given to the Court of Chancery in the case of infants (r), and to the Lord Chancellor or either of the Lords Jus- tices (s), intrusted by virtue of the Queen's sign manual with the care of the persons and estates of idiots and lunatics (t), by a simple order, to vest in any other person the lands of which any infant, idiot or lunatic may be seised or possessed upon any trust or by way of mortgage. Married women. Attainted persons. Married women are under a limited incapacity to alienate, as will hereafter appear. And before the abo- lition of forfeiture for treason and felony (u) persons attainted for these crimes could not, by any conveyance which they might make, defeat the right to their estates, which their attainder gave to the crown, or to the lord, of whom their estates were holden(y). (p) See stat. 11 Geo. IV. & 1 Will. IV. c. 47, s. 11 ; 11 Geo. IV. & 1 Will. IV. c. 65, ss. 12. 16, 31 ; 2 & 3 Vict. c. 60; 11 & 12 Vict, c. 87. (q) See stat 16 & 17 Vict. c. 70, s. 108 et seq., repealing and conso- lidating stats. 11 Geo. IV. & 1 Will. IV. c. 65, and 15 & 16 Vict. c. 48, and other acts so far as they relate to idiots and lunatics in England and Wales. This act has been amended by stat. 18 & 19 Vict. c. 13, and extended by stat. 25 & 26 Vict. c. 86. (;•) " The Trustee Act, 1850," stat. 13 & 14 Vict. c. 60, ss. 7, 8. (5) Stat. 30 & 31 Vict. c. 87, s. 13. (O Stat. 13 & 14 Vict. c. 60, ss. 3, 4 ; 15 & 16 Vict. c. 55, s. 11. (u) By stat. 33 & 34 Vict. c. 23, passed 4th July, 1870. (/•) Co. Litt. 42 b ; 2 Black. Com. 290 ; Perkins, tit. Grant, sect. 26 ; Com. Dig. tit. Capacity (D. 6); 2 Shep. Touch. 232; Doe d. Griffith v. Pritchard, 5 Barn. & Adol. 765. OF AX ESTATE IN FEE SIMPLE. 67 There are certain objects, also, in respect of which Excepted the alienation of lands is restricted. In the reign of ° • ,ec s ' George II. an act was passed, commonly called the Mortmain Act, the object of which, as expressed in the The Mortmain preamble, was to prevent improvident alienations or dispositions of landed estates, by languishing or dying persons, to the disherison of their lawful heirs (x). This statute provides that no lands or hereditaments, nor any money, stock, or other personal estate, to be laid out in the purchase of any lands or hereditaments, shall be conveyed or settled for any charitable uses, Charities. unless by deed indented, sealed and delivered in the presence of two or more credible witnesses, twelve calendar months at least before the death of the donor or grantor, including the days of the execution and death, and inrolled in the High Court of Chancery within six calendar months next after the execution thereof; and unless such stock be transferred six calendar months at least before the death of the donor or grantor, including the days of the transfer and death ; and unless the same be made to take effect in possession for the charitable use intended immediately from the making thereof, and be without any power of revocation, reservation, trust, condition, limitation, clause, or agreement whatsoever, for the benefit of the donor or grantor, or of any person or persons claiming under him (y). Provided always, that nothing therein before mentioned relating to the sealing and delivering of any deed twelve calendar months at least before the death of the grantor, or to the transfer of any stock six calendar months before the death of the grantor, shall extend to any purchase of any estate or interest in lands or hereditaments, or any transfer of stock to be made really and bona fide for a full and valuable consideration actually paid at or before the making of (x) Stat. I) Geo. II. c. 3G. (.). It will be seen that in consequence of this act no gift of any estate in land for charitable purposes can be made by will. By an act of parliament passed on the 25th July, 1828 (c), the title to lands then already purchased for valuable consideration for charitable purposes is rendered valid, notwithstanding the want of an indenture duly attested and inrolled ; but the act is retrospective merely (d). New enact- ments. Reservations allowed. The stringency of the provisions in the Mortmain Act has often been felt to be unnecessarily great, especially with regard to that part ot the act which provides that there shall be no reservation or clause whatever for the benefit of the donor or grantor. And several acts have recently been passed to amend the law relating to the conveyance of land for charitable uses. One act(e), which was passed on the 17th of May, 1861, provides that no assurance for charitable uses shall be void by reason of the deed or assurance not being indented, or not purporting to be indented, nor by reason of such deed or assurance, or any deed forming part of the same transaction, containing any grant or reservation of any peppercorn or other nominal (--) Stat. 9 Geo. II. c. 36, s. 2. (a) Sect. 3. (i) Sect. 4. (c) Stat. 9 Geo. IV. c. 85. (tf) Sect. 3. 0) Stat. 24 Vict. c. 9. Provi- sions were made with respect to Roman Catholic Charities by an act of the previous session, stat. 23 & 24 Vict. c. 34. OF AN ESTATE IN FEE SIMPLE. 69 rent, or of any mines or minerals or easement, or any covenants or provisions as to the erection, repair, position, or description of buildings, the formation or repair of streets or roads, drainage or nuisance, or any covenants or provisions of the like nature, for the use and enjoyment, as well of the hereditaments comprised in such deed or assurance as of any other adjacent or neighbouring hereditaments, or any right of entry on non-payment of any such rent, or on breach of any such covenant or provision, or any stipulations of the like nature, for the benefit of the donor or grantor, or of any person or persons claiming under him ; nor in the case of copyholds by reason of the assurance not being made by deed ; nor in the case of such assurances, made bona fide on a sale for a full and valuable con- sideration, by reason of such consideration consisting wholly or partly of a rent, rent-charge, or other annual payment, reserved or made payable to the vendor or to any other person, with or without a right of re-entry for non-payment thereof: provided that in all reserva- tions authorized by the act, the donor, grantor or vendor shall reserve the same benefits for his representatives as for himself (/). The act further provides, that in all Separate deed cases where the charitable uses of any deed or assurance thereafter to be made for conveyance of any heredita- ments for any charitable uses shall be disclosed by any separate deed, the deed of conveyance need not be inrolled ; but it will be void, unless such separate deed be inrolled in Chancery within six calendar months next after the making or perfecting of the deed for conveyance (g). This act, it will be observed, provides only for the Remarks on reservation of a nominal rent, excepl in the case of an assurance made bona fide on a sale for a full and valu- (/) Stat. L'l Vict. C. '•', S. I. ({/) Sect. 70 OF roitl'OlIKAL HEREDITAMENTS. New enact- ment. able consideration ; so that a gift of land to a charity, reserving a pecuniary rent or rent-charge to the grantor, would still be void. Moreover no alteration was made in that part of the Mortmain Act which relates to the execution of the deed twelve calendar months at least before the death of the grantor. The only exception which, that act allowed was in the case of a purchase of land bona fide, for a full and valuable consideration actually paid at or before the making of the conveyance. If on a purchase a rent were reserved to the vendor, it is clear that the full consideration was not actually paid at the making of the conveyance. There was nothing in the new act, as there was certainly nothing in the former one, to preserve such a conveyance from becom- ing void by the decease of the vendor within twelve calendar months from the date of the deed. This over- sight in the act has been provided for by a more recent statute (A), which enacts that every full and bona fide valuable consideration which shall consist either wholly or partly of a rent or other annual payment reserved or made payable to the vendor or grantor, or to any other person, shall, for the purposes of the Mortmain Act, be as valid and have the same force and effect as if such consideration had been a sum of money actually paid at or before the making of such conveyance without fraud or collusion. As to deeds already made. Money spent in improve- ment. With regard to deeds and assurances already made, it has been provided by another act(z'), that all money really and bona fide expended before the 16th of May, 1862, the date of the act, in the substantial and per- manent improvement, by building or otherwise for any charitable use, of land held for such charitable use, shall be deemed equivalent to money actually paid by way of consideration for the purchase of the said land. (it) Stat. 27 Vict. c. 13, s. 4. (/) Stat. 25 Vict. c. 17, s. 5. OF AN ESTATE IN FEE SIMPLE. 71 It has also been provided (k), that every deed or assur- ance by Avhich any land shall have been demised for any term of years for any charitable use shall, for the purposes of the Mortmain Act, be deemed to have been made to take effect for the charitable use thereby intended immediately from the making thereof, if the Demise to term for which such land shall have been thereby de- co .™ mence •> within a year. mised was made to commence and take effect in pos- session at any time within one year from the date of such deed or assurance. And it has been further pro- vided, with respect to all deeds and assurances under which possession is held for any charitable uses, that if made bona fide for. a full and valuable consideration, actually paid at or before the making of such deed or assurance, or reserved by way of rent, rent-charge, or other annual payment, or partly paid and partly so reserved, no such deed or assurance shall be void within the Mortmain Act, if it was made to take effect in pos- session for the charitable uses intended immediately from the making thereof, and without any power of revocation, and has been inrolled in the Court of Chancery before the 17th of May, 1866 (/). And all conveyances to charitable uses made upon such full and valuable consideration as aforesaid, and under which possession is held for such uses, are rendered valid where any separate deed declaring the uses has alone been inrolled, or where such separate deed shall have been executed within six calendar months from the 13th of May, 1864, and inrolled before the 17th of May, L866 (m). Where the original deed creating where original any charitable trust has been lost, the Court of Chan- decdlost - eery is empowered to authorize the inrolment in its stead of any subsequent deed by which the trusts may sufficiently appear (n). And power is now given to the (k) Stat. 20 & 27 Vict. c. 106. (»t) Stats. 24 Vict. c. 9, s. 4; 27 (/) Stats. 24 Vict, c. 9, s. 8; Vict. c. 18, as. 1,2. 27 Victc. 13,8. I. (/<) Stat. '.'7 Vict. c. 18, s. 8. 72 OF CORPOREAL HEREDITAMENTS. Power to authorize hirohnent. Land already in mortmain. Court of Chancery to authorize the inrolment in that Court of any conveyance for charitable uses, if it be satisfied that the same was made really and bona fide for full and valuable consideration actually paid at or before the making and perfecting thereof, or reserved by way of rent-charge or other annual payment, or partly paid and partly reserved as aforesaid, without fraud or col- lusion, and that at the time of the application to the Court possession or enjoyment is held under such in- strument, and that the omission to inrol the same in proper time has arisen from mere ignorance or inad- vertence, or from the destruction thereof by time or accident (o). The inrolment must be made within six calendar months from the date of the order of the Court. When land has been already devoted to cha- ritable purposes, the conveyance thereof to other trus- tees, or to another charity, does not fall Avithin the purview of the Mortmain Act, and accordingly requires no special attestation or inrolment (p). The acknow- ledgment of deeds prior to inrolment in the Court of Chancery is now abolished (y). The Charity All endowed charities are now placed under the rioners 8 " control of the Charity Commissioners for England and official trustee. "Wales (r). And an official trustee of charity lands has been appointed, in whom may be vested, by order of the Court of Chancery or of any judge having jurisdic- tion, any charity lands whenever the trustees do not or Avill not act, or there are no trustees, or none certainly known, or where any of the trustees are under age, lunatic or of unsound mind, or otherwise incapable of 0) Stat. 29 & 30 Vict. c. .".7. {p) Walker v. Richardson, 2 Mffs. & Wels. 882; Attorney- General v. Ghjn, 12 Sim. 84; Ashton v. Jones, 28 Beav. 460. iq) Stat. 31 & 32 Vict. c. 44, s. 3. (?•) Stat. 16 & 17 Vict. c. 137, amended by stats. 18 & 19 Vict. c. 124, and 23 & 24 Vict. c. 136, explained by stat. 25 & 26 Vict. c. 112, and amended by stat. 32 & 33 Vict. c. 110. OF AX ESTATE IX FEE SIMPLE. acting, or out of the jurisdiction of the Court, or where a valid appointment of new trustees cannot be made, or shall be considered too expensive (s). But it is now pro- vided that where the trustees of a charity have power to determine on any disposition of any property of the charity, a majority, who are present at a meeting of their body duly constituted and vote on the question, shall have, and be deemed to have always had, mil power to execute and do all such assurances, acts and things as may be requisite for carrying any such dis- position into effect ; and all such assurances, acts and things shall have the same effect as if they were respec- tively executed and done by all such trustees and by the official trustee of charity lands {t). An important exception to the Mortmain Act has sites for been introduced by acts of parliament passed to afford schools - further facilities for the conveyance and endowment of sites for schools (u), by which one witness only is ren- dered sufficient for such a conveyance (u), and the death of the donor or grantor within twelve calendar months from the execution of the deed will not render it void (to). But by these acts the necessity of inrol- ment does not appear to have been dispensed with (x). These acts contain many other provisions for facili- tating the erection of schools for the education of the poor. And, by more recent acts of parliament, pro- Literary vision has been made for the conveyance of sites for literary and scientific and other similar institutions (y) ; 0) Stats. 10 & 17 Vict. c. 137, by stat. 14 & 15 Vict. c. 21 ; and s. 48; 18 & 19 Vict. c. 124, s. 15. extended by stat. 15 & 16 Vict. (0 Stat. 32 & 33 Vict. c. 110, c. 49. s. 12, repealing stat.. 23 & 21 Vict. (/•) Stat. 4 & 5 Vict. c. 38, s. 10. c. 1 36, B. I <;. (w) Stat. 7 & 8 Vict. c. 37, s. 3. d/) Stat. I & :, Vi,t. .-. 38, ex- (./•) See stat. I & 5 Vict. c. 38, plained bj Btat. 7 & 8 Vict, e 37; s. It;. extended and farther explained by (y) Stat. 17 & 18 Vict. c. 112 stat. 12 & 13 Vict, c.49, amended scientific in- stitutions. 74 OF CORPOREAL BEREDITAMENTS. and also for facilitating grants of land for the recrea- l'lav grounds, tion of adults, and as play-grounds for children (r). A Further exeep- further important inroad upon the Mortmain Act has """• also been made by an act (a), which provides, that all alienations, except by will, bona fide made after the pass- ing of that act to a trustee or trustees on behalf of any society or body of persons associated together for reli- gious purposes, or for the promotion of education, arts, literature, science, or other like purposes, of land for the erection thereon of a building for such purposes or any of them, or whereon a building used or intended to be used for such purposes or any of them shall have been erected, shall be exempt from the provisions of the Mortmain Act, and from the provisions of the 2nd sec- tion of the act 24 Vict. c. 9 : provided such disposition shall have been really and bona fide made for a full and valuable consideration actually paid upon or before the making thereof, or reserved by way of rent, rent-charge, or other annual payment, or partly paid and partly reserved as aforesaid, without fraud or collusion, and provided that each such piece of land shall not exceed two acres in extent or area in each case. The deed or instrument of disposition may at any time be inrolled in Chancery if thought fit. Corporation. Again, no conveyance can be made to any corpo- ration, unless a licence to take lands has been granted to it by the -crown. Formerly, licence from the lord, of whom a tenant in fee simple held his estate, was also necessary to enable him to alienate his lands to any corporation (Z>). For, this alienation to a body having perpetual existence was an injury to the lord, who was then entitled to many advantages, to be here- after detailed, so long as the estate was in private hands ; but in the hands of a corporation these advan- (r) St.it. 22 Vict. c. 27. passed 13th July, 18GS. (a) .Stat. 31 & 32 Vict. c. 11, (//) 2 Black. Com. 269. OF AN ESTATE EN FEE SIMPLE. 7o tages ceased. In modem times, the rights of the lords having become comparatively trifling, the licence of the crown alone has been rendered by parliament sufficient for the purpose (c). And it is now provided Incorporated that any incorporated charity may, with the consent of the charity commissioners, invest money arising from any sale of land belonging to the charity, or re- ceived by way of equality of exchange or partition, in the purchase of land ; and may hold such land, or any land acquired by way of exchange or partition, for the benefit of such charity, without any licence in mort- main (rZ). It is further provided (e) that all corpo- rations and trustees in the United Kingdom holding monies in trust for any public or charitable purpose may invest such monies on any real security authorized by or consistent with the trusts on which such monies are held, without being deemed thereby to have acquired or become possessed of any land within the meaning of the laws relating to mortmain or of any prohibition or restraint against the holding of land by such corpo- rations or trustees contained in any charter or act of parliament. And no contract for or conveyance of any interest in land made bona fide for the purpose only of such security shall be deemed void by reason of any noncompliance with the conditions and solemnities re- quired by the Mortmain Act. Every joint-stock com- Joint-stock pany registered under the Joint- Stock Companies com P anies - Acts(y) has also power to hold lands (jf); but no com- pany formed for the purpose of promoting art, science, religion, charity or any other like object, not involving the acquisition of gain by the company or by the indi- vidual members thereof, shall, without the sanction of O) Stat. 7 & 8 Will. III. c. 37. c. 14, and 21 & 22 Vict. c. 60, and (d) Stat. 18 & 19 Vict. c. 124, now consolidated by stat 26 & 26 B, 35. Vict. c. 89, and nini-iidcd by stat. (r) Stiit. 33 & 34 Vict. c. 84. :;<> & 31 Vict. c. 131. (/) Stat. 19 &. 20 Vict. <•. 17, (//) Stat. 25 & 26 Vict. c. 8 ( .i, amended by stat. 20 & 21 Vict. a. L8. 70 OF CORPOREAL BEREDITAMENTS. the Board of Trade, hold more than two acres of land ; but the Board of Trade may, by licence under the hand of one of their principal or assistant secretaries, empower any such company to hold lands in such quantity and subject to such conditions as they think fit (A). Conveyances By a statute of the reign of Elizabeth, conveyances creditors. °^ l an ded estates, and also of goods, made for the pur- pose of delaying, hindering or defrauding creditors, arc void as against them; unless made upon good, which here means valuable, consideration, and bond Jidc, to any person not having, at the time of the con- Voluntary veyance, any notice of such fraud (?'). And, by a sub- or^^anY 8 ' se( l u ent statute of the same reign, voluntary convey- clause of revo- ances of any estate in lands, tenements, or other here- as against ditaments whatsoever, and conveyances of such estates purchasers. made with any clause of revocation at the will of the grantor, are also void as against subsequent pur- chasers for money or other valuable consideration (J). The effect of this enactment is, that any person who has made a voluntary settlement of landed property, even on his own children, may afterwards sell the same pi-operty to any purchaser; and the purchaser, even though he have full notice of the settlement, will hold the lands without danger of interruption from the persons on whom they had been previously settled (A). But if the settlement be founded on any valuable consideration, such as that of an intended marriage, it cannot be defeated (/). The methods by which a tenant in fee simple can alienate his estate in his lifetime will be reserved for (/() Stat. 25 & 2G Vict. c. 80, (It) Upton v. £assctt,Cro.TAv/.. s. 21. IU; 3 Rep. 83a; Sugd. Vend. & (0 Stat. 13 Eliz. c. 5; Trcyne's Pur. 586. 13th ed.; Sugd. Pow., case, 3 Rep. 81 a; 1 Smith's Lead- ch. 14, 8th cd. ing Cases, 1. (7) Coir lie v. Parker, Cro. Jac. (y) Stat. 27 Eliz. c. 4, made 158; Sugd. Pow., ch. 14, 8th ed. perpetual by 30 Eliz. c. 18, s. 31. OF AN ESTATE IN FEE SIMFLE. 77 future consideration, as will also the subject of aliena- tion by testament. As a tenant in fee simple may alienate his estate at his pleasure, so he is under no control in his management of the lands, but may open mines, cut timber, and commit waste of all kinds (in), grant leases of any length, and charge the lands with the payment of money to any amount. Fee simple estates are moreover subject, in the hands of the heir or devisee, to debts of all kinds contracted by the Debts, deceased tenant. This liability to what may be called an involuntary alienation, has, like the right of voluntary alienation, been established by very slow degrees (n). It appears that, in the early periods of our history, the heir of a deceased person was bound, to the extent of the inheritance which descended to him, to pay such of the debts of his ancestor as the goods and chattels of the ancestor were not sufficient to satisfy (o). But the spirit of feudalism, which at- tained to such a height in the reign of Edward I., appears to have infringed on this ancient doctrine; for we find it laid down by Britton, who wrote in that reign, that no one should be held to pay the debt of his ancestor, whose heir he was, to any other person than the king, unless he were by the deed of his ancestor especially bound to do so(p). On this Heirs might footing the law of England long continued. It allowed JJJJJJ^ g 6 e . any person, by any deed or writing under seal (called cialty. a special contract or specialty) to bind or charge his heirs, as well as himself, with the payment of any debt, or tl i< • fulfilment of any contract: in such a case the heir was liable, on the decease of his ancestor, to pay (/«) 3 Black. Com. 223. pear to be express ; the contrary (w) See Co. Litt. 191 a, n. (1), doctrine, however, with an account vi. 9. of the reasons fur it, will be found (o) Glanville, lib. vii. c. 8 ; in Bex. Al>r. tit. Heir and Ances- Bract. 01 a; 1 Reeves's Ili^t. Eng. tor (F). Law, 113. These authorities ap- (/>) Britt. 64b, ). And the remedies provided by the act were extended, in their application, to all decrees, orders, and rules made by the courts of equity and of common law, and by the Lord Chancellor or the Lords .Justices in matters of bankruptcy, and by the Lord ( Ihancellor in matters of lunacy, for the payment to any person of any money or costs ( i Beet. 13. : - As to entering satisfaction (). An act has at length been passed which entirely New Act, lion deprives all future judgments of their hen on real abolished" 1 estates (c). This act, which was passed on the 29th of July, 1864, provides that no future judgment shall affect any land, of whatever tenure, until such land shall have been actually delivered in execution by virtue of a writ of elegit, or other lawful authority, in pursuance of such judgment (d). In the construction of the act, the term "judgment" is to be taken to include registered decrees, orders of courts of equity (*) Stat. 23 & 24 Vict. c. 38, (r) Stat. 27 & 28 Vict. c. 112. b. 1. (d) Sect. 1 ; Quest v. Coto- (a) Sect. 2. bridge Rail/may Compa/tvy, V.-C. ">) Ante, p. 83. G.,17W.Bep.7; LR,6Eq.619. 8Q OP CORPOREAL EEREDITAMENTS. and bankruptcy, and other orders having the opera- Writ fcobere- tion of a judgment (e). Every writ, by virtue whereof any land shall have been actually delivered in execu- tion, must be registered in the manner provided by the Last-mentioned act(/), but in the name of the debtor against whom such writ or process is issued, instead of, as under that act, in the name of the creditor. And no other registration of the judgment is to be deemed accessary G »r any purpose (^7). Every creditor to whom any land of his debtor shall have been actually delivered in execution by virtue of any judgment, and whose writ shall have been duly registered, may obtain from the Court of Chancery, upon petition in a summary way, Order for sale, an order for the sale of his debtor's interest in such land (A). The other judgment creditors, if any, are to be served with notice of the order for sale ; and the proceeds of the sale are to be distributed amongst the persons who may be found entitled thereto, according to their priorities (?'). And every person claiming any interest in such land through or under the debtor, by any means subsequent to the delivery of such land in execution as aforesaid, is boimd by every such order for sale, and by all the proceedings consequent thereon (7i). This act extends not only to judgments, but also to Statutes ana statutes and recognizances. Statutes merchant and recognizances. s(atut( , s ^^ wMch ^ here re f erred to? are modes f securing money that have long been obsolete. Recog- nizances are entered into before a court of record or a magistrate; and, like judgments, they were a charge on lands until the passing of this act (7). An act has been recently passed to render judgments obtained in Eng- (e) Stat. 27 & 28 Vict. c. 112, (/) Sect. 5. s. 2. Ik) Sect, 6. (/) Stat. 23 & 24 Vict. c. 38. (0 See the Author's "Princi- (//) Stat. 27 & 28 Vict <■. Ill', pies of the Law of Personal Pro- - '■'>■ perfcy," p. 100, 5th ed.; 102, 6th (k) Sect. 4. cl. ; 105, 7th ed. OF AN ESTATE IN FEE SIMPLE. 87 land, Scotland and Ireland, effectual in any other part of the United Kingdom (m). Lands in either of the counties palatine of Lan- Counties caster or Durham were affected both by judgments P alatme - of the courts at Westminster, and also by judgments of the Palatine Court(?i). These latter judgments had, within the county palatine, the same effect as judgments of the courts at Westminster ; and an index for their registration was established in each of the counties palatine, similar to the index of judgments at the Common Pleas (0). And by a recent statute (p) it was provided, that no judgment, decree, order or rule of any court should bind lands in the counties palatine, as against purchasers, mortgagees, or creditors, until registration in the court of the county palatine in which the lands were situate. And the same provisions as to re-registration within five years as applied to the registry of the Court of Common Pleas applied also to these registries (0). Lands in the county palatine of Chester, and in the principality of Wales, have been placed by a modern statute exclusively within the juris- diction of the courts at Westminster (r) ; and by ano- ther statute (s) the palatinate jurisdiction within the county of Durham, which formerly belonged to the Bishop of Durham, has been transferred to the crown. Debts due, or which might have become due, to the Crown debts, crown, from persons who where accountants to the crown (/), and debts of record, or by bond or specialty, (w) Stat. 31 & 32 Vict. c. 54. IV. c 70, s. 14. (n) 2 Wms. Baund. L94. (*) Shit. C> & 7 Will. IV. c. 19, (<>) Stat. 1 & 2 Vict. c. 110, amended by stat. 21 & 22 Vict. B.21. e. 16. ( />) Stat. IS & 19 Vict. c. 15, (t) Stat. 13 Eliz. c. 4; 25 Geo. 1 1 1, c. 36 -, Co. Litt. 191 a, n. (1 ), { Sim. Yes. 129, l:;:;. 205; PhippsY. Lord Ermismore, I Rn i.:i 92 OF CORPOREAL BLEREDITAMENTS. l)ut this mode of settlement is of comparatively mo- dern date ( p). There are also certain cases in which the personal enjoyment of property is essential to the performance of certain public duties, and in which no alienation of such property can be made; thus a bene- fice with cure of soids cannot be directly charged or encumbered (q) ; so offices concerning the administra- tion of justice, and pensions and salaries given by the state for the support of the grantee in the performance of present or future duties, cannot be aliened (r); though pensions for past services are, generally speak- ing, not within the rule (s). ■wives. Husbands and In addition to the interests which may be created by alienation, either voluntary or involuntary, there are certain rights, conferred by law on husbands and wires in each other's lands, by means of which the descent of an estate, from an ancestor to his heir, may partially be defeated. These rights will be the sub- ject of a future chapter. If, however, the tenant in fee simple should not have disposed of his estate in his lifetime, or by his will, and if it should not be swallowed up by his debts, his lands will descend (subject to any rights of his wife) to the heir at law. The heir at The heir, as Ave have before observed (t), is a person appointed by the law. He is called into existence by his ancestor's decease, for no man during his lifetime (p) Brandon v. Robinson, 18 (;•) Flarty y. Odium, 3T. Rep. Ves. 434 ; Tullett v. Armstrong, G81 ; Stats. 5 & 6 Edw. VI. c. 1G ; 1 Beav. 1 ; 4 M. & Cr. 390 ; Scar- 49 Geo. III. c. 126. borough v. Borman, 1 Beav. 34; (s) M'Carthy v. Goold, 1 Ball 1 ML & Cr. 377. & Beatty, 387; Tunstal v. Booth- (q) Stats. 13 Eliz. c. 20; 57 Geo. by, 10 Sim. 542. But see statutes III. c. 99, s. 1 ; 1 & 2 Vict. c. 10G, 47 Geo. III. sess. 2, c. 25, s. 4, and s. 1 ; Sham v. Pritchard,10 Bam. 11 Geo. IV. & 1 Will. IV. c. 20, & Cress. 241 ; Long v. Storie, 3 De s. 47 ; Lloyd v. Clieetliam, 3 Giff. ' iex & Smale, 308; Hawkins v. 171 ; ITeald v. LZay, 3 Giff. 467. (latnercole, 6 De Gex, M. & G. 1. (t) Ante, p. 63. law OF AX ESTATE IX FEE SIMPLE. 93 can have an heir. Nemo est hceres viventis. A man may have an heir apparent, or an heir presumptive, but until his decease he has no heir. The heir ap- Heir apparent. parent is the person, who, if he survive the ancestor, must certainly be his heir, as the eldest son in the life- time of his father. The heir presumptive is the person, Heir presump- who, though not certain to be heir at all events, should ne ' he survive, would yet be the heir in case of the an- cestor's immediate decease. Thus an only daughter is the heiress presumptive of her father : if he were now to die, she woidd at once be his heir ; but she is not certain of being heir; for her father may have a son, who would supplant her, and become heir apparent during; the father's lifetime, and his heir after his de- cease. An heir at law is the only person in whom the law of England vests property, whether he will or not. If I make a conveyance of land to a person in my life- time, or leave him any property by my will, he may, if he pleases, disclaim taking it, and in such case it will not vest in him against his wi]l(tt). But an heir at law, immediately on the decease of his ancestor, be- comes presumptively possessed, or seised in law, of all his lands (x). No disclaimer that he may make will The heir can- , m , ,t t t> 1 not disclaim. have any effect, though, of course, he may, as soon as he pleases, dispose of the property by an ordinary con- veyance. A title as heir at law is not nearly so fre- quent now as iiTwas in the times when the right of alienation was more restricted. And when it does occur, it is often established with difficulty. This difficulty arises more from the nature of the facts to be proved, than from any uncertainty in the law. For the rides of descent have now attained an almost mathe- matical accuracy, so that, if the facts are rightly given, the heir at law can at once be pointed out. The Gradual pro- • it tfress ol tlic accuracy of the law has arisen by degrees, by the sue- i aw of de- scents. (n) Niclo$onv. Wordsworth, 2 (x) Watkins on Descents, 2.">, Swanst. 866, 372. 2G (4th cd. 34). 94 OF CORPOREAL HEREDITAMENTS. ccssive determination of disputed points. Tims, Ave have seen that, in the early feudal times, an estate to a man and his heirs simply, which is now an estate in fee simple, was descendible only to his offspring, in the same manner as an estate tail at the present day ; but in process of time collateral relations were admitted to succeed. When this succession of collaterals first took place is a question involved in much obscurity; Ave only know that in the time of Henry II. the kw was settled as folloAvs: — In defanlt of lineal descendants, the brothers and sisters came in ; and if they Avere dead, their children ; then the uncles and their chil- dren ; and then the aunts and their children ; males being ahvays preferred to females (y). Subsequently, about the time of Henry III. (z), the old Saxon rule, which divided the inheritance equally amongst all males of the same degree, and which had hitherto prevailed as to all lands not actually the subjects of feudal tenure («), gave place to the feudal laAV, introduced by the Normans, of descent to the eldest son or eldest brother ; though among females the estate was still equally divided, as it is at present. And, about the same time, all descendants in infinitum of any person, Avho Avould have been heir if liAang, Avere alloAved to inherit by right of representation. Thus, if the eldest son died in the lifetime of his father, and left issue, that issue, though a grandson or granddaughter only, was to be preferred in inheritance before any younger son (Z»). The father, moreover, or any other lineal ancestor, was never alloAved to succeed as heir to his son or other descendant ; neither were kindred of the half-blood admitted to inherit (c). The rules of descent, (y) 1 Reeves's Hist. Eng. Law, (a) Clements v. Sandaman, 1 43. P. Wms. 64; 2 Lord Raymond, (z) 1 Reeves's Hist. 310; 2 1024; 1 Scriv. Cop. 53. Black. Com. 215; Co. Litt. 191 a, (b) 1 Reeves's Hist. 310. note (1), vi. 1. (r) 2 Black. Com. c. 14. OF AN ESTATE IN FEE SIMPLE. 95 thus gradually fixed, long remained unaltered. Lord Hale, in whose time they had continued the same for above 400 years, was the first to reduce them to a series of canons (d); which were afterwards admirably explained and illustrated by Blackstone, in his Avell- known Commentaries; nor was any alteration made till the enactment of the act for the amendment of the law of inheritance (e), a.d. 1833. By this act, amongst other important alterations, the father is heir to his son, supposing the latter to leave no issue ; and all lineal ancestors are rendered capable of being heirs (/)', relations of the half-blood are also admitted to succeed, though only on failure of relations in the same degree of the whole blood ( g). The act has, moreover, settled a doubtful point in the law of descent to distant heirs. The rules of descent, as modified by this act, will be found at large in the next chapter. (d) Hale's Hist. Com. Law, amended by stat. 22 & 23 Vict. Cth ed., p. 318 et seq. c. 35, ss. 19, 20. 0) Stat, 3 & 4 Will. IV. c. 10G, (/ ) Sect. G. iff) Sect. 9. OG OF CORPOREAL BEREDITAMENTS. (TIAPTKK IV. OF THE DESCENT OF AX ESTATE IX FFF SIMFLE. Rules of descent. We sliall now proceed to consider the rules of the de- scent of an estate in fee simple, as altered by the act for the amendment of the law of inheritance (a). This act does not extend to any descent on the decease of any person, who may have, died before the first of January, 1834 (b). For the rules of descent prior to that date, the reader is referred to the Commentaries of Black- stone (c), and to Watkins's Essay on the Law of De- scents. Rule l. Purchase. Descent for- merly traced from the per- son last pos- sessed. 1. The first rule of descent now is, that inheritances shall lineally descend, in the first place, to the issue of the last purchaser in infinitum. The word purchase has in laAv a meaning more extended than its ordinary sense : it is possession to which a man cometh not by title of descent (d) : a devisee under a will is accord- ingly a purchaser in law. And, by the act, the pur- chaser from whom descent is to be traced is defined to be, the last person who had a right to the land, and who cannot be proved to have acquired the land by descent, or by certain means (e) which render the land part of, or descendible in the same manner as, other land acquired by descent. This rule is an alteration of the old law, which was, that descent should be traced from the person avIio last had the feudal possession or (a) Stat. 3 & 4 Will. IV. c. 106, amended by stat. 22 & 23 Vict. c. 35, ss. 19, 20. (//) Sect. 11. (c) 2 Black. Com. c. 14. {(I) Litt. s. 12. (e) Escheat, Partition and In- closure, s. 1. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 97 seisin, as it was called ; the maxim being seisina facit stipitem (/)■ This maxim, a relict of the troublesome times when right without possession was worth but little, sometimes gave occasion to difficulties, owing to the uncertainty of the question, whether possession had or had not been taken by any person entitled as heir ; thus, where a man was entering into a house by the window, and when half out and half in, was pulled out again by the heels, it was made a question, whether or no this entry was sufficient, and it was adjudged that it was (^7). These difficulties cannot arise under the new act ; for now the heir to be sought for is not the heir of the per- son last possessed, but the heir of the last person en- titled who did not inherit, whether he did or did not obtain the possession, or the receipt of the rents and profits of the land. The rule, as altered, is not indeed Objection to altogether free from objection ; for it will be observed the alteration - that, not content with making a title to the land equi- valent to possession, the act has added a new term to the definition, by directing descent to be traced from the last person entitled ivho did not inherit. So that if a person who has become entitled as heir to another should die intestate, the heir to be sought for is not the heir of such last owner, but the heir of the person from whom such last owner inherited. This provision, though made by an act consequent on the report of the Ileal Property Commissioners, was not proposed by them. The Commissioners merely proposed that lands should pass to the heir of the person last entitled (A), instead, as before, of the person last possessed ; thus facilitating the discovery of the heir, by rendering a mere title to the lands sufficient to make the person entitled the stock of descent, without his obtaining tlu: feudal possession, ;i- before required. Under the old law, descent was (/) 2 Black. Com. 209; Watk. 53). Descent, c. 1, s. 2. (//) Thirteenth proposal as to (,) Beet. 241; 2 Black. Com. s. 86. 189. Fl 2 100 OF CORPOREAL HEREDITAMENTS. is by a judge of the Court of Chancery in chambers, or more rarely 1>\ a commission issued for the pui*pose by thai Court(f). Partition, however, is most frequently made l>v voluntary a greement between the parties, and for this purpose a deed has, by a modem act of parlia- ment, been rendered essential in every case(w). The inclosure commissioners for England and Wales have also ] tower to effect partitions, by virtue of modern enact mints, which will be found mentioned at the end of the chapter on Joint Tenants and Tenants in Com- mon. When partition has been effected, the lands Severalty. allotted are said to be held in severalty; and each Entirety. owner is said to have the entirety of her own parcel. After partition, the several parcels of land descoid in the same manner as the undivided shares, for which they have been substituted (y) ; the coparceners, there- fore, do not by partition become purchasers, but still continue to be entitled by descent. The term coparce- ners is not applied to any other joint owners, but only to those who have become entitled as coheirs (?/;). Rule 4. 4. The fourth rule is, that all 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 (x). Thus, in the case above mentioned, on the death of William the eldest son, leaving a son, that son would succeed to the whole by right of representation, in exclusion of his uncle John, and of his two aunts Susannah and Catherine ; or had William left a son and daughter, such daughter woidd, after the decease (f) Co. Litt. 169 a, n. (2); 1 (v) 2 Prest. Abst. 72; Doe d. Fonb. Eq. 18; Canning v. Can- CrostJt/raite v. Dixon, 5 Adol. & niiig, 2 Drewry, 134. Ellis, Z?A. O) Stat. 8 & 9 Vict. c. 10G, s. 3, (w) Litt. s. 251. repealing stat. 7 & 8 Vict. c. 76, (.>•) 2 Black. Corn. 216. s. 3, to the same effect. OF THE DESCENT OF AX ESTATE IX FEE SIMPLE. 101 of her brother without issue, be, in like manner, the heir of her grandfather, in exclusion of her uncle and aunts. The preceding rules of descent apply as well to the Descent of an descent of an estate tail, if not duly barred, as to that estate tai1- of an estate in fee simple. The descent of an estate tail is always traced from the purchaser, or donee in tail, that is, from the person to whom the estate tail was at first given. This was the case before the act, as well as now(y); for, the person who claims an entailed estate as heir claims only according to the express terms of the gift, or, as it is said, per formam doni. The gift is made to the donee, or purchaser, and the heirs of his body; all persons, therefore, who can become en- titled to the estate by descent, must answer the descrip- tion of heirs of the purchaser's body; in other words, must be his lineal heirs. The second and third rides also equally apply to estates tail, unless the restriction of the descent to heirs male or female should render unnecessary the second, and either clause of the third rule. The fourth rule completes the canon, so far as e-tates tail are concerned; for, when the issue of the donee are exhausted, such an estate must necessarily determine. But the descent of an estate in fee simple may extend to many other persons, and accordingly requires for its guidance additional rules, with which we now proceed. 5. The fifth rule is, that on failure of lineal descend- Rule 5. ants, or issue of the purchaser, the inheritance shall descend to his nearest lineal ancestor. This rule is materially different from the rule which prevailed be- fore the passing of the act. The former rule was, that, The old rule, on failure of lineal descendants or issue of the person la-t seised for feudally possessed), the inheritance should (y) Doe & Gregory v. WMchelo, 8 T. Hep. 211. 102 OF CORrOREAL HEREDITAMENTS. descend to his collateral relations, being of the blood of the firsl purchaser, subject to the three preceding rules(r). The old law never allowed lineal relations in the ascending line (that is, parents or ancestors) to succeed as liciis. But, by the new act, descent is to be traced through the ancestor, who is to be heir in pre- ference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in consequence of there being no descendant Exclusion of of such lineal ancestor. The exclusion of parents and other lineal ancestors from inheriting under the old law was a hardship of which it is not easy to see the pro- priety : nor is the explanation usually given of the origin perhaps quite satisfactory. Bracton, who is followed by Lord Coke, compares the descent of an inheritance to that of a falling body, which never goes upwards in its course (a). The modern explanation derives the origin of collateral heirships, in exclusion of lineal ancestors, from gifts of estates (at the time when inheritances were descendible only to issue or lineal heirs) made, by the terms of the gift, to be descendible to the heirs of the donee, in the same manner as an ancient inheritance Feudvm would have descended. This was called a gift of a "tuithiiLum feudum novum, or new inheritance, to hold ut feudum antiquum, as an ancient one. Now, an ancient inherit- ance, — one derived in a course of descent from some remote lineal ancestor, — would of course be descendible to all the issue or lineal heirs of such ancestor, including, after the lapse of many years, numerous families, all collaterally related to one another: an estate newly granted, to be descendible ut feudum antiquum, would therefore be capable of descending to the collateral re- lations of the grantee, in the same manner as a really ancient inheritance, descended to him, would have done. But an ancient inheritance could never go to the father (as) 2 Black. Com. 220. (a) Bract, lib. 2, c. 29; Co. Litt. 11 a. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 103 of any owner, because it must have come from his father to him, and the father must have died before the son could inherit : in grants of inheritances to be descendible as ancient ones, it followed, therefore, that the father or any lineal ancestor could never inherit (b). So far, therefore, the explanation holds ; but it is not consistent with every circumstance ; for an elder brother has always been allowed to succeed as heir to his younger brother, contrary to tins theory of an ancient lineal inheritance, which woidd have previously passed by every elder brother, as well as the father. The explanation of the origin of a rule, though ever so clear, is however a dif- ferent thing from a valid reason for its continuance; and, at length, the propriety of placing the property of a family under the care of its head, is now perceived and acted on ; and the father is heir to each of his chil- dren, who may die intestate and without issue, as is more clearly pointed out by the next rule. 6. The sixth ride is, that the father and all the male Rule 6. paternal ancestors of the purchaser, and their descend- ants, shall be admitted, before any of the female pa- ternal ancestors or their heirs ; all the female paternal ancestors and their heirs, before the mother or any of the maternal ancestors, or her or their descendants ; and the mother and all the male maternal ancestors, and her and their descendants, before any of the female maternal ancestors, or their heirs (c). This rule is a Preference of development of the ancient canon, which requires that, ™^ to c " in collateral inheritances, the male stocks should always be preferred to the female; and it is analogous to the second rule above given, which directs that in lineal inheritances the male issue shall be admitted before the female. This strid and careful preference of the male (ft) 2 Black. Com. 212, 221, 222 5 (<) Stat. 3 & 4 Will. IV. c. 106, Wright's Tenures, L80. See also s. 7, combined with t In- definition Co. Litt. 11 a, n. (I). <>i "descendants," sect. 1. 101 OF CORrOTCEAL hereditaments. Preference of males to fe- males still continued. to the female line was in full accordance with tlic spirit of the feudal system, which, being essentially military in its nature, imposed obligations by no means easy for a female to fulfil ; and those who were unable to perform the Bervices could not expect to enjoy the benefits ( <7). The feudal origin of our laws of descent will not, how- ever, afford a complete explanation of this preference ; for such lands as continued descendible after the Saxon custom of equal division, and not according to the Norman and feudal law of primogeniture, were equally subject to the preference of males to females, and de- scended in the first place exclusively to the sons, who divided the inheritance between them, leaving nothing at all to their sisters. The true reason of the prefer- ence appears to lie in the degraded position in society, which, in ancient times, was held by females ; a posi- tion arising from their deficiency in that kind of might, which then too frequently made the right. The rights given by the common law to a husband over his wife's property (rights now generally controlled by proper settlements previous to marriage), show the state of de- pendence to which, in ancient times, women must have been reduced (e). The preference of males to females has been left untouched by the recent act for the amendment of the law of descents ; and the father and all his most distant relatives have priority over the mother of the purchaser : she cannot succeed as his heir until all the paternal ancestors of the purchaser, both male and female, and their respective families, have been exhausted. The father, as the nearest male lineal ancestor, of course stands first, supposing the issue of the purchaser to have failed. If the father should be dead, his eldest son, being the brother of the purchaser, will succeed as heir in the place of his father, according to the fourth rule ; unless he be of the half blood to the Of) 2 Black. Com. 214. (e) See post, the chapter on Husband and Wife. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 105 purchaser, which case is provided for by the next ride, ■which is : — 7. That a kinsman of the half blood shall be capable Rule 7. of being heir ; and that such kinsman shall inherit next after a kinsman in the same degree of the whole blood, and after the issue of such kinsman, when the common ancestor is a male {/), and next after the common an- cestor, when such ancestor is a female. This introduc- tion of the half blood is also a new regulation ; and, like the introduction of the father and other lineal an- cestors, it is certainly an improvement on the old law, which had no other reason in its favour than the feudal maxims, or rather fictions, on which it was founded (g). By the old law, a relative of the purchaser of the half By the old law blood, that is, a relative connected by one only, and not cou]d no ^_ by both of the parents, or other ancestors, could not lieiit - possibly be heir ; a half brother, for instance, could never enjoy that right which a cousin of the whole blood, though ever so distant, might claim in his proper turn. The exclusion of the half blood was accounted for in a manner similar to that by which the exclusion of all lineal ancestors was explained ; but a return to practical justice may well compensate a breach in a beautiful theory. Relatives of the half blood now take their proper and natural place in the order of descent. The position of the half blood next after the common ancestor, when such ancestor is a female, is rather a result of the sixth ride, than an additional independent regulation, as will appear hereafter. 8. The eighth rule is, that, in the admission of female Rule 8. paternal ancestors, the mother of the more remote male paternal ancestor, and her heirs, shall be preferred to the mother of a less remote male paternal ancestor, and (/) Stat. 3 & 4 Will. IV. c. 106, («/) 2 Black. Com. 228. 8.0. 106 OF COliPOIlEAL HEREDITAMENTS. her heirs; and, in the admission of female maternal an- cestors, the mother of the more remote male maternal ancestor, and her heirs, shall be preferred to the mother of a less remote male maternal ancestor, and her heirs (^ ). The eighth rule is a settlement of a point in distant heirships, which very seldom occurs, but which lias been the subject of a vast deal of learned contro- versy. The opinion of Blackstone (i) and Watkins (j) is now declared to be the law. Bole '.'. 9. A further rule of descent has now been introduced by a recent statute (A), which enacts that, where there shall be a total failure of heirs of the purchaser, or where any land shall be descendible as if an ancestor had been the purchaser thereof, and there shall be a total failure of the heirs of such ancestor, then and in every such case the land shall descend, and the descent shall thenceforth be traced, from the person last entitled to the land, as if he had been the purchaser thereof. This enactment provides for such a case as the follow- ing. A purchaser of lands may die intestate, leaving an only son and no other relations. On the death of the son intestate there wall be a total failure of the heirs of the purchaser; and previously to this enactment the land would have escheated to the lord of the fee, as explained in the next chapter. But now, although there be no relations of the son on his father's side, yet he may have relations on the part of his mother, or his mother may herself be living: and these persons, who were before totally excluded, are now admitted in the order mentioned in the sixth rule. Explanation of The rules of descent above given will be better ap- thc tabic. (A) Stat. 3 & 4 Will. IV. c. 10G, (?) Watkins on Descent, 130 s. 8. (146 et seq. 4th ed.). (I) 2 Black. Com. 238. (A) Stat. 22 & 23 Vict. c. 35, ss. 19, 20. (Sattc offictard* To fact fan 101 A OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 107 prehended by a reference to the accompanying table, taken, with a little modification, from Mr. Watkins's Essay on the Law of Descents. In this table, Ben- jamin Brown is the purchaser, from whom the descent is to be traced. On his death intestate, the lands will Descent to the accordingly descend first to his eldest son, by Ann Lee, issuei William Brown; and from him (2ndly) to his eldest son, by Sarah Watts, Isaac Brown. Isaac dying with- out issue we must now seek the heir of the purchaser, and not the heir of Isaac. William, the eldest son of the purchaser, is dead; but William may have had other descendants, besides Isaac his eldest son; and, by the fourth rule, all the lineal descendants in infinitum of every person deceased shall represent their ancestor. We find accordingly that William had a daughter Lucy by his first wife, and also a second son, George, by Mary Wood, his second wife. But the son, George, though younger than his half sister Lucy, yet being a male, shall be preferred according to the second rule; and he is therefore (3rdly) the next heir. Had Isaac been the purchaser, the case woidd have been different; for, his half brother George would then have been post- poned, in favour of his sister Lucy of the whole blood, according to the seventh rule. But now Benjamin is the purchaser, and both Isaac and George are equally his grandchildren. George dying without issue, we must again seek the heir of his grandfather Benjamin, who now is undeniably (4thly) Lucy, she being the re- maining descendant of his eldest son. Lucy dying like- wise without issue, her father's issue become extinct; and we must still inquire for the heir of Benjamin Brown, the purchaser, whom we now find to be (5thly) John Brown, his only son by his second wife. The land then descends from John to (6thly) his oldest son Edmund, and from Edmund (7thly) to his only son James. James dying without issue, we must once more seek the heir of the purchaser, whom we find 108 OF CORPOREAL HEREDITAMENTS. among the ye1 living issue of John. John leaving a daughter by his first wife and a son and a daughter by his second wife, the lands deseend (8thly) to Henry his son by Frances Wilson, as being of the male sex; but he dying without issue, avc again seek the heir of Ben- jamin, mid find that John left two daughters, but by differenl wives; these (laughters, being in the same degree and both equally the children of their common father, whom they represent, shall succeed (9thly) in equal shares. One of these daughters dying without issue in the lifetime of the other, the other shall then succeed to the whole as the only issue of her father. But the surviving sister dying also without issue, we still pursue our old inquiry, and seek again for the heir of Benjamin Brown the purchaser. I >escent to the The issue of the sons of the purchaser is now extinct ; the Durehaser ail( ^' as ne ^ e ^ * w0 daughters, Susannah and Catherine, and their issue, by different wives, Ave shall find, by the second and third rules, that they next inherit (lOthly) in equal shares as heirs to him. Catherine Brown, one of the daughters, now marries Charles Smith, and dies, in the lifetime of her sister Susannah, leaving one son, John. The half-share of Catherine must then descend to the next heir of her father Benjamin, the purchaser. The next heirs of Benjamin Brown, after the decease of Catherine, are evidently Susannah Brown and John Smith, the son of Catherine. And in the first edition of the present work it was stated that the half share of Catherine would, on her decease, descend to them. This opinion has been very generally entertained (7). On further research, however, the author inclined to the opinion that the share of Catherine woidd, on her decease, descend entirely to her son (llthly) by right of representation ; and that, as respects his mother's (l) 23 Law Mag. 279; 1 Hayes's Conv. 313; 1 Jarman & Bythe- wood's Conveyancing, by Sweet, 139. OF THE DESCENT OF AX ESTATE IN FEE SIMPLE. 109 share, he and he only, is the right heir of the pur- chaser. The reasoning which led the author to this conclusion will be found in the Appendix (m). This point may now be considered as established. If Susannah Brown and John Smith should die Descent to the without issue, the descendants of the purchaser will p Urc haser, and then have become extinct ; and Joseph Brown, the nis issue - father of the purchaser, will then (12thly), if living, be his heir by the fifth and sixth rules. Bridget, the sister of the purchaser, then succeeds (13thly), as repre- senting her father, in preference to her half brother Timothy, who is only of the half blood to the purchaser, and is accordingly postponed to his sister by the seventh rule. But next to Bridget is Timothy (14thly) by the same ride, Bridget being supposed to leave no issue. On the decease of Timothy without issue, all the Descent to the descendants of the father will have failed, and the in- ^estor^of* 1 heritance will next pass to Philip Brown (lothly), the the purchaser, paternal grandfather of the purchaser. But the grand- father being dead, we must next exhaust his issue, who stand in his place, and we find that he had another son, Thomas (16thly), who accordingly is the next heir; and, on his decease without issue, Stephen Brown (17thly), though of the half blood to the purchaser, will inherit, by the seventh rule, next after Thomas, a kins- man in the same degree of the whole blood. Stephen Brown dying without issue, the descendants of the grandfather are exhausted ; and we must accordingly still keep, according to the sixth rule, in the male paternal line, and seek the paternal great grandfather of the purchaser, who is (18thly) Robert Brown ; and who is represented, on his decease, by (19thly) Daniel Brown, hie son. After Daniel and his issue follow, by (/«) Sec Appendix (B). 110 OF CORPOREAL HEREDITAMENTS. the same rule, Edward (20thly) and his issue (21stly) A braham. Descent to the All the male paterna] ancestors of the purchaser, and ancestors and their descendants, are now supposed to have failed; their heirs. . A]n \ ), v || 1( . gixth rule, the female paternal ancestors and I heir heirs arc next admitted. By the eighth rule, in the admission of the female paternal ancestors, the mother of the more remote male paternal ancestor, and her heirs, shall be preferred to the mother of a less remote male paternal ancestor and her heirs. Barbara Finch (22ndly), and her heirs, have therefore priority both over Margaret Pain and her heirs, and Esther Pitt and her heirs ; Barbara Finch being the mother of a more remote male paternal ancestor than either Mar- garet Pain or Esther Pitt. Barbara Finch being dead, her heirs succeed her ; she therefore must now be re- garded as the stock of descent, and her heirs will be the right heirs of Benjamin Brown the purchaser. In seeking for her heirs inquiry must first be made for her issue ; now her issue by Edward BroAvn has already been exhausted in seeking for his descendants ; but she might have had issue by another husband ; and such Half blood to issue (23rdly) Avill accordingly next succeed. These whereae^om- * ssue are evidently of the half blood to the purchaser. in. m ancestor But they are the right heirs of Barbara Finch; and they are accordingly entitled to succeed next after her, without the aid they might derive from the position expressly assigned to them by the seventh ride. The common ancestor of the purchaser and of the issue is Barbara Finch, a female ; and, by the united operation of the other rules, these issue of the half blood succeed next after the common ancestor. The latter part of the seventh rule is, therefore, explanatory only, and not ab- solutely necessary (n). In default of issue of Barbara («.) See Jarman & Bythewood's Conveyancing, by Sweet, vol. i 140, note (ti). the maternal ancestors. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. Ill Finch, the lands will descend to her father Isaac Finch (24thly), and then to his issue (25thly), as representing him. If neither Barbara Finch, nor any of her heirs, can be found, Margaret Pain (26thly), or her heirs, will be next entitled, Margaret Pain being the mother of a more remote male paternal ancestor than Esther Pitt ; but next to Margaret Pain and her heirs will be Esther Pitt (27thly), or her heirs, thus closing the list of female paternal ancestors. Next to the female paternal ancestors and their heirs Descent to the i -tit i i -or it mother of the comes the mother oi the purchaser, Elizabeth VV ebb, purchaser and (28thly) (supposing her to be alive), with respect to whom the same process is to be pursued as has before been gone over with respect to Joseph Brown, the pur- chaser's father. On her death, her issue by John Jones (29thly) will accordingly next succeed, as representing her, by the fourth rule, agreeably to the declaration as to the place of the half blood contained in the seventh rule. Such issue becoming extinct, the nearest male maternal ancestor is the purchaser's maternal grand- father, "William AVebb (30thly), whose issue (31stly) will be entitled to succeed him. Such issue failing, the whole line of male maternal ancestors and their descen- dants must be exhausted, by the sixth rule, before any of the female maternal ancestors, or their heirs, can find admission ; and when the female maternal ancestors are resorted to, the mother of the more remote male ma- ternal ancestor, and her heirs, is to be preferred, by the eighth rule, to the mother of the less remote male maternal ancestor, and her heirs. The course to be taken is, accordingly, precisely the same as in pursuing the descent through the paternal ancestors of the pur- chaser. In the present table, therefore, Harriet Tibbs (32ndly), the maternal grandmother of the purchaser, is the person next, entitled, no claimants appearing whose title is preferable ; and, should she be dead, her 112 OF CORPOREAL HEREDITAMENTS. heirs will be entitled next after her. On the failure of the heirs of the purchaser, the person last entitled is, as avc have seen (o), to be substituted in his place, and the same course of investigation is again to be pursued with respect to the person last entitled as has already been pointed out with respect to the last purchaser. It should be carefully borne in mind, that the above- mentioned rides of descent apply exclusively to estates in laud, and to that kind of property which is denomi- nated real, and have no application to money or .other personal estate, which is distributed on intestacy in a manner which the reader will find explained in the author's treatise on the law of personal property (/>). (o) Ante, p. 10G. ed.; 283, 3rd ed.; 299, 4th ed.; 332, ( p) Page 250, 1st ed.; 275, 2nd 5th ed.; 339, Gth ed.; 354, 7th ed. OF THE TENURE OF AN ESTATE IN FEE SIMPLE. .113 CHAPTER V. OF THE TENURE OF AN ESTATE IN FEE SIMPLE. The most familiar instance of a tenure is given by a A lease for common lease of a house or land for a term of years ; yeais " in this case the person letting is still called the land- lord, and the person to whom the premises are let is the tenant ; the terms of the tenure are according to the agreement of the parties, the rent being usually the chief item, and the rest of the terms of tenure being contained in the covenants of the lease, but, if no rent should be paid, the relation of landlord and tenant would still subsist, though of course not with the same advantage to the landlord. This, however, is not a freehold tenure ; the lessee has only a chattel interest, as has been before observed (a) ; but it may serve to explain tenures of a freehold kind, which are not so familiar, though equally important. So, when a lease A lease for of lands is made to a man for his life, the lessee be- comes tenant to the lessor (£), although no rent may be reserved ; here again a tenure is created by the transaction, during the life of the lessee, and the terms of the tenure depend on the agreement of the parties. So, if a gift of land should be made to a man and the A gift in tail. heirs of his body, the donee in tail, as he is called, and his issue, would be the tenants of the donor as long as the entail lasted (c), and a freehold tenure would thus be created. But if a gift should be made to a man and his heirs, Fee simple. (a) Ante, p. 8. (c) Litt. s. 19; Kitchen on (/>) Litt. a. 132; Gilb. Tenures, Courts, 410; Watk. Desc. p. 4, 90. n. (m); pp. 11, 12 (4 tli ed.). B.P. I 11-4 OF CORPOREAL HEREDITAMENTS. Statute of (J u in rmj>- tores. Queen is lady paramount. or for an estate in fee simple, it would not now be lawful for the parties to create a tenure between themselves, as in the case of a gift for life, or in tail. For by the statute of Quia emptores(d) > we have seen that it was enacted, that from thenceforth it should be lawful for every free man to sell, at his own pleasure, his lands or tenements, or part thereof, so nevertheless that the feoffee, or purchaser, should hold the same lands or tenements of the same chief lord of the fee, and by the same services and customs as his feoffor, the seller, held them before. The giver or seller of an estate in fee simple is then himself but a tenant, with liberty of putting another in his own place. He may have under him a tenant for years, or a tenant for life, or even a tenant in tail, but he cannot now, by any kind of conveyance, place under himself a tenant of an estate in fee simple. The statute of Quia emptores now forbids any one from making himself the lord of such an estate ; all he can do is to transfer his own tenancy ; and the purchaser of an estate in fee simple must hold his estate of the same chief lord of the fee, as the seller held before him. The introduction of this doctrine of tenures has been already noticed (e), and it still pre- vails throughout the kingdom ; for it is a fundamental rule, that all the lands within this realm were origi- nally derived from the crown (either by express grant or tacit intendment of law), and therefore the Queen is sovereign lady, or lady paramount, either mediate or immediate, of all and every parcel of land within the realm (f). Ancient inci- The rent, services and other incidents of the tenure of^statesln 111 °^ estates m f ee simple were, in ancient times, matters fee simple. f much variety, depending as they did on the mutual (<£) 18 Edw. I. c. 1, ante, p. 61. Book, M. (e) Ante, pp. 2, 3. pi. 60. (/ ) Co. Litt. 65 a, 93 a ; Year 24 Edw. III. 65 b, OF THE TENURE OF AX ESTATE IN FEE SIMPLE. 115 agreements which, previously to the statute of Quia emptores, the various lords and tenants made with each other ; though still they had their general laws, govern- ing such cases as were not expressly provided for (^). The lord was usually a baron, or other person of power and consequence, to whom had been granted an estate in fee simple in a tract of land. Of this land he re- tained as much as was necessary for his own use, as his own demesne (A), and usually built upon it a man- The lord's de- sion or manor house. Part of this demesne was in the occupation of the villeins of the lord, who held various small parcels at his will, for their own subsistence, and cultivated the residue for their lord's benefit. The rest of the cultivable land was granted out by the lord to various freeholders, subject to certain stipulated rents or services, as " to plough ten acres of arable land, parcel of that which remained in the lord's pos- session, or to carry his dung unto the land, or to go with him to war against the Scots " (i). The barren lands which remained formed the lord's wastes, over which the cattle of the tenants were allowed to roam in search of pasture (j). In this way manors were Manors, created (h\ every one of which is of a date prior to the statute of Quia emptores (T), except, perhaps, some which may have been created by the king's tenants in capite with licence from the crown {rri). The lands held by the villeins were the origin of copyholds, of (g) Bract, c. 19, fol. 48 b; Brit- the waste. But, in the humble ton, c. 66. opinion of the author, the authori- (h) Attorney- General v. Par- ties cited by the Court tend to the sons, 2 Cro. & Jerv. 279, 308. opposite conclusion. The reasons (i) Perkins's Profitable Book, for this opinion will be found in s. 670. Appendix C. (j) In the recent case of Lord (k) See Scriv. Cop. 1; Watk. JJunraven v. Llewellyn, 15 Q. B. Cop. 6, 7 ; 2 Black. Com. 90. 791, the Court of Exchequer (I) 18 Edw. I. c. 1. Chamber held that there was no (m) 1 Watk. Cop. 16 ; ante, general common law right of te- p. 61. nants of a manor to common on I 2 116 OF CORPOREAL HEREDITAMENTS. Incidents of the tenure by knights' ser- Homage. Aids. Relief. Wardship. Liven-. Marriage. which more hereafter (w). Those granted to the free- men were subject to various burdens, according to the nature of the tenure. In the tenure by knightp' ser- vice, then the most universal and honourable species of tenure, the tenant of an estate of inheritance, that is, of an estate of fee simple or fee tail (o), was bound to do homage to his lord, kneeling to him, professing to become his man, and receiving from him a kiss ( p). The tenant Avas moreover at first expected, and after- wards obliged, to render to his lord pecuniary aids, to ransom his person, if taken prisoner, to help him in the expense of making his eldest son a knight, and in pro- viding a portion for the eldest daughter on her mar- riage. Again, on the death of a tenant, his heir was bound to pay a fine, called a relief, on taking to his ancestor's estate (//). If the heir were under age, the lord had, under the name of ivardship, the custody of the body and lands of the heir, without account of the profits, till the age of twenty-one years in males, and sixteen in females ; when the wards had a right to require possession, or sue out their livery, on payment to the lord of half a year's profits of their lands. In addition to this, the lord possessed the right of mar- riage (maritayiurn), or of disposing of his infant wards in matrimony, at their peril of forfeiting to him, in case of their refusing a suitable match, a sum of money equal to the value of the marriage ; that is, what the suitor was willing to pay down to the lord as the price of marrying his ward; and double the market value was to be forfeited, if the ward presumed to marry without the lord's consent (r). The king's tenants in (») Post, chapters on Copy- holds. (o) Litt. s. 90. (p) See a description of ho- mage, Litt. ss. 85, 86, 87 ; 2 Bl. Com 53. (y) Scriven on Copyholds, 738 et seq. (r) 2 Black. Com. 63 et seq.; Scriven on Copyholds, 729. Ward- ship and marriage were no parts of the great feudal system, but were OF THE TENURE OF AN ESTATE IN FEE SIMPLE. 117 capite were moreover subject to many burdens and restraints, from which the tenants of other lords were exempt (s). Again, every lord, who had two tenants or more, had a right to compel their attendance at the court baron of the manor, to which his grants to them had given existence; this attendance was called suit of Suit of court. court, and the tenants were called free-suitors (7). And to every species of lay tenure, as distinguished from clerical, and whether of an estate in fee simple, in tail, or for life, or otherwise, there was inseparably incident a liability for the tenant, whenever called upon, to take an oath of fealty or fidelity to his lord(w). Fealty. At the present day, however, a much greater sim- Free and com- plicity and uniformity will be found in the incidents mon socage - of the tenure of an estate in fee simple, for there is now only one kind of tenure by which such an estate can be held ; and that is the tenure of free and com- mon socage (a-). The tenure of free and common socage is of great antiquity ; so much so, that the meaning of the term socage is the subject only of con- jecture (g). Comparatively few of the lands in this introduced into this country, and one of jurisdiction, and the French perhaps invented, by the Normans. word soc, which signifies a plough- 2 Hall. Midd. Ages, 415. share. In favour of the former is (s) As primer seisin, involun- urged the beneficial nature of the tery knighthood in certain cases tenure, and also the circumstance and fines for alienation. that socagers were, as now, bound (£) Gilb. Ten. 431 et seq. ; to attend the court baron of the Scriven on Copyholds, 719 et seq. lord, to whose soc or right of jus- (w) Litt. ss. 91, 131, 132 ; Scriv. tice they belonged. In favour of Cop. 732. the latter derivation is urged the (a?) 2 Black. Com. 101. nature of the employment, as well (y) See Litt. s. 119; Wright's as the most usual condition of Tenures, 143; 2 Black. Com. 80; tenure of the lands of sockmen, Co. Litt. 86 a, n. (1); 2 Hallam's who were principally engaged in Middle Ages, 481. The contro- agriculture. The former appears vcr-y lies between the Saxon to be the more probable deriva- word too, which signifies a liberty, tion. See Sir II. Ellis's [ntroduc- privilege or franchise, especially tion to Domesday, vol. i. p. 09. 118 OF CORPOREAL HEREDITAMENTS. Rent. Relief. Fealty. Suit of court. Aids. Superiority of Bocage tenure. Escuage. country were in ancient times the subjects of this tenure i the lands in which estates in fee simple were thus held, appear to have been among those which escaped the grasp of the Conqueror, and remained in the possession of their ancient Saxon proprietors (z). The owners of fee simple estates, held by this tenure, were not villeins or slaves, but freemen (a) ; hence the term free socage. No military service was due, as the condition of the enjoyment of the estates. Homage to the lord, the invariable incident to the military tenures (b), was not t)ften required (c); but the services, if any, were usually of an agricultural nature : a fixed rent was sometimes reserved ; and in process of time the agricultural services appear to have been very generally commuted into such a rent. In all cases of annual rent, the relief paid by the heir, on the death of his ancestor, w T as fixed at one year's rent (d). Fre- quently no rent was due ; but the owners were simply bound to take, when required, the oath of fealty to the lord of whom they held(e), to do suit at his court, if he had one, and to give him the customary aids for knighting his eldest son and marrying his eldest daughter (f). This tenure was accordingly more beneficial than the military tenures, by which fee simple estates, in most other lands in the kingdom, were held. True, the actual military service, in re- spect of lands, became gradually commuted for an escuage or money payment, assessed on the tenants by knights' sendee from time to time, first at the discre- tion of the crown, and afterwards by authority of par- liament {cf) ; and this commutation appears to have (2) 2 Hallam's Middle Ages, (e) Litt. ss. 117, 118, 131. 481. (a) Ibid. ; 2 Black. Com. 60, 61. (2>) Co. Litt. 65 a, 67 b, n. (1). (c) Co. Litt. 86 a. (d) Litt. s. 126 ; 2 Black. Com. 87. (/) Co. Litt. 91 a; 2 Black. Com. 86. (g) 2 Hallam's Middle Ages, 439, 440; 2 Black. Com. 74; "Wright's Tenures, 131 ; Litt. 8. 97 ; Co. Litt. 72 a. OF THE TENURE OF AN ESTATE IN FEE SIMPLE. 119 generally prevailed from' so early a period as the time of Henry II. But the great superiority of the socage tenure was still felt in its freedom from the burdens of wardship and marriage, and other exactions, imposed on the tenants of estates in fee held by the other tenures (h). The wardship and marriage of an infant tenant of an estate held in socage devolved on his nearest relation, (to whom the inheritance could not descend,) who was strictly accountable for the rents and profits (j). As the commerce and wealth of the country increased, and the middle classes began to feel their own power, the burdens of the other tenures became insupportable ; and an opportunity was at last seized of throwing them off. Accordingly, at the restoration of King Charles II., an act of parliament Stat. 12 Car II. was insisted on and obtained, by which all tenures by knights' service, and the fruits and consequences of tenures in capite (J), were taken away, and all tenures of estates of inheritance in the hands of private persons (except copyhold tenures) were turned into free and common socage ; and the same were for ever discharged from homage, wardships, values and forfeitures of mar- riage, and other charges incident to tenure by knights' service, and from aids for marrying the lord's daughter and for making his son a knight (A). The right of wardship or guardianship of infant Power for the tenants having thus being taken away from the lords, p | n t a g Uar _ • the opportunity was embraced of giving to the father diantohis a right of appointing guardians to his children. It was accordingly provided by the same act of parliament (/), that the father of any child under age and not married (h) 2 Hallam's Middle Ages, 12th Car. II. AD. 1660, was the 481. first year of his actual reign, (i) 2 Black. Com. 87, 88. (I) Stat. 12 Car. II. c. 24, s. 8. (j ) Co. Litt. 108 a, n. ( 5). See Morgan v. TIatchell, 1!) Beav (*) Stat. 12 Car. II. c. 24. The 86. 1 20 OF CORPOREAL HEREDITAMENTS. at the time of his death, may, by deed executed in his lifetime, or by his will in the presence of two or more credible witnesses, in such manner and from time to time as he shall think fit, dispose of the custody and tuition of such child during such time as he shall remain under the age of onc-and-twenty years, or any lesser time, to any person or persons in possession or remainder. And this poAver Avas given, whether the child was born at his father's decease or only in ventre sa mere at that time, and AA T hether the father were a\ ithin the age of one-and-tAA r enty years, or of full age. But it seems that the father, if under age, cannot noAv appoint a guardian by will; for the Wills Act noAA T enacts, that no will made by any person under the age of twenty-one years shall be A-alid(?w). In other respects, howe\ T er, the father's right to appoint a guardian still continues as originally provided by the above-mentioned statute of Charles II. The guardian so appointed has a right to receive the rents of the child's lands, for the use of the child, to whom, like a guardian in socage, he is accountable when the child comes of age. A guardian cannot be appointed by the mother of a child, or by any other relative than the father (n). E en t. A rent is not noAv often paid in respect of the tenure of an estate in fee simple. When it is paid, it is usually called a quit rent (o), and is almost always of a very trifling amount : the change in the value of money in Relief. modern times will account for this. The relief of one year's quit rent, payable by the heir on the death of his ancestor, in the case of a fixed quit rent, Avas not abo- O) Stat. 7 Will. IV. & 1 Vict. (A) 3. See also Mr. Hargrave's c. 26, s. 7 ; 1 Jarm. Wills, 36, Notes to Co. Litt. 88 b. 1st ed. ; 34, 2nd ed. ; 39, 3rd ed. (o) 2 Black. Com. 43; Co. Litt. (n) Ex parte Ed/vards, 3 Atk. 85 a, n. (1). 519 ; Bac. Abr. tit. Guardian OF THE TENURE OF AN ESTATE IN FEE SIMPLE. 121 lished by the statute of Charles, and such relief is ac- cordingly still due (/?). Suit of court also is still Suit of court, obligatory on tenants of estates in fee simple, held of any manor now existing (q). And the oath of fealty Fealty. still continues an incident of tenure, as well of an estate in fee simple, as of every other estate, down to a tenancy for a mere term of years ; but in practice it is seldom or never exacted (r). There is yet another incident of the tenure of estates Escheat. in fee simple ; an incident, which has existed from the earliest times, and is still occasionally productive of substantial advantage to the lord. As the donor of an estate for life has a certain reversion on his tenant's death, and as the donor of an estate in tail has also a reversion expectant on the decease of his tenant, and failure of his issue, but subject to be defeated by the proper bar, so the lord, of whom an estate in fee simple is held, possesses, in respect of his lordship or seignory, a similar (s), though more uncertain advantage, in his right of escheat; by which, if the estate happens to end, the lands revert to the lord, by whose ancestors or pre- decessors they were anciently granted to the tenant (£). When the tenant of an estate in fee simple dies, without having alienated his estate in his lifetime, or by his will(w), and without leaving any heirs, either lineal or collateral, the lands in which he held his estate escheat (as it is called) to the lord of whom he held them. (p) Co. Litt. 85 a, n. (1) ; Scriv. Scriv. Cop. 762. But it may per- Cop. 738. haps be doubted whether the new (q) Scriv. Cop. 736. Wills Act (7 Will. IV. & 1 Vict. (r) Co. Litt. 67 b, n. (2), 68 b, c. 26, s. 3) extends to this case, n. (5). and whether, therefore, in order (a) Watk. Descent, p. 2 (pp. 5, to prevent an escheat, three wit- 6, 7, 4th ed.). nesses should not attest the will (t) 2 Black. Com. 72; Scriv. as under the old law, which still Cop. 757 et seq. subsists as to wills to which the («) Year Book, 49 Edw. HI. new act does not extend (see c. 17; Co. Litt. 236 a, n. (1); sect. 2). 122 OF CORPOREAL HEREDITAMENT?. Bastardy. Bastardy is the most usual cause of the failure of heirs; for a bastard is in law nulliusjilius; and, being nobody's son, he can consequently have no brother or sister, or any other heir than an heir of his body(u); nor can his descendants have any heirs, but such as are also de- scended from him. If such a person, therefore, were to purchase lands, that is, to acquire an estate in fee simple in them, and were to die possessed of them without hav- ing made a will, and without leaving any issue, the lands would escheat to the lord of the fee, for want of heirs. Again, before forfeitures for treason and felony were abolished (w), sentence of death pronounced on a person convicted of high treason or murder, or of abet- ting, procuring, or counselling the same (x), caused his Attainder. blood to be attainted or corrupted, and to lose its inherit- able quality. In cases of high treason, the crown be- came entitled by forfeiture to the lands of the traitor (y) ; but in the other cases the lord, of whom the estate was held, became entitled by escheat to the lands, after the death of the attainted person (z) ; subject, however, to the Queen's right of possession for a year and a day, and of committing waste, called the Queen's year, day and waste, — a right usually compounded for(a). When an escheat occurs, the crown most frequently obtains the lands escheated, in consequence of the before- mentioned rule, that the crown was the original pro- prietor of all the lands in the kingdom (&). But if 00 Co. Litt. 3 b ; 2 Black. Com. 39 Geo. III. c. 93 ; 4 Black. Com. 347 ; Bac. Abr. tit. Bastardy (B). 381 . O) By stat. 33 & 34 Vict. c. 23 ; (z ) 2 Black. Com. 245 ; 4 Black, ante, p. 56. Com. 380, 381 ; Swinburne, part 2, {x) Stat. 54 Geo. III. c. 145; sect. 13; Bac. Abr. tit. Wills and 9 Geo. IV. c. 31, s. 2, repealed by Testaments (B). stat. 24 & 25 Vict. c. 95, and re- (a) 4 Black. Com. 385. enacted by stat. 24 & 25 Vict. (b) Lands escheated or forfeited c. 100, s. 8. to the crown are frequently re- (y) Stat. 26 Hen. VIII. c. 13, stored to the families of the per- s. 5 ; 5 & 6 Edw. VI. c. 11, s. 9 ; sons to whom such lands belonged OF THE TENURE OF AN ESTATE IN FEE SIMPLE. 123 there should be any lord of a manor, or other person, who could prove that the estate so terminated was held of him, he, and not the crown, would be entitled (c). In former times, there were many such mesne or inter- mediate lords ; every baron, according to the feudal system, had his tenants, and they again had theirs. The alienation of lands appears, indeed, as we have seen(flf), to have most generally, if not universally, proceeded on this system of subinfeudation. But now the fruits and incidents of tenure of estates in fee simple are so few and rare, that many such estates are con- sidered as held directly of the crown, for want of proof as to who is the intermediate lord ; and the difficulty of proof is increased by the fact before mentioned, that, since the statute of Quia emptores, passed in the reign of Edward I. (e), it has not been lawful to create a tenure of an estate in fee simple ; so that every lordship or seignory of an estate in fee simple bears date at least as far back as that reign : to this rule the few seignories, which may have been subsequently created by the king's tenants in capite, form the only exception (f). A small occasional quit rent, with its accompanying / relief, — suit of the Court Baron, if any such exists, — an oath of fealty never exacted,— and a right of escheat ! seldom accruing, — are now, it appears, therefore, the ordinary incidents of the tenure of an estate in fee simple. There are, however, a few varieties in this pursuant to stat. 39 & 40 Geo. (e) 18 Edw. I. c. 1 ; ante, III. c. 88, s. 19, explained and pp. 61, 114. amended by stats. 47 Geo. III. (/) By stat. 13 & 14 Vict. Bess. 2, c. 24, and 59 Geo. III. c. 60, lands vested in any person c. 94, and extended to forfeited upon any trust, or by way of leaseholds by stat. 6 Geo. IV. mortgage, are exempted from es- c. 17. cheat. This act repeals a former (c) Doe d. Hayne and His statute, 4 & 5 Will. IV. c. 23, to Majesty v. Red/em, 12 East, 96. the same effect. {d) Ante, pp. 37, 58. 124 OF CORPOREAL HEREDITAMENTS. Grand scr- j canty. Petit ser- j canty. tenure which are worth mentioning; they respect either the persons to whom the estate was originally granted, or the places in which the lands holden are situate. And, first, respecting the persons : The ancient tenure of grand serjeanty was where a man held his lands of the king by services to be done in his own proper per- son to the king, as, to carry the banner of the king, or his lance, or to be his marshal, or to carry his sword before him at his coronation, or to do other like ser- vices (g) : when, by the statute of Charles II. (h), this tenure, with the others, was turned into free and com- mon socage, the honorary services above described were expressly retained. The ancient tenure of petit ser- jeanty was where a man held his land of the king, " to yield him yearly a bow, or a sword, or a dagger, or a knife, or a lance, or a paire of gloves of maile, or a paire of gilt spurs, or an arrow, or divers arrowes, or to yield such other small things belonging to warre " (i) : this was but socage in effect ( /), because such a tenant was not to do any personal service, but to render and pay yearly certain things to the king. This tenure there- fore still remains unaffected by the statute of Charles II. Gavelkind. Next, as to such varieties of tenure as relate to places : — These are principally the tenures of gavel- kind, borough-English, and ancient demesne. The tenure of gavelkind, or as it has been more correctly styled (A), socage tenure, subject to the custom of gavel- kind, prevails chiefly in the county of Kent, in which county all estates of inheritance in land (/) are pre- sumed to be holden by this tenure until the contrary is (g) Litt. s. 153. (h) 12 Car. II. c. 24; ante, p. 118. (i) Litt. s. 159. ( j) Litt. s. 160 ; 2 Black. Com. 81. (&) Third Report of Real Pro- perty Commissioners, p. 7. (I) Including estates tail, Litt. s. 265 ; Robinson on Gavelkind, 51, 94(64, 119, 3rd ed.). OF THE TENURE OF AN ESTATE IN FEE SIMPLE. 125 shown (tw). The most remarkable feature of this kind of tenure is the descent of the estate, in case of intes- tacy, not to the eldest son, but to all the sons in equal shares (w), and so to brothers and other collateral rela- tions, on failure of nearer heirs (0). It is also a re- markable peculiarity of this custom, that every tenant of an estate of freehold (except of course an estate tail) is able, at the early age of fifteen years, to dispose of his estate by feoffment (/?), the ancient method of con- veyance, to be hereafter explained. There is also no escheat of gavelkind lands upon a conviction of mur- der (o) ; and some other peculiarities of less importance belong to this tenure (r). The custom of gavelkind is generally supposed to have been a part of the ancient Saxon law, preserved by the struggles of the men of Kent at the time of the Norman conquest ; and it is still held in high esteem by the inhabitants, so that whilst some lands in the county, having been originally held by knights' service, are not within the custom (s), and others have been disgavelled, or freed from the custom, by various acts of parliament (t), any attempt entirely to extinguish the peculiarities of this tenure has (m) Robinson on Gavelkind, 44 courtesy of a moiety only of his (54, 3rd ed.). deceased wife's land, until he mar- ( n) Every son is as great a gen- ries again, whether there were is- tleman as the eldest son is ; Litt. sue born alive or not ; the widow s. 210. also is dowable of a moiety instead (0) Rob. Gav. 92 ; 3rd Rep. of of a third, and during widowhood Real Property Commissioners, p. and chastity only ; estates in fee 9 ; Crump d. Woolley v. Norwood, simple were devisable by will, 7 Taunt. 362; Hook v. Hooh, 1 before the statute was Hemming & Miller, 43; in oppo- empowering the devise of such ritiontoBac.Abr.tit.Descent,(D), estates; and some other ancient citing Co. Litt. 140 a. privileges, now obsolete, were at- (p) Rob. Gav. 193 (248, 3rd tached to this tenure. See Robin- ed.), 217 (277, 3rd ed.); 2 Black. son on Gavelkind, passim; 3rd ( lorn, 84 ; Sandys' Consuetudines Report of Real Property Commis- KancifB, p. 1<;.".. See stat. 8 & 9 sioners, p. 9. Vict. c. 106, s. 3. (v) Rob. Gav. 46 (57, 3rd ed.). {q) Bob. Gav. 226 (228, 3rd ed.). (0 Sec Rob. Gav. 75 (94,3rd (/•; The husband is tenant by ed.). 12G OF CORPOREAL HEREDITAMENTS. Borongh- EDglisL uniformly been resisted (w). There are a few places, in other parts of the kingdom, where the course of descent follows the custom of gavelkind (x) ; but it may be doubted whether the tenure of gavelkind, with all its accompanying peculiarities, is to be found elsewhere than in the county of Kent (y). Tenure subject to the custom of borough-English prevails in several cities and ancient boroughs, and districts adjoining to them ; the tenure is socage, but, according to the custom, the estate descends to the youngest son in exclusion of all the other children (z). The custom does not in general extend to collateral relations ; but by special custom it may, so as to admit the youngest brother, instead of the eldest (a). Estates, as well in tail as in fee simple, descend according to this custom (Z>). Ancient de- mesne. The tenure of ancient demesne exists in those manors, and in those only, which belonged to the crown in the reigns of Edward the Confessor and William the Con- queror, and in Domesday Book are denominated Terra Regis Edwardi, or Terra Regis (c). The tenants are freeholders {d), and possess certain ancient immunities, the chief of which is a right to sue and be sued only in their lord's court. Before the abolition of fines and («) An express saving of the custom of gavelkind is inserted in the act for the commutation of certain manorial rights, &c. Stat. 4 & 5 Vict. c. 35, s. 80. (x) Kitchen on Courts, 200; Co. Litt. 140 a. (y) See Bac. Abr. tit. Gavel- kind (B) 3. (z) Litt. s. 165; 2 Black. Com. 83. (a) Comyns' Digest, tit. Bo- rough-English ; Watk. Descents, 89 (94, 4th ed.). See Eider v. Wood, 1 Kay & Johns. 644. (b) Rob. Gav. 94 (120, 3rd edit.). (c) 2 Scriv. Cop. 687. (d) The account given by Black- stone of this tenure as altogether copyhold (2 Black. Com. 100) appears to be erroneous, though no doubt there are copyholds of some of the lands of such manors. 3rd Rep. of Real Property Com- missioners, p. 13 ; 2 Scriv. Cop. 691. OF THE TENURE OF AN ESTATE IN FEE SIMPLE. 127 recoveries., these proceedings, being judicial in their nature, could only take place, as to lands in ancient demesne, in the lord's court ; but, as the nature of the tenure was not always known, much inconvenience fre- quently arose from the proceedings being taken by mistake in the usual Court of Common Pleas at West- minster ; and these mistakes have given to the tenure a prominence in practice which it would not otherwise have possessed. Such mistakes, however, have been corrected, as far as possible, by the act for the abolition of fines and recoveries (e) ; and for the future, the sub- stitution of a simple deed, in the place of those as- surances, renders such mistakes impossible. So that this peculiar kind of socage tenure now possesses but little practical importance. So much then for the tenure of free and common socage, with its incidents and varieties. There is yet another kind of ancient tenure still subsisting, namely, the tenure of frankalmoign, or free alms, already men- Frankalmoign. tioned (f), by which the lands of the church are for the most part held. This tenure is expressly excepted from the statute 12 Car. II. c. 24, by which the other ancient tenures were destroyed. It has no peculiar incidents, the tenants not being bound even to do fealty to the lords, because, as Littleton says (y), the prayers and other divine services of the tenants 'are better for the lords than any doing of fealty. As the church is a body having perpetual existence, there is moreover no chance of any escheat. This tenure is therefore a very near practical approach to that absolute dominion on the part of the tenant, which yet in theory the law never allows. (0 Stat. 3 & 4 Will. IV. c. 74, (/) Ante, p. 37. 88. 4, 5, 6. (g) Litt. s. 135; Co. Litt. 67 b. 128 OF CORPOREAL HEREDITAMENTS. CHAPTER VI. OF JOINT TENANTS AND TENANTS IN COMMON. The four uni- ties of joint tenancy. Joint tenants for life. Joint tenants in tail. A gift of lauds to two or more persons in joint tenancy- is such a gift as imparts to them, with respect to all other persons than themselves, the properties of one single owner. As between themselves, they must, of course, have separate rights ; but such rights are equal in every respect, it not being possible for one of them to have a greater interest than another in the subject of the tenancy. A joint tenancy is accordingly said to be distinguished by unity of possession, unity of interest, unity of title, and unity of the time of the commence- ment of such title (a). Any estate may be held in joint tenancy ; thus, if lands be given simply to A. and B. without further words, they will become at once joint tenants for life (b). Being regarded, with respect to other persons, as but one individual, their estates will necessarily continue so long as the longer liver of them exists. While they both live, as they must have several rights between themselves, A. will be entitled to one moiety of the rents and profits of the land, and B. to the other ; but after the decease of either of them, the survivor will be entitled to the whole during the residue of his life. So, if lands be given to A. and B., and the heirs of their two bodies ; here, if A. and B. be persons who may possibly intermarry, they will have an estate in special tail, descendible only to the heirs of their two (a) 2 Black. Com. 180. (b) Litt. s. 283; Com. Dig. tit. Estates (K 1), see ante, p. 17. OF JOINT TENANTS AND TENANTS IN COMMON. 129 bodies (c) : so long as they both live, they Mall be en- titled to the rents and profits in equal shares ; after the decease of either, the survivor will be entitled for life to the whole ; and, on the decease of such survivor, the heir of their bodies, in case they should have inter- married, will succeed by descent, in the same manner as if both A. and B. had been but one ancestor. If, however, A. and B. be persons who cannot at any time lawfully intermarry, as, if they be brother and sister, or both males, or both females, a gift to them and the heirs of their two bodies will receive a somewhat dif- ferent construction. So long as it is possible for a unity of interest to continue, the law will carry it into effect : A. and B. will accordingly be regarded as one person, and will be entitled jointly during their lives. AVhile they both live their rights will be equal ; and, on the death of either, the survivor will take the Avhole, so long as he may live. But, as they cannot intermarry, it is not possible that any one person should be heir of both then* bodies : on the decease of the survivor, the law, therefore, in order to conform as nearly as possible to the manifest intent, that the heir of the body of each of them should inherit, is obliged to sever the tenancy, and divide the inheritance between the heir of the body of A., and the heir of the body of B. Each heir will accordingly be entitled to a moiety of the rents and profits, as tenant in tail of such moiety. The heirs will now hold in a manner denominated tenancy in common ; instead of both having the whole, each will have an un- limited half, and no farther right of survivorship will remain (d). An estate in lie simple may also be given to two or Joint tenants more persons as joint tenants. The unity of this kind m of tenure is remarkably shown by the words which are (c) Co. Litt. 20 1., L'.-> b; Bac. (d) Litt. s. 283. See Re Tvoer- Ahr. tit. Joint Tenants (G). ton Market Act, 20 Beav. 374. B.P. K 130 OF CORPOREAL HEREDITAMENTS. Trustees are always made joint tenants. made use of to create a joint tenancy in fee simple. The lands intended to be given to joint tenants in fee simple arc limited to them 1" partition, granted by virtue of statutes passed in the reign of 1 1 cnry V I II. (s). Before this reign, as joinl tenants and tenants in com- fy) Litt. s. 292; 2 Black. Com. («) 31 Hen. VHT. c. 1; 82 L91. a n. Tin. c. 32. (>•) Ante, p. LOO. 134 OP CORPOREAL EEREDITAMENTS. mon always become such by their own act and .agree- ment, they were without any remedy, unless they all agreed to the partition; whereas we have seen(*)that co-parceners, wdio become entitled by act of law, could always compel partition. In modern times, the Court of Chancery lias been round to be the most convenient instrument for compelling- the partition of estates (it); and by a modern statute (a:), the old writ of partition, which had already become obsolete, was abolished. Whether the partition be effected through the agency of the Court of Chancery, or by the mere private agree- ment of the parties, mutual conveyances of their respec- tive undivided shares must be made, in order to carry the partition into complete effect (y). With respect to joint tenants, these conveyances ought, as Ave have seen, to be in the form of releases ; but tenants in common, having separate titles, must make mutual conveyances, as between strangers; and by a modern statute it is provided, that a partition shall be void at law, unless made by deed (z). If any of the parties entitled should be infants under age, lunatic, or of unsound mind, and consequently unable to execute a conveyance, the Court of Chancery has now power to carry out its own decree for a partition by making an order, which will vest their shares in such persons as the court shall direct (a). Partition by Another very convenient mode of effecting a partition mcloanre com- • j application to the inclosure commissioners for England and Wales, who are empowered by recent acts of parliament to make orders under their hands and seal for the partition and exchange of lands and other (0 Ante, p. 90. milton, 1 Madd. 214. O) See Manners v. Charles- (z) Stat. 8 & 9 Vict. c. 106, s. 3, worth, 1 Mylne & Keen, 330. repealing stat. 7 & 8 Vict. c. 76, (./■) Stat. 3 & i Will. IV. c. 27. s. 3, to the same effect. 36. (a) Stat. 13 & 14 Vict, c 60, (y) Attorney- General v. Ila- ss. 3, 7, 30. missioners. OF JOINT TENANTS AND TENANTS IN COMMON. 135 hereditaments, which orders are effectual without any further conveyance or release (A). An act has now passed to amend the law relating to Act to amend partition (c). By this act the Court of Chancery is 1Jar tition empowered to direct a sale of the property instead of a partition, whenever a sale and distribution of the pro- ceeds appear to the Court to be more beneficial to the parties interested (rf ). And if the parties interested to the extent of a moiety or upwards request a sale, the Coiu-t shall, unless it sees good reason to the contrary, direct a sale of the property accordingly (e). And if any party interested, requests a sale the Court may, if it thinks fit, unless the other parties interested or some of them undertake to purchase the share of the party re- questing a sale, direct a sale of the property (f). This alteration of the law, which was some time since sug- gested by the author ((/), has, in his humble judgment, effected a substantial improvement. (b) Stats. 8 & 9 Vict. c. 118, c. 31, ss. 1—11 ; 21 & 22 Vict, ss. 147, 150; 9 & 10 Vict. c. 70, c. 53. ss. 9, 10, 11 ; 10 & 11 Vict. c. Ill, (c) Stat. 31 & 32 Vict. c. 40. ss. 4, ; 11 & 12 Vict. c. 99, s. 13 ; (d) Sect. 3. 12 & 13 Vict. c. 83, ss. 7, 11; 15 (e) Sect, 4. & 16 Vict. c. 79, ss. 31, 32; 17 & (/) Sect. 5. 18 Vict. c. 97, s. 5; 20 & 21 Vict. {(/) Essay on Real Assets, p. 129. 136 OF CORPOREAL HEREDITAMENTS. CHAPTER VII. OF A FEOFFMENT. 1 1 vying now considered the most usual freehold estates which are holden in lands, and the varieties of holding arising from joint tenancies and tenancies in common, we proceed to the means to be employed for the transfer of these estates from one person to another. And here we must premise that, by enactments of the present reign (a), the conveyance of estates has been rendered, for the future, a matter independent of that historical learning which Avas formerly necessary. But, as the means formerly necessary for the conveyance of free- holds depend on principles, which still continue to exert their influence throughout the whole system of real pro- perty law, these means of conveyance and their prin- ciples must yet continue objects of the early attention of Feoffment every student : of these means the most ancient is a sc^in ^ feoffment with livery of seisin (//), which accordingly forms the subject of our present chapter. The feudal doctrine explained in the fifth chapter, that all estates in land are holden of some lord, neces- sarily implies that all lands must always have some feudal holder or tenant. This feudal tenant is the free- holder, or holder of the freehold ; he has the feudal pos- Seisiu. session, called the seisin (c), and so long as he is seised, nobody else can be. The freehold is said to be in him, and till it is taken out of him and given to some other, (a) Stat. 8 & 9 Viet. c. 106, re- pealing stat, 7 & 8 Vict. c. 76. (J) 2 Black. Com. 310. (c ) Co. Litt. 153 a ; Watkins on Descent", 108 (113, 4th ed.). OF A FEOFFMENT. 137 the land itself is regarded as in Ins custody or posses- sion. Xow this legal possession of lands — this seisin of the freehold — is a matter of great importance, and much formerly depended upon its proper transfer from one person to another ; thus we have seen that, before the act for the amendment of the law of inheritance, seisin must have been acquired by every heir before he could himself become the stock of descent (d). The transfer or delivery of the seisin, though it accompanies the transfer of the estate of the holder of the seisin, is yet not the same thing as the transfer of his estate. For a tenant merely for life is as much a feudal holder, and consequently as much in possession, or seised, of the freehold, as a tenant in fee simple can be. If, there- fore, a person seised of an estate in fee simple were to grant a lease to another for his life, the lessee must necessarily have the whole seisin given up to him, although he would not acquire the whole estate of his lessor ; for an estate for life is manifestly a less estate than an estate in fee simple. In ancient times, how- ever, possession was the great point, and, until the enactments above referred to (e). the conveyance of an estate of freehold was of quite a distinct character from such assurances as were made use of when it was not intended to affect the freehold or feudal possession. For instance, we have seen that a tenant for a term of years is regarded in law as having merely a chattel interest (y); he has not the feudal possession or free- hold in himself, but his possession, like that of a bailiff or servant, is the possession of his landlord. The consequence is, that any expressions in a deed, from which an intention can be gathered to grant the occu- pation (if land for a certain time, have always been sufficient for a lease fur a term of years however (>: ) Ante, pp. 96, 07. tat. 7 & 8 Vict. c. 76. (*) - Vict. <:. 106, re- Ante, p. 8. 138 OF CORPOREAL HEREDITAMENTS. long (y); but a lease for a single life, which transfers the freehold, formerly required technical language to give it effect. Liven in deed. A feoffment with livery of seisin was then nothing more than a gift of an estate in the land with livery, that is, delivery of the seisin or feudal possession (h) ; this livery of seisin was said to be of two kinds, a livery in deed and a livery in hue. Livery in deed was performed "by delivery of the ring or haspe of the doore, or by a branch or twigge of a tree, or by a turfe of land, and with these or the like words, the feoffor and feoffee, both holding the deed of feoffment and the ring of the doore, haspe, branch, twigge or turfe, and the feoffor saying, e Here I deliver you seisin and possession of this house, in the name of all the lands and tenements contained in this deed according to the forme and effect of this deed,' or by words without any ceremony or act, as the feoffor being at the house doore, or Avithin the house, s Here I deliver you seisin and possession of this house, in the name of seisin and possession of all the lands and tenements contained in this deed ' " (i). The feoffee then, if it were a house, entered alone, shut the door, then opened it, and let in the others (/<). In performing this ceremony, it was requisite that all persons who had any estate or possession in the house or land, of which seisin was delivered, should either join in or consent to making the livery, or be absent from the premises; for the object Avas to give the entire and undisputed possession to the feoffee (/). If the feoff- ment Avas made of different lands lying scattered in one (g) Bac. Abr. tit. Leases and (It) 2 Black. Com. 315 ; 2 Sand. Terms for Years (K). Uses. 4. (/() Co. Litt. 2711), n. (1). (0 Shep. Touch. 213; Doe d. (i) Co. Litt. 48 a. Reed v. Taylor, 5 Barn. & Adol. 575. OF A FEOFFMENT. 139 and the same county, livery of seisin of any parcel, in the name of the rest, was sufficient for all, if all were in the complete possession of the same feoffor ; but if they were in several counties, there must have been as many liveries as there were counties (m). For if the title to these lands should come to be disputed, there must have been as many trials as there were counties ; and the jury of one county are not considered judges of the notoriety of a fact in another (n). Livery in law was Livery in law. not made on the land, but in sight of it only, the feoffor saying to the feoffee, " I give you yonder land, enter and take possession." If the feoffee entered accordingly in the lifetime of the feoffor, this was a good feoffment ; but if either the feoffor or feoffee died before entry, the livery was void(o). This livery was good, although the land lay in another county (p); but it required always to be made between the parties themselves, and could not be deputed to an attorney, as might livery in deed(. Litt. 48 b. pose of a feoffment ; Perkins, seel (j) Co Liti 62 b. 227. Sec, however, Bale's M.S., (;•) Co Litt. 9a; 2Blacl Com. Co. Litt. 60 a, n. (2). 810. 140 OF CORPOREAL HEREDITAMENTS. Am estate for life. merly, and it is called limiting the estate. If the feudal holding is transferred, the estate must necessarily be an estate of freehold; it cannot be an estate at will, or for a fixed term of years merely. Thus the land may he given to the feoffee to hold to himself simply ; and the estate so limited is, as we have seen (5), but an estate for his life (t), and the feoffee is then generally called a lessee for his life: though when a mere life interest is intended to be limited, the land is usually expressly given to hold to the lessee " during the term of his natural life"(tt). If the land he given to the feoffee diid the heirs of his body, he has an estate tail, and is An estate tail, called a donee in tail (.r). And in order to confer an estate tail, it is necessary (except in a will, where greater indulgence is allowed), that words of procrea- tion, such as heirs of his body, should be made use of; for a gift of lands to- a man and his heirs male is an estate in fee simple, and not in fee tail, there being no words of procreation to ascertain the body out of which they shall issue (y); and an estate in lands descendible to collateral male heirs only, in entire exclusion of females, is unknown to the English law (z). If the land be given to hold to the ffeoffee and It is hn'rs, he has an estate in fee simple, the largest estate which the law allows. In every conveyance (except by will) of an estate of inheritance, whether in fee tail or in fee simple, the word heirs is necessary to be used as a word of limitation to mark out the estate. Thus if a errant be made to a man and his seed, or to a man and his offspring, or to a man and the issue of Ids body, all An estate in fee simple. The word heirs to be used. (.s) Ante, p. 10. (Y) Litt. s. 1 : Co. Litt. 42 a. O) Ante, p. 23. (.;■) Lilt. -. .".7 ; ante, p. 35. (//) Litt. b. 31; Co. Litt. 27 :\ ; L' Black. Com. 115; Dor d. Bnme v. 3I«rtyn, 8 Barn. & Cress. 497. (z) But a grant of arms by the crown to a man and bis beirs male, without saying " of the body," is good, and they will descend to his beirs male, lineal or collateral. Co. Litt. 27 a. OF A FEOFFMENT. 141 these are insufficient to confer an estate tail, and only ( give an estate for life for Avant of the word heirs (a); so if a man purchase lands to have and to hold to him for ever, or to him and his assigns for ever, he will have but an estate for his life, and not a fee simple (b). Before alienation was permitted, the heirs of the tenant were the only persons, besides himself, who could enjoy the estate ; and if they were not mentioned, the tenant could not hold longer than for his own life(c); hence the necessity of the word heirs to create an estate in fee tail or fee simple. At the present day, the free transfer of estates in fee simple is universally allowed ; but this liberty, as we have seen (d), is now given by the law and not by the particular words by which an estate may happen to be created. So that, though con- veyances of estates in fee simple are usually made to hold to the purchaser, his heirs and assigns for ever, yet the word heirs alone gives him a fee simple, of which the law enables him to dispose; and the remain- ing words, and assigns for ever, have at the present day no conveyancing virtue at all ; but are merely de- claratory of that power of alienation which the pur- chaser would possess without them. The formal delivery of the seisin or feudal possession, a feoffment which always took place in a feoffment, rendered it, m M?k tnav e J * / created an till recently, an assurance of great power ; so that, if estate by a person should have made a feoffment to another of u **' an estate in fee simple, or of any other estate, not warranted by his own interest in the lands, such a feoffment would have operated Ug wrong, as it is said, and would have conferred on the feoffee the whole estate limited by the feoffment along with the seisin actually delivered. Tims if a tenant for his own life («.) Co. Litt. 20 b; 2 Black. (V) Ante, pp. 17, 18. Com. I L6. ('/) Ante, p. II. {b) Litt. s. 1 ; Co. Litt. 20 a. 142 OF COEPOREAL BEREDITAMENTS. Feoffment by tenant for life. By idiots and lunatics. By infants, of gavelkind lauds. New enact- ment. should have made a feoffment of the lands for an estate in fee simple, the feoffee would not merely have ac- quired an estate for the life of the feoffor, but would have become seised of an estate in fee simple by wrong; accordingly, such a feoffment by a tenant for life was regarded as a cause of forfeiture to the person entitled in reversion; such a feoffment being in fact a convey- ance of his reversion, without his consent, to another person. In the same manner, feoffments made by idiots and lunatics appear to have been only voidable and not absolutely void(e) ; whereas their conveyances made by any other means are void in toto ; for, if the seisin was actually delivered to a person, though by a lunatic or idiot, the accompanying estate must necessarily have passed to him, until he should have been deprived of it. Again, the formal delivery of the seisin in a feoffment appears to be the ground of the validity of such a con- veyance of gavelkind lands, by an infant of the age of fifteen years (f); although a conveyance of the same lands by the infant, made by any other means, would be voidable by him, on attaining his majority (g). By the act to amend the law of real property (h), it is, how- ever, now provided, that a feoffment shall not have any tortious operation; but a feoffment made under a cus- tom by an infant is expressly recognised (/). Down to the time of King Henry VIII. nothing more was requisite to a valid feoffment than has been already mentioned. In the reign of this king, how- ever, an act of parliament of great importance was The Statute of passed, known by the name of the Statute of Uses (A). 1 a 3 ' And since this statute, it has now become further requisite to a feoffment, either that there should be a isidera- consideration for the gift, or that it should be expressed (e) Ante, p. 65. (/) Ante, p. 125. (#) Ante, p. 65. (7t) Stat. 8 & 9 Vict. c. 10G, s. 4. (0 Sect. 3. {k) Stat. 27 Hen. VIII. c. 10. OF A FEOFFMENT. 143 to be made, not simply unto, but unto and to the use of tion required, the feoffee. The manner in -which this result has been ? r tlie S lft to i ii i i o » TT .-,■,, t • t ° e made to tlie brought about by the btatute of U ses will be explained use of the in the next chapter. feoffee. If proper words of gift were used in a feoffment, and Writing for- wituesses were present who coidd afterwards prove mer v unn eces- 1 _ - 1 sary. them, it mattered not, in ancient times, whether or not they were put iuto writing (/) ; though writing, from its greater certainty, was generally employed (m). There was this difference, however, between writing in those days, and writing in our own times. In our own times, almost everybody can write ; in those days very few of the landed gentry of the country were so learned as to be able to sign their own names (h). Accordingly, on every important occasion, when a -written document was required, instead of signing their names, they affixed their seals ; and this writing, thus sealed, was delivered to the party for whose benefit it was intended. Writing was not then em- ployed for every trivial purpose, but was a matter of some solemnity ; accordingly, it became a rule of law, that every writing under seal imported a considera- tion (o) : — that is, that a step so solemn could not have been taken without some sufficient ground. This custom of sealing remained after the occasion for it had passed away, and writing had been generally in- troduced; so that, in all legal transactions, a seal was affixed to the written document, and the writing so sealed was, when delivered, called a deed, in Latin A deed. factum, a thing done ; and, for a long time after writing had come into common use, a written instru- ct Bracton, li!>. L', fol. 11 b, (w) 3 Hallam's Middle Ages, par. 3, 33 b, par. 1 ; Co. Iitt. 48 b, 329; 2 Black. Com. 305, 806. 121 b, 1 13 a, 271 b, n. (1). (o) Plowden, 308; 3 Barrow, (to) Madox's Form. Angl. Dis- 1689; 1 Fonblanque on Equity, p. 1. 842; 2 Fc.nl,. Eq. 26. Hi OF CORPOREAL HEREDITAMENTS. Execution. Escrow. Alteration, r; i sure, &c. ment, if unsealed, had in law no superiority over mere words (//); nothing was in fact called a writing, but a document under seal (q). And at the present day a deed, or a writing scaled and delivered (r), still im- ports a consideration, and maintains in many respects a superiority in law over a mere unsealed writing. In modern practice the kind of seal made use of is not regarded, and the mere placing of the finger on a seal already made, is held to be equivalent to sealing (s); and the words " I deliver this as my act and deed," which are spoken at the same time, are held to he equivalent to delivery , even if the party keep the deed himself (f). The sealing and delivery of a deed are termed the execution of it. Occasionally a deed is delivered to a third person not a party to it, to be deli- vered up to the other party or parties, upon the per- formance of a condition, as the payment of money or the like. It is then said to be delivered as an escrow or mere writing (scriptu?n) ; for it is not a perfect deed until delivered up on the performance of the condition ; but when so delivered up, it operates from the time of its execution (u). Any alteration, rasure or addition made in a material part of a deed after its execution by the grantor, even though made by a stranger, will render it void ; and it was formerly held that any alteration in a deed made by the party to whom it was delivered, though in words not material, woidd also render it O) See Litt. ss. 250, 252; Co. Litt. 9 a, 49 a, 121b, 143 a, 169 a; Mann v. Hughes, 7 T. Rep. :'>.'■;>, n. {q) See Litt. ss. 365, 366, 367 ; Shop. Touch, by Preston, 320, 321 ; Sugden's Vcn. & Pur. 126, 11th ed. O) Co. Litt. 171 b; Shep. Touch. 50. 0) Shep. Touch. 57. (< ) Doe (1. Gamons v. Knight, 5 Barn. & Cress. 671 ; Griigeon v. Gerrartl, 4 You. & Coll. 119, 130; Exton v. Scott, 6 Sim. 31 ; Fletcher v. Fletcher, 4 Hare, 67. See also Hall t. Bainbridge, 12 Q. 13. 699. (//) See Shep. Touch. 58, 59; Bowker v. Bwdekin, 11 Mees. & Wels. 128, 147; Nash \. Flyn, 1 Jones & Lat. 162 ; Graham v. Graham, 1 Ves. jun. 275; Miller- ship v. Brookes, 5 H. & N. 797. OF A FEOFFMENT. 145 void (.r). But a more reasonable doctrine has lately prevailed ; and it has now been held that the filling in of the date of the deed, or of the names of the occupiers of the lands conveyed, or any such addition, if consistent with the purposes of the deed, will not render it void, even though done by the party to whom it has been delivered, after its execution (y). If an estate has once been conveyed by a deed, of course the subsequent alteration, or even the destruction, of the deed cannot operate to reconvey the estate ; and the deed, even though cancelled, may be given in evidence to show that the estate was conveyed by it whilst it was valid (z). But the deed having become void, no action could be brought upon any covenant contained in it (a). Previously to the Stamp Act, 1870(A), every deed, Stamps on if not charged with any ad valorem or other stamp ee s ' duty, nor expressly exempted from all stamp duty, was liable to a stamp duty of \l. 15s. ; and if the deed, together with any schedule, receipt or other matter put or indorsed thereon or annexed thereto, contained 2160 words, or 30 common law folios of 72 words each, or upwards, it was liable to a further progressive duty of 10s. for every entire quantity of 1080 words, or 15 folios, over and above the first 1080 words. But the duplicate Duplicate or or counterpart of any deed was liable only to a stamp coun cr ^ ai ' duty of five shillings and a progressive duty of half-a- crown, unless the original Avere liable to a less duty, in O) Pigot's ease, 11 Rep. 27 a. ed. ; 85, fith ed. ; 88, 7th cd. ; (y) Aldous v. Cornwell, L. It., JTall v. Ckandless, 4 Bing. 123. 3 Q. B. 573; Adsetts v. Hives, It is now felony not only to steal, 33 Beav. 55. but also for any fraudulent pur- (z) Lord Ward v. Lumley, "< pose to destroy, cancel, obliterate II. iV N. 87, <;."<<;. or conceal, any document of title (a) Bigot's ease, 11 Rep. 27 a; bo lands. Stat. 24 & 26 Vict. c. Principles of the Law of Personal 96, b. 28. Property, p. 81, ttfa ed.; 83,6th (J>) Stat. 38 & 84 Vict. c. 97. B.P. L 146 OF CORPOREAL HEREDITAMENTS. which case the duty was the same as on the original. If, however, the deed were signed or executed by any party thereto, or bore date, before or upon the 10th of October, 1850, when the former act to amend the stamp duties took effect, then the progressive duty was 1/. 5s. for every entire quantity of 1080 words beyond the first The stamp 1080 (c). But the Stamp Act, 1870 (d), has now con- solidated and amended the provisions relating to the stamp duties. The stamp duty for a deed of any kind not described in the schedule to the act, is now only Progressive 10s. (e); and all progressive duties are abolished. The li s h e d duplicate or counterpart of any deed is subject to the Duplicate or same duty as before, except the progressive duty (f). counterpart. Deeds poll and Deeds are divided into two kinds, Deeds poll and Indentures : a deed poll being made by one party only, and an indenture being made between two or more parties. Formerly, when deeds were more concise than at present, it was usual, where a deed was made between two parties, to write two copies upon the same piece of parchment, with some word or letters of the alphabet written between them, through which the parchment was cut, often in an indented line, so as to leave half the words on one part, and half on the other, thus serving the purpose of a tally. But at length indenting only came into use ( g) ; and now every deed, to which there is more than one party, is cut with an indented or waving line at the top, and is called an indenture (h). Formerly, when a deed as- sumed the form of an indenture, every person who took ■any immediate benefit under it, was always named as one of the parties. But now by the act to amend the (o) Stats. 55 Geo. III. c. 184; (/) Schedule to act, tit. Du- 13 & H Vict. c. 97; 21 & 25 Vict. plicate. c. 91,8.31. (g) 2 Black. Com. 295. (77) Stat. 33 & 34 Vict. c. 07. ('//) Co. Lift 1 13 b. (e) Schedule to act, tit. Deed. OF A FEOFFMENT. 147 law of real property it is enacted that, under an inden- ture, an immediate estate or interest in any tenements or hereditaments, and the benefit of a condition or cove- nant respecting any tenements or hereditaments, may be taken, although the taker thereof be not named a Person taking party to the same indenture ; also that a deed, purport- not be a party- ing to be an indenture, shall have the effect of an indenture, although not actually indented (i). A deed made by only one party is polled, or shaved even at the top, and is therefore called a deed poll ; and, under such Deed poll. a deed, any person may accept a grant, though of course none but the party can make one. All deeds must be written either on paper or parchment (k). So manifest are the advantages of putting down in Writings not writing matters of any permanent importance, that, as commerce and civilization advanced, writings not under seal must necessarily have come into frequent use ; but, until the reign of King Charles II., the use of writing remained perfectly optional with the parties, in every case which did not require a deed under seal. In this reign, however, an act of parliament was passed (I), requiring the use of writing in many transactions, which previously might have taken place by mere word of mouth. This act is intituled " An Act for Prevention of Frauds and Perjuries," and is now commonly called the Statute of Frauds. It enacts (m), amongst other The Statute of things, that all leases, estates, interests of freehold, or terms of years, or any uncertain interest, in messuages, manors, lands, tenements, or hereditaments, made or created by livery of seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully (i) Stat. 8 & 9 Vict, c 106, s. 5, Com. 297. repealing Btat. 7 & 8 Vict. c. 70, (/) Stat. 29 Car. II. c. 3. b. 11, to the Bame effect. O) Sect. 1. (/,) Shep. Touch. 54 i 2 Black. L 2 Frauds. 148 OF CORPOREAL BEREDITAMENTS. authorized by writing, shall have the force and effect of leases or estates at will only, and no greater force and effect; any consideration for making any such parol leases or estates, or any former law or usage to the An exception, contrary notwithstanding. The only exception to this sweeping enactment is in favour of leases not exceeding three years from the making, and on which a rent of two-thirds at least of the full improved value is reserved to the landlord (?i). In consequence of this act, it became necessary that a feoffment should be put into writing, and signed by the party making the same, or his agent lawfully authorized by writing; but a deed or writing under seal was not essential (0), if livery of seisin were duly made. But now by the act to amend the law of real property (7?), it is provided that a feoff- ment, other than a feoffment made under a custom by an infant, shall be void at law, unless evidenced by "Whether sign- deed (//). Where a deed is made use of, it is a matter of doubt, whether signing, as well as sealing, is abso- lutely necessary: previously to the Statute of Frauds, signing was not at all essential to a deed, provided it were only sealed and delivered (r) ; and the Statute of Frauds seems to be aimed at transactions by parol only, and not to be intended to affect deeds. Of this opinion is Air. Preston (s). Sir William Blackstone, on the other hand, thinks signing now to be as necessary as sealing (t). And the Court of Queen's Bench has, if possible added to the doubt (u). Air. Preston's, how- ever, appears to be the better opinion (a.-). However this may be, it would certainly be most unwise to raise A deed now necessary. ing of deeds necessary. («) Stat, 29 Car. II. c. 3, s. 2. (o) 3 Brest. Abst. 110. (j>) Stat. 8 & 9 Vict. c. 100. (n- sideration. Resulting nse. but to somebody else. For suppose a feoffment be now made to A. and his heirs, and the seisin duly delivered to liim ; if the feoffinent be expressed to be made to him and his heirs to the use of some other person, as B. and his heirs, A. (who would, before this statute, have had an estate in fee simple at law) now takes no permanent estate, but is made by the statute to be merely a kind of conduit pipe for conveying the estate to U. For B.(who before would have had only a use or trust in equity) shall now, having the use, he deemed in lawful seisin and possession; in other words, I>. now takes, not only the beneficial interest, but also the estate in fee simple at law, which is wrested from A. by force of the statute. Again, suppose a feoffment to be now made simply to A. and his heirs without any consideration. We have seen that before the statute the feoffor would in this case have been held in equity to have the use, for want of any consideration to pass it to the feoffee; now, therefore, the feoffor, having the use, shall be deemed in lawful seisin and possession; and consequently, by such a feoffinent, although livery of seisin be duly made to A., yet no permanent estate will pass to him; for the moment he obtains the estate he holds it to the use of the feoffor; and the same in- stant comes the statute, and gives to the feoffor, who has the use, the seisin and possession (A). The feoffor, therefore, instantly gets back all that he gave ; and the use is said to result to himself. If however the feoff- ment be made unto and to the use of A. and his heirs — as, before the statute, A. would have been entitled for his own rise, so now he shall be deemed in lawful seisin and possession, and an estate in fee simple will effectually pass to him accordingly. The propriety of inserting, in every feoffment, the words to the use of, as well as to the feoffee, is therefore manifest. It appears also that (*) 1 Sand. Uses, 99, 100 (95, 5th ed.) OF USES AND TRUSTS. 155 an estate in fee simple may be effectually conveyed to a person by making a feoffment to any other person and his heirs, to the use of or upon confidence or trust for such former person and his heirs. Thus, if a feoffment be made to A. and his heirs, to the use of B. and his heirs, an estate in fee simple will now pass to B., as effectually as if the feoffment had been made directly unto and to the use of B. and his heirs in the first instance. The words to the ?ise of are now almost universally employed for such a purpose ; but " upon confidence," or " upon trust for," woidd answer as well, since all these expressions are mentioned in the statute. The word trust, however, is never employed in Trusts, modern conveyancing, when it is intended to vest an estate in fee simple in any person by force of the Statute of Uses. Such an intention is always earned into effect by the employment of the word use; and the word trust is reserved to signify a holding by one person for the benefit of another similar to that (7), which, before the statute, was called a use. For, strange as it Trusts still may appear, with the Statute of Uses remaining un- l^dSs the repealed, lands are still, as everybody knows, frequently Statute of vested in trustees, who have the seisin and possession in law, but yet have no beneficial interest, being liable to be brought to account for the rents and profits by means of the Court of Chancery. The Statute of Uses was evidently intended to abolish altogether the jurisdiction of the Court of Chancery over landed estates (m), by giving actual possession at law to every person bene- ficially entitled in equity. But this object has not been accomplished; for the Court of Chancery soon regained in a curious manner its former ascendancy, and has kept it to the present day. So that all that was ultimately (i) But not the same, 1 Sand. {m) CkudleigWi case, 1 Rep. ii cd.) 124, 126. 156 OF CORPOREAL HEREDITAMENTS. effected by the Statute of Uses, was to import into the rules of law some of the then existing' doctrines of the Courts of Equity (w), and to add three words, to the use, to every conveyance (0). The manner in which the Court of Chancery re- gained its ascendancy was as follows. Soon after the passing of the Statute of Uses, a doctrine was laid down, that there could not he a use upon a use (p). y„ nse upon For instance, suppose a feoffment had been made to A. a use. am | ],j s i ie i rs? to the use of B. and his heirs, to the use of C. and his heirs ; the doctrine was, that the use to C. and his heirs was a use upon a use, and was therefore not affected by the Statute of Uses, which could only execute or operate on the use to B. and his heirs. So that B. and not C. became entitled, under such a feoff- ment, to an estate in fee simple in the lands comprised in the feoffment. This doctrine has much of the subtlety of the scholastic logic which was then preva- lent. As Mr. Watkins says (q), it must have surprised every one, who was not sufficiently learned to have lost his common sense. It was however adopted by the courts, and is still law. Even if the first use be to the feoffee himself, no subsequent use will be executed, and the feoffee will take the fee simple ; thus, under a feoff- ment unto and to the use of A. and his heirs, to the use of C. and his heirs, C. takes no estate in law, for the use to him is a use upon a use ; but the fee simple vests Chancery in- in A. to whom the use is first declared (r). Here then teifered. was a f- once an opportunity for the Court of Chancery to interfere. It was manifestly inequitable that C, the party to whom the use was last declared, should be de- («■) 2 Fonb. Eq. 17. (). If, therefore, the purchaser were to die intestate the moment after the contract, the equitable estate in fee simple, which he had just acquired, would descend to his heir at law, who would have a right (to be enforced in equity) to have the estate paid for out of the money and other personal estate of his deceased ancestor ; and the vendor woidd be a trustee for the heir, until he should have made a conveyance of the legal estate, to Avliich the heir would be entitled. Many other examples of equitable or trust estates in fee simple might be fur- nished. No esehrat of a trust estate. An equitable estate in fee will not escheat to the lord upon failure of hens of the cestui que trust (c) ; for a ($/) 1 Sand. Uses, 300 (324, 5th ed.) 0) Stat. 3 & 4 Will. IV. c. 74, ss. 70, 71, repealing stat. 7 Geo. IV. c. 45, which repealed st.-i t. 39 & 40 Geo. III. c. 5G. O) Sugd. Vend. & Pur. 146 (1G2, 13th ed.) (b) Bower v. Cooper, 2 Hare, 408. (c) 1 Sand. Uses, 288 (302, 5th ed.) OF USES AND TRUSTS. 1G1 trust is a mere creature of equity, and not a subject of tenure. In such a case, therefore, the trustee -will hold the lands discharged from the trust which has so failed; and he will accordingly have a right to receive the rents and profits without being called to account by any one. In other words, the lands will thenceforth be his own (d). But previously to the Naturalization Act, Trnst for 1870 (e), it was held that if lands were purchased by a natural -born subject in trust for an alien (f), the crown might claim the benefit of the purchase ((/) ; although, if lands were directed to be sold, and the produce given to an alien, the crown had then no claim (A). But, Naturalization as we have seen (z), the Naturalization Act, 1870, now ' provides that real and personal property of every de- scription may be taken, acquired, held and disposed of by an alien in the same manner in all respects as by a natural-born British subject ; and a title to real and personal property of every description may be derived through, from or in succession to an alien in the same manner in all respects as through, from or in succession to a natural-born British subject (/<•). In the event of Treason. high treason being committed by the cestui que trust of an estate in fee simple, it was the better opinion that his equitable estate would be forfeited to the crown (I). But, as we have seen (m), all forfeitures for treason are now abolished (re). By a statute of the present reign (0), both the lord's right of escheat, and the crown's right (77) Burgess v. Wheate,1 Wm. (h) Du HowrmeUnv. Sheldon* Black. 123 ; 1 Eden, 177; Taylor 1 Beav. 79 ; 1 My. & Cr. 525. v. Haygarth, 1 1 Sim. 8; Davallv. (i) Ante, p. 65. New River Company, 3 DeGex & (h) Stat. 33 Vict. c. 14, s. 2. Smale, 394; Beale \. Symonds, 16 (1) 1 Hale, P. ('. 249. Beav. 406. \" l( -, P- 56. (r) Stat. 33 Vict. c. 14. (») Stat. 33 & 34 Vict. c. 23. (/) See ante, p. 63. (") Stat. L3 & 14 Vict. c. 60, re- (g) Borrow \. Wadkin, L'l pealing stat. 4 & 5 Will. IV. c. 23, Bear. 1. See however Rittson v. to the same effect. Stordy, 3 Sm. & Giff. 230, qn.7 B.P. M 1G2 OF CORPOREAL EEREDITAMENTS. of forfeiture, had already been taken away in the case of the failure of heirs or corruption of blood of the trustee, except so far as he himself aught have any beneficial interest in the lands of which he was seised (p). Descent of an equitable estate. Creation and transfer of trust estates. Statute of Frauds. The descent of an equitable estate on intestacy follows the rules of the descent of legal estates; and, therefore, in the case of gavelkind and borough-English lands, trusts affecting them will descend according to the descendible quality of the tenure (y). Trusts or equitable estates may be created and passed from one person to another, without the use of any par- ticular ceremony or form of words (r). But, by the Statute of Frauds (s) it is enacted (t), that no action shall be brought upon any agreement made upon con- sideration of marriage, or upon any contract or sale of lands, .tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. It is also enacted (u), that all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be mani- fested and proved by some writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing ; and further (x), that all grants and assignments of any trust or confidence shall likewise be in writing, signed by the party granting or assigning the same, or by his last will. Trusts arising or result- (;;) Stat. 13 & 14 Vict. c. GO, (s) 29 Car. II. c. 3. s. 47. (f) Sect. 4; Sug. V. & P. c. 4, (q) 1 Sand. Uses, 270 (282,5th pp. 96 et seq., 13th ed. ed.) (v) Sect. 7; Tier/w// v. Wood, (r) L Sand. Uses, 315, 316 (343, 19Beav.330. 3! I,- "tli ed.) (./-) Sect. 9. OF USES AND TRUSTS. 163 Lag from any conveyance of lands or tenements, by im- plication or construction of law, and trusts transferred or extinguished by an act or operation of law, are ex- empted from this statute (y). In the transfer of equit- able estates it is usual, in practice, to adopt conveyances applicable to the legal estate ; but this is never neces- sary (z). If writing is used, and duly signed, in order to satisfy the Statute of Frauds, and the in- tention to transfer is clear, any words will answer the purpose (a). The sale of real estate by auction is now regulated Sale of land by an act which renders invalid every such sale where a J au 10U ' puffer is employed ; and which requires that the par- ticulars or conditions of sale shall state whether the sale is without reserve, or subject to a reserved price, or whether a right to bid is reserved. And if the sale is stated to be without reserve or to that effect, the seller may not employ any person to bid at the sale, and the auctioneer may not knowingly take any bidding from any such person. But where the sale is declared to be subject to a right for the seller to bid, he or any one person on his behalf may bid at the auction in such manner as he may think proper (b). This act also very Opening of properly abolishes a practice which had long prevailed ^^ ss abo " (y) 29 Car. II. c. 3, s. 8. the person required by law to (z) 1 Sand. Uses, 342 (377, 5th cancel the same, or the name or ed.) initials of his firm, together with (,/) Agreements, the matter the true date of his so writ- whereof is of the value of live injj,'. Stat. 33 & 34 Vict. c. 97, s. pounds or upwards, now bear a 24. Declarations of trust of any i duty of sixpence, which property made by any writing not may he denoted by an adhesive being a deed or will, or an in- Btamp, which is to be cancelled by Btrument chargeable with ad ra- the person by whom the agreement lorem duty, bear the same duty as ■ ecuted. Si;tt. :;:i & ::l ordinary deeds. Stat. :v.i ik, '-'<\ Vict. c. 97 s. 36. The amp is Vict. c. 97, schedule; ante, p. 146. cancelled by writing on or a (6) Stat. 30 & 81 Vict. c. 48, tamp the oame or initial* "l' bs. l, 5, 6. \l 2 164 OF CORPOREAL HEREDITAMENTS. in Courts of Chancery of opening the biddings after a sale by auction of land under their authority, if a price considerably higher was afterwards offered; so that a bona fide purchaser was never sure of his bargain. But now the highest bona fide bidder is to be declared and allowed the purchaser, except in the case of fraud or improper conduct in the management of the sale (c). County Courts The County Courts have now jurisdiction in equity in BateoTlwlse a " su ' ,!s 1()1 ' S ! H ' ( *'^ ( ' performance of, or for reforming, delivering up or cancelling of any agreement for the sale, purchase or lease of any property, where, in the ease of a sale or purchase, the purchase-money, or in case of a lease the value of the property, shall not exceed five hundred pounds (d). Trnsi estates liable to debts. The Statute of Frauds. Subsequent statutes. Trust estates, besides being subject to voluntary alienation, are also liable, like estates at law, to in- voluntary alienation for the payment of the owner's debts. By the Statute of Frauds it Avas provided, that if any cestui que trust should die, leaving a trust in fee simple to descend to his heir, such trust should be assets by descent, and the heir should be chargeable with the obligation of his ancestors for and by reason of such assets, as fully as he might have been if the estate in law had descended to him in possession in like manner as the trust descended (e). And the subsequent statutes to which we have before referred, for preventing the debtor from defeating his bond creditor by his will, and for rendering the estates of all persons liable on their decease to the payment of their just debts of ever, (c) Stat. 30 & 31 Vict. c. 48, s. 7. (77) Stat. 30 & 31 Vict. c. M2, s. 9. O) Stat, 20 Car. II. c. 3, s. 10. Before thi> provision the Court of Chancery had refused to give the bond creditor any relief. Benin t v. Box, 1 Cha. Ca. 12; Prat v. Colt, Lb. 128. These decision . in all probability, gave rise to the above enactment. See 1 Win. Black. 159; 1 Sand. Uses, 276 (289 6th ed.) OF USES AND TRUSTS. 165 kind, apply as well to equitable or trust estates as to estates at law (f). The same Statute of Frauds also gave a remedy to Judgment the creditor who had obtained a judgment against his ni i • -,• / t • i n i i ip t p The Statute of debtor, by prodding (^) that it should be lawful tor Frauds. every sheriff or other officer to whom any writ should be directed, upon any judgment, to deliver execution unto the party in that behalf suing of all such lands and hereditaments as any other person or persons should be seised or possessed of in trust for him against whom execution was sued, like as the sheriff or other officer might have done if the party against whom execution should be sued had been seised of such lands or hereditaments of such estate as they be seised of in trust for him at the time of execution sued. This enactment was evidently copied from a similar provision made by a statute of Henry VII. (h), re- specting lands of which any other person or persons were seised to the use of him against whom execution was sued; and which statute of course became in- operative when uses were, by the Statute of Uses (?'), turned into estates at law. The construction placed upon this enactment of the Statute of Frauds was more favourable to purchasers than that placed on the statute of Edward I. (A), by which fee simple estates at law were first rendered liable to judgment debts. For it was held that although the trustee might have been seised in trusl for the debtor at the time of ob- taining the judgment, yet if he had conveyed away the lands to a purchaser before execution was actually sued out on the judgment, the lands could not after- wards be taken; because the trustee was not, in the (/) Stat. 3 & 4 Wm. & Mary, {) Si at. I'.) Ben. VTL c. 16. II Geo. IV .& ] Will. IV. p. I7 ; (i) Stat. 27 Hen. VIII. c. 10. 8* 4 Will IV..-. lot; :;_' & 33 (It) Stat. 13 Edw.Lc. 18; ante, Vict. c.4f; ; ante, pp. 77-80. p. 81. 1GG OP CORPOREAL HEREDITAMENTS. New enact- ments. words <>f the statute^ seised in trust for the debtor at the time of execution sued {I). The act for extend- ing the remedies of creditors against the property of debtors (r/z), however, deprived purchasers of this ad- vantage, in consideration perhaps of the greater faci- lities which it afforded in the search for judgments; for it provided (») thai execution might be delivered, under the writ of elegit, of all such lands and here- ditaments as the person against whom execution Mas sued, or any person in trust for him, should have been seised or possessed of at the time of entering up the judgment, or at any time afterwards ; and a remedy in equity was also given to the judgment creditor against all lands and hereditaments of or to which the debtor should at the time of entering up the judgment, or at any time afterwards, be seised, possessed or entitled for any estate or interest whatever at law or in equity (0). But the still more recent enactments (jp), to which we have before referred () Stats. 2 & 3 Vict. c. II, 27 & 28 Vict. c. 112. (//) Ante, pp. 81-86. (r) King v. Smith, Sugd. Yen. & Pur. Appendix, No. 15, p. 1098, 11th eri. (s) S 33 Vi( I c. 71, B. 15, par. (1). (0 Sims v. Thomas, 12 Ad. & • 23 & 21 Vict. c. 38, ss. 1, 2; El. 536. OF L*E;> AND TRUSTS. 167 The circumstance of property being vested in trus- The Trustee tees sometimes occasions inconvenience. A trustee c ' ° ' may become lunatic, or may leave the country, or may refuse to convey, when required, the lands of which he is trustee; or he may die intestate without an heir, or leaving an infant heir, on whom, if he was a sole or a sole surviving trustee, the lands will descend at law. In order to remedy the inconvenience thus occasioned to the persons beneficially entitled, it is provided by recent acts of parliament (u) that, in the case of a lunatic trustee, the Lord Chancellor, or the persons entrusted by, the Queen's sign manual with the care of the persons and estates of lunatics, and the Court of Chancery in other cases, may make an order vesting the lands in any other person or persons; and such an order will operate as a valid conveyance of such lands accordingly. It is also provided that, whenever it is New trustees. expedient to appoint a new trustee, and it is inexpedient, difficult or impracticable so to do without the assistance of the Court of Chancery, that Court may make an order appointing a new trustee or new trustees, either in substitution for or in addition to any existing trustee or trustees (a;), or whether there be any existing trustee or not (y). The Court of Chancery is also empowered to appoint a new trustee in the place of any trustee who shall have been convicted of felony ( z ). And upon making any order appointing a new trustee, the Court may direct that any lands subject to the trust shall vest in the person or persons, who, upon the appointment, shall be the trustee or trustees for such estate as the Court shall direct; and such order will have the same (w) Stats. 13 & 1 I Vict. c. 60, (><■) Stat. 13 & 14 Vict. c. 60, and 15 & 16 Vic( c. 55, repealing b. 32. and consolidating Btats. II Geo. (y) Stat. L5 & 1<; Vict. e. 55, IV. & 1 Will. [V. c. 60, I & 5 b. '.». Will. IV. c. 23, and 1 & 2 Vict. (-) Sect. 8. c GO. 163 OF CORPOKEAI. HEREDITAMENTS. Charity pro- perty. County Courts. Property held for religions or edacational purposes. Literary and scientific insti- tntions. Burial grounds. Power to appoint new trustees. effect as if the person or persons who before such order were the trustee or trustees (if any) had duly executed all proper conveyances of such Lands (a). Property held in trust for charities may also be vested by the Court in new trustees, or in the official trustee of charity lands, without any conveyance (b). But every such order is now chargeable with a stamp duty of 10s. (c). All the power and authority of the Court of Chancery, in any of the above-mentioned matters, is now vested in the County Courts, in all proceedings in which the trusl estate or fund to which the proceeding relates, shall not exceed in amount or value the sum of five hundred pounds (d). By another act of parlia- ment («?) provision is made for vesting the property of congregations or societies for purposes of religious worship or education in new trustees from time to time without any conveyance. The provisions of this act have recently been extended to Literary and Scientific Institutions (f) ; and also to burial grounds (^7). An act has also been passed which contains a general pro- vision for the appointment of new trustees, similar to the powers for that purpose ordinarily inserted in well-drawn trust deeds. This act, which is intituled " An Act to give to Trustees, Mortgagees and others certain Powers now commonly inserted in Settlements, Mortgages and Wills," extends to instruments executed, or wills con- firmed or revived by codicil executed, after the 28th of August, 1860, the date of the act (h). It provides (i) 00 Stat. 13 & 14 Vict. c. 60, s. 34. (b) Sect. 45. Stats. 16 & 17 Vict. c. 137, s. 48; 18 & 19 Vict, c. 124, s. 15; 23 & 24 Vict. c. 136; 25 & 26 Vict. c. 112; 32 & 33 Vict. c. 110. (c) Stat. 33 & 34 Vict, c 97, s. 78. (V) Stat. 28 & 29 Vict. c. 99, s. 1. (e) Stat. 13 & 14 Vict. c. 28. (/) Stat. 17 & 18 Vict. c. 112, s. 12. O) Stat. 32 & 33 Vict. c. 36. (A) Stat. 23 & 24 Vict. c. 145, s. 34. (i) Sect. 27. OF USES AND TRUSTS. 169 that whenever any trustee shall die, or desire to be dis- charged from, or refuse, or become unfit or incapable to act in the trusts or powers reposed in him, the surviving or continuing trustees or trustee, or the acting executors or administrators of the last surviving or continuing trustee, or the last retiring trustee, may, if there be no person nominated for that purpose by the instrument creating the trust, or no such person able and willing to act, appoint a new trustee. And every such trustee, and also every trustee appointed by the Court of Chan- cery, either before or after the passing of the act, is invested with the same powers as if he had been origi- nally nominated by the instrument creating the trust (A). And the above-mentioned power of appointing new trustees may be exercised in cases where a trustee nomi- nated in a will has died in the lifetime of the testator, as well as where he may have died after the testator's decease (/). It is now provided that a conveyance stamps on or transfer made for effectuating the appointment of a ne^ustees ° f new trustee, is not to be charged with any higher duty than 10s. (m). The concurrent existence of two distinct systems of Law and equity -, • r /. , f ri i. 1 T distinct sys- jnrisprudence is a peculiar ieature oi Jiiiiglish .Law. tems> On one side of Westminster Hall a man may succeed in his suit under circumstances in which he would un- doubtedly be defeated on the other side ; for he may have a title in equity, and not at law (being a cestui que trust), or a title at law and not in equity (being merely a trustee). In the former case, though he would succeed in a chancery suit, he never would think of bringing an action at law; in the latter case he would (k) The words Court, of Chan- (/) Stat. 23 & 24 Vict. c. 145, eery here used extend to ami in- s. 28. clnde the Court of Chancery of the ( m ) Stat. 33 & 34 Vict. c. 97, ( lonntj Palatine of Lanca ster. s. 7tf. Stat. 28 & 29 Vict. c. 10. 170 OF CORPOREAL HEREDITAMENTS. succeed in an action al law; but equity would take care that the fruits should be reaped only by the person beneficially entitled. The equitable title is, therefore, the beneficial one, but if barely equitable, it may oc- casion the expense and delay of a chancery suit to maintain it. Every purchaser of landed property has, therefore, a right to a good title both at law and in equity; and if the legal estate should be vested in a trustee, or any person other than the vendor, the con- currence of such trustee or other person must be obtained for the purpose of vesting the legal estate in the purchaser, or, if he should please, in a new trustee of his own choosing. When a person has an estate at law, and does not hold it subject to any trust, he has of course the same estate in equity, but without any occasion for resorting to its aid. To him, therefore, the doctrine of trusts does not apply : his legal title is sufficient; the law declares the nature and incidents of his estate, and equity has no ground for interfer- ence («). Common Law A step has been taken towards the amalgamation of Procedure Act, j aw an( j e q U ity by the Common Law Procedure Act, 1854 (o), which confers on the Courts of Common Law an extensive equitable jurisdiction. The plaintiff in any action, except replevin and ejectment, may claim a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff is personally interested (p), and by the non-performance of which he may sustain damage (y). In all cases of breach of contract or other injury, where the party injured is entitled to maintain and has brought an action, lie may claim a writ of injunction against the (ri) Sec Bry&gesy. Brydgt (/>) Sect. 68. Ves. L27. is) Sect. 69. O) Stat. 17 & 18 Vict. c. 125. OF USES AND TRUSTS. 171 repetition or continuance of such breach or injury (r). If the defendant would be entitled to relief against the judgment on equitable grounds, he may plead, by way of defence to the action, the facts which entitled him to such relief (5) ; and the plaintiff may reply, in answer to any plea of the defendant's, facts which avoid such plea on equitable grounds (t). But the facts pleaded must be such as would entitle the person pleading them to absolute and unconditional relief in the Court of Chancery, otherwise the plea Avill not be allowed (u). The change effected has not therefore been so great as might, at first sight, have been supposed. Another act of parliament has conferred a common law jurisdiction upon the Court of Chancery : — the Chancery Amend- The Chancery ment Act, 1858 (*), now empowers the Court of l^TSs^ Chancery to award damages like a Court of Law in all cases of injunction and specific performance (y) ; and the amount of such damages may be assessed, or any question of fact tried, by a jury before the Court itself ( z), or by the Court itself without a jury (a). AVe shall now take leave of equity and equitable estates, and proceed, in the next chapter, to explain a modern conveyance. O) Stat. 17 & 18 Vict. c. 125, Company, 17 C. B. 501; Flight s. 79. v. Gray, 3 C. B. N. S. 320; Gee {s) Sect. 83. v. Smart, 8 E. & B. 313; Jeffs v. (t) Sect. 85. Day, 1 Law Rep. Q. B. 372. («) Mines Royal Societies ir. (./•) Stat. 21 & 22 Vict, c 27. Magnay, 10 Exch. 489; Wode- (y) Sect. 2. house v. Farebrother, •"> E. & B. (z) Sects. 3, 4. 277; Wood v. Copper Miners' (a) Sect. 5. 172 OF CORPOREAL HEREDITAMENTS. CHArTEll IX. OF A MODERN CONVEYANCE. Lease and re- lease. Release. In modern times, down to the year 1841, the kind of conveyance employed, on every ordinary purchase of a freehold estate, was called a lease and release ; and for every such transaction, two deeds were always re- quired. From that time to the year 1845, the ordinary method of conveyance Avas a release merely, or, more accurately, a release made in pursuance of the act of parliament (a) intituled " An Act for rendering a Re- lease as effectual for the Conveyance of Freehold Estates as a Lease and Release by the same Parties." The object of this act was merely to save the expense of two deeds to every purchase, by rendering the lease un- necessary. Act to simplify the transfer of property. A further alteration was then made, by the act to simplify the transfer of property (b), which enacted (c), that, after the 31st day of December, 1844, every person might convey by any deed, without livery of seisin, or a prior lease, all such freehold land as he might, before the passing of the act, have conveyed by lease and release, and every such conveyance shoidd take effect, as if it had been made by lease and release ; provided always, that every such deed should be charge- able with the same stamp duty as would have been chargeable if such conveyance had been made by lease and release. (a) Stat. I & 5 Vict. c. 21. (ft) Stat. 7 & 8 Vict. c. 7G. {e) Sects. 2, 13. OF A MODERN CONVEYANCE. 1 ( 3 This act, however, had not been in operation more Act to amend than nine months when it was repealed by the act to re ^ p^p erty _ amend the law of real property ( d), which provides, that after the 1st of October, 1845, all corporeal tene- ments and hereditaments shall, as regards the convey- ance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. A simple deed of grant is therefore now sufficient to grant the freehold or feudal seisin of all lands (e). But as a lease and release was so long the usual method of conveyance, the nature of a conveyance by lease and release should still form a subject of the student's inquiry ; and with this we will accordingly begin. From the little that has already been said concerning A lease for a lease for years {/), the reader will have gathered, y that the lessee is put into possession of the premises leased for a definite time, although his possession has nothing feudal in its nature, for the law still recognizes the landlord as retaining the seisin or feudal possession. Entry by the tenant was, however, in ancient times, Entry neces- absolutely necessary to make a complete lease {g); hM -' although, in accordance with feudal principles, it was not necessary that the landlord should depart at once and altogether, as he must have done in the case of a feoffment where the feudal seisin was transferred. When the tenant had thus gained a footing on the The tenant's premises, under an express contract with his landlord, [ered by entry. (d) Stat. 8 & 9 Vict. c. 10G, related to any deed or instrument s. 2. bearing date after the 10th of Oc- (e) By the second section of the tober, 1850. This act with many a<-t, the stamp dnty on this single others is now repealed by stat. 33 deed was the Bame as was charge- & :;l Vict. c. 99; and the st:im|> able "ii the Lease and release, ex- duties on deeds are now governed cept the progressive duty on the by the Stamp Act. 1870, stat. 33 lease. But the duty on the lease & 84 Vict. c. '.'7. for a year was repealed i>; (/) Ante, pp. 8, 113. 13 & ll Vict. c. 97, s. 6, so far as (g) Litt. s. 450; Co. Litt. 270 a. 174 OF CORPOREAL HEREDITAMENTS. A release. Inconvenience of lease with entry. he became, with respect to the feudal possession, in a different position from a mere stranger; for, be was then capable of acquiring sucb feudal possession, with- out any formal livery of seisin, by a transfer or convey- ance, from his landlord, of all his (the landlord's) estate in the premises. Being already in possession by the act and agreement of his landlord, and under a tenancy recognized by the law, there was not the same necessity for that open delivery of the seisin to him, as there ■svould have been to a mere stranger. In his case, in- deed, livery of seisin would have been improper, for he Avas already in possession under his lease (/<) ; and, as a delivery of the possession of the lands coidcl not, there- fore, be made to him, it Avas neee^ary that the land- lord's interest should be conveyed in some other manner. Xow the ancient common law always required that a transfer or gift of every kind relating to real property should be made, either by actual or symbolical delivery of the subject of the transfer, or, when this was impos- sible, by the delivery of a written document (i). But in former times, as Ave have seen (k), every writing was under seal ; and a writing so sealed and delivered is in fact a deed. In this case, therefore, a deed was re- quired for the conveyance of the landlord's interest (/) ; and such conveyance by deed, under the above circum- stances, was termed a release. To a lease and release of this kind, it is ol;rvious that the same objection applies as to a feoffment: the inconA-enience of actually going on the premises is not obviated ; for, the tenant must enter before he can receive the release. In the very early periods of our history, this kind of circuitous conveyance was, hoAvever, occasionally used. A lease was made for one, two, or three years, completed by the (//) Litt. s. 460; Gilb. Uses and Trusts, 104(223, 3rd ed.) (0 Co. Litt. a; Doe d. Wrrr v. Cole, 7 13am. & Cress. 243, 248; ante, p. 11. (/<:) Ante, p. 144. (7) Shep. Touch. 320. OF A MODERN CONVEYANCE. 175 actual entry of the lessee, for the express purpose of enabling him to receive a release of the inheritance, which was accordingly made to him a short time after- wards. The lease and release, executed in this manner, transferred the freehold of the releasor as effectually as if it had been conveyed by feoffment (ra). But a lease and release would never have obtained the prevalence they afterwards acquired had not a method been found out of making a lease, without the necessity of actual entry by the lessee. The Statute of Uses (n) was the means of accom- The Statute of pfishing this desirable object. This statute, it may be remembered, enacts, that when any person is seised of lands to the use of another, he that has the use shall be deemed in lawful seisin and possession of the lands, for the same estate as he has in the use. Now, besides a feoffment to one person to the use of another, there were, before this statute, other modes by which a use might be raised or created, or, in other words, by which a man might become seised of lands to the use of some other person. Thus — if, before the Statute of Uses, a bargain was made for the sale of an estate, and the Bargain and a 1 purchase-money paid, but no feoffment was executed to the purchaser, — the Court of Chancery, in analogy to its modern doctrine on the like occasions (0), considered that the estate ought in conscience immediately to belong to the person who paid the money, and, there- fore, held the bargainor or vendor to be immediately ed of the lands in question to the use of the pur- chaser^). This proper and equitable doctrine of the ( lourt of ( Ihancery had rather ;i curious effect when the Statute of Uses came into operation; for, as by means U) 2 Sand. Uses, 61 (74,6th (/>) 2 Band. Ueea, 13 (53, 6th ed.) ed.) ; Gilb. Uses and Trusts, 19 (») 27 Hen. VTILc. 10. (94, 3rd ed.) (") Ante, p. 160. 176 OF CORPOREAL HEREDITAMENTS. of a contract of this kind the purchaser became entitled to the use of the lands, so, after the passing of the statute, he became at once entitled, on payment of his purchase-money, to the lawful seisin and possession ; or rather, he was deemed really to have, by force of the statute, such seisin and possession, so far at least as it, was possible to consider a man in possession, who in fad was not(y). It, consequently, came to pass that the seisin was thus trans lined, from one person to another, by a mere bargain and, sale, that is, by a contract for sale and payment of money, without the necessity of a feoffment, or even of a deed (r) ; and, moreover, an estate in fee simple at law was thus duly conveyed from one person to another without the employment of the technical word heirs, which before was necessary to mark out the estate of the purchaser ; for, it was pre- sumed that the purchase-money was paid for an estate in fee simple (s) ; and, as the purchaser had, under his contract, such an estate in the use, he of course became entitled, by the very words of the statute, to the same estate in the legal seisin and possession. The mischievous results of the statute, in this par- ticular, were quickly perceived. The notoriety in the transfer of estates, on which the law had always laid so much stress, was at once at an end ; and it was per- ceived to be very undesirable that so important a matter as the title to landed property should depend on a mere verbal bargain and money payment, or bargain and sale, as it was termed. Shortly after the passing of the (q) Thus, he could not maintain ed.); 2 Fonh. on Equity, 12; Ilar- an action of trespass without being ri&on v. Blackburn, 17 C. B. N. S. actually in possession, for this ac- 678. tion is grounded on the disturbance (r) Dyer, 229 a; Comyn's Di- of the actual possession, which is gest, tit. Bargain and Sale (B. 1, evidently more than the Statute 4); Gilb. on Uses and Trusts, 87, of Uses, or any other statute, can 271 (197, 475, 3rd ed.) give. Gilb. Uses, 81 (135, 3rd (s) Gilb. Uses, 62 (116,3rd ed.) OF A MODERN CONVEYANCE. 177 Statute of Uses, it was accordingly required by another Bargains and act of parliament (t), passed in the same year, that t0 be by 1 deed every bargain and sale of any estate of inheritance enrolled, or freehold should be made by deed indented and en- rolled, within six months (which means lunar monthsV from the date, in one of the courts of record at West- minster, or before the custos rotulorum and two justices of the peace and the clerk of the peace for the county in which the lands lay, or two of them at least, whereof the clerk of the peace should be one. A stop was thus put to the secret conveyance of estates by mere contract and payment of money. For a deed entered on the records of a Court is of course open to public inspection ; and the expense of enrolment was, in some degree, a counterbalance to the inconvenience of going to the lands to give livery of seisin. It was not long, however, A loophole before a loophole was discovered in this latter statute, t ^ e s t a t u te. through which, after a few had ventured to pass, all the world soon followed. It was perceived that the act spoke only of estates of inheritance or freehold, and was silent as to bargains and sales for a mere term of years, which is not a freehold. A bargain and sale of lands for a Bargain and year only, was not therefore affected by the act (u), but remained still capable of being accomplished by word of mouth and payment of money. The entry on the part of the tenant, required by the law (u), was supplied by the Statute of Uses ; which, by its own force, placed him in legal intendment in possession for the same estate ;i- be had in the use, that is, for the term bargained and sold to him (V). And as any pecuniary payment, how- ever small, was considered sufficient to raise a use (//), it followed that if A., a person seised in fee simple, (t) 27 Hen. VIII. c. 16. O) Gilb. Uses, 101 (223, 3rd (») Gilb. Uses, 98, 296 (214, ed.) 002, 3rd ed.); 2 Sand. Oaes, 68 (y) 2 Sand. Uses, 47 (57, 5th (76, Sthed.) ed.) (>■) Ante, p. 17.3. B.P. N lease. 178 OF COKPOREAL HEREDITAMEN l S. bargained and sold his lands to 15. for one year in consideration of ten shillings paid by B. to A., B. became, in law, at once possessed of an estate in the lands for the term of one year, in the same manner as if he had actually entered on the premises under a regular lease. Here then -was an opportunity of making a con- veyance of the whole fee simple, without livery of seisin, entry or enrolment. When the bargain and sale for a year was made, A. had simply to release by deed to B. and his heirs his (A.'s) estate and interest in the premises, and B. became at once seised of the lands for Lease ami re- an estate in fee simple. This bargain and sale for a year, followed by a release, is the modern conveyance by lease and release — a method which was first practised by Sir Francis Moore, serjeant at law, at the request, it is said, of Lord JNorris, in order that some of his relations might not know what conveyance or settlement he should make of his estate (z) ; and although the efficiency of this method was at first doubted (a), it was, for more than two centuries, the common means of con- veying lands in this country. It will be observed that the bargain and sale (or lease, as it is called) for a year derived its effect from the Statute of Uses ; the release was quite independent of that statute, having existed long before, and being as ancient as the common law itself (b). The Statute of Uses was employed in the conveyance by lease and release only for the purpose of giving to the intended releasee, without his actually entering on the lands, such an estate as would enable him to receive the release. When this estate for one year was obtained by the lease, the Statute of Uses had performed its part, and the fee simple was conveyed to the releasee by the release alone. The release would, before the Statute of Uses, have conveyed the fee simple 0) 2 Prest, Conv. 219. Fonb. Eq. 12. (a) Sngd. note to Gilb. Uses, (h) Sugd. note to Gilb. Uses, p. 328; 2 Prest. Conv. 231 ; 2 229. OF A MODERN CONVEYANCE. 179 to the releasee, supposing him to have obtained that possession for one year, which, after the statute, was given him by the lease, After the passing of the Statute of Frauds (c), it became necessary that every bargain and sale of lands for a year should be put into Bargain and writing, as no pecuniary rent was ever reserved, the must beln consideration being usually five shillings, the receipt of writing. which was acknowledged, though in fact it was never paid. And the bargain and sale, or lease for a year, was usually made by deed, though this was not abso- lutely necessary. It was generally dated the day before the date of the release, though executed on the same day as the release, immediately before the execution of the latter. This cumbrous contrivance of two deeds to every Act abolishing purchase continued in constant use down to the year ^ 1841, when the act was passed to which we have before referred (d), intituled " An Act for rendering a Release as effectual for the Conveyance of Freehold Estates as a Lease and Release by the same Parties." This act enacts that every deed or instrument of release of a freehold estate, or purporting or intended to be so, which shall be expressed to be made in pursuance of the act, shall be as effectual, and shall take effect as a conveyance to uses or otherwise, and shall operate in all respects, as if the releasing party or parties, who shall have executed the same, had also executed, in due form, a deed or instrument of bargain and sale, or lease for a year, for giving effect to such release, although no such deed or instrument of bargain and sale, or lease for a vear, shall be executed. And now, by the act to Act to amend amend the hw of real property (e), a deed of grant is p roper ty. (r) Stiit. l".i Car. II. c. 8; ante, ante p. L72. p. 1 1:. O) Stat, 8 & a Vict. <•. L06; (d) Stat. 4 & 5 Vict. c. 21 ; ante, \>. i?:i. N 2 180 OF CORPOREAL HEREDITAMENTS. alone sufficient for the conveyance of all corporeal hereditaments. The estate The legal seisin being thus capable of being trans- marked out. f erred by a deed of grant, there is the same necessity now as there was when a feoffment was employed, that the estate which the purchaser is to take should be marked out (f). If he has purchased an estate in fee simple, the conveyance must be expressed to be made to him and his heirs ; for the construction of all con- veyances, wills only excepted, is in this respect the same ; and a conveyance to the purchaser simply, without these words, would merely convey to him an estate for his life, as in the case of a feoffment (g). In this case also, as well as in a feoffment, it is the better opinion that, in order to give permanent validity to the conveyance, it is necessary either that a considera- tion should be expressed in the conveyance, or that it should be made to the use of the purchaser as well as unto him (A) : for a lease and release was formerly, and a deed of grant is now, as much an established convey- ance as a feoffment ; and the rule was, before the Statute of Uses, that any conveyance, and not a feoffment particularly, made to another without any consideration, or any declaration of uses, should be deemed to be made Conveyance to the use of the party conveying. In order, therefore, 7o l tile™scnf d t0 av °id an 7 suca construction, and so to prevent the the purchaser. Statute of Uses from immediately undoing all that has been done, it is usual to express, in every conveyance, that the purchaser shall hold, not only unto, but unto and to the use of himself and his heirs. A conveyance A conveyance might also have been made by lease may >e im.de an( j re i ease as we ]] as by a feoffment, to one person and (/) Shop. Touch. 327; see — 84, 5th ed.); Sugd.note to Gilb. ante, p. 139. Uses, 233; see ante, pp. 143, 153, («/) Shep. Touch, ubi supra. 154. (//) 2 Sand. Uses, G4-G9 (77 OF A MODERN CONVEYANCE. 181 his heirs, to the use of some other person and his heirs; and, in this case, as in a similar feoffment, the latter person took at once the whole fee simple, the former being made, by the Statute of Uses, merely a conduit- pipe for conveying the estate to him (i). This extra- ordinary result of the Statute of Uses is continually relied on in modern conveyancing ; and it may now be accomplished by a deed of grant in the same manner as it might have been before effected by a lease and release. It is found particularly advantageous as a means for avoiding a ride of law, that a man cannot make any a man cannot conveyance to himself; thus if it were wished to make ^ vey to him " a conveyance of lands from A., a person solely seised, to A. and B. jointly, this operation could not, before the Statute of Uses, have been effected by less than two conveyances ; for a conveyance from A. directly to A. and B. Avoidd pass the whole estate solely to B. (j). It would, therefore, have been requisite for A. to make a conveyance to a third person, and for such person then to re-convey to A. and B. jointly. And this was the method actually adopted, under similar circum- stances, with respect to leasehold estates and personal property, which are not affected by the Statute of Uses, until an act was passed by which any person may now assign leasehold or personal property to himself jointly with another (A); but this act does not extend to free- holds. If the estate be freehold, A. must convey to But a man B. and his heirs, to the use of A. and B. and their heirs; ™ay convey ' freeholds to and a joint estate in fee simple will immediately vest in another to his them both. Suppose, again, a person should Avish to owu usu " convey a freehold estate to another, reserving to himself a life interest, — without the aid of the Statute of Uses he would be unable to accomplish this result by a single (?) See ante, p. 1.", 1. count, Fiuilhner v. Lowe, 2 Ex. (j) Perkins, s. 203. So a man Bep. 696. cannot covenant to pay money bo (/■) Stat. 22 & 23 Vict. c. 35, himself and another on a joint ac- B. 21. 182 OF CORPOREAL HEREDITAMI XTS, deed (/). But, by means of the statute, he may now make a conveyance of the property to the other and his heirs, to the use of himself (the conveying party) for his life, and from and immediately after his decease, to the use of the other and his heirs and assigns. By this means the conveying party will at once become seised of an estate only for his life, and after his decease an estate in fee simple will remain for the other. An ordinary purchase deed. Date. Parties. Recital of the conveyance to the vendor. Recital of the contract for sale. Testatum. Consideration. The reader will now be in a situation to understand an ordinary purchase deed of the simplest kind, with a specimen of which he is accordingly presented : — " THIS INDENTURE (m) made the first day of " January 1846 between A. B. of Cheapside in the " city of London esquire of the one part and C. D. of " Lincoln's Inn in the county of Middlesex esquire of " the other part Whereas by indentures of lease " and release (n) bearing date respectively the first " and second days of January 1838 and respectively " made between E. F. of the one part and the said " A. B. of the other part for the consideration therein " mentioned the messuage lands and hereditaments " hereinafter described with the appurtenances were " conveyed unto and to the use of the said A. B. his " heirs and assigns for ever And whereas the said " A. B. hath contracted with the said C. D. for the " absolute sale to him of the inheritance in fee simple ( o) " in possession of and in the said messuage lands and " hereditaments with the appurtenances free from all " incumbrances for the sum of one thousand pounds " Now this Indenture witnesseth that in pursu- " ance of the said contract and in consideration of the " sum of one thousand pounds of lawful money of " Great Britain to the said A. B. in hand paid by the (7) Perk. ss. 704, 705; Youle v. Jones, 13 Mee. & Wels. 534. (to) Ante, p. 146. (ri) Ante, p. 178. (o) Ante, p. 59 et seq. OF A MODERN CONVEYANCE. 183 " said C. D. upon or before the execution of these " presents (the receipt of which said sum of one thou- Receipt. " sand pounds in full for the absolute purchase of the " inheritance in fee simple in possession of and in the " messuage lands and hereditaments herein before " referred to and hereinafter described with the ap- " purtenances he the said A. B. doth hereby acknow- ' " ledge and from the same doth release the said C. D. " his heirs executors administrators and assigns) He " the said A. B. doth by these presents grant (p) Operative " unto the said CD. and his heirs all that messuage words - " or tenement [here describe the premises] Together „ L General words. " with all outhouses ways watercourses trees com- te monable rights easements and appurtenances to the " said messuage lands hereditaments and premises (§-) " hereby granted or any of them belonging or there- " with used or enjoyed And all the estate (r) and Estate. " right of the said A. B. in and to the same To have " and to HOLD the said messuage lands hereditaments Habendum. " and premises intended to be hereby granted with the " appurtenances unto and to the use of (s) the said " C. D. his heirs and assigns for ever (7)." [Then follow covenants by the vendor with the purchaser for the title ; that is, that he has good right to convey the premises , for their quiet enjoyment by the purchaser, and freedom from incumbrances, and that the vendor and his heirs will make all such further conveyances as may be reasonably required.^ " In WITNESS " whereof the said parties to these presents have here- " unto set their hands and seals the day and year first " above written." To the foot of the deed are appended the seals and signatures of the parties (u); and, on the back is indorsed a further receipt for the purchase- ( /<) Ante, pp. 17:J, 179. (s) Ante, p. 179. <> BOO 3 BOO » 750 6 750 » 1000 9 L000 )> 2000 12 2000 „ 3000 25 3000 » 1000 36 (i 186 OF CORPOREAL HEREDITAMENTS. Registry in If the premises should be situate in either of tlie Yorkshire and counties of Middlesex or York, or in the town and Hull. county of Kingston-upon-Hull, a memorandum will or ought to be found indorsed, to the effect that a memorial of the deed was duly registered on such a day, in such a book and page of the register, estab- lished by act of parliament, for the county of Middle- sex (h), or the ridings of York, or the town of Kingston- upon-Hull (i). Under these acts, all deeds are to be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration, unless a memorial of such deeds be duly registered before the registering of the memorial of the deed under which such subsequent purchaser or mortgagee (^) — continued. Amount to £4000 and not to £5000 £15 „ 5000 „ 6000 55 „ 6000 „ 7000 65 „ 7000 „ 8000 75 „ 8000 „ 9000 85 „ 9000 „ 10,000 95 10,000 „ 12,500 110 „ 12,500 „ 15,000 130 „ 15,000 „ 20,000 170 „ 20,000 „ 30,000 240 „ 30,000 „ 40,000 350 40,000 „ 50,000 450 „ 50,000 „ 60,000 550 „ 60,000 „ 80,000 650 „ 80,000 „ 100,000 800 „ 100,000 or upwards 1000 And for every entire quantity of 1080 words contained therein over and above the first 1080 words, a further progressive duty of .. .. . . .. ..£10 See stats. 55 Geo. III. c. 184, 4 & 5 Viet. c. 21, 7 & 8 Vict. c. 76, and 8 & 9 Vict. c. 106. The earlier stamp acts are stats. 44 Geo. III. c. 98, and 48 Geo. III. c. 149, the latter of which statutes first imposed an ad valorem duty on purchase deeds. (/<•) Stat. 7 Anne, c. 20. (i) Stat. 2 & 3 Anne, c. 4, 5 Anne, c. 18, for the west riding ; stat. 6 Anne, c. 35, for the east riding and Kingston-upon-Hull ; and stat. 8 Geo. II. c. 6, for the north riding. The deeds must be first duly stamped. Stat. 33 & 34 Vict. c. 97, s. 22. OF A MODERN CONVEYANCE. 187 shall claim. Wills of lands in the above counties ought also to be registered, in order to prevail against subsequent purchasers or mortgagees. Conveyances of lands forming part of the great level of the fens, called Bedford Level, are also required to be registered Beford Level. in the Bedford Level Office (A); but the construction which has been put on the statute, by which such registry is required, prevents any priority of interest from being gained by priority of registration (I). From the specimen before him, the reader will be Formal style struck with the stiff and formal style which charac- ^f 1 ilkru ~ terizes legal instruments ; but the formality to be found in every properly drawn deed has the advantage, that the reader who is acquainted with the usual order knows at once where to find any particular portion of the contents ; and, in matters of intricacy, which must frequently occur, this facility of reference is of incal- culable advantage. The framework of every deed consists but of one, two, or three simple sentences, according to the number of times that the testatum, or witnessing part, " Now this Indenture witnesseth," is Testatum. repeated. This testatum is always written in large letters ; and, though there is no limit to its repetition (if circumstances should require it), yet, in the majority of cases, it occurs but once or twice at most. In the example above given, it will be seen that the sentence on winch the deed is framed, is as follows: — "This " Indenture, made on such a day between such parties, " witnesseth, that for so much money A. B. doth grant " certain premises unto and to the use of C. D. and " his heirs." After the names of the parties have been given, an interruption occurs for the purpose of intro- ducing tin 1 recitals; and when the whole of the intro- ductory circumstances have been mentioned, the thread (A) Shu. L5 Car. H. c 17, e. 8. (0 Willis v. Brown, 10 Sim. 127. 188 OF COItrOEEAL, IIEEEDITAMF.M "S. Habendum. Parties. Recitals. Operative words. Parcels. Habendum. Uses and trusts. Covenants. No stops. is resumed, and the deed proceeds, " Now tins Inden- ture witnesseth." The receipt for the purchase-money i> again a parenthesis; and soon after comes the de- scription of the property, which further impedes the progress of the sentence, till it is taken up in the habendum, " To have and to hold," from which it un- interruptedly proceeds to the end. The contents of deeds, embracing as they do all manner of transactions between man and man, must necessarily be infinitely varied ; and a simple conveyance, such as that we have given, is rare, compared with the number of those in which special circumstances occur. But in all deeds, as nearly as possible, the same order is preserved. The names of all the parties are invariably placed at the beginning ; then follow recitals of facts relevant to the matter in hand; then, a preliminary recital, stating shortly what is to be done ; then, the testatum, containing the operative icords of the deed, or the Avords which effect the transaction, of which the deed is the witness or evidence ; after this, if the deed relate to property, come the parcels or description of the property, either at large, or by reference to some deed already recited ; then, the habendum showing the estate to be holden : then, the uses and trusts, if any ; and, lastly, snch qualifying provisoes and covenants, as may be required by the special circumstances of the case. Throughout all this, not a single stop is to be found, and the sentences are so framed as to be inde- pendent of their aid ; for, no one would wish the title to his estates to depend on the insertion of a comma or semicolon. The commencement of sentences, and now and then some few important words, which serve as landmarks, are rendered conspicuous by capitals: by the aid of these, the practised eye at once collects the sense ; whilst, at the same time, the absence of stops renders it next to impossible materially to alter the meaning of a deed, without the forgery being dis- covered. OF A MODERN CONVEYANCE. 189 The adherence of lawyers, by common consent, to Similarity of the same mode of framing their drafts has given rise to a great similarity in the outward appearance of deeds ; and the eye of the reader is continually caught by the same capitals, such as, " This Indenture," " And whereas," " Now this Indenture w t itness- eth," " To have and to hold," &c. This similarity of appearance seems to have been mistaken by some for a sameness of contents, — an error for which any one but a lawyer might perhaps be pardoned. And this mistake, coupled with a laudable anxiety to save expense to the public, appears to have produced a plan for making conveyances by way of schedule. In pur- suance of this plan, two acts of parliament were some time since passed, one for conveyances (m), the other for leases (n). These acts, however, as might have been expected, are very seldom employed; nor is it possible that any schedule should ever comprehend the multitude of variations to which purchase-deeds are continually liable. In the midst of this variety, the adoption, as nearly as possible, of the same framework is a great saving of trouble, and consequently of expense ; but so long as the power of alienation possessed by the public is exerciseable in such a variety of ways, and for such a multitude of purposes as is now permitted, so long will the conveyance of landed property call for the exercise of learning and skill, and so long also will it involve the expense requisite to give to such learning and skill its proper remuneration. The remuneration, Professional however, afforded to the profession of the law has rcmuncia lon - hitherto been bestowed in a manner which calls for some remark. In a country like England, where every employmenl is subject to the keenest competition, there can belittle doubt bui that, whatever method may be taken for the remuneration of professional services, the (»») Stat. 8 & 'J Vict. c. 1 19. («) Stat. 8 & 'J Vict. c. 124. 190 OF CORPOKEiVL HEREDITAMENTS. nature and quantity of the trouble incurred must, on the average and in the long run, be the actual measure of the remuneration paid. The misfortune is, that when a wrong method of remuneration is adopted, the true proportion between service and reward is necessarily obtained by indirect means, and therefore in a more troublesome, and, consequently, more expensive manner, than if a proper scale had been directly used. In the law, unfortunately, this has been the case, and there seems no good reason why any individual connected with the law should be ashamed or afraid of making it known. The labour of a lawyer is very different from that of a copyist or printer ; it consists first and chiefly in acquiring a minute acquaintance with the principles of the law, then in obtaining a knowledge of the facts of any particular case which maybe brought before him, and lastly in practically applying to such case the prin- ciples he has previously learnt. But, for the last and least of these items alone has he hitherto obtained any direct remuneration ; for, deeds have hitherto been paid for by the length, like printing or copying, without any regard to the principles they involved, or to the intricacy or importance of the facts to which they might relate (o) ; and, more than this, the rate of payment was fixed so low, that no man of education could afford for the sake of it, first to ascertain what sort of instrument the cir- cumstances might require, and then to draw a deed containing the full measure of ideas of which words are capable. The payment to a solicitor for drawing a deed (o) By statute 6 & 7 Vict. c. 73, taxable, unless part of the bill was s. 37, the charges of a solicitor for for business transacted in some business relating entirely to con- Court of law or equity. But veyancing are rendered liable to although conveyancing bills were taxation or reduction to the esta- not strictly taxable, they were Wished scale, which is regulated always drawn up on the same only by length. Previously to principle of payment by length, this statute, the bill of a solicitor which pervades the other branches relating to conveyancing was a of the law. OF A MODERN CONVEYANCE. 191 was fixed at one shilling for every seventy-two words, denominated a folio; and the fees of counsel, though paid in guineas, averaged about the same. The conse- quence of this false economy on the part of the public has been, that certain well known and long established lengthy forms, full of synonyms and expletives, are current among lawyers as common forms, and, by the Common aid of these, ideas are diluted to the proper remunerating strength ; not that a lawyer actually inserts nonsense simply for the sake of increasing his fee; but words, sometimes unnecessary in any case, sometimes only in the particular case in which he is engaged, are suffered to remain, sanctioned by the authority of time and usage. The proper amount of verbiage to a common form is well established and understood ; and whilst any attempt to exceed it is looked on as disgraceful, it is never likely to be materially diminished till a change is made in the scale of payment. The case of the medical profession is exactly parallel ; for, so long as the public think that the medicine supplied is the only thing worth paying for, so long will cures ever be accompanied with the customary abundance of little bottles. In both cases, the system is bad; but the fault is not with the profession, who bear the blame, but with the public, who have fixed the scale of payment, and who, by a little more direct liberality, might save themselves a consider- able amount of indirect expense. If physicians' pre- scriptions were paid for by their length, does any one suppose that their present conciseness would long con- tinue? — unless indeed the rate of payment were fixed so high as to leave the average remuneration the same as iit: present. The nets above mentioned contained a pro- vision that, in taxing any bill for preparing and exe- cuting any ih^-A under the acts, the taxing officer should consider, nol the Length of such i\^^i\, bul only the skill and labour employed and responsibility incurred in the 192 OF COErOREAL HEREDITAMENTS. preparation thereof ( p). This, so far, Avas an effort in The Attorneys' the right direction. And an act has now been passed to ami Solicitors' -, , , . , „ Act, 1870. amend the law relatingto the remuneration ol attorneys and solicitors (q), by which such remuneration is now authorized, under certain restrictions, to be fixed by agreement (r); and which provides (s), that, upon any taxation of costs, the taxing officer may, in determining the remuneration, if any, to be allowed to the attorney or solicitor for his services, have regard, subject to any general rules or orders hereafter to be made, to the skill, labour and responsibility involved. But long rooted customs are hard to eradicate. The student must, therefore, make up his mind to find in legal instruments a considerable amount of verbiage ; at the same time he should be careful not to confound this with that formal and orderly style which facilitates the lawyer's perusal of deeds, or with that repetition which is often neces- sary to exactness without the dangerous aid of stops. The form of a purchase-deed, which has been given above, is disencumbered of the usual verbiage, whilst, at the same time, it preserves the regular and orderly arrangement of its parts. A similar conveyance, by deed of grant, in the old established common forms, will be found in the Appendix (t). Lease and re- To return : — A lease and release was said to be an lease an inno- • n i ■> , n ,1 i cent convey- innocent conveyance ; lor when, by means ot the lease ance - and the Statute of Uses, the purchaser had once been put into possession, he obtained the fee simple by the release ; and a release never operates by wrong, as a feoffment occasionally did (u), but simply passes that So a grant. which may lawfully and rightly be conveyed (x). The O) Stat. 8 & 9 Vict. c. 119, s. 4; 0) Sect, 18. stat. 8 & 9 Vict. c. 124, s. 3. (f) See Appendix (D). (q) Stat. 33 & 34 Vict. c. 28, (w) Ante, p. 141. passed 14th July, 1870. (x) Litt. s. GOO. O) Sects. 4—15. OF A MODERN CONVEYANCE. 193 same rule is applicable to a deed of grant (y). Thus, if a tenant merely for his own life should, by a lease and release, or by a grant, purport to convey to another an estate in fee simple, his own life interest only would pass, and no injury would be done to the reversioner. The word grant is the proper and tech- Word grant. nical term to be employed in a deed of grant (z), but its employment is not absolutely necessary ; for it has been held that other words indicating an intention to grant will answer the purpose («). In addition to a conveyance by deed of grant, other methods are occasionally employed. Thus, there may be a bargain and sale of an estate in fee simple, by deed Bargain and duly inrolled pursuant to the statute 27 Hen. VIII. sae ' c. 16, already mentioned (b). The chief advantage of a bargain and sale is, that by a statute of Anne (c) an office copy of the inrolment of a bargain and sale is made as good evidence as the original deed. In some Inrolment. cities and boroughs the inrolment of bargains and sales is made by the mayors or other officers (d). And in the counties palatine of Lancaster and Durham it may be made in the palatine courts (e) ; and so the inrol- ment of bargains and sales of land in the county of Cheshire might have been made in the palatine courts of that county until their abolition (f). Bargains and sales of lands in the county of York may be inrolled in the register of the riding in which the lands lie {g). ^Ylien a bargain and sale is employed the whole legal estate in fee simple passes, as we have seen (/*), by (y) Litt. ss. 616, <;17. S. 2. (:) Shop. Touch. 229. (e) Stat. 5 Eliz. c. 2G. (a) Shove v. PineJte,5 T. Rep. (/) By stat. 11 Geo. IV. & 1 124; Haggerston v. Hanbury, 5 Will. IV. c. 70. Barn. & Cress. Ml. {,j) Stat. ."> & (1 Anne, <•. 18; 6 u>) Ante,].. 177. Anne, c. :;."), ss. 16, 17, :si •, 8 {<■) Stat, in Anne, c, 18, b. ::. Geo. IT. <-. <;, s. 21. ( of the testator, or of the person signing for him, be deemed to be valid, if the signature shall be so placed at, or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such his signature to the writing signed as his will ; and that no such will shall be affected by the circum- stance that the signature shall not follow, or be imme- diately after, the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and the signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause, or of the clause of attestation, or shall follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after or under or beside the names, or one of the names, of the sub- scribing witnesses, or by the circumstance that the sig- nature shall be on a side or page, or other portion of the paper or papers, containing the will, whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page, or other portion of the same paper, on which the will is written, to contain the signature ; and the enumeration of the above cir- cumstances is not to restrict the generality of the above enactment. But no signature is to be operative to give effect to any disposition or direction which is uu- (/; Stat. \7> & Hi Vict. c. 21. 198 OF COltroKKAL HEREDITAMENTS. derneath, or which follows it ; nor shall it give effect to any disposition or direction inserted after the signature shall be made. The unlearned reader will perhaps be of opinion that there is not one of the positions above so laboriously enumerated, that might not very properly have been considered as at the foot or end of the will within the spirit and meaning of the act ; except in the case of a large blank being left before the signature, apparently for the purpose of the subsequent insertion of other matter : in which case the fraud to which the will lays itself open would be a sufficient reason for holding: it void. Who may be witnesses. New enact- ment. The Statute of Frauds, it will be observed, required that the witnesses should be credible; and, on the point of credibility, the rules of law with respect to witnesses have, till recently, been very strict; for the law had so great a dread of the evil influence of the love of money, that it would not even listen to any witness who had the smallest pecuniary interest in the result of his own testimony. Hence, under the Statute of Frauds, a bequest to a witness to a will, or to the wife or husband of a witness, prevented such witness from being heard in support of the will ; and, the witness being thus incredible, the will was void for want of three credible witnesses. By an act of Geo. II. {m), a witness to whom a gift was made was ren- dered credible, and the gift only which was made to the witness was declared void ; but the act did not extend to the case of a gift to the husband or wife of a witness ; such a gift, therefore, still rendered the whole will void ( n ). Under the new act, however, the incompetency of the witness at the time of the exe- cution of the will, or at any time afterwards, is not (m) Stat. 25 Geo. II. c. 6. (») Hatfield v. Tliorp, 5 Bam. & Aid. 589; 1 Jarm. on Wills, 65, 1st edit.; 2 Strange, 1255. OF A WILL OF LANDS. 199 sufficient to make the will invalid (o) ; and if any person shall attest the execution of a will, to whom, or to whose wife or husband, any beneficial interest whatsoever shall be given, (except a mere charge for pavment of debts), the person attesting will be a good witness ; but the gift of such beneficial interest to such person, or to the wife or husband of such person, will be Yoid(p). Creditors, also, are good witnesses, although the will should contain a charge for payment of debts (q) ; and the mere circumstance of being appointed executor is no objection to a witness (r). By more recent statutes (s), the rule which excluded the evidence of witnesses in courts of justice, and of parties to actions and suits, on account of interest, has been very properly abolished ; and the evidence of inte- rested persons is now received, and its value estimated according to its worth ; but the Wills Act is not affected by these statutes (t). The courts of common law had formerly exclusive jurisdiction in questions arising on the validity of a will of real estate, whilst the ecclesiastical courts had the like exclusive juris- diction over wills of personal estate. But an act has Court of Pro- recently been passed establishing a Court of Pro- bate (u), in which all wills of personal estate are now required to be proved. This act provides for the citation before the court of the heir at law of the testator and the devisees of his real estate ; and such heir and devisees, when cited, will be bound by the proceedings (u) ; but this occurs only when a contest O) Stat. 7 Will. IV. & 1 Vict. & 15 Vict. c. 99, amended by stat. c. 26, s. 14. 16 & 17 Vict. c. 83. (p) Stat. 7 Will. IV. & 1 Vict. (t) Stat. 6 & 7 Vict. c. 85, s. 1; c. 26, s. 15. See Gurney v. 14 & 15 Vict. c. 99, s. 5. Gurney, 3 Drew. 208; Tempestv. (m) Stat. 20 & 21 Vict. c. 77, Tempest, 2 Kay & J. 635. amended by stat. 21 & 22 Vict. (q) Sect. 16. c. 95. (r) Sect. 17. (r) Stat. 20 & 21 Vict. c. 77, 0) Stat. 6 & 7 Vict. c. 85 ; 14 ss. 61, 62, 63. 200 OF COIU'OUKAL HEREDITAMENTS. is expected or actually takes place. In all ordinary cases a "will, so far as it affects real estate, does not require to be proved. Revocation of it will. By marriage. By burning &c. So much, then, for the power to make a will of lands, and for the formalities with which it must be accompanied. A will, it is well known, does not take effect until the decease of the testator. In the mean- time, it may be revoked in various ways ; as, by the marriage of either a man or woman {to); though, before the Mills Act, the marriage of a man was not sufficient to revoke his will, unless he also had a child born (.r). A will may also be revoked by burning, tearing, or otherwise destroying the same, by the testator, or by some person in his presence and by his direction, with the intention of revoking the same {y). But the Wills Act enacts {z), that no obliteration, interlineation, or other alteration, made in any will after its execution shall have any effect (except so far as the words or effect of the will, before such altera- tion, shall not be apparent), unless such alteration shall be executed in the same manner as a will ; but the signature of the testator, and the subscription of the witnesses, may be made in the margin, or on some other part of the will, opposite or near to such altera- tion, or at the foot or end of or opposite to a memo- rand um referring to such alteration, and written at the (w) Stat. 7 Will. IV. & 1 Vict, c. 26, s. 18. " Except a will made in exercise of a power of appoint- ment, when the real or personal estate thereby appointed would not, in default of such appoint- ment, pass to his or her heir, cus- tomary heir, executor or adminis- trator, or the person entitled, as his or her next of kin, under the Statute of Distributions." In the goods of Fenwlch, Law Rep., 1 Court of Probate, 319. (x) 1 Jarman on Wills, 106, 1st ed. ; 102, 2nd ed.; 114, 3rd ed. See Marston, v. Roe d. Fox, 8 Ad. & Ell. 14. (>/) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 20; Andrew v. Motley, 12 C. B., N. S. 514. (z) Sect. 21. OF A WILL OF LANDS. 201 end, or some other part of the will. A will may also By writing 1 i j i -jj , i • ,i duly executed. be revoked by any writing, executed in the same J manner as a will, and declaring an intention to revoke, or by a subsequent will or codicil (a), to be executed By subsequent as before. And where a codicil is added, it is con- sidered as part of the will ; and the disposition made by the will is not disturbed further than is absolutely necessary to give effect to the codicil (b). The above are the only means by which a will can Subsequent now be revoked ; unless, of course, the testator choose afterwards to part with any of the property comprised in his will, which he is at perfect liberty to do. In this case the will is revoked, as to the property parted with, if it does not find its way back to the testator, so as to be his at the time of his death. Under the statute of Hen. VIII. a will of lands was regarded in the light o£ a present conveyance, to come into opera- tion at a future time, namely, on the death of the testator. And if a man, having made a will of his lands, afterwards disposed of them, they would not, on returning to his possession, again become subject to his will, without a subsequent republication or re- vival of the will (c). But, under the Wills Act, no subsequent conveyance shall prevent the operation of the will, with respect to such devisable estate or interest as the testator shall have at the time of his death (d). In the same manner, the old statute was After-pnr- not considered as enabling a person to dispose by will chascd auds - of any lands, except such as he was possessed of at the time of making his will : so that lands purchased after the date of the will could not be affected by any (a) Stat. 7 Will. IV. & 1 Vict. ISO, 1st ed.; 122, 1VA, 2nd cd. ; c. 26, B. 20. 136, 183, :ird ed. (//) 1 Jarman on Will8,160, 1st (d) Stat. 7 Will. IV. & 1 Vict. ed.; 1 L6, 2nd ed.; L62, 3rd ed. «■. 26, s. _'.;. ( i- ) ] Jarman on Wills, 130, 202 OF CORPOREAL HEREDITAMENTS. A will now speaks from the death of the testator. General resi- duary devisee. of its dispositions, but descended to the heir at law («). This also is altered by the Wills Act, which enacts (/), that every will shall be construed, with reference to the property comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will. So that every man may now dispose, by his will, of all such landed property, or real estate, as he may hereafter possess, as well as that which he now has. Again, the result of the old rule, that a will of lands was a present conveyance, was, that a general devise by a testator of the residue of his lands was, in effect, a specific disposition of such lands and such only as the testator then had, and had not left to anyone else ((/). A general residuary devisee was a devisee of the lands not otherwise left, exactly as if such lands had been given him by their names. The consequence of this was, that if any other persons, to whom lands were left, died in the lifetime of the testator, the residuary devisee had no claim to such lands, the gift of which thus failed ; but the lands descended to the heir at law. This rule is altered by the act, under which (A), unless a contrary intention appear by the will, all real estate comprised in any devise, which shall fail by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or other- wise incapable of taking effect, shall be included in the residuary devise (if any) contained in the will. This failure of a devise, by the decease of the devisee in the testator's lifetime, is called a lapse; and this lapse is not prevented by the lands being given to the devisee and his heirs ; and in the same way, before (e) 1 Jarman on Wills, 587, 1st ed. ; 548, 2nd ed. ; 610, 3rd ed. (/) Sect. 24. {g) 1 Jarman on Wills, 587, 1st ed. ; 548, 2nd ed. ; 610, 3rd ed. (f>) Sect. 25. OF A WILL OF LANDS. 203 the Wills Act, a gift to the devisee and the heirs of his body would not carry the lands to the heir of the body of the devisee, in case of the devisee's decease in the lifetime of the testator (i). For, the terms heirs and heirs of the body are words of limitation merely ; that is, they merely mark out the estate, which the devisee, if living at the testator's death, would have taken, — in the one case an estate in fee simple, in the other an estate tail; and the heirs are no objects of the tes- tator's bounty, further than as connected with their ancestor (A). Two cases have, however, been intro- No lapse now duced by the Wills Act, in Avhich the devise is to in two cases - remain unaffected by the decease of the devisee in the testator's lifetime. The first case is that of a devise Estate tail, of real estate to any person for an estate tail ; in which case, if the devisee should die in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue shall be living at the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention shall appear by the will (I). The other case is that of the devisee being a child or Devise to issue other issue of the testator dying in the testator's life- time and leaving issue, any of whom are living at the testator's death. In this case, unless a mere life estate shall have been left to the devisee, the devise shall not lapse, but shall take effect as in the former case(m). (i) Hodgson and Wife v. Am- of the Law of Personal Property, brose, 1 Dougl. 337. p. 291, 4th ed.; 324,5th ed.; 330, (*) Plowd. 345; 1 Pep. 105; 6th ed. ; 351, 352, 7th ed. ; John- 1 J arm. Wills, 203, 1st ed. ; 277, son v. Johnson, 3 Hare, 157; 2nd ed. ; 314, 3rd cd. Eccles v. Cheyne, 2 Kay & .). (0 Stat. 7 Will. IV. & 1 Vict. 676; Griffiths v. Gale, 12 Sim. c. 26, s. 32. :J54. (m) Sect. 33. See Principles 204 OF COUrOUEAL IIEKKDIJ A.MENTS. Construction of wills. Intention to be observed. Technical rules. The construction of wills is the next object of our attention. In construing wills, the Courts have always borne in mind, that a testator may not have had the same opportunity of legal advice in drawing his will, as he would have had in executing a deed. And the first great maxim of construction accordingly is, that the intention of the testator ought to be observed (n). The decisions of the Courts, in pursuing this maxim, have given rise to a number of subsidiary rides, to be applied in making out the testator's intention ; and, when doubts occur, these rules are always made use of to determine the meaning ; so that the true legal con- struction of a will is occasionally different from that which would occur to the mind of an unprofessional reader. Certainty cannot be obtained without uni- formity, nor uniformity without ride. Rules, there- fore, have been found to be absolutely necessary ; and the indefinite maxim of observing the intention is now largely qualified by the numerous decisions which have been made respecting all manner of doubtful points, each of which decisions forms or confirms a ride of con- struction, to be attended to whenever any similar diffi- culty occurs. It is, indeed, very questionable, whether this maxim of observing the intention, reasonable as it may appear, has been of any service to testators ; and it has certainly occasioned a great deal of trouble to the Courts. Testators have imagined that the mak- ing of wills, to be so leniently interpreted, is a matter to which any body is competent ; and the consequence has been an immense amount of litigation, on all sorts of contradictory and nonsensical bequests. An inten- tion, moreover, expressed clearly enough for ordinary apprehensions, has often been defeated by some tech- nical rule, too stubborn to yield to the general maxim, O) 30 Ass. 183 a; Year Book, 9 Hen. VI. 24 b ; Litt. s. 586 ; Perkins, s. 555 ; 2 Black. Com. 381. OF A WILL OF LANDS. 205 that the intention ought to be observed. Thus, in one Example of an case (0), a testator declared his intention to be, that ctitate held to his son should not sell or dispose of his estate, for be an estate longer time than his life, and to that intent he devised the same to his son for his life, and after his decease, to the heirs of the body of his said son. The Court of King's Bench held, as the reader would no doubt expect, that the son took only an estate for his life ; but this decision was reversed by the Court of Ex- chequer Chamber, and it is now well settled that the decision of the Court of King's Bench was erro- neous (p). The testator unwarily made use of tech- nical terms, which always require a technical con- struction. In giving the estate to the son for life, and after his decease to the heirs of his body, the testator had, in effect, given the estate to the son and the heirs of Ins body. Now such a gift is an estate tail ; and one of the inseparable incidents of an estate tail is, that it may be barred in the manner already described (q). The son was, therefore, properly en- titled, not to an estate for life only, but to an estate tail, which would at once enable him to dispose of the lands for an estate in fee simple. In contrast to this case are those to which we have before adverted, in the chapter on estates for life (r). In those cases, An intended an intention to confer an estate in fee simple was ^bT only an ' defeated by a construction, which gave only an estate estate for life, for life; a gift of lands or houses to a person simply, without words to limit or mark out the estate to be taken, was held to confer a mere life interest. But, in such cases, the Courts, conscious of the pure tech- nicality of the rule, were continually striving to avert the hardship of its effect, by laying hold of the most (o) Prrrin v. lllnlcr, \ Burr. 172. 2679; 1 II. I5!a. 072; 1 Dongl. (q) Ante, p. 45. 343. (r) Ante, p. 1'.). (y;) Fearne, Cont. Rem. 117 to 206 OF CORPOREAL HEREDITAMENTS. minute variations of phrase, as matter of exception. Doubt thus took the place of direct hardship ; till Wills Act. the legislature thought it time to interpose. A remedy is now provided by the act for the amendment of the laws with respect to wills (s), which enacts (£), that where any real estate shall be devised to any person, without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest, which the testator had power to dispose of by will, in such real estate, unless a contrary intention shall appear by the will. In these cases, therefore, the rule of law has been made to give way to the testator's intention ; but the case above cited, in which an estate tail was given when a life estate only was intended, is sufficient to show, that rides still remain which give to certain phrases such a force and effect, as can be properly directed by those only who are well acquainted with their power. Gift in case of Another instance of the defeat of intention arose in i ssue< the case of a gift of lands to one person, " and in case he shall die without issue," then to another. The courts interpreted the words, " in case he shall die without issue," to mean " in case of his death, and of the failure of his issue;" so that the estate was to go over to the other, not only in case of the death of the former, leaving no issue living at his decease, but also in the event of his leaving issue, and his issue after- wards failing, by the decease of all his descendants. The courts considered that a man might properly be said to be " dead without issue," if he had died and left issue, all of whom were since deceased; quite as much as if he had died, and left no issue behind him. In accordance with this view, they held such a gift as above mentioned to be, by implication, a gift to the («) 7 Will. IV. & 1 Vict. c. 26. (t) Sect. 28. OF A WILL OF LANDS. 207 first person and his issue, with a remainder over, on such issue failing, to the second. This was, in fact, a Such a gift gift of an estate tail to the first party (u); for an estate estate tail. tail is just such an estate as is descendible to the issue of the party, and will cease when he has no longer heirs of his body, that is, when his issue fails. Had there been no power of barring entails, this would no doubt have been a most effectual way of fulfilling to the utmost the testator's intention. But, as we have seen, every estate tail in possession is liable to be barred, and turned into a fee simple, at the will of the owner. With this legal incident of such an estate, the courts considered that they had nothing to do ; and, by this construction, they accordingdv enabled the first devisee to bar the estate tail which they adjudged him to possess, and also the remainder over to the other party. He thus was Intention de- enabled at once to acquire the whole fee simple, contrary to the intention of the testator, who most probably had never heard of estates tail, or of the means of barring them. This ride of construction had been so long and firmly established, that nothing but the power of parlia- ment could effect an alteration. This was done by the Wills Act. act for the amendment of the laws with respect to wills, which directs {x) that in a will the words " die without issue," and similar expressions, shall be construed to mean a want or failure of issue in the lifetime, or at the death of the party, and not an indefinite failure of issue ; unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail, or of a pre- ceding gift being, without any implication arising from such words, a gift of an estate tail to such person or issue, or otherwise. From what has been said, it will appear that, before the above-mentioned alteration, an estate tail might ( «) 1 Jarrn. Wills, 488, 1st ed.; y. Weeding, 8 Sim. 4, 7. 464, 2nd ed.; 617, 3rd ed.; Maohell (r) Sect. 29. 208 OF CORPOREAL HEREDITAMENTS. Implication. have been given by will, by the mere implication, arising from the apparent intention of the testator, that the land should not go over to any one else, so long as the first devisee had any issue of his body. In the par- ticular class of cases to which we have referred, this implication is now excluded by express enactment. But the general principle by which any kind of estates may be given by will, whenever an intention so to do is expressed, or clearly implied, still remains the same. In a deed, technical words are always required; to create an estate tail by a deed, it is necessary, as we have seen (y), that the Avord heirs, coupled with words of procreation, such as heirs of the body, should be made use of. So, we have seen that, to give an estate in fee simple, it is necessary, in a deed, to use the word heirs as a word of limitation, to limit or mark out the Gift of an estate. But in a will, a devise to a person and his w ill seed (z), or to him and his issue (a), and many other expressions, are sufficient to confer an estate tail; and a devise to a man and his heirs male, which, in a deed, would be held to confer a fee simple {b), in a will gives an estate in tail male (c); for, the addition of the word " male," as a qualification of heirs, shows that a class of heirs, less extensive than heirs general, was in- tended (d); and the gift of an estate in tail male, to which, in a will, words of procreation are unnecessary, is the only gift which at all accords with such an in- Gift of a fee tention. So, even before the enactment, directing that simple by will. a ^gyigg w ithout words of limitation should be con- strued to pass a fee simple, an estate in fee simple was often held to be conferred, without the use of the word (y) Ante, p. 140. Wills, 347, 2nd ed. ; 388, 3rd ed. (z) Co. Litt. 9 b; 2 Black. Com. (b) Ante, p. 140. 115. # (c) Co. Litt. 27 a; 2 Black. (a) Martinv.Swannell, 2Beav. Com. 115. 249; 2 Jarm. on Wills, 329, 1st (d) 2 Jarman on Wills, 233,1st ed. See bowever 2 Jarm. on ed.; 2GG, 2nd ed.; 298, 3rd ed. OF A WILL OF LANDS. 209 heirs. Thus, such an estate was given by a devise to one \xxfee simple, or to him for ever, or to him and his assigns for ever (e), or by a devise of all the testator's estate, or of all his property, or all his inheritance, and by a vast number of other expressions, by which an intention to give the fee simple could be considered as expressed or implied (f). The doctrine of uses and trusts applies as well to a Uses and will as to a conveyance made between living parties. Thus, a devise of lands to A. and his heirs, to the use of B. and his heirs, upon certain trusts to be performed by B., will vest the legal estate in fee simple in B.; and the Court of Chancery will compel him to execute the trust; unless, indeed, he disclaim the estate, which he is at perfect liberty to do (a). But, if any trust or duty should be imposed upon A., it will then become a question, on the construction of the will, whether or not A. takes any legal estate; and, if any, to what extent. If no trust or duty is imposed on him, he is a mere conduit-pipe for conveying the legal estate to B., filling the same passive office as a person to whom a feoffment or conveyance has been made to the use of another (A). From a want of acquaintance on the part of testators with the Statute of Uses (7), great difficulties have frequently arisen in determining the nature and extent of the estates of trustees under wills. In doubt- ful cases, the leaning of the courts was to give to the trustees no greater estate than was absolutely necessary for the purposes of their trust. But this doctrine (e) Co. Litt.9b; 2 Black. Com. 3 Mylne & Craig, 702; Siggers v. I OH. Evans, 5 El. & Bl. 367, 380. Nicohon \ Wordsworth, (i) 27 Ben. VIII c. 10; ante, ■1 Swanst. 365; JJreh \. Walker, p. 153. R.P. r 210 OF CORPOREAL HEREDITAMENTS. having frequently been found inconvenient, provision has been made in the Wills Act (A), that, under certain circumstances, not always to be easily explained, the fee simple shall pass to the trustees, instead of an estate determinable when the purposes of the trust shall be satisfied. Danger of The above examples may serve as specimens of the ignorance of . n • i •, legal rules. great danger a person incurs, who ventures to commit the destination of his property to a document framed in ignorance of the rules, by which the effect of such document must be determined. The Wills Act, by the alterations above mentioned, has effected some im- provement ; but no act of parliament can give skill to the unpractised, or cause every body to attach the same meaning to doubtful words. The only way, therefore, to avoid doubts on the construction of wills, is to word them in proper technical language, — a task to which those only who have studied such language can be ex- pected to be competent. Devise to heir. If the testator should devise land to the person who is his heir at law, it is provided by the " Act for the Amendment of the Law of Inheritance "(/) that such heir shall be considered to have acquired the land as a devisee, and not by descent. Such heir, thus taking by purchase (m), will, therefore, become the stock of descent ; and in case of his decease intestate, the lands will descend to his heir, and not to the heir of the testator, as they would have done had the lands descended on the heir. Before this act, an heir to whom lands were left by his ancestor's will was considered to take by his prior title of descent as heir, and not under the will, — unless the testator altered the estate and limited it in a manner (k) Stat. 7 Will. IV. & 1 Vict. s. 3; see Strickland t. Strickland, c. 26, ss. 30, 31. ID Sim. 371. (0 Stat. 3 & I Wilt IV. c. 1'"'.. (m) Ante, p. 96. OF A WILL OF LANDS. 211 different from that in which it would have descended to the heir (n). It is usually the practice, as is well known, for every testator to appoint an executor or executors of his will; and the executors so appointed have important powers of disposition over the personal estate of the testator (o). But the devise of the real estate of the testator is quite Devise of real independent of the executors' assent or interference, p^ent of unless the testator should either expressly or by impli- executors' cation have given his executors any estate in or power over the same. In modern times, however, the doctrine Charge of has been broached, that if a testator charges his real e estate with the payment of his debts, such a charge gives by implication a power to his executors to sell his real estate for the payment of his debts. The author lias elsewhere attempted to show that this doctrine, though recognized in several modern cases, is inconsis- tent with legal principles (p); and in this he has since been supported by the great authority of Lord St. Leonards ( q). In consequence, however, of the diffi- culties to which these cases gave rise, an act has lately passed by which, where there is a charge of debts or legacies, the trustees in some cases and in other cases the executors of a testator are empowered to sell his real estate for the purpose of paying such debts or legacies. The act to further amend the law of property and to relieve trustees(r), which was passed on the 13th August, 1859, enacts (5), that where, by any will that shall come Where tras- into operation after the passing of the act, the testator te mort^a^e to (w) Watk. Descents, 174, 176 (j>) See the author's Essay on (229, 231, 4th ed.) Real Assets, c. 6. (0) Principles of the Law of (q) Sug. Tow. 120—122, 8th Personal Property, pp.270 etseq., ed. 4th ed.; 312 et seq., 5th ed.; 318 (r) Stat. 22 & 23 Vict. c. :::.. «i seq., 6th ed.; 328 el Beq., 7th {») Sect. 1 1. ed. P 2 212 OF CORPOREAL IIKRKDITAMKN I'S. paj testator ili lits or I' gi cies. Where cxeen- tors may sell nr mortgage to pay debts or legacies. Dei ise in fee or in tail charged with llrlit^. shall have charged his real estate or any specific portion thereof with the paymenl of his debts or of any legacy, and shall have devised the estate so charged to any trustee or trustees for the whole of his estate or interest therein, and shall not have made any express provision for the raising of such debts or legacy out of the estate, such trustee or trustees may, notwithstanding any trusts actually declared by the testator, raise such debts or Legacy by sale or mortgage of the lands devised to them. And the powers thus conferred extend to all persons in whom the estate devised shall for the time being be vested by survivorship, descent or devise, and to any persons appointed to succeed to the trusteeship, either under any power in the will, or by the Court of Chancery (t). But if any testator, who shall have created such a charge, shall not have devised the here- ditaments charged in such terms as that his whole estate and interest therein shall become vested in any trustee or trustees, the executor or executors for the time being named in his will (if any) shall have the same power of raising the same monies as is befoi'e vested in the trustees; and such power shall from time to time devolve to the person or persons (if any) in whom the executorship shall for the time being be vested (?<). And purchasers or mortgagees are not to be bound to inquire whether the powers thus conferred shall have been duly exercised by the persons acting in exercise thereof (x). But these provisions are not to prejudice or affect any sale or mortgage made or to be made in pursuance of any will coming into operation before the passing of the act; nor are they to extend to a devise to any person in fee or in tail, or for the testator's whole estate and interest, charged with debts or legacies ; nor are they to affect the power of any such (f) Stat. 22 & T6 Vict. 3. lo. c. 3i («) Sect. 1<>. (V) Sect. 17. OF A WILL OF LANDS. 213 devisee to sell or mortgage as he or they may by law now do. In these cases the law is that the devisee may, in the exercise of his inherent right of alienation, either sell or mortgage the lands devised to him ; but if Charge of legacies only are charged thereon, the purchaser or mortgagee is bound to see his money duly applied in then* payment (y). If, however, the testator's debts are Charge of charged on the lands, then, whether there be legacies also charged or not, the practical impossibility of obliging the purchaser or mortgagee to look to the pay- ment of so uncertain a charge exonerates him from all liability to do more than simply pay his money to the devisee on his sole receipt (z). (y) Horn v. Horn, 2 Sim. & (z) Essay on Real Assets, pp. Stu. 448 ; Essay on Real Assets, 62, 63. p. 63. 214 OF CORPOREAL HEREDITAMENTS. CHAPTER XL OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. The next subject of our attention Avill be the mutual rights in respect of lands, arising from the relation of husband and wife. In pursuing this subject, let us consider, first, the rights of the husband in respect of the lands of his wife ; and, secondly, the rights of the wife in respect of the lands of her husband. The rights of 1. Fh'st then, as to the rights of the husband in rcspecrof n the in res P ect ° f the knds ° f his ™&- % the act ° f mar " lands of his riage, the husband and wife become in law one person, and so continue during the coverture or marriage (a). The wife is as it were merged in her husband. Ac- cordingly, the husband is entitled to the whole of the rents and profits which may arise from his wife's lands, and acquires a freehold estate therein, during the con- tinuance of the coverture (6); and, in like manner, all the goods and personal chattels of the wife, the pro- perty in which passes by mere delivery of possession, belong solely to her husband (c). For, by the ancient common law, it was impossible that the wife should have any power of disposition over property for her Trusts for se- separate benefit, independently of her husband. In paxate use now m0 ^ ern times, however, a more liberal doctrine has established. been established by the Court of Chancery ; for this court now permits property of every kind to be vested (a) Litt. s. 168; 1 Black. Com. Robertson v. JYorris, 11 Q. B. 442; Gilb. Ten. 108; 1 Roper's 916. Husband and Wife, 1. (c) 1 Rop. Husb. and Wife, (/>) 1 Rop. Husb. and Wife, 3; 169. OF THE MUTUAL EIGHTS OF HUSBAND AND WIFE. 215 in trustees, in trust to apply the income for the sole and separate use of a woman during any coverture, present or future. Trusts of this nature are con- tinually enforced by the court ; that is, the court will oblige the trustees to hold for the sole benefit of the wife, and will prevent the husband from interfering with her in the disposal of such income ; she will consequently enjoy the same absolute power of dispo- sition over it as if she were sole or unmarried. And, if the income of property should be given directly to a woman, for her separate use, without the inter- vention of any trustee, the court will compel her husband himself to hold his marital rights in such income simply as a trustee for his wife, independently of himself (d). The limitation of property in trust for the separate use of an intended wife is one of the principal objects of a modern marriage settlement. By means of such a trust, a provision may be secured, which shall be independent of the debts and liabilities of the husband, and thus free from the risk of loss, either by reason of his commercial embarrassments, or of his extravagant expenditure. In order more com- Separate pro- pletelv to protect the wife, the Court of Chancery per V m ? , 7 l)e 1 J x J rendered m- allows property thus settled for the separate use of a alienable. woman to be so tied down for her own personal benefit, that she shall have no power, during her coverture, to anticipate or assign her income ; for it is evident that, to place the wife's property beyond the power of her 1 in. -band, is not a complete protection for her, — it must also be placed beyond the reach of his persuasion. In this particular instance, therefore, an excejotion has been allowed to the general rule, which fin-bids any restraint to be imposed on alienation. When the trust, under which property is held for the separate (d) 2 Rop. Hnflb. and Wife, 152, 182; Major \. Lansley, 2 Rubb. &. Mylne, 855. 216 OF (OIU'oKi; AL IIKKi:i>ITAMKNTS. use of a woman during any coverture, declares that she shall not dispose oft lie income thereof in any mode of anticipation, every attempted disposition by her during such coverture will be deemed absolutely void (e). As to the corpus. Real estate. Not only the income, but also the corpus of any property, whether real or personal, may be limited to the separate use of a married woman, Recent de- cisions have established that a simple gift of real estate, either with or without the intervention of trus- tees (f), for the separate use of a married woman, is sufficient to give her in equity a power to dispose of it by deed or will, without the consent or concurrence of her husband (g). The same rule has long been established with respect to personal estate (A). But where the legal estate in lands is vested in the wife, it must still be conveyed by a deed to be separately acknowledged by her, in the manner to be presently explained. The Married Women's Pro- pert \ Act, 1870. The Married Women's Property Act, 1870(e), now provides that where any freehold, copyhold or customary- hold property shall descend upon any woman married after the passing of that act as heiress or co-heiress of an intestate, the rents and profits of such property shall, subject and without prejudice to the trusts of any settle- ment affecting the same, belong to such woman for her (e) Brandon v. Robinson, 18 Ves. 434; 2Rop. Hush, and Wife, 230; Tullett x. Armstrong, 1 Beav. 1; 4 Mylne & Cr. 390; Scarborough v. Barman, 1 Beav. 34; 4 M. & Cr. 377; Baggett v. Meux, 1 Collyer, 138; ante, p. 91. (/) Hall v. Waterhouse, V.-C. S., 13 W. R. 633. (g) Tag lor v. Meads, L. C, 13 W.R. 394; 11 Jur.,N S. 166. (A) See Principles of the Law of Personal Property, p. 354, 5th ed.; 361, 6th ed.; 384, 7th ed. (0 Stat. 33 & 34 Vict. c. 93, passed 9th August, 1870. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 217 separate use, and her receipts alone shall be a good discharge for the same (k). Whilst provisions for the separate benefit of a mar- Husband and lied woman have thus arisen in equity, the ride of law s j ( | eref i as one by which husband and wife are considered as one person, person, still continues in operation, and is occasionally productive of rather curious consequences. Thus, if Gift to hus- lands be given to A. and B. (husband and wife), and and a third C, a third person, and their heirs — here, had A. and person. B. been distinct persons, each of the three joint tenants would, as we have seen (I), have been entitled, as be- tween themselves, to one-third part of the rents and profits, and would have had a power of disposition also over one-third part of the whole inheritance. But, since A. and B., being husband and wife, are only one person, they Avill take, under such a gift, a moiety only of the rents and profits, with a power to dispose only of one-half of the inheritance (m); and C, tlie third person, will take the other half, as joint tenant with them. Again, if lands be given to A. and B. Giffctohus- (husband and wife) and their heirs — here, had they an( j their heirs. been separate persons, they would have become, under the gift, joint tenants in fee simple, and each would have been enabled, without the consent of the other, to dispose of an undivided moiety of the inheritance. But, as A. and B. are one, they now take, as it is said, They take by by entireties ; and, whilst the husband may do what Clltiu ea ' he pleases with the rents and profits during the coverture, he cannot dispose of any part of the inhe- ritance, without his Avife's concurrence. Unless they both agree in making a disposition, each one of them must run the risk of gaining the whole by survivor- (4) Stat. \V.i & 34 Vict. c. 98, (»') Litt. s. 291; Gordon v. s. 8. WhieUon, II Beav. 170; Av (I) Ante, pp. 128, 132. Wylde, 2 De Gex, M. & G. 724. 218 OF CORPOREAL BEREDITAMENTS. Husband and ship, or losing it by dying first(n). Another conse- romeyto°each l^ence of the unity of husband and wife is the ina- other. biHty of either of them to convey to the other. As a man cannot convey to himself, so he cannot convey to his wife, who is pari of himself (o). But a man may leave lands to his wife by his will ; for the married state does not deprive the husband of that disposing power which he would possess if single, and a devise by will does not take effect until after his decease (p)- Unless by And by means of the Statute of Uses, the effect of a Stotuteof conveyance by a man to his wife can be produced (q) ; Uses. for a man may convey to another person to the use of his wife in the same manner as, under the statute, Ave have seen (?•), a man may convey to the use of himself. If the wife should survive her husband, her estates in fee simple will remain to herself and her heirs, after his death, unaffected by any debts which he may have incurred, or by any alienation which he may have attempted to make ; for, although the wife, by marriage, is prevented from disposing of her fee simple estates, either by deed or will, yet neither can the husband, without his wife's concurrence, make any disposition of her lands to extend beyond the limits of Curtesy. his own interest. If, however, he should survive his wife, he will, in case he has had issue by her born alive, that may by possibility inherit the estate as her heir, become entitled to an estate for the residue of his life in such lands and tenements of his wife as she was solely seised of in fee simple, or fee tail in pos- session (s). The husband, while in the enjoyment of O) Boed. Freestones. Parratt, (r) Ante, p. 182. 5 T. Rep. 652. (.s) Litt. ss. 35, 52; 2 Black, (o) Litt. s. 168. Com. 126; 1 Rop. Husb. and (p) Litt. ubi supra. Wife, 5; Barker v. Barker, 2 (q) 1 Rop. Husb. and Wife, 53. Sim. 249. OF THE MUTUAL EIGHTS OF HUSBAND AND WIFE. 219 this estate, is called a tenant by the curtesy of England, or, more shortly, tenant by the curtesy. If the wife's Curtesy of estate should be equitable only, that is, if the lands estate/ should be vested in trustees for her and her heirs, her husband will still, on surviving, in case he has had issue which might inherit, be entitled to be tenant by the curtesy, in the same manner as if the estate were legal (t) ; for equity in this respect follows the law. But, whether legal or equitable, the estate must be Estate must , . not be ioint. a several one, or else held under a tenancy in com- mon, and must not be one of which the wife was seised or possessed jointly with any other person or persons (u). The estate must also be an estate in Estate must be „ J , , ( in possession. possession ; lor there can be no curtesy ot an estate in reversion expectant on a life interest or other estate of freehold (x). The husband must also have Issue must i -i i i ■ •/> • i v , • xi have been born had, by his wile, issue born alive ; except m the case alive except as of gavelkind lands, where the husband has a right to to gavelkind his curtesy, whether he has had issue or not ; but, by the custom of gavelkind, curtesy extends only to a moiety of the wife's lands, and ceases if the husband marries again (ij). The issue must also be capable of Issue must be inheriting as heir to the wife(z). Thus, if the wife Meriting as heir be seised of lands in tail male, the birth of a daughter to tlie wife - only will not entitle her husband to be tenant by curtesy ; for the daughter cannot by possibility inherit such an estate from her mother. And it is necessary The wife must that the wife should have acquired an actual seisin of tually seised. all estates, of which it was possible that an actual seisin could be obtained ; for the husband has it in his own power to obtain for his wife an actual seisin ; and it is (t) 1 Roper's Husband and Desc. Ill (121, 4th ed.) Wife, 18. (y) Co. Litt. 30 a, n. (1); Bac. («) Co. Litt. 183 a; 1 Roper's Abr. title Gavelkind (A); Hob. Husb. and Wife, 12. Gavel, book ii. c. 1. (x) 2 Black. Com. 127; Watk. (z) Litt. s. 52; 8 Rep. 34 b. 220 OF CORPOREAL HEREDITAMENTS. his own fault if he has nol iloiw so(a). A tenancy b\ the curtesy is nol now of very frequent occurrence; the rights of husbands in the lands of their wives are, at the present . •'•'•' OF CORPOREAL HEREDITAMENTS. Present pro- \ Lsion for con- veyance by married w omen. of the wife's as of the husband's interest of every kind, in the land coin prised in the fine. But, without a fine, no conveyance could be made of the wife's lands; thus, she could not leave them by her will, even to her husband ; although, by means of the Statute of Uses(A), a testamentary appointment of lands, in the nature of a will, might be made by the wife in favour of her husband, in a manner to be hereafter explained (/). And in this respect the law still remains unaltered, although a change has been made in the machinery for effecting conveyances of the lands of married women. The cumbrous and expensive nature of fines having occa- sioned their abolition, provision has now been made by the act for the abolition of Fines and Recoveries (ra), for the conveyance by deed merely of the interests of married women in real estate. Every kind of convey- ance or disclaimer of freehold estates which a woman could execute if unmarried may now be made by her by a deed executed with her husband's concurrence (n): but the separate examination, which was before neces- sary in the case of a fine, is still retained ; and every deed, executed under the provisions of the act, must be The wife must produced and acknowledged by the wife as her own act the deed 6 ^ anc ^ ^ eec ^ before a judge of one of the superior courts at Westminster, or of any county court, or a master in Chancery, or two commissioners (o), who must, before they receive the acknowledgment, examine her apart from her husband touching her knowledge of the deed, and must ascertain whether she freely and volun- tarily consents thereto (p). A recent statute (q) re- (k) 27 Hen. VHI. c. 10, ante, p. 153. (7) See post, the chapter on Executory Interests. O) Stat. 3 & 4 Will. IV. e. 74 ; ante, p. 47. («) Sect. 77; Stat. 8 & 9 Vict. c. 106, s. 7. (o) Stats. 3 & 4 Will. IV. c. 74, s. 79; 19 & 20 Vict. c. 108, s. 73. 0>) Stat. 3 & 4 Will. IV. c. 74, s. 80. (owcr inde- pendent of husband's debts. A legal seisin required. Estate must nut be joint. (t) See Dirk in v. Homer, 1 Dnw. & Smale, 284. (?t) Co. Litt. 31 a; 1 Roper's Husband and Wife, 41 1. (x) 1 Roper's Husband and Wife, 354. (//) Ibid. 366; ante, p. 131 et seq. (z) Co Litt. 31 a. barring dower. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 225 required to be actually born ; it was sufficient that the wife might have had issue who might have inherited. The dower of the widow in gavelkind lands consisted, Dower of ga- and still consists, like the husband's curtesy, of a velkind lands< moiety, and continues only so long as she remains un- married and chaste (a). In order to prevent this inconvenient right from attaching on newly-purchased lands, and to enable the purchaser to make a title at a future time, without his wife's concurrence, various devices were resorted to in the framing of purchase-deeds. The old-fashioned Old method of method of barring dower was to take the conveyance to the purchaser and his heirs to the use of the purchaser and a trustee and the heirs of the purchaser : but as to the estate of the trustee, it was declared to be in trust only for the purchaser and his heirs. By this means the purchaser and the trustee became joint tenants for life of the legal estate, and the remainder of the inheri- tance belonged to the purchaser. If, therefore, the purchaser died during the life of his trustee, the latter acquired in law an estate for life by survivorship ; and as the husband had never been solely seised, the wife's dower never arose; whilst the estate for life of the trustee was subject in equity to any disposition which the husband might think fit to make by his will. The husband and his trustee might also, at any time during their joint lives, make a valid conveyance to a purchaser without the wife's concurrence. The defect of the plan was, that if the trustee happened to die during the husband's life, the latter became at once solely seised of an estate in fee simple in possession ; and the wife's right to dower accordingly attached. Moreover, the husband could never make any conveyance of an estate in fee simple without the concurrence of his trustee so (a) Bac. A'.r. tit. Gavelkind (A); Rob. Gav. book 2, c. 2. R.P. Q 226 OF CORPOREAL HEREDITAMEN I 8. long as he lived. Tins plan, therefore, gave way to another method of framing purchase-deeds, which will be hereafter explained (b), and by means of which the wife's dower under the old law is effectually barred, whilst the husband alone, without the concurrence of any other person, can effectually convey the lands. Jointure. Equitable jointure. The rio-ht of dower might have been barred alto- gether by a jointure, agreed to be accepted by the intended wife previously to marriage, in lieu of dower. This jointure was either legal or equitable. A legal jointure was first authorized by the Statute of Uses (c), which, by turning uses into legal estates, of course rendered them liable to dower. Under the provisions of this statute, dower may be barred by the wife's accep- tance previously to marriage, and in satisfaction of her dower, of a competent livelihood of freehold lands and tenements, to take effect in profit or possession presently after the death of the husband for the life of the wofe at least (d). If the jointure be made after marriage, the Avife may elect between her dower and her jointure (e). A legal jointure, however, has in modern times seldom been resorted to as a method of barring dower ; when any jointure has been made, it has usually been merely of an equitable kind : for if the intended wife be of age, and a party to the settlement, she is competent, in equity, to extinguish her title to dower upon any terms to which she may think proper to agree (f). And if the wife should have accepted an equitable jointure, the Court of Chancery will effectually restrain her from setting up any claim to her dower. But in equity, as well as at law, the jointure, in order to be an absolute bar of dower, must be made before marriage. (h) See post, the chapter on Executory Interests. (e) 27 Hen. VIII. c. 10. (d) Co. Litt. 36 b; 2 Black. Com. l.">7 ; 1 Roper's Husband and Wife, 462. (e) 1 Roper's Husband and Wife, 468. (/) Ibid. 488; Dyke v. Kendall, 2 De G., M. & G. 209. OF THE MUTUAL RIGHTS OF HUSBAND AND. "WIFE. 227 With regard to women married since the 1st of Dower under January, 1834, the doctrine of jointures is of very little moment. For by the act for the amendment of the law relating to dower (h), the dower of such women has been placed completely within the power of their husbands. Under the act no widow is entitled to dower out of any land which shall have been absolutely disposed of by her husband in his lifetime or by his will (i). And all partial estates and interest, and all charges created by any disposition or will of the hus- band, and all debts, incumbrances, contracts and en- gagements to which his lands may be liable, shall be effectual as against the right of his widow to dower (It). The husband may also, either wholly or partially de- prive his wife of her right to dower by any declaration for that purpose made by him, by any deed, or by his will(Z). As some small compensation for these sacri- fices, the act has granted a right of dower out of lands to which the husband had a right merely without having had even a legal seisin (ni) ; dower is also ex- tended to equitable as well as legal estates of inheri- tance in possession, excepting of course estates in joint tenancy (n). The effect of the act is evidently to de- prive the wife of her dower, except as against her husband's heir at law. If the husband should die intestate, and possessed of any lands, the wife's dower out of such lands is still left her for her support, — unless, indeed, the husband should have executed a declaration to the contrary. A declaration of this kind Declaration has, unfortunately, found its way, as a sort of common ' ' (/,) 3 & 4 Will. IV. c. L05. (0 Sects. 6, 7, 8. See Fry v. Gavelkind lands are within the Nolle, 20 Bcav. 598 ; 7 De Gex, act, Farley v. Bonham, 2 John. M. & G. 687. & II. 177. (•») Sect. :;. (i) 3 & 4 Will. IV. c. 105, s. 4. («) Sect. 2 ; Fry v. Nolle, 20 (h) Sect. r> ; Jones v. Jones, 4 Bcav. 698; Clarke v. Franklin, 1 i & J. 301. Kay & J. 266. <.-2 228 . OF CORPOREAL HEREDITAMENTS. form, into many purchase-deeds. Its insertion seems to have arisen from a remembrance of the troublesome nature of dower under the old law, united possibly with some misapprehension of the effect of the new enact- ment. But, surely, if the estate be allowed to descend, the claim of the wife is at least equal to that of the heir, supposing him a descendant of the husband ; and far superior, if the heir be a lineal ancestor, or remote relation (o). The proper method seems therefore to be, to omit any such declaration against dower, and so to leave to the widow a prospect of sharing in the lands, in case her lord shall not think proper to dispose of them. Leases by The act to facilitate leases and sales of settled estates truant in nQW em p 0wers every person entitled to the possession or the receipt of the rents and profits of any unsettled estate as tenant in dower, to grant leases not exceeding twenty-one years, in the same manner as a tenant by the curtesy, or a tenant for life under a settlement made after that act came in force (p). Action for An action for dower is now commenced by writ of summons issuing out of the Court of Common Pleas, in the same manner as the writ of summons in an ordinary action (q) ; and the proceedings are the same as in ordinary actions commenced by writ of sum- mons (/•). (o) Sugd. Vend. & Pur. 5-io, (?) Stat. 23 & 24 Vict. c. 12G, 11th ed. s. 26. (p) Stat. 19 & 20 Vict. c. 120, (>•) Sect. 27. s. 32. See ante, pp. 26, 220. ( 229 ) PART II. OF INCORPOREAL, HEREDITAMENTS. Our attention lias hitherto been directed to real pro- perty of a corporeal kind. We have considered the usual estates which may be held in such property, — the mode of descent of such estates as are inheritable, — the tenure by which estates in fee simple are holden, — and the usual method of the alienation of such estates, Avhether in the lifetime of the owner or by his will. We have also noticed the modification in the right and manner of alienation produced by the relation of hus- •» band and wife. Besides corporeal property, we have seen (a) that there exists also another kind of property, Incorporeal Avhich, not being of a visible and tangible nature, is 1 110 P C1 7' denominated incorporeal. This kind of property, though it may accompany that which is corporeal, yet does not in itself admit of actual delivery. When, therefore, it was required to be transferred as a separate subject of property, it Avas always conveyed, in ancient times, by writing, that is, by deed ; for we have seen (If), that formerly all legal writings were in fact deeds. Property of an incorporeal kind was, therefore, said to lie in grant, whilst corporeal property was said to lie in Lay in grant. livery (c). For the word grant, though it comprehends all kinds of conveyances, yet more strictly and properly taken, is a conveyance by deed only (d). And livery, as we have seen (e), is the technical name for that delivery \\ hich was made of the seisin, or feudal posses- («) Ante, P . 10. (d) Bbep. Touch. 228. (h) Ante, p. 113. (V) Ante, p. 138. (c) Co. Litt. 'J a. llU'Ilt. 230 OF INCORPOREAL HEREDITAMENTS. sion, on every feoffment of lands and houses, or corporeal hereditaments. In this difference in the ancient mode of transfer accordingly lay the chief distinction between these two classes of property. But, as we have seen (f), New enact- the act to amend the law of real property now provides that all corporeal tenements and hereditaments si mil, as regards the conveyance of the immediate freehold t hereof, be deemed to lie in grant as well as in livery (g). There is, accordingly, now no jn'a-ctical difference in this respect between the two classes; and the lease for a year stamp, to which a grant of corporeal heredita- ments had been previously subject, was abolished by the Stamp Act of 1850 (A). (/) Ante, p. 173. s. 2. {g) Stat. 8 & 9 Vict. c. 106, (h) Stat. 13 & 14 Vict. c. 07. OF A REVERSION AND A VESTED REMAINDER. 231 CHAPTER I. OF A REVERSION AND A VESTED REMAINDER. The first kind of incorporeal hereditament which we shall mention is somewhat of a mixed nature, being at one time incorporeal, at another not; and, for this reason, it is not usually classed with those heredita- ments which are essentially and entirely of an incor- poreal kind. But as this hereditament partakes, during its existence, very strongly of the nature and attributes of other incorporeal hereditaments, particu- larly in its always permitting, and generally requiring, a deed of grant for its transfer, — it is here classed with such hereditaments. It is called, according to the mode of its creation, a reversion or a vested re- mainder. ■ If a tenant in fee simple should grant to another person a lease for a term of years, or for life, or even if he should grant an estate tail, it is evident that he will not thereby dispose of all his interest ; for in each ca>c, his grantee has a less estate than himself. Ac- cordingly, on the expiration of the term of years, or on the decease of the tenant for life, or on the decease of the donee in tail without having barred his estate tail and without issue, the remaining interest of the tenant in fee will revert to himself or his heirs, and he or his heir will again become tenant in fee simple in posses- sion. The smaller estate which lie lias so granted is called, during its continuance, the particular estate, Particular being only a part, or particular, of the estate in fee(«). (a ) 2 Black. Com. L65. 232 OF INCORPOREAL HEREDITAMENTS. Reversion. And, during the continuance of such particular estate, the interest of the tenant in fee simple, which still remains undisposed of — that is, his present estate, in virtue of Avhich he is to have again the possession at some future time — is called his reversion (b). Remainder. A remainder arises from ex- press grant. If at the same time with the grant of the particular estate he should also dispose of this remaining interest or reversion, or any part thereof, to some other person, it then changes its name, and is termed, not a reversion, but a remainder (c). Thus, if a grant be made by A., a tenant in fee simple, to B. for life, and after his decease to C. and his heirs, the whole fee simple of A. will be disposed of, and C.'s interest will be termed a remain- der, expectant on the decease of B. A remainder, therefore, always has its origin in express grant : a reversion merely arises incidentally, in consequence of the grant of the particular estate. It is created simply by the law, whilst a remainder springs from the act of the parties (d). A reversion on a lease for years may be con- veyed by feoff- ment, 1. And, first, of a reversion. If the tenant in fee simple should have made a lease merely for a term of years, his reversion is looked on, in law, precisely as a continuance of his old estate, with respect to himself and his heirs, and to all other persons but the tenant for years. The owner of the fee simple is regarded as having simply placed a bailiff on his property (e) ; and the consequence is, that, subject to the lease, the owner's rights of alienation remain unimpaired, and may be exercised in the same manner as before. The feudal possession or seisin has not been parted with. And a conveyance of the reversion may, therefore, be (b) Co. Litt. 22 b, 142 b. (r) Litt. ss. 215, 217. {d) 2 Black. Com. 1G3. (e) Watk. Descents, 108 (113, 4th ed. ) OF A REVERSION AND A VESTED REMAINDER. 233 made by a feoffment, with livery of seisin, made with the consent of the tenant for years (/* ). But, if this or by deed of mode of transfer should not be thought eligible, a grant gratl ' by deed will be equally efficacious. For the estate of the grantor is strictly incorporeal, the tenant for years having the actual possession of the lands : so long, therefore, as such actual possession continues, the estate in fee simple is strictly an incorporeal reversion, which, together Avith the seisin or feudal possession, may be conveyed by deed of grant (v clcctl ditaments when apart from what is coq>oreal, by a deed of'graut. of grant (e). \Ve have before mentioned (Jt), that, in the case of a lease for life or years, a tenure is created between the parties, the lessee becoming tenant to the lessor. To. this tenure are usually incident two things, fealty (/)[ Fealty and and rent. The oath of fealty is now never exacted ; but the rent, which may be reserved, is of practical (/) Co. [it*. 48 b, n. (8). 4th ed.); ante, p. 187. () Stat. 29 Car. II. c. 3, ante, p. 147. (q) Sect. 2. (r) Co. Litt. 47 a, 142 a. OF A REVERSION AND A VESTED REMAINDER. 235 person, found on any part of the premises. This remedy for the recovery of rent service belongs to the landlord of common right, without any express agreement (s). In modern times it has been extended and facilitated by various acts of parliament (t). In addition to the remedy by distress, there is usually Condition of contained in leases a condition of re-entry, empowering re - entl 7- the landlord, in default of payment of the rent for a certain time, to re-enter on the premises and hold them as of his former estate. When such a condition is inserted, the estate of the tenant, whether for life or years, becomes determinable on such re-entry In former times, before any entry could be made under a proviso or condition for re-entry on non-payment of rent, the landlord was required to make a demand, Demand for- upon the premises, of the precise rent due, at a con- mer y re( l uuet • venient time before sunset of the last day when the rent could be paid according to the condition ; thus, if the proviso were for re-entry on non-payment of the rent by the space of thirty days, the demand must have been made on the evening of the thirtieth day (u). But now, if half a year's rent is due, and no sufficient Modem pro- distress is found on the premises, the landlord may cee mgb ' recover the premises, at the expiration of the period limited by the proviso for re-entry (#), by action of ejectment, without any formal demand or entry (3/) ; but all proceedings are to cease on payment by the tenant of all arrears and costs, at any time before the («) Litt. ss. 213, 214. It must c. 25, s. 2. be made between sunrise and sun- («) 1 Wms. Saund. 287, n. (16); let, 'I'n t ton, v. Darke, 5 II. & N. Acoclis v. Phillips, G II. & N. 647. 183. (t) Stat. 2 Wm. & Mary, c 5 ; (•') Doc d. Dixon v. Iioe, 7 8 Anne, c. 14; i Geo. II. c. 28; C. B. 134. and 11 Geo. II. c. L9; Co. Litt. (//) Btat. 15 & 16 Vict. c. 70, 47 b, n. (7); stat. 3 & I Will. IV. s. 210, re-enacting Btat. 4 Geo. II. c. 42, BS. 37, 38 5 11 & 15 Vict. c. 28, s. 2. 236 OF INCORPOREAL HEREDITAMENTS. mcrly inalien- able. trial (r). Formerly also the tenant might, at an inde- finite time after he was ejected, have filed his bill in the Court of Chancery, and lie would have been relieved by that Court from the forfeiture he had incurred, on his payment to his landlord of all arrears and costs. But now, the right of the tenant to apply for relief in equity is restricted to six calendar months next after the ex- ecution of the judgment on the ejectment (a) ; and by a recent statute, the same relief may now be given The benefit of by the Courts of Law (b). In ancient times, also, the reentry for- benefit of a condition of re-entry could belong only to the landlord and his heirs ; for the law would not allow of the transfer of a mere conditional right to put an end to the estate of another (c). A right of re-entry was considered in the same light as a right to bring an action for money due ; Avhich right in ancient times was not assignable. This doctrine sometimes occasioned considerable inconvenience ; and in the reign of Henry VIII. it was found to press hardly on the grantees from the crown of the lands of the dissolved monasteries. For these grantees were of course unable to take ad- vantage of the conditions of re-entry, which the monks had inserted in the leases of their tenants. A parlia- mentary remedy was, therefore, applied for the benefit of the favourites of the crown ; and the opportunity was taken for making the same provision for the public at large. A statute was accordingly passed (d), which enacts, that as well the grantees of the crown as all other persons being grantees (e) or assignees, their heirs, llemedy by statute. (z) Stat. 15 & 16 Vict. c. 76, s. 212, re-enacting stat 4 Geo. II. c. 28, s. 4. An under-tenant has the same privilege, Doe d. Wyatt v. Byron, 1 C. B. 623. (rt) Stat. 15 & 16 Vict. c. 76, s. 210, re-enacting stat. 4 Geo. II. c. 28, s. 2; Bowser v. Colhij, 1 Hare, 109. (b) Stat. 23 & 24 Vict. c. 126, s. 1. O) Litt. ss. 347, 348; Co. Litt. 265 a, n. (1). (d) Stat. 32 Hen. VIII. c. 34; Co. Litt. 215 a; l^herwood v. Old- know, 3 Mau. & Sehv. 3S2, SIM. (e) A lessee of the reversion is within the act, Wright v. Bur- roughes, 3 C. B. 685. OF A REVERSION AND A VESTED REMAINDER. 237 executors, successors, and assigns, shall have the like i advantages against the lessees, by entry for non-pay- / ment of rent, or for doing of waste, or other forfeiture, J as the lessors or grantors themselves, or their heirs or I successors, might at any time have had or enjoyed ; and this statute is still in force. There exist also Actions at law. further means for the recovery of rent, in certain actions at law, which the landlord may bring against his tenant for obtaining payment. Rent service, being incident to the reversion, passes Rent service by a grant of such reversion without the necessity of J^ ^ r e Ve Y- any express mention of the rent {/)• Formerly no sion - grant coidd be made of any reversion without the con- sent of the tenant, expressed by what was called his attornment to his new landlord (■) [it*. 8. 60; 2 Black. Com. 167. It. I'. 1C 242 OF INCORPOREAL HEREDITAMENTS. of B. and C. and the rest are intended to be as imme- diately and effectually vested in them, as the estate of A. ; so that if A. were to forfeit his estate, B. would have an immediate right to the possession ; and so again C. would have a right to enter, whenever the estates both of A. and B. might determine. But, owing to the necessary infirmity of language, all this cannot be expressed in the limitations of every ordinary Words used to deed. The words " and after his decease" are, there- remainder after f° re > considered a sufficient expression of an intention a life interest, to confer a vested remainder after an estate for life. In the case we have selected of numerous estates, every one given only for the life of each grantee, it is manifest that very many of the grantees can derive no benefit; and, should the first grantee survive all the others, and not forfeit his estate, not one of them will take anything. Nevertheless, each one of these grantees has an estate for life in remainder, imme- A vested re- diately vested in him ; and each of these remainders is be conveyed by capable of being transferred, both at law and in equity, deed of grant. by a d ee( j f g ran t, in the same manner as a reversion. In the same way, a grant may be made of a term of years to one person, an estate for life to another, an estate in tail to a third, and last of all an estate in fee simple to a fourth ; and these grantees may be entitled to possession in any prescribed order, except as to the grantee of the estate in fee simple, who must neces- sarily come last ; for his estate, if not literally inter- minable, yet carries with it an interminable power of alienation, which would keep all the other grantees for ever out of possession. But the estate tail may come first into possession, then the estate for life, and then the term of years ; or the order may be reversed, and the term of years come first, then the estate for life, then the estate tail, and lastly the estate in fee simple, which, as we have said, must wait for possession till all the others shall have been determined. When a re- OF A REVERSION AND A VESTED REMAINDER. 243 mainder comes after an estate tail, it is liable to be barred by the tenant in tail, as we have already seen. This risk it must run. But, if any estate, be it ever so Definition of a ,. . n , „ ., vested remain- small, is always ready, from its commencement to its der# end, to come into possession the moment the prior estates, be they what they may, happen to determine, — it is then a vested remainder, and recognized in law as an estate grantable by deed(y). It would be an estate in possession, were it not that other estates have a prior claim ; and their priority alone postpones, or per- haps may entirely prevent, possession being taken by the remainder-man. The gift is immediate ; but the enjoyment must necessarily depend on the determina- tion of the estates of those who have a prior right to the possession. In all the cases which we have as yet considered, each of the remainders has belonged to a different person. ]NTo one person has had more than one estate. A., B. and C. may each have had estates for life ; or the one may have had a term of years, the other an estate for life, and the last a remainder in tail, or in fee simple. But no one of them has as yet had more than one estate. It is possible, however, that one One person person may have, under certain circumstances, more [£an onTestate! than one estate in the same land at the same time, — one of his estates being in possession, and the other in remainder, or perhaps all of them being remainders. The limitation of a remainder in tail, or in fee simple to a person who has already an estate of freehold, as for life, is governed by a rule of law, known by the name of the rule in Shelley's case, — so called from a celebrated Rule in SheU case in Lord Coke's time, in which the subject was ey * case much discussed (z), — although the rule itself is of very ' ij , Fearne, Cont. Bern. 216; 2 (z) Shelley's oase, 1 Rep. 94, I'm-!. A 1,-1. 113. 104. K 2 244 OF INCORPOREAL HEREDITAMENTS. ancient date (a). As this rule is generally supposed to be highly technical, and founded on principles not easily to be perceived, it may be well to proceed gradually in the attempt to explain it. Feudal hold- We have already seen, that, in ancient times, the for life onlv ^ euc ^ a l holding of an estate granted to a vassal con- tinued only for his life (b). And from the earliest times to the present day a grant or conveyance of lands, made by any instrument (a will only excepted), to A. B. simply, without further words, will give him an estate for his life, and no longer. If the grant was anciently made to him and his heirs, his heir, on his death, became entitled ; and it was not in the power of the ancestor to prevent the descent of his estate ac- cordingly. He could not sell it without the consent of his lord ; much less could he then devise it by his will. The ownership of an estate in fee simple was then but little more advantageous than the possession of a life interest at the present day. The powers of alienation belonging to such ownership, together with the lia- bilities to which it is subject, have almost all been of slow and gradual growth, as has already been pointed out in different parts of the preceding chapters (c). A tenant in fee simple was, accordingly, a person who held to him and his heirs ; that is, the land was given to him to hold for his life, and to his heirs, to hold after his decease. It cannot, therefore, be wondered To A. for his at, that a gift, expressly in these terms, " To A. for hfe and after j^-g jy au( j a ft er j-^g decease to his heirs," should have his decease to bis heirs. been anciently regarded as identical with a gift to A. and his heirs, that is, a gift in fee simple. Nor, if such was the law formerly, can it be matter of surprise that (a) Year Book, 18 Edw. II. 577, (b) Ante, p. 17. translated 7 Man. & Gran. 944, (c) Ante, pp. 17, 34 — 40, 59 — n. ( f or \[f G} j s founded on a principle evidently itrposc. # applicable to any number of intermediate estates, in- terposed between the enjoyment of the ancestor and that of his heir. Nor is it at all necessary that all these estates should be for life only; for some of them may be larger estates, as estates in tail. For instance, suppose lands given to A. for his life, and after his decease to B. and the heirs of his body, and in default of such issue (which is the method of expressing a re- mainder after an estate tail), to the heirs of A. In this case A. will have an estate for life in possession, with an estate in fee simple in remainder, expectant on the determination of B.'s estate tail. An important case of this kind arose in the reign of Edward III. (g). Lands were given to one John de Sutton for his life, the remainder, after his decease, to John his son, and Eline, the wife of John the son, and the heirs of their bodies ; and in default of such issue, to the right heirs of John the father. John the father died first ; then, John and Eline entered into possession. John the son then died, and afterwards Eline his wife, without leaving any heir of her body. R., another son, and heir at law of John de Sutton, the father, then entered. Example. (g) Provost of Beverley's case, Year Book, 40 Edw. III. 9. See 1 Prest. Estates, 304. OF A REVERSION AND A VESTED REMAINDER. 249 And it was decided by all the justices that he was liable to pay a relief (Ji) to the chief lord of the fee, on account of the descent of the lands to himself from John the father. Thorpe, who seems to have been a judge, thus explained the reason of the decision : — " You are in as heir to your father, and your brother [father?] had the freehold before ; at which time, if John his son and Eline had died [without issue] in his lifetime, he would have been tenant in fee simple." The same principles will apply where the first estate Where the first is an estate in tail, instead of an estate for life. Thus, est 'ate tail. suppose lands to be given to A. and the heirs male of his body begotten, and in default of such issue, to the heirs female of his body begotten (i). Here, in default of male heirs of the body of A., the heirs female will inherit from their ancestor the estate in tail female, which by the gift had vested in him. There is no need to repeat the estate which the ancestor enjoys for his life, and to limit the lands, in default of heirs male, to him and to the heirs female of his body begotten. This part of his estate in tail female has been already given to him in limiting the estate in tail male. The heirs female, being mentioned in the gift, will be supposed to take the lands as heirs, that is, by descent from their ancestor, in whom an estate in tail female must conse- quently be vested in his lifetime. For, the same rule, founded on the same principle, will apply in every instance ; and this rule is no other than the rule in Shelley's case, which lays it down for law, that when Rule in SheU the ancestor, by any gift or conveyance, takes an estate ey s ca " e ' of freehold, and, in the same gift or conveyance, an estate is limited, either mediately or immediately, to his heirs in fee or in tail, the words "the heirs" are words of limitation of the estate of the ancestor. The heir, (h) See ante, pp. 116, 118, 120. (?) Litt. s. 719; Co. Litt. 376 b. 250 OF INCORPOREAL HERED1TA M BH I • Ancestor need not have an estate for the whole of his life. if he should take any interest, must take as heir by descent from his ancestor; for he is not constituted, by the words of the gift or conveyance, a purchaser of any separate and independent estate for himself. The rule, it will be observed, requires that an estate of freehold merely should be taken by the ancestor, and not necessarily an estate for the whole of his own life or in tail. In the examples Ave have given, the ancestor has had an estate at least for his own life, and the enjoyment of the lands by other parties has post- poned the enjoyment by his heirs. But the ancestor himself, as well as his heirs, may be deprived of pos- session for a time ; and yet an estate in fee simple or fee tail may be eifectually vested in the ancestor, subject to such deprivation. For instance, suppose lands to be given to A., a widow, during her life, pro- vided she continue a widow and unmarried, and after her marriage, to B. and his heirs during her life, and after her decease, to her heirs. Here, A. has an estate in fee simple, subject to the remainder to B. for her life, expectant on the event of her marrying again (k). For to apply to this case the same reasoning as to the former ones, A. has still an estate to her and to her heirs. She has the freehold or feudal possession, and after her decease, her heirs are to have the same. It matters not to them that a stranger may take it for a while. The terms of the gift declare that what was once enjoyed by the ancestor shall afterwards be enjoyed by the heirs of such ancestor. These very terms then make an estate in fee simple, with all its incidental powers of alienation, controlled only by the rights of B. in respect of the estate conferred on him by the same rift. Where the ancestor take3 But if the ancestor should take no estate of freehold (A) Curtis v. Price, 12 Ves. 89. OF A REVERSION AND A VESTED REMAINDER. 251 under the gift, but the land should be granted only to no estate of his heirs, a very different effect would be produced. freehold - In such a case a most material part of the definition of an estate in fee simple would be wanting. For an estate in fee simple is an estate given to a man and his heirs, and not merely to the heirs of a man. The ancestor, to whose heirs the lands were granted, would accordingly take no estate or interest by reason of the gift to his heirs. But the gift, if it should ever take effect, would be a future contingent estate for the person who, at the ancestor's decease, should answer the de- scription of heir to his freehold estates. The gift would accordingly fall within the class of future estates, of which an explanation is endeavoured to be given in the next chapter (/). (Z) The most concise account given by Mr. Watkins in his Es- of the rule in Shelley's case, to- say on the Law of Descents, pp. gether with the principal distinc- 154 et seq. (191, 4th ed.) tions which it involves, is that 252 OF INCORPOREAL HEREDITAMENTS. CHAPTER II. OF A CONTINGENT REMAINDER. Hitherto we have observed a very extensive power of alienation possessed by a tenant in fee simple. v He may make an immediate grant, not of one estate merely, or two, but of as many as he may please, provided he ascertain the order in which his grantees are to take possession («). This power of alienation, it will be observed, may in some degree render less easy the alienation of the land at a future time ; for, it is plain that no sale can in future be made of an unincumbered estate in fee simple in the lands, unless every owner of each of these estates will concur in the sale, and convey his individual interest, whether he be the particular tenant, or the owner of any one of the estates in re- mainder. But if all these owners should concur, a valid conveyance of an estate in fee simple can at any time Vested remain- be made. The exercise of the power of alienation, in rraderthe* tne crea ti° n of vested remainders, does not, therefore, land inalien- withdraw the land for a moment from that constant liability to complete alienation, which it has been the sound policy of modern law as much as possible to encourage. But, great as is the power thus possessed, the law has granted to a tenant in fee simple, and to every other owner to the extent of his estate, a greater power still. Fnture estates. For, it enables him, under certain restrictions, to grant estates to commence in interest, and not in possession merely, at a future time. So that during the period («) Ante, pp. 240, 241. OF A CONTINGENT REMAINDER. 253 which may elapse before the commencement of such estates, the land may be withdrawn from its former liability to complete alienation, and be tied up for the benefit of those who may become the owners of such future estates. The power of alienation is thus allowed to be exercised in some degree to its own destruction. For, till such future estates come into existence, they may have no owners to convey them. Of these future Two kinds, estates there are two kinds, a contingent remainder, and an executory interest. The former is allowed to be created by any mode of conveyance. The latter can arise only by the instrumentality of a will, or of a use executed, or made into an estate by the Statute of Uses. The nature of an executory interest will be explained in the next chapter: The present will be devoted to con- tingent remainders, which, though abolished by the act to simplify the transfer of property (b), were revived the next session by the act to amend the law of real pro- perty (c), by which the former act, so far as it abolished contingent remainders, was repealed as from the time of its taking effect. The simplicity of the common law allowed of the Contingent re- creation of no other estates than particular estates, fol- mainck * ,fS " ere 1 _ anciently u- lowed by the vested remainders, which have already legal. occupied our attention. A contingent remainder — a remainder not vested, and which never might vest, — was long regarded as illegal. Down to the reign of Henry VI. not one instance is to be found of a contin- gent remainder being held valid (d). The early autho- rs Stat. 7 & 8 Vict. c. 76, s. 8. tiquity of contingent remainders. (c) Stat. 8 & 9 Vict. c. 106, See 3rd Rep. of Real Property 8.1. Commissioners, p. 23; 1 Stcph. (d) The reader should be in- Cum. 614, n. (//). And an jit- formed that this assertion is tempt to create a contingent re- grounded only on the writer's re- mainder appears in an undated Bearcbes. The general opinion deedinMadox'sFormulareAngli- appeara to lie in favour of the an- cannm, No. 635, p. :u)~>. 254 OF INCORPOREAL HEREDITAMENTS. rities on the contrary are rather opposed to such a conclusion (e). And, at a later period, the authority of Littleton is express (f)> that every remainder, which beginneth by a deed, must be in him to whom it is limited, before livery of seisin is made to him who is to have the immediate freehold. It appears, however, to have been adjudged, in the reign of Henry VI., that if land be given to a man for his life, with remainder to the right heirs of another who is living, and who after- wards dies, and then the tenant for life dies, the heir of (e) Year Book, 11 Hen. IV. 74; in which case, a remainder to the right heirs of a man, who was dead before the remainder was limited, was held to vest by purchase in the person who was heir. But it was said by Hankey, J., that if a gift were made to one for his life, with remainder to the right heirs of a man who ivas living, the re- mainder would be void, because the fee ought to pass immediately to him to whom it was limited. Note, also, that in Mandeville's case (Co. Litt. 26 b), which is an ancient case of the heir of the body taking by purchase, the an- cestor was dead at the time of the gift. The cases of rents are not apposite, as a diversity was long taken between a grant of a rent and a conveyance of the freehold. The decision in 7 Hen. IV. 6 b, cited in Archer's case (1 Rep. 66 b), was on a case of a rent- charge. The authority of P. 11 Rich. II. Fitz. Ab. tit. Detinue, 46, which is cited in Archer's case (1 Rep. 67 a), and in Chudleigh's case (1 Rep. 135 b), as well as in the margin of Co. Litt. 378 a, is merely a statement by the judge of the opinion of the counsel against whom the decision was made. It runs as follows: — "Cherton to Rykhil — You think Qoous quides) that inasmuch as A. S. was living at the time of the remainder being limited, that if he was dead at the time of the remainder falling in, and had a right heir at the time of the remainder falling in, that the remainder would be good enough ? Rykhil — Yes, Sir.— And after- wards in Trinity Term, judgment was given in favour of Wad [the opposite counsel] : quod nota bene." It is curious that so much pains should have been taken by modern lawyers to explain the reasons why a remainder to the heirs of a per- son, who takes a prior estate of freehold, should not have been held to be a contingent remainder (see Fearne, Cont. Rem. 83 et seq.), when the construction adopted (subsequently called the rule in Shelley's case) was decided on be- fore contingent remainders were allowed. (/) Litt, s. 721; see also M. 27 Hen. VIII. 24 a. OF A CONTINGENT REMAINDER. 255 the stranger shall have this land ; and yet it was said that, at the time of the grant, the remainder was in a manner void(^). This decision ultimately prevailed. And the same case is accordingly put by Perkins, who Gift to A. for lays it down, that if land be leased to A. for life, the ^incler to the remainder to the ris-ht heirs of J. S., who is alive at the r 'ght heirs of . J S time of the lease, this remainder is good, because there is one named in the lease (namely, A. the lessee for life,) Avho may take immediately in the beginning of the lease (h). This appears to have been the first instance in which a contingent remainder was allowed. In this case J. S. takes no estate at all ; A. has a life interest : and, so long as J. S. is living, the remainder in fee does not vest in any person under the gift ; for, the maxim is nemo est hceres viventis, and J. S. being alive, there is no such person living as his heir. Here, accordingly, is a future estate, which will have no existence until the decease of J. S. ; if however J. S. should die in the lifetime of A., and if he should leave an heir, such heir will then acquire a vested remainder in fee simple, expectant on A.'s life interest. But, until these con- tingencies happen or fail, the limitation to the right heirs of J. S. confers no present estate on any one, but merely gives rise to the prospect of a future estate, and creates an interest of that kind which is known as a contingent remainder {€). The gift to the heirs of J. S. has been determined to A gift to the i /v. • , . r •/»•! ,i heirs of a man be sufficient to corner an estate in iee simple on the t . ( , n f ei -s ;) t, <■ person who may be his heir, without any additional simple on his limitation to the heirs of such heir (A). If, however, the gift be made after the 31st of December, 1833, or by the will of a testator who shall have died after that (g) Year Book, 9 Hen. VI. 24 a; (/') 3 Rep. 20 a, in Boraston's II. ::L' Hen. VI. Fitz. Abr. tit, aaee. Feoffments and Knits, 99. (k) 2 Jarman on Wills, 2, 1st (/*) Perk. s. 52. ed. ; 49, 2nd ed. ; 55, 56, 8rd ed. 256 OF INCORPOREAL HEREDITAMENTS. day, the land will descend, on the decease of the heir intestate, not to his heir, but to the next heir of J. S., in the same manner as if J. S. had been first entitled to the estate (/ ). What incomes When contingent remainders began to be allowed, oi the inherit- . . . . i i i ance until the a question arose, which is yet scarcely settled, what contingency becomes of the inheritance, in such a case as this, during happens. , ' . the life of J. S. ? A., the tenant for life, has but a life interest ; J. S. has nothing, and his heir is not yet in existence. The ancient doctrine, that the remainder must vest at once or not at all, had been broken in upon ; but the judges could not make up their minds also to infringe on the corresponding rule, that the fee simple must, on every feoffment which confers an estate in fee, at once depart out of the feoffor. They, there- fore, sagely reconciled the rule which they left standing to the contingent remainders which they had determined to introduce, by affirming that, during the contingency, the inheritance was either in abeyance, or in gremio legis or else in nubibus (>n). Modem lawyers, however, venture to assert, that what the grantor has not disposed of must remain in him, and cannot pass from him until there exists some grantee to receive it(ra). And when the gift is by way of use under the Statute of Uses, there is no doubt that, until the contingency occurs, the use, and with it the inheritance, result to the grantor. So, in the case of a will, the inheritance, until the con- tingency happens, descends to the heir of the tes- tator (o). But whatever difficulties may have beset the depar- ture from ancient rules, the necessities of society re- (Z) Stat. 3 & 4 "Will. IV. c. 106, (n) Fearne, Cont Rem. 361. 8. 4. See, however, 2 Prest. Abst. 100 (m) Co. Litt. 342 a ; 1 P. Wms. — 107, where the old opinion is 515, 516; Bac. Abr. tit. Remainder maintained. and Reversion (>). («) Fearne, Cont. Rem. 351. OF A CONTINGENT REMAINDER. 257 quired that future estates, to vest in unborn or unascer- tained persons, should under certain circumstances be allowed. And, in the time of Lord Coke, the validity in Lord Coke's of a gift in remainder, to become vested on some future crent'rernain- contingency, was well established. Since his day the ders were well doctrine of contingent remainders has gradually become settled ; so that, notwithstanding the uncertainty still The doctrine remaining with regard to one or two points, the whole system now presents a beautiful specimen of an endless variety of complex cases, all reducible to a few plain and simple principles. To this desirable end the Mr. Fearne's masterly treatise of Mr. Fearne on this subject (p) has treatlse - mainly contributed. Let us now obtain an accurate notion of what a contingent remainder is, and, afterwards, consider the lilies which are required to be observed in its creation. We have already said, that a contingent remainder is Definition of a a future estate. As distinguished from an executory ^nder. interest, to be hereafter spoken of, it is a future estate, which waits for and depends on the determination of the estates which precede it. But, as distinguished from a vested remainder, it is an estate in remainder, which is not ready, from its commencement to its end, to come into possession at any moment when the prior estates may happen to determine. For, if any contin- gent remainder should, at any time, become thus ready to come into immediate possession, whenever the prior estates may determine, it will then be contingent no longer, but will at once become a vested remainder (//). For example, suppose that a gift be made to A., a Example, bachelor, for his life, and after the determination of (p) Fearne's Essay on the view of cxccntory interests, con- !. ruing of Contingent Remain- tained in a second volume, ap- ders ami Executory Devises. The pended by the learned editor, Mr. l edition of this work has been Josiah William Smith, rendered valuable by an original (q) Bee ante, p. 243. B.P. 8 258 OF INCORPOREAL HEREDITAMENTS. that estate, by forfeiture, or otherwise in his lifetime, to B. and his heirs during the life of A., and after the decease of A., to the eldest son of A. and the heirs of the body of such son. Here we have two remainders, one of which is vested, and the other contingent. The estate of B. is vested (?•). Why ? Because, though it be but a small estate, yet it is ready from the first, and, so long as it lasts, continues ready to come into possession, whenever A.'s estate may happen to deter- mine. There may be very little doubt but that A. will commit no forfeiture, but will hold the estate as long as he lives. But, if his estate should determine the moment after the grant, or at any time whilst BSs estate lasts, there is B. quite ready to take possession. B.'s estate, therefore, is vested. But the estate tail to the eldest son of A. is plainly contingent. For A., being a bachelor, has no son ; and, if he should die without one, the estate tail in remainder will not be ready to come into possession immediately on the de- termination of the particular estates of A. and B. Indeed, in this case, there will be no estate tail at all. But if A. should marry and have a son, the estate tail will at once become a vested remainder; for, so long as it lasts, that is, so long as the son or any of the son's issue may live, the estate tail is ready to come into im- mediate possession whenever the prior estates may de- termine, whether by A.'s death, or by B.'s forfeiture, supposing him to have got possession (5). It will be observed that here there is an estate, which, at the time of the grant, is future in interest, as well as in possession ; and till the son is born, or rather till he comes of age, the lands are tied up, and placed beyond the power of complete alienation. This example of a contingent remainder is here given as by far ; the most usual, being that which occurs every day in the settle- ment of landed estates. (r) Fearne, Cont. Rem. pp. 7 n, 325. (s) See ante, pp. 241, 242. OF A CONTINGENT REMAINDER. 259 The rules which are required for the creation of a Two rules for contingent remainder may be reduced to two ; of which a contingent the first and principal is well established; but the remainder, latter has occasioned a good deal of controversy. The Rule 1. first of these rules is, that the seisin, or feudal posses- sion, must never be without an owner ; and this rule is sometimes expressed as follows, that every contingent remainder of an estate of freehold must have a parti- cular estate of freehold to support it (t). The ancient Ancient noto- law regarded the feudal possession of lands as a matter for of°the ianS " the transfer of which ought to be notorious ; and it ac- feudal posses- cordingly forbad the conveyance of any estate of free- hold by any other means than an immediate delivery of the seisin, accompanied by words, either written or openly spoken, by which the owner of the feudal pos- session might at any time thereafter be known to all the neighbourhood. If, on the occasion of any feoff- ment, such feudal possession was not at once parted with, it remained for ever with the grantor. Thus a Example, a feoffment, or any other conveyance of a freehold, made £^ &Y to hold ' to-day to A., to hold from to-morrow, would be abso- from to-mor- lutely void, as involving a contradiction. For, if A. is not to have the seisin till to-morrow, it must not be given him till then (a). So, if, on any conveyance, the feudal possession were given to accompany any estate or estates less than an estate in fee simple, the moment such estates, or the last of them, determined, such feudal possession would again revert to the grantor, in right of his old estate, and coidd not be again parted with by him, without a fresh conveyance of the freehold. Accordingly, suppose a feoffment to To A. for life, be made to A. for his life, and after his decease and one ^cense^m! day, to B. and his heirs. Here, the moment that A.'s one day, to B. estate determines by his death, the feudal possession, which is not to belong to 13. till one day afterwards, (0 2 Black. Coin. 171. (») 2 Black. Com. 1GG. s 2 2G0 OF INCORPOREAL HEREDITAMENTS. reverts to the feoffor, and cannot be taken out of him without a new feoffment. The consequence is, that the gift of the future estate, intended to be made to B., is absolutely void. Had it been held good, the feudal possession would have been for one day without any owner, or, in other words, there woidd have been a so- called remainder of an estate of freehold, without a To A. for his particular estate of freehold to support it. Let us now his decease to take the case we have before referred to, of an estate his eldest son to A., a bachelor, for his life, and after his decease to in tail. his eldest son in tail. In this case it is evident, that the moment A.'s estate determines by his death, his son, if living, must necessarily be ready at once to take the feudal possession, in respect of his estate tail. The only case in which the feudal possession could, under such a limitation, ever be without an owner, at the time of A.'s decease, would be that of the mother being then enceinte of the son. In such a case, the feudal possession would be evidently without an owner, until the birth of the son ; and such posthumous son would accordingly lose his estate, were it not for a special provision which has been made in his favour. In the Posthumous reign of AVilliam III. an act of parliament (x) was take estates as passed, to enable posthumous children to take estates, if born. as if born in their father's lifetime. And the law noAv considers every child en ventre sa mere as actually born, for the purpose of taking any benefit to which, if born, it would be entitled (y). A contingent As a corollary to the rule above laid down, arises must vest another proposition, frequently itself laid down as a daring the par- distinct rule, namely, that every contingent remainder ticular estate, J J *= . or co instanti must vest, or become an actual estate, during the con- that it deter- {x) Stat. 10 & 11 Will. III. c. & Beames, 367; Mogg v. Mogg, 16. 1 Meriv. 651; Trower v. Butts, (//) Doc v. Clarke, 2 H. Bl. 1 Sim. & Stu. 181. 399; Blackburn v. Stables, 2 Ves. OF A CONTINGENT KEMAINDER. 261 tinuance of the particular estate which supports it, or eo instanti that such particular estate determines; otherwise such contingent remainder will fail altoge- ther, and can never become an actual estate at all. Thus, suppose lands to be given to A. for his life, Example. and after his decease to such son of A. as shall first attain the age of twenty-four years. As a contingent remainder the estate to the son is well created (z) ; for the feudal seisin is not necessarily left without an owner after A.'s decease. If, therefore, A. should, at his decease, have a son who should then be twenty-four years of age or more, such son will at once take the feudal possession by reason of the estate in remainder which vested in him the moment he attained that age. I/i this case the contingent remainder has vested during the continuance of the particular estate. But if there should be no son, or if the son should not have attained the prescribed age at his father's death, the remainder will fail altogether (a). For the feudal possession will then, immediately on the father's decease, revert, for want of another owner, to the person who made the gift in right of his reversion. And, having once reverted, it cannot now belong to the son, without the grant to him of some fresh estate by means of some other conveyance. A contingent remainder cannot be made to vest on Events on any event which is illegal, or contra bonos mores. ^ n 1 !, l c , 1 1 | il r t ( ,."" Accordingly, no such remainder can be given to a mainder may child who may be hereafter born out of wedlock. Bui tliis can scarcely be said to be a rule for the (r) 2 Prest. Abst. 148. Giff. 668, qy ? Be Mid Kent (a) Testing v. Allen, 12 Mees. Railway Aot, 1856, Ex parte & Wels. 279; 6 Bare, 573. Sic Styan, John. 387; Holmes v. however as to this case, Riley v. Prescott,V.-C. W., lOJur., N. S. Qarnett, 8 De <■<.-. & S. 629; 607 ; L2 W. R. 686; Rhodes v. Browne v. Browne, '•'> Sma. & Whitehead, 2 Drew. & Sm. 532. 262 OF INCORPOREAL HEREDITAMENTS. Possibility on a possibility. Scbolastic Ioluc. Examples of common and double possi- bilities. creation of contingent remainders. It is rather a part of the general policy of the law in its discouragement of vice. In the reports of Lord Coke, however, a rule is laid down of which it may be useful to take some notice, namely, that the event on which a remainder is to depend must be a common possibility, and not a double possibility, or a possibility on a possibility, which the law will not allow (4). This rule, though professed to be founded on former precedents, is not to be found in any of the cases to which Lord Coke refers, in none of which do either of the expressions " possibility on a possibility," or " double possibility," occur. It appears to owe its origin to the mischievous scholastic logic which was then rife in our courts of law, and of which Lord Coke had so high an opinion that he deemed a knowledge of it necessary to a complete lawyer (c). The doctrine is indeed expressly introduced on the authority of logic: — "as the logician saith, ' potentia est duplex, remota et propinqua ' " '(d). This logic, so soon afterwards demolished by Lord Bacon, appears to have left behmd it many traces of its exis- tence in our law; and perhaps it would be found that some of those artificial and technical rules which have the most annoyed the judges of modern times (e) owe their origin to this antiquated system of endless distinc- tions without solid differences. To show how little of practical benefit could ever be derived from the distinc- tion between a common and a double possibility, let us take one of Lord Coke's examples of each. He tells us that the chance that a man and a woman, both married to different persons, shall themselves many one another is but a common possibility^). But the chance that a married man shall have a son named Geoffrey is stated (b) 2 Rep. 51 a; 10 Rep. 50 b. (c) Preface to Co. Litt. p. 37. (d) 2 Rep. 51 a. (e) Such as the rule in Dv/mpor's case, 4 Rep. 119. (/) 10 Rep. 50 b; Year Book, 15 Hen. VII. 10 b. pi. 16. OF A CONTINGENT REMAINDER. 263 to be a double or remote possibility (g). "Whereas it is evident that the latter event is at least quite as likely to happen as the former. And if the son were to get an estate from being named Geoffrey, as in the case put, there can be very little doubt but that Geoffrey would be the name given to the first son Avho might be born (h). Respect to the memory of Lord Coke has long kept on foot in our law books (i) the rule that a possibility on a possibility is not allowed by law in the creation of con- tingent remainders. But the authority of this rule has long been declining (j), and lately a very learned living judge (Jt) has declared plainly that it is now abolished. But although the doctrine of Lord Coke, that there can be no possibility on a possibility, has ceased to govern the creation of contingent remainders, there is yet a rule by which these remainders are restrained within due bounds, and prevented from keeping the lands, which are subject to them, for too long a period beyond the reach of alienation. This ride is the second Rule 2. ride, to which we have referred (7), and is as follows: — Gift to an un- that an estate cannot be given to an unborn person for w 'i t jJ remainder life, followed by any estate to any child of such unborn to hls cmlcl - , N „ . , , . 1 the remainder person (m); for m such a case the estate given to the void. (//) 2 Rep. 51 b. 1 Prest. Abst. 128, 129. (/t) The true ground of the de- (&) Lord St. Leonards, in Cole cision in the old case (10 Ed w. III. \. Sewell,\ Conn. & Laws, 344; 45), to which Lord" Coke refers, S. C. 4 Dru. & War. 1, 32. The was no doubt, as suggested by decision in this case has been Mr. Preston ( 1 Prest. Abst. 128), affirmed in the House of Lords, that the gift was made to Geoffrey 2 H. of L. Cases, 186. the son, as though he were living, ( I) Ante, p. 259. when in fact there was then no (w) 2 Cases and Opinions, 432 Bach person. —441; J Uaij v. Earl of Coventry, 0') 2 Black. Com. 170 ; Fcarne, 3 T. Rep. 8G; Brudenell v. ffimes, Cont. Rem. 252. 1 East, 452; Fearne's Posthuma, fj> Sec Third Report of Real 215; Fearne, Cont. Rem. 502, Property Commissi. .mis, p. 29; •>(>'>, Bull, note; 2 Prest. Abst. 264 OF INCORPOREAL HEREDITAMENTS. child of the unborn person is void. This rule is apparently derived from the old doctrine which pro- hibited double possibilities. It may not be sufficient to restrain every kind of settlement which ingenuity might suggest; but it is directly opposed to the great motive which usually induces attempts at a perpetuity, namely, the desire of keeping an estate in the same family ; and it has accordingly been hitherto found sufficient. An attempt has been recently made, with much ability, to explain away this rule as merely an instance of the ride by which, as Ave shall hereafter see, executory interests are restrained (n). But this rule is more stringent than that which confines executory interests ; and if there were no other restraint on the creation of contingent remainders than the ride by which executory interests are confined, landed property might in many cases be tied up for at least a generation further than is now possible (o). Gift by will to the sons of an unborn person, after a life estate to such person. The opinion which so generally prevails, that every man may make what disposition he pleases of his own estate, — an opinion countenanced by the loose description sometimes given by lawyers of an estate in fee simple (p), — has not unfrequently given rise to attempts made by testators to settle their property on future generations beyond the bounds allowed by law ; 114 ; 1 Sugd. Pow. 470; 393, 8th ed. ; 1 Jarm. Wills, 221, 1st ed. ; 203, 2nd ed. ; 227, 3rd ed. ; Cole v. Sewell, 2 H. of L. Cases, 186 ; Monypenny v. Bering, 2 De Gex, M. & G. 145, 170; Sugden on Pro- perty, 120 ; Sugden on the Real Property Statutes, p. 285, n. (a), 1st ed. ; 274, n. (a), 2nd ed. See, however, per Wood, V.-C, in Cattlin v. Brown, 11 Hare, 375, qy ? («) See Lewis on Perpetuities, p. 408 et seq. The ease of Challis v. Boe d. Boers, 18 Q. B. 231, must be admitted "to accord with this opinion ; but the point, though adverted to by the counsel for the appellant, was not taken by the counsel for the respondent, nor mentioned in the judgment of the Court. This case has since been reversed in the House of Lords, 7 H. of L. Cas. 531. (o) See Appendix (F). O) 2 Black. Com. 104. trine. OF A CONTINGENT REMAINDER. 265 thus lands have been given by will to the unborn son of some living person for his life, and after the decease of such unborn son, to his sons in tail. This last limita- tion to the sons of the unborn son in tail, we have observed, is void. The courts of law, however, have been so indulgent to the ignorance of testators, that, in the case of a will, they have endeavoured to carry the intention of the testator into effect, as nearly as can possibly be done, without infringing the rule of law ; they, accordingly, take the liberty of altering his will to what they presume he would have done had he been acquainted with the rule which prohibits the son of any unborn son from being, in such circumstances, the object of a gift. This, in Law French, is called the Cypres doc- cy pres doctrine (q). From what has already been said, it will be apparent that the utmost that can be legally accomplished towards securing an estate in a family is to give to the unborn sons of a living person estates in tail : such estates, if not barred, will descend on the next generation ; but the risk of the entails being barred cannot, by any means, be prevented. The courts, therefore, when they meet with such a disposi- tion as above described, instead of confining the unborn son of the living person to the mere life estate given him by the terms of the will, and annulling the subse- quent limitations to his offspring, give to such son an estate in tail, so as to afford to his issue a chance of inheriting should the entail remain unbarred. But this doctrine, being rather a stretch of judicial authority, is only applied where the estates given by the Avill to the children of the unborn child are estates in tail, and not where they are estates for life (r), or in fee simple (s). (q) Fcarne, Cont. Rem. 204, (r) Seaward v. Willcock, 5 note; 1 Jarman on Willfl,260, 1st East, 198. ed.; 242, 2nd ed.j 278, 8rd ed.j (*) Bristom v. Warde, 2 Ves. Vanderplank v. King, :', Hare, 1 ; jun. 836 ; Utile v. Pew, 26 Bear. Monypenny v. Deri/ng, L6 Mee. 3:>."». & W.ls. 118. 2G6 OF INCORPOREAL HEREDITAMENTS. If, however, the estates be in tail, the rule equally applies, whether the estates tail be given to the sons successively according to seniority, or to all the children equally as tenants in common (t). The expectant owner of a contingent re- mainder may be now living. Example. A possibility. A contingent remainder could not be conveyed by deed, but might be released. Though a contingent remainder is an estate which, if it arise, must arise at a future time, and will then belong to some future owner, yet the contingency may be of such a kind, that the future expectant owner may be now living. For instance, suppose that a conveyance be made to A. for his life, and if C. be living at his de- cease, then to B. and his heirs. Here is a contingent remainder, of Avhich the future expectant owner, B., may be now living. The estate of B. is not a present vested estate, kept out of possession only by A.'s prior right thereto. But it is a future estate not to commence, either in possession or in interest, till A.'s decease. It is not such an estate as, according to our definition of a vested remainder, is always ready to come into posses- sion whenever A.'s estate may end ; for, if A. should die after C, B. or his heirs can take nothing. Still B., though he has no estate during A.'s life, has yet plainly a chance of obtaining one, in case C. should survive. This chance in law is called a possibility ; and a possi- bility of this kind was long looked upon in much the same light as a condition of re-entry was regarded (u), having been inalienable at law, and not to be conveyed to another by deed of grant. A fine alone, before fines were abolished, could effectually have barred a contin- gent remainder (.r). It might, however, have been re- leased ; that is to say, B. might, by deed of release, have given up his interest for the benefit of the rever- (t) Pitt v. Jackson, 2 Bro. C. C. 51 ; Vanderjplank v. King, 3 Hare, 1. («) Ante, p. 236. Deljis v. Hereford, 2 Barn. & Aid. 242; Doe d. Christmas v. Oliver, 10 Barn. & Cress. 181; Doe d. Lumlcij v. Earl of Scar- (x) Fearne, Cont. Rem. 3G5 ; borough, 3 Adol. & Ell. 2. OF A CONTINGENT REMAINDER. 267 sioner, in the same manner as if the contingent re- mainder to him and his heirs had never been limited (y) ; for the law, whilst it tolerated conditions of re-entry and contingent remainders, always gladly permitted such rights to be got rid of by release, for the sake of pre- serving unimpaired such vested estates as might happen to be subsisting. A contingent remainder was also Was devisable. devisable by will under the old statutes (z), and is so under the present act for the amendment of the laws with respect to wills («). And it was the rule in equity, Was assign- that an assignment intended to be made of a possibility able in et l ultv - for a valuable consideration should be decreed to be carried into effect (b). But the act to amend the law Act to amend of real propertv(c) now enacts, that a contingent in- e , , r r J S . . . rea * property. terest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, whether the . object of the gift or limitation of such interest or possi- bility be or be not ascertained, may be disposed of by deed. But every such disposition, if made by a mar- ried woman, must be made conformably to the pro- visions of the act for the abolition of fines and re- coveries (//). The circumstance of a contingent remainder having Inalienable been so long inalienable at law was a curious relict of contineen^re- the ancient feudal system. This system, the fountain mainder. of our jurisprudence as to landed property, was strongly opposed to alienation. Its policy was to unite the lord and tenant by ties of mutual interest and affection ; • and nothing could so effectually defeat this end as a (y) LampeVs case, 10 Rep. 48 a, Bcav. 585. b; Marks v. Murks, 1 Strange, (?>) Fearne, Cont. Rem. 550, 132. 551 ; see, however, Carlcton v. (z) Hoc d. Perry v. Jones, III. Lehjhton, 3 Mcriv. CG7, GG8, Black. 30; Fearne, Cout. Rem. note (J). 366, note. O) Stat. 8 & 9 Vict. c. 106, (a) Star. 7 Will. IV. & 1 Vict. 8. 6. < . 26, b. 3; Ingilby v. Amootts, 21 (d) Sec ante, pp. 221, 222. 268 OF INCORPOREAL HEREDITAMENTS. constant change in the parties sustaining that relation. The proper method, therefore, of explaining our laws, is not to set out with the notion that every subject of property may be aliened at pleasure ; and then to en- deavour to explain why certain kinds of property cannot be aliened, or can be aliened only in some modified manner. The law itself began in another way. When, and in what manner, different kinds of property gradually became subject to different modes of alienation is the matter to be explained ; and this explanation we have endeavoured, in proceeding, as far as possible to give. But, as to such interests as remained inalienable, the reason of their being so was, that they had not been altered, but remained as they were. The statute of Quia emptores(e) expressly per- mitted the alienation of lands and tenements, — an alienation which usage had already authorized ; and eA T er since this statute, the ownership of an estate in lands (an estate tail excepted) has involved in it an undoubted power of conferring on another person the same, or, perhaps more strictly, a similar estate. But a contingent remainder is no estate, it is merely a chance of having one ; and the reason why it so long remained inalienable at law was simply because it had never been thought worth while to make it alienable. Destruction of contingent remainders. Liability to destruction now removed. One of the most remarkable incidents of a contingent remainder was its liability to destruction, by the sudden determination of the particular estate upon which it depended. This liability has now been removed by the • act to amend the law of real property {/)'. it was, in effect, no more than a strict application of the general rule, required to be observed in the creation of con- tingent remainders, that the freehold must never be (e) 18 Edw. I. c. 1, ante, p. 61. repealing stat. 7 & 8 Vict. c. 7G, (/) Stat. 8 & 9 Vict. c. 106, s. 8, s. 8, to the same effect. OF A CONTINGENT EE^IAINDER. 2G9 left without an owner. For if, after the determination of the particular estate, the contingent remainder might still, at some future time, have become a vested estate, the freehold would, until such time, have re- mained undisposed of, contrary to the principles of the law before explained (g). Thus, suppose lands to have Example. been given to A., a bachelor, for his life, and after his decease to his eldest son and the heirs of his body, and, in default of such issue, to B. and his heirs. In this case A. would have had a vested estate for his life in possession. There woidd have been a contingent re- mainder in tail to his eldest son, which would have become a vested estate tail in such son the moment he was born, or rather begotten ; and B. would have had a vested estate in fee simple in remainder. Now sup- pose that, before A. had any son, the particular estate for life belonging to A., which supported the contingent remainder to his eldest son, should suddenly have de- termined during A.'s life, B.'s estate would then have become an estate in fee simple in possession. There must be some owner of the freehold; and B., being next entitled, would have taken possession. When his estate once became an estate in possession, the prior remainder to the eldest son of A. was for ever excluded. For, by the terms of the gift, if the estate of the eldest son was to come into possession at all, it must have come in before the estate of B. A forfeiture Forfeiture of by A. of his life estate, before the birth of a son, would llfe estate - therefore at once have destroyed the contingent re- mainder, by letting into possession the subsequent estate of B. (h). The determination of the estate of A. was, however, A right of in order to effect the destruction of the contingent re- haresapported (,c/) Ante, p. 269. Bee Doe d. Davies v. Oat acre, ) Fearae, Cont. Rem. 317; 6 Bing. N. C. 609. 270 OF INCORPOREAL HEREDITAMENTS. a contingent mainder, required to be such a determination as would put an end to his right to the freehold or feudal pos- session. Thus, if A. had been forcibly ejected from the lands, his right of entry would still have been suf- ficient to preserve the contingent remainder ; and, if he shoidd have died whilst so out of possession, the contingent remainder might still have taken effect. For, so long as A.'s feudal possession, or his right thereto, continues, so long, in the eye of the law, does his estate last ( t). It is a rule of law, that " whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, the less is im- mediately annihilated ; or, in the law phrase, is said to Merger. be merged, that is, sunk or drowned in the greater" (A). From the operation of this rule, an estate tail is pre- served by the effect of the statute De donis{l). Thus, the same person may have, at the same time, an estate tail, and also the immediate remainder or reversion in fee simple, expectant on the determination of such estate tail by failure of his own issue. But with regard to other estates, the larger will swallow up the smaller ; and the intervention of a contingent remainder which, while contingent, is not an estate, will not prevent the application of the rule. Accordingly, if in the case above given A. should have purchased B.'s remainder in fee, and should have obtained a convey- ance of it to himself, before the birth of a son, the contingent remainder to his son would have been de- stroyed. For, in such a case, A. would have had an estate for his own life, and also, by his purchase, an immediate vested estate in fee simple in remainder ex- pectant on his own decease ; there being, therefore, no (i) Fearne, Cont. Rem. 286. (J) Stat. 13 Edw. I. c. 1 ; ante, (k) 2 Black. Com. 177. p. 41. OF A CONTINGENT REMAINDEK. 271 rested estate intervening, a merger would have taken place of the life estate in the remainder in fee. The possession of the estate in fee simple would have been accelerated and would have immediately taken place, and thus a destruction would have been effected of the contingent remainder (m), which could never afterwards have become a vested estate ; for, were it to have become vested, it must have taken possession subse- quently to the remainder in fee simple ; but this it could not do, both by the terms of the gift, and also by the very nature of a remainder in fee simple, which can never have a remainder after it. In the same manner the sale by A. to B. of the life estate of A., called in law a surrender of the life estate, before the birth of a Surrender of i -, i li-i • r j.i the life estate. son, would have accelerated the possession ot the re- mainder in fee simple, by giving to B. an uninterrupted estate in fee simple in possession ; and the contingent remainder would consequently have been destroyed (n). The same effect would have been produced by A. and B. both conveying their estates to a third person, C, before the birth of a son of A. The only estates then existing in the land would have been the life estate of A. and the remainder in fee of B. C, therefore, by acquiring both these estates, woidd have obtained an estate in fee simple in possession, on which no remainder could depend (o). But now, the act to amend the law Act to amend of real property ( p) has altered the law in all these cases ; p r0 p er ty. for, whilst the principles of law on which they proceeded have not been expressly abolished, it is nevertheless enacted (q), that a contingent remainder shall be, and if created before the passing of the act shall be deemed to have been, capable of taking effect, notwithstanding (m) Fearne, Cont. Rein. 340. 338. («) Fearne, Cont. Rem. 318. O) Stat. 8 & 9 Vict. c. 10f,, (o) Fearne, Cont. Rem. 322, repealing stat. 7 & 8 Vict. c. 76, note; Noel v. Bemley,Z Sim. L03j s. 8, to the same effect. Egerton v. Massay, 3 C. R. N. S. (//) Sect. 8. 272 OF INCOItrOREAL HEREDITAMENTS. the determination by forfeiture, surrender or merger of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened. This act, it will be observed, applies only to the three cases of forfeiture, surrender or merger of the particular estate. If, at the time when the particular estate would naturally have expired, the contingent remainder be not ready to come into immediate possession, it will still fail as before. Trustees to preserve con- tingent re- mainders. The disastrous consequences which would have residted from the destruction of the contingent re- mainder, in such a case as that we have just given, were obviated in practice by means of the interposition of a vested estate between the estates of A. and B. We have seen (?•) that an estate for the life of A., to take effect in possession after the determination, by forfeiture or otherwise, of A.'s life interest, is not a contingent, but a vested estate in remainder. It is a present existing estate, always ready, so long as it lasts, to come into possession the moment the prior estate determines. The plan, therefore, adopted for the pre- servation of contingent remainders to the children of a tenant for life was to give an estate, after the deter- mination by any means of the tenant's life interest, to certain persons and their heirs during his life, as trustees for preserving the contingent remainders ; for which purpose they were to enter on the premises, should occasion require, but should such entry be necessary, they were nevertheless to permit the tenant for life to receive the rents and profits during the rest of his life. These trustees were prevented by the Court of Chancery from parting with their estate, or in any way aiding the destruction of the contingent re- mainders which their estate supported (*•). And, so (r) Ante, p. 258. 0) Fcarne, Cont. Rem. 32G. OF A CONTINGENT REMAINDER. 273 long as their estate continued, it is evident that there existed, prior to the birth of any son, three vested estates in the land ; namely, the estate of A. the tenant for life, the estate in remainder of the trustees during his life, and the estate in fee simple in remainder, be- longing, in the case we have supposed, to B. and his heirs. This vested estate of the trustees, interposed between the estates of A. and B., prevented their union, and consequently prevented the remainder in fee simple from ever coming into possession, so long as the estate of the trustees endured, that is, if they were faithful to their trust, so long as A. lived. Provision was thus made for the keeping up of the feudal possession until a son was born to take it ; and the destruction of the contingent remainder in his favour was accordingly prevented. But now that contingent remainders can no longer be destroyed, of course there will be no occa- sion for trustees to preserve them. The following extract from a modern settlement, of a date previous to the act to amend the law of real property (t), will explain the plan which used to be adopted. The lands were conveyed to the trustees and their heirs, to the uses declared by the settlement ; ]>v which conveyance the trustees took no permanent estate at all, as has been explained in the Chapter on Uses and Trusts (u), but the seisin was at once transferred to those to Avhose use estates were limited. Some of these estates were as follows: — " To the use of the said A. To A. for life. " and his assigns for and during the term of his natural " life without impeachment of waste and from and imme- " diately after the determination of that estate by for- " feiture or otherwise in the lifetime of the said A. To To trustees " the use of the said {trustees) their heirs and assigns JjJJJJ^ 1 * 6 « during the life of the said A. In trusl to preserve contingent re- mainders, (0 8 & 'J Vict. c. 106. {") Ante, pp. 163, L64. B.P. T 274 OF INCORPOREAL HEREDITAMENTS. To A.'s first and other sons in tail. " the contingent uses and estates hereinafter limited " from being defeated or destroyed and for that purpose " to make entries and bring actions as occasion may " require But nevertheless to permit the said A. and " his assigns to receive the rents issues and profits of " the said lands hereditaments and premises during his " life And from and immediately after the decease " of the said A. To the use of the first son of the " said A. and of the heirs of the body of such first son " lawfully issuing and in default of such issue To the " use of the second third fourth fifth and all and every " other son and sons of the said A. severally succes- " sively and in remainder one after another as they " shall be in seniority of age and priority of birth and " of the several and respective heirs of the body and " bodies of all and every such son and sons lawfully " issuing the elder of such sons and the heirs of his "body issuing being always to be preferred to and to " take before the younger of such sons and the heirs of " his and then* body and respective bodies issuing And " in default of such issue" &c. Then follow the other remainders. Trust estates. Contingent re- mainders of trust estates were inde- structible. In a former part of this volume we have spoken of equitable or trust estates (.r). In these cases, the whole estate at law belongs to trustees, who are accountable in equity to their cestuis que trust, the beneficial owners. As equity follows the law in the limitation of its estates, so it permits an equitable or trust estate to be disposed of by way of particular estate and remainder, in the same manner as an estate at law. Contingent remainders may also be limited of trust estates. But between such contingent remainders, and contingent remainders of estates at law, there Mas always this difference, that whilst the latter were (.r) See the chapter on Uses and Trusts, ante, p. 155 et seq. OF A CONTINGENT REMAINDER. 275 destructible, the former were not (y). The destruction of a contingent remainder of an estate at law depended, as we have seen, on the ancient feudal rule, Avhich required a continuous and ascertained possession of every piece of land to be vested in some freeholder. But in the case of trust estates, the feudal possession remains with the trustee (z). And, as the destruction of contingent remainders at law defeated, when it happened, the intention of those who created them, equity did not so far follow the law as to introduce into its system a similar destruction of contingent remainders of trust estates. It rather compelled the trustees con- tinually to observe the intention of those whose wishes they had undertaken to execute. Accordingly, if a con- veyance had been made unto and to the use of A. and his heirs, in trust for B. for life, and after his decease in trust for his first and other sons successively in tail, — here the whole legal estate would have been vested in A., and no act that B. could have done, nor any event which might have happened to his equitable estate, before its natural termination, cordd have destroyed the contingent remainder directed to be held by A. or his heirs in trust for the eldest son. It may be proper to mention in this place, that an The Sncces- act has been passed for granting duties on succes- ^" 3 ° J c ' sion to property on the death of any person dying after the 19th of May, 1853, the time appointed for the commencement of the act (a). These duties are as fol- low-: — where the successor is the lineal issue or lineal (y) Fearne, Cont. Rem. 321. Attorney-Gen. v. Lord Middle- (r) See Chapman r. Blissett, ton, 3 II. & N. 125; Attorney- Can, temp. Talbot, 145, 151; Qen. v. Sibthorpe, 8H. &N.424; Hopkins v. Hopkins, Cas. temp. Attorney- Qen. v. Lord Bray- Talbot,62 n. brooke, 5 II. & N. 488; 9 II. of (. Cas. 160; Attorney-Gen. v. Bee ii ileoz v. Smith, I Drew. 40; Sniythe, 'J II. of L. Cas. -1U8. T 2 276 OF INCORPOREAL HEREDITAMENTS. ancestor of the predecessor, the duty is at the rate of one per cent, on the value of the succession ; if a brother or sister, or a doseendant of a brother or sister, three per cent. ; if a brother or sister of the father or mother, or a descendant of such a brother or sister, five per cent.; if a brother or sister of the grandfather or grandmother of the predecessor, or a descendant of such a brother or sister, six per cent.; and if the successor shall be in any other degree of collateral consanguinity to the prede- cessor, or shall be a stranger in blood to him, the duty is ten per cent. (Z>). The interest, however, of a suc- cessor to real property is considered to be of the value of an annuity equal to the annual value of such property during his life, or for any less period during which he may be entitled; and every such annuity is to be valued, for the purposes of the act, according to tables set forth in the schedule to the act ; and the duty is to be paid by eight equal half-yearly instalments, the first to be paid at the end of twelve months after the successor shall have become entitled to the beneficial enjoyment of the pro- perty; and the seven following instalments are to be paid at half-yearly intervals of six months each, to be computed from the day on which the first instalment shall have become due. But if the successor shall die before all such instalments shall have become due, then any instalments not due at Ms decease shall cease to be payable; except in the case of a successor who shall have been competent to dispose by will (c) of a con- tinuing interest in such property, in which case the instalments unpaid at his death shall be a continuing charge on such interest in exoneration of his other pro- perty, and shall be payable by the owner for the time being of such interest (rf). (&) Stat. 16 & 17 Vict. c. 51, 2 II. & N. 368. s. 10. (d) Stat. 16 & 17 Vict. c. 51, (c) Attorney-Gen. v. Hallett, s. 21. OF AN EXECUTORY INTEREST. 277 CHAPTER III. OP AN EXECUTORY INTEREST. Contingent remainders are future estates, which, as we have seen (a), were, until recently, continually liable, in law, until they actually existed as estates, to be de- stroyed altogether, — executory interests, on the other hand, are future estates, which in their nature are indestructible (b). They arise, when their time comes, Executory in- as of their own inherent strength ; they depend not for ^ re ^ ts anse of protection on any prior estates, but on the contrary, strength. they themselves often put an end to any prior estates which may be subsisting. Let us consider, first, the means by which these future estates may be created ; and secondly, the time fixed by the law, within which they must arise, and beyond which they cannot be made to commence. Section I. Of the Means by which Executory Interests may be created. 1. Executory interests may now be created in two ways — under the Statute of Uses (c), and by will. (//) Ante, p. 208 et seq. 2G3, see ante, p. 47. Executory (/>) Fearne, Cont. Rem. lis. interests subsequent to, or in de- re abolished, it was fea/.anee of an estate tail, may also a mutter of doubt whether a line be barred in the same manner, and would not bar an executory in- by the same means, as remainders non-claim for live expectant on the determination of years after a righl of entry had the estate tail. Fearne, Cont. Rem. arisen under the executory in- 423. BtmiUy v. James, 6 Taunt. (. (c) Butl. n. («) to Fcarne, Cont. Rem. 384. (/) Ante, p. 259. ( 1.").".. (A) Sic ante, pp. 17-">, IT'S. uses. OF AN EXECUTORY INTEREST. 279 uses, to which the seisin has been indissolubly united by the act of parliament ; accordingly it now happens that, by means of uses, the legal seisin or possession of lands may be shifted from one person to another in an endless variety of ways. We have seen (z), that a conveyance to B. and his heirs to hold from to-morrow, is absolutely void. But by means of shifting uses, the desired result may be accomplished ; for, an estate may be conveyed to A. and his heirs to the use of the conveying party and his heirs until to-morrow, and then to the use of B. and his hens. A very common instance of such a Example:— To shifting use occurs in an ordinary marriage settlement a^ his heirs of lands. Supposing A. to be the settlor, the lands are until a mar- then conveyed by him, by the settlement executed a after the mar- day or two before the marriage, to the trustees (say ria s e > t0 otner B. and C. and their hens) " to the use of A. and his heirs until the intended marriage shall be solemnized, and from and immediately after the solemnization thereof," to the uses agreed on ; for example, to the use of D., the intended husband, and his assigns for his life, and so on. Here B. and C. take no permanent estate at all, as Ave have already seen (k). A. continues, as he was, a tenant in fee simple until the marriage ; and, if the marriage should never happen, his estate in fee simple will continue with him untouched. But, the moment the marriage takes place, — without any further thought or care of the parties, the seisin or possession of the lands shifts away from A. to vest in D., the in- tended husband, for his life, according to the disposition made by the settlement. After the execution of the settlement, and until the marriage takes place, the in- terest of all the parties, except the settlor, is future, and contingent also on the event of the marriage. But the life estate of D., the intended husband, is not an in- terest of the kind called a contingent remainder. For, (/') Ante, p. 269. (A) Ante, pp. 154, 181. arms. 280 OF INCORPOREAL HEREDITAMENTS. the estate which precedes it, namely, that of A., is an estate in fee simple, after which no remainder can be limited. The nse to D. for his life springs up on the marriage taking- place, and puts an end at once and for ever to the estate in fee simple which belonged to A. Here, then, is the destruction of one estate, and the substitution of another. The possession of A. is wrested from him by the use to D., instead of D.'s estate wait- ing till A.'s possession is over, as it must have done Another in- had it been merely a remainder. Another instance of the application of a shifting' use occurs in those cases in which it is wished that any person who shall become entitled under the settlement should take the name and Name and arms of the settlor. In such a case, the intention of the settlor is enforced by means of a shifting clause, under which, if the party for the time being entitled should refuse or neglect, Avithin a definite time, to as- sume the name and bear the arms, the lands will shift away from him, and vest in the person next entitled in remainder. From the above examples, an idea may be formed of the shifts and devices Avhich can now be effected in settlements of land, by means of springing and shifting uses. By means of a use, a future estate may be made to spring up with certainty at a given time. It may be thought, therefore, that contingent remainders, having until recently been destructible, would never have been made use of in modern conveyancing, but that every thing would have been made to assume the shape of an executory interest. This, however, is not the case. For, in many instances, future estates are necessarily required to wait for the regular expiration of those which precede them ; and, when this is the case, no art or device can prevent such estates from Jbeing what they are, contingent remainders. The only thing that coidd formerly be done, was to take care for OF AN EXECUTORY INTEREST. 281 their preservation, by means of trustees for that purpose. For, the law, having been acquainted with remainders long before uses were introduced into it, will never No limitation construe any limitation to be a springing or shifting c °P s 3 rued as a J m x- o o & shirting use use, which, by any fair interpretation, can be regarded which can he as a remainder, whether vested or contingent (7). mnaiuder 8 & The establishment of shifting and contingent uses occasioned great difficulties to the early lawyers, in consequence of the supposed necessity that there should, at the time of the happening of the contingency on which the use was to shift, be some person seised to the use then intended to take effect. If a conveyance were made to B. and his heirs, to the use of A. and his heirs until a marriage or other event, and afterwards to the use of C. and his heirs, it was said that the use was executed in A. and his heirs by the statute, and that as this use was co-extensive with the seisin of B., B. could have no actual seisin remaining in him. The event now happens. Who is seised to the use of C. ? In answer to this question it was held that the original seisin reverts back to B., and that on the event hap- j)ening he becomes seised to the use of C. And to support this doctrine it was further held that meantime a possibility of seisin, or scintilla juris, remained vested Scintilla in B. But this doctrine, though strenuously main- J" rts - tained in theory, was never attended to in practice. And in modern times the opinion contended for by Lord St. Leonards was generally adopted, that in fact no scintilla whatever remained in B., but that he was, 1>\- force of the statute, immediately divested of all estate, and that the uses thenceforward took effect as legal estates according to their limitations, by relation to the original seisin momentarily vested in B. (m). Fearne, Cont- Rem. 386 Abst. 130 395,526; Doei. Harris v. Howell, (m) Sag I th ed, Barn.&Cree. L91, I97j 1 P 282 The doctrine now abolished . OF INCORrOREAL HEREDITAMENTS. And a final blow to the doctrine has now been given by an act of parliament (»), which provides, that where by any instrument any hereditaments have been or shall be limited to uses, all uses thereunder, whether expressed or implied by law, and whether im- mediate or future, or contingent or executory, or to be declared under any power therein contained, shall take effect when and as they arise, by force of and by rela- tion to the estate and seisin originally vested in the person seised to the uses ; and the continued existence in him or elsewhere of any seisin to uses or scintilla juris shall not be deemed necessary for the support of, or to give effect to, future or contingent or executory uses; nor shall any such seisin to uses or scintilla juris be deemed to be suspended, or to remain or to subsist in him or elsewhere. One of the most convenient and useful applications Powers. of springing uses occurs in the case of powers, which are methods of causing a use, with its accompanying estate, to spring up at the will of any given per- Example. son (0) : — Thus, lands may be conveyed to A. and his heirs to such uses as B. shall, by any deed or by his will, appoint, and in default of and until any such ap- pointment, to the use of C. and his heirs, or to any other uses. These uses will accordingly confer vested estates on C, or the parties having them, subject to be divested or destroyed at any time by B.'s exercising his -power of appointment. Here B., though not owner of the property, has yet the power, at any time, at once to dispose of it, by executing a deed ; and if he should please to appoint it to the use of himself and Ins heirs, he is at perfect liberty so to do ; or, by virtue of his power, he may dispose of it by his will. This power of appointment is evidently a privilege of great value ; (n) Stat. 23 & 24 Vict. c. 38, (o) See Co. Litt, 271 b, n. (1), s. 7. VII., 1. OF AN EXECUTORY INTEREST. 283 and it is accordingly provided by the Bankruptcy Act Bankruptcy. 1869, that the trustee for the creditors of any person becoming bankrupt may exercise, for the benefit of his creditors, all powers (except the right of nomination to a vacant ecclesiastical benefice) which might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or during its con- tinuance (/?). If, however, in the case above mentioned, B. shoidd not become bankrupt, and should die without having made any appointment by deed or will, C.'s estate, having escaped destruction, will no longer be in danger. In such a case a liability was until recently incurred by the estate of C. in respect of the debts of B. secured by any judgment, decree, order, or rule of any court of law or equity. These judgment debts, by judgment an act of parliament (q), to which reference has before debts - been made (r), were made binding on all lands over which the debtor should, at the time of the judgment, or at any time afterwards, have any disposing power, which he might, without the assent of any other person, exercise for his own benefit. Before this act was passed, nothing but an appointment by B. or his assignees, in exercise of his power, could have defeated or prejudiced the estate of C. And now, by the act to which we New act. have before referred for amending the law relating to future judgments (s), no judgment entered up after the 29th of July, 1864, the date of the act, can affect any land of whatever tenure, until such land shall have been actually delivered in execution by virtue of a writ of elegit, or other lawful authority, in pursuance of such judgment. (//) Slat. :;l' & :•;:, Vict. <•. 71, repealed by stat. 32 & 33 Vict. c. ss. 15, par. (4), 25, par. (:>). The 83. I acts gave a similar power (and to whom she may then or thereafter be married ( in) ; and the power may be exercised in favour of her husband, (0 Sugd. Pow. 471, 8th ed. (/•) Ante, pp. 181, 218. (0 Ante, pp 221, 222. (m) Doe d. Blomfield v. Eyre, 3C. B. 557; 5C. B. 713. OF AX EXECUTORY IXTEEEST. 289 or of any one else.(n). The act of parliament to which Infants' mar- we have before referred (o), for enabling infants to make ments S6 G " binding settlements on their marriage, with the sanction of the Court of Chancery, extends to property over which the infant has any power of appointment, unless it be expressly declared that the power shall not be exercised by an infant ( p). But the act provides, that in case any appointment under a power of appointment, or any disentailing assurance, shall have been executed by any infant tenant in tail under the act, and such Sic. infant shall afterwards die under age, such appointment or disentailing assurance shall thereupon become abso- lutely void (q). The power to dispose of property independently of Ignorance of any ownership, though established for some three po ^ershas° centuries, is at the present day frequently unknown to caused disap- , , , , . rpi • • pointment of those to whom such a power may belong, lnis igno- intention. ranee has often given rise to difficulties and the dis- appointment of intention in consequence of the execution of powers by instruments of an informal nature, particu- larly by wills, too often drawn by the parties themselves. A testator woidd, in general terms, give all his estate or all his property ; and because over some of it he had only a power of appointment, and not any actual owner- ship, his intention, till lately, was defeated. For such a general devise was no execution of his power of ap- pointment, but operated only on the property that was his own. He ought to have given not only all that he had, but also all of which he had any power to dispose. The act for the amendment of the laws with respect to A general wills (r) has now provided a remedy for such cases, by p^j^ment'now enacting (s) that a general devise of the real estate of executed by :i general devise. (») Sagd. Pow. 471, 8th ed. (?) Sect. 2. 0) Ante, p. 65. (r) Stat. 7 Will. IV. & 1 Vict. (p) Stat. 18 & 10 Vict. c. 43, c. 26. s. 1. (s) Sect. 27. B.P. U 290 OF INCORPOREAL HEREDITAMENTS. a testator shall be construed to include any real estate which he may have power to appoint in any manner he may think proper (t), and shall operate as an execution of such power, unless a contrary intention shall appear by the will. A power may exist concur- rently with ownership. A power may l>o extin- guished or A power of appointment may sometimes belong to a person concurrently with the ordinary power of aliena- tion arising from the ownership of an estate in the lands. Thus lands may be limited to such uses as A. shall appoint, and in default of and until appoint- ment to the use of A. and his heirs («). And in such a case A. may dispose of the lands either by exercise of his power (x), or by conveyance of his estate (?/). If he exercise his power the estate limited to him in default of appointment is thenceforth defeated and destroyed ; and, on the other hand, if he convey his estate, his power is thenceforward extinguished, and suspended by a canno t be exercised by him in derogation of his own conveyance of . •> ° . . the estate. conveyance, ho it, instead 01 conveying Ins whole estate, he should convey only a partial interest, his power would be suspended as to such interest, although in other respects it would remain in force ; that is, he may still exercise his power, so only that he do not defeat his own grant. When the same object may be accomplished either by an exercise of the power, or by a conveyance of the estate, care should be taken to express clearly by which of the two methods the instru- ment employed is intended to operate. Under such circumstances it is very usual first to exercise the power, and afterwards to convey the estate by way of further (t) Cloves v. Amdry, 12 Beav. 604. (V) Sir Edward Clere's ease, 6 Rep. 17 1); Maundrell v. Maun- drell, L0 Ves. 246. (x) Roach v. Wadham,6~East, 289. (y~) Coxy. Chamberlain, 4 Ves. 631; Wynne v. Griffith, 3 Bing. 179; 10 J. B. Moore, 592; .1 B. & Cress. 923; 1 Russ. 283. OF AX EXECUTORY INTEREST. 291 assurance only ; in which case, if the power is valid and subsisting, the subsequent conveyance is of course inoperative (z) ; but if the power should by any means have been suspended or extinguished, then the convey- ance takes effect. The doctrine of powers, together with that of vested remainders, is brought into very frequent operation by the usual form of modern purchase deeds, whenever the purchaser was married on or before the first of January, 1834, or whenever, as sometimes happens, it is wished to render unnecessary any evidence that he was not so married. We have seen (a) that the dower of such women as were married on or before the first day of January, 1834, still remains subject to the ancient law; and the inconvenience of taking the conveyance to the purchaser jointly with a trustee, for the purpose of hai- ring dower, has also been pointed out (Z»). The modern Modern me- method of effecting this object, and at the same time of do ° ve ° amn S conferring on the purchaser full power of disposition over the land, -without the concurrence of any other per- son, is as follows : A general power of appointment by deed is in the first place given to the purchaser, by means of which he is enabled to dispose of the lands for any estate at any time during his life. In default of and until appointment, the land is then given to the purchaser for his life, and after the determination of his life interest by any means in his lifetime, a remainder (which, as we have seen (c), is vested) is limited to a trustee and his heirs during the purchaser's life. This remainder is then followed by an ultimate remainder to the heirs and assigns of the purchaser for ever, or, which is the same thing, to the purchaser, his heirs and assigns (.-) Ray v. Pung, 5 Mad. 310; (a) Ante, p. 228. 6 B. & Al.l. 561; Doe d. Wigan (b) Ante, p. 225. v. Jones, 10 15. & CresB. J.VJ. ('■) Ante, p. 258. u2 292 OF INCORPOREAL HEREDITAMENTS. for ever (d ). These limitations are sufficient to prevent the wife's right of dower from attaching. For the pur- chaser has not, at any time during his life, an estate of inheritance in possession, out of which estate only a wife can claim dower (e): he has during his life only a life interest, together with a remainder in fee simple expectant on his own decease. The intermediate vested estate of the trustee prevents, during the whole of the purchaser's lifetime, any union of this life estate and remainder (f). The limitation to the heirs of the pur- chaser gives him, according to the rule in Shelley's case ((/), all the powers of disposition incident to owner- ship: though subject, as we have seen (A), to the estate intervening between the limitation to the purchaser and that to his heirs. But the estate in the trustee lasts only during the purchaser's life, and during his life may at any time be defeated by an exercise of his power. A Uses to bar form of these uses to bar dower, as they are called, Avill be found in the Appendix (£). As the estate of the husband under these uses is partly legal and partly equitable, the wife, if married after the 1st of January, 1834, will not be barred of her dower by these limita- tions (k); and if the deed is of a date previous to that day, even an express declaration contained in the deed that such was the intent of the uses will not be suf- ficient (/). Special powers. Besides these general powers of appointment, there Where the exist also powers of a special kind. Thus the estate limited dura- which is to arise on the exercise of the power of appoint- tiou - ment may be of a certain limited duration and nature : (d~) Fearne, Cont. Rem. 347, n.; (/) See Appendix (D). Co. Litt. 379 b, n. (1). ( k) Ante, p. 227. (e) Ante, p. 224. (1) Fry v. Sable, 20 Beav. 598; (/) Ante, p. 273. 7 De Gex, M. & G. 6S7; Clarke (g) Ante, pp. 246, 249. v. Franklin, 4 Kay & J. 266. (A) Ante, p. 246. OF AN EXECUTORY INTEREST. 293 of this an example frequently occurs in the power of Power of leas- leasing which is given to every tenant for life under ms ' a properly drawn settlement. We have seen (m) that until recently a tenant for life, by virtue of his owner- ship, had no power to make any disposition of the pro- perty to take effect after his decease. He could not, therefore, grant a lease for any certain term of years, but only contingently on his living so long; and even now he must apply to the Court of Chancery, unless he claims under a settlement made on or after the 1st of November, 1856, and wishes only to make a lease not exceeding twenty-one years. But if his life estate should be limited to him in the settlement by way of use, as is now always done, a power may be conferred on him of leasing the land for any tei*m of years, and under whatever restrictions may be thought advisable. On the exercise of this power, a use will arise to the tenant for the term of years, and with it an estate, for the term granted by the lease, quite independently of the continuance of the life of the tenant for life (n). But if the lease attempted to be granted should exceed the duration authorized by the power, or in any other respect infringe on the restrictions imposed, it would be void altogether as an exercise of the power, and might until recently have been set aside by any person having the remainder or reversion, on the decease of the tenant for life. But an act of parliament of the present reign (o) now provides, that such a lease, if made bona fide, and Relief against if the lessee have entered thereunder, shall be considered j^,^^, 1 ,,'^.,. in equity as a contract for a grant, at the request of the powers, lessee, of a valid lease under the power, to the like pur- port and effect as such invalid lease, save so far as any variation may be necessary in order to comply with the (m) Ante, p. 26. amended by stat. 13 & 14 Vict, (w) 10 Ves. 256. <•. 17. (u) Star. \2 ik L3 Vict. c. 26, 294 OF INCORPOREAL BEREPIT ATVTF.NTS. terms of the power. But in case the reversioner is able and willing, during the continuance of the lessee's posses- sion, to confirm the lease without variation, the lessee is bound to accept a confirmation accordingly; and such confirmat ion may be by memorandum or note in writing, signed by the persons confirming and accepting respec- tively, or some other persons by them respectively there- unto lawfully authorized (jo). And the acceptance of rent by the reversioner Avill be deemed a confirmation of the lease as against him, if upon or before such ac- ceptance any receipt, memorandum or note in writing, confirming such lease, is signed by the person accepting such rent, or some other person by him thereunto law- fully authorized (q). Power of sale Another instance of a special power occurs in the and exchange. gage f ^] ie power of sale and exchange usually inserted in settlements of real estate. This power provides that it shall be lawful for the trustees of the settlement, with the consent of the tenant for life in possession under the settlement, and sometimes also at their own discre- tion during the minority of the tenant in possession, to sell or exchange the settled lands, and for that purpose to revoke the uses of the settlement as to the lands sold or exchanged, and to appoint such other uses in their stead as may be necessary to effectuate the transaction proposed. But it is provided that the money to arise from any such sale, or which may be received for equality of exchange, shall be laid out in the purchase of other lands ; and that such lands, and also the lands which may be received in exchange, shall be settled by the trustees to the then subsisting uses of the settlement. It is further provided that, until a proper purchase can be found, the money may be invested in the funds or on mortgage, and the income paid to the person who (j>) Stat. 13 & 14 Vict. c. 17, s. 3. (, deeds executed or wills executed s. 13. or confirmed <>r revived by codicil (<) Cockevcll v. Cholmeley, 1 executed after the 28th of August, Kilos. & M 418. 18G0, the date of the act. {it) Stat. 23 & 24 Vict. c. 145, 296 OF INCOEPOREAL HEREDITAMENTS. particular event, or a power of exchange. • But no sale or exchange under this act, and no purchase of heredita- ments out of money received on any such sale or exchange, shall be made without the consent of the person appointed by the settlement to consent, or if no such person be appointed, then of the person entitled in possession to the receipt of the rents, if there be such a person under no disability. But this is not to be taken to require any consent where it appears from the settle- ment to have been intended that such sale, exchange or purchase should be made without any consent (x). And none of the powers of the act are to take effect or be exercisable if the settlement declares that they shall not take effect ; and where there is no such declaration, then if any variations or limitations of any of such powers are contained in the settlement, the same shall be exer- cisable or take effect subject to such variations or Remarks on limitations (y). Of this act it has been remarked by a great authority (z), that the option of declaring that the act shall not take effect " will probably be frequently acted upon, more particularly owing to the latter portion of the section ; for nothing can be more difficult, not to say dangerous, than an attempt to amalgamate the powers in a settlement and the powers in the act, or to engraft the latter on the former. Where the settlement is purposely silent as to the powers conferred by the act, and the settlor approves of and chooses to rely upon them, the only inconvenience will be that the settlement itself will not inform the persons claiming under it of the powers vested in them, but it will be necessary to refer to the act for the powers conferred by it." " It was decided, in a recent case, that the ordinary (x) Stat. 23 & 24 Vict. c. 145, (z) Lord St. Leonards, Sugd. s. 10. Pow. 877, 8th ed. (y) Sect. 32. the act. OF AN EXECUTOKY INTEREST. 297 power of sale and exchange contained in settlements As to sales re- does not authorize the trustees to sell the lands with ^ lng ni a reservation of the minerals (a). In consequence of this decision, which took the profession rather by sur- prise, an act was passed (b) which confirms all sales, exchanges, partitions and enfranchisements theretofore made, in intended exercise of any trust or power, of land, with an exception or reservation of minerals, or of the minerals separately from the residue of the land (c). And it is provided that for the future every trustee and other person authorized to dispose of land by way of sale, exchange, partition or enfranchisement, may, with the sanction of the Court of Chancery to be obtained on petition in a summary way, dispose of the land without the minerals, or of the minerals without the land, unless forbidden so to do by the instrument creating the trust or power (e?). Other kinds of special powers occur where the per- When the sons who are to take estates under the powers are i^ited. limited to a certain class. Powers to jointure a wife, and to appoint estates amongst children, are the most usual powers of this nature. When powers are thus The estates given in favour of particular objects, the estates which p° w | r ta fe e arise from the exercise of the power take effect pre- effect as W t,l( T cisely as if such estates had been inserted in the settle- S erted in the ment by which the power was given. Each estate, as settlement - it arises under the power, takes its place in the settle- ment in the same manner as it would have done had it been originally limited to the appointee, without the intervention of any power ; and, if it would have been invalid in the original settlement, it will be equally invalid as the offspring of the power (e). (a)Bucklry v. Horvell, 29 Beav. (d) Sect. 2. 546. O) Co. Litt. 277 b, n. (1), (J) Stat. 25 & 26 Vict. c. 108. VII. 2. '<■) Sect. 1. 298 OF INCORPOREAL HEREDITAMENTS. Tin- Succession It is provided, by the Succession Duty Act, 1853, iSol. ^ ' ^at where any person shall have a general power of appointment, under any disposition of property taking effect upon the death of any person, he shall, in the event of his making any appointment thereunder, be deemed to be entitled, at the time of his exercising such power, to the property thereby appointed, as a succession derived from the donor of the power; and where any person shall have a limited power of ap- pointment, under a disposition taking effect upon any such death, any person taking any property by the exercise of such power shall be deemed to take the same as a succession derived from the person creating the power as predecessor (y). But where the donee of a general power of appointment shall become chargeable with duty, in respect of the property appointed by him under such power, he shall be allowed to deduct from the duty so payable any duty he may have already paid in respect of any limited interest taken by him in such property (g). Powers may be Powers may generally speaking be destroyed or ex- tinguished by deed of release made by the donee or owner of the power to any person having any estate of freehold in the land ; " for it would be strange and unreasonable that a thing, which is created by the act of the parties, should not by their act, with their mutual Exceptions. consent, be dissolved again" (A). The exceptions to this rule appear to be all reducible to the simple prin- ciple, that if the duty of the donee of the power may require him to exercise it at any future time, then he (/) Stat. 16 & 17 Vict. c. 51, (g) Sect. 33. s. 4. See Itc Barker, Exch. 7 (h) Albany 'scase, 1 Rep. 110 b, Jnr., N. S. 1061; Attorney- 113 a ; Smith v. Death, 5 Mad. General v. Floyer, H. of Lords, 371; Horner v. Sivann, Turn. & 9 Jur., N. S. 1 ; 9 H. of L. Cas. Russ. 430. 477. extinguished by release. OF AN EXECUTORY INTEREST. 299 cannot extinguish it by release (i). By the act for the Release of abolition of fines and recoveries (k), it is provided (I), ried^meiT**" that every married woman may, with the concurrence of her husband, by deed to be acknowledged by her as her act and deed according to the provisions of the act (m), release or extinguish any power which may be vested in or limited or reserved to her, in regard to any lands of any tenure, or any money subject to be in- vested in the purchase of lands (?i), or in regard to any estate in any lands of any tenure, or in any such money as aforesaid, as fully and effectually as she could do if she were a feme sole. Our notice of powers must here conclude. On a subject so vast, much must neces- sarily remain unsaid. The masterly treatise of Sir Edward Sugden (now Lord St. Leonards), and the accurate work of Mr. Chance on Powers, will supply the student with all the further information he may require. 2. An executory interest may also be created by Creation of will. Before the passing of- the Statute of Uses (o), J^SjJJ "^ wills were employed only in the devising of uses, under the protection of the Court of Chancery, except in some few cities and boroughs where the legal estate, in lands might be devised by special custom (p). In Directions that giving effect to these customary devises, the courts, should sell in very early times, showed great indulgence to testa- lands devisable tors (. TV 791, ante, p. 115, "• U)- OF HEREDITAMENTS PURELY INCORPOREAL. 311 law alone, and not by virtue of any grant, express or implied. And any conveyance of the lands to which such rights belong will comprise such rights of common also (s). Another kind of appendant incorporeal here- Advowson ap- ditament is an advowson appendant to a manor. But P endant - on this head we shall reserve our observations till we speak of the now more frequent subject of conveyance, an advowson in gross, or an advowson unappended to any thing corporeal. In connection with the subject of commons, it may Strips of waste be mentioned that strips of waste land between an inclo- r o ads e S1 e ° sure and a highway, and also the soil of the highway to the middle of the road, presumptively belong to the owner of the inclosure(^). And a conveyance of the inclosure (u), even by reference to a plan which does not comprise the highway (w), will carry with it the soil as far as one-half the road. But if the strips of waste land communicate so closely to a common as in fact to form part of it, they will then belong to the lord of the manor, as the owner of the common (to). Where a public way is foundrous, as such Avays frequently were in former times, the public have by the common law a right to travel over the adjoining lands, and to break through the fences for that purpose (x). It is said that in former times the landowners, to prevent their fences being broken and their crops spoiled when the roads were out of repair, set back their hedges, leaving strips of waste at the side of the road, along which the public might travel without going over the lands under cultiva- te Litt. s. 183; Co. Lift. 121 b. C. P. 218; 10 C. B., N. S. 400. (7) Doc d. Print/ v. J'rurxr)/, («•) Qroge v. West, 7 Taunt. 7 15. & C. 804; Seoones v. Mor- 39; Doe <1. Barrett v. Kemp, 2 rcll, 1 Bcav. 251. Bing. N. C. L02. (a) Simpson v. Bendy, 8 C.B., (a?) Com. Dig. tit. Chimin, S. 8. 483. (D. 6); Dame% v. Wamkins, 8 (r } Berridge \. Ward,30 L.J., C. 15., N. S. 848. 312 OF INCORPOREAL HEREDITAMENTS, tion. Hence such strips are presumed to belong to the Soil of river, owners of the lands adjoining (y). Where lands adjoin a river, the soil of one-half of the river to the middle of the stream is presumed to belong to the owner of the adjoining lands {z). But if it be a tidal river, the soil up to high water mark appears presumptively to belong Sea-shore. to the Crown (a). The Crown is also presumptively entitled to the sea-shore up to high water mark of medium tides (b) ; although grants of parts of the sea- shore have not unfrequently been made to subjects (c) ; and such grants may be presumed by proof of long continued and uninterrupted acts of ownership (d). A sudden irruption of the sea gives the Crown no title to the lands thrown under water (e), although when the sea makes gradual encroachments, the right of the owner of the land encroached on is as gradually trans- ferred to the Crown {f ). And in the same manner when the sea gradually retires, the right of the Crown is as gradually transferred to the owner of the land adjoining the coast (g). But a sudden dereliction of the sea does not deprive the Crown of its title to the soil (//). (//) Steel v. Priehett, 2 Stark. 468. (z) Hale de jure maris, ch. 1; Wishart v. Wylie, 2 Stuart, Thomson, Milne, Morison & Kinnear's Scotch Cases, H.L. GS; Bielieit v. Morris, L. Rep. 1 Scotch Appeals, 47. (a) Hale dc jure maris, ch. 4, p. 13; (!n mi v. The Freefishers of Whitstable, 11 IT. of L. Cas. 192. (/y) Attorney- General^. Cham- bers, 4 De Gex, M. & U. 20G; The Queen v. Gee, 1 Ellis & Ellis, 1068. (c) Scratton v. Brown, 4 15. & C. 485, 495. id) The Duke of Beaufort v. The Mayor, ) Litt. ss. 217, 21 S. lg) Stat. 4 Geo. II. c. 28, s. 5. OF HEREDITAMENTS PURELY INCORrOREAL. 315 one person to another, of an annual sum of money, payable out of certain lands in which the grantor may have any estate. The rent charge cannot, of course, continue longer than the estate of the grantor; but, supposing the grantor to be seised in fee simple, he may make a grant of a rent charge for any estate he pleases, giving to the grantee a rent charge for a term of years, or for his life, or in tail, or in fee simple (r). For this purpose a deed is absolutely necessary ; for a A deed re- rent charge, being a separate incorporeal hereditament, (iUlre ' cannot, according to the general rule, be created or transferred in any other way (s), unless indeed it be given by will. The creation of a rent charge or annuity, for any life or lives, or for any term of years or greater estate determinable on any life or lives, was also, until recently, required, under certain circumstances, to be attended with the inrolment, in the Court of Chan- inrolment of eery, of a memorial of certain particulars. These an- j^™?^ f or unities were frequently granted by needy persons to lives granted , t . . -, P , t /. for pecuniary money lenders, m consideration ot the payment ot a sum consideration. of money, for which the annuity or rent charge served the purpose of an exorbitant rate of interest. In order, therefore, to check these proceedings by giving them publicity, it was provided that, as to all such annui- ties, granted for pecuniary consideration or money's worth (t), (unless secured on lands of equal or greater annual value than the annuity, and of which the grantor was seised in fee simple, or fee tail in possession,) a memorial stating the date of the instrument, the names of the parties and witnesses, the persons for whose lives the annuity was granted, the person by whom the same was to be beneficially received, the pecuniary considera- tion for granting the same, and the annual sum to be (r) Lift. ss. 217, 218. Mee. & Rose. 1H>; Fern v. Bach- (s) Litt. nl.i sup. house, 8 A.l. & Mil. 789; 8. ('. 1 (t) Tetley v. Tetley, I Bing. Per. & Day. 34; Doe d. Church 214; Mettayer v. Biggs, 1 Cro. y. Ponttfex, 9 C. B. 229. 316 OF INCORPOREAL HEREDITAMENTS. paid, should, within thirty days after the execution of the deed, be inrolled in the Court of Chancery; other- wise the same should be null and void to all intents and Now nnncccs- purposes (//). But as these annuities were only granted for the sake of evading the Usury Laws, the same statute which has repealed those laws (#) has also re- pealed the statutes by which memorials of such annui- Registration of ties were required to be inrolled. A subsequent statute, annuities now 1 . . required. however, provides, that any annuity or rent charge granted after the 26th of April, 1855, the date of the passing of the act, otherwise than by marriage settle- ment or will, for a life or lives, or for any estate de- terminable on a life or lives, shall not affect any lands, tenements or hereditaments, as to purchasers, mort- gagees, or creditors, until the particulars mentioned in the act are registered in the Court of Common Pleas, where they are entered in alphabetical order by the name of the person whose estate is intended to be affected (y). A search for annuities is accordingly made in this registry on every purchase of lands, in addition to the searches for judgments, crown debts, executions and lis pendens (z). Creation of In settlements where rent charges are often given under thefsta- ty wa . y °^ pia-money and jointure, they are usually tute of Uses, created under a provision for the purpose contained in the Statute of Uses (a). The statute directs that, where any persons shall stand seised of any lands, tenements, or hereditaments, in fee simple or otherwise, to the use and intent that some other person or persons shall have (w) Stat. 53 Geo. III. c. 141, (a?) Stat. 17 & 18 Vict. c. 90. explained and amended by stats. (//) Stat. 18 & 19 Vict. c. 15, 3 Geo. IV. c. 92, and 7 Geo. IV. ss. 12, 14. c. 75, which rendered sufficient a {:) Ante, pp. 83, 85, 87, 89. memorial of the names of the wit- (/•/) Stat. 27 Hen. VIII. c. 10, nesses as they appeared siuneil to ss. I, '.. thtir attestation-. OF HEREDITAMENTS PURELY INCORPOREAL. 317 yearly to them and their heirs, or to them and their assigns, for term of life, or years, or some other special time, any animal rent, in every snch case the same persons, their heirs and assigns, that have such use to have any snch rent shall be adjudged and deemed in possession and seisin of the same rent of such estate as they had in the use of the rent ; and they may distrain for non-payment of the rent in their oAvn names. From this enactment it follows, that if a conveyance of lands be now made to A. and his heirs, — to the use and intent that B. and his assigns may, during his life, thereout receive a rent charge, — B. will be entitled to the rent charge, in the same manner as if a grant of the rent charge had been duly made to him by deed. The above enactment, it will be seen, is similar to the prior clause of the Statute of Uses relating to uses of estates (b), and is merely a carrying out of the same design, which was to render every use, then cognizable only in Chancery, an estate or interest within the jurisdiction of the courts of law(c). But in this case also, as well as in the former, the end of the statute has been defeated. For a conveyance of land to A. and his heirs, to the use that B. and his heirs may receive a rent charge, in trust for C. and his heirs, will now be laid hold of by the Court of Chancery for C.'s benefit, in the same manner as a trust of an estate in the land itself. The statute vests the legal estate in the rent in B. ; and C. takes nothing in a court of law, because the trust for him would be a use upon a use( ; Jleynolch v. 7 liing. 178. Wright, 25 Bear. 100. 320 OF rNCORPOREAL HEREDITAMENTS. Estate in fee estates in fee simple are not uncommon, especially in the rent charge. towns of Liverpool and Manchester, where it is the usual practice to dispose of an estate in fee simple in lands for building purposes in consideration of a rent charge in fee simple l>y way of ground rent, to be granted out of the premises to the original owner. These transactions arc accomplished by a conveyance from the vendor to the purchaser and his heirs, to the use that the vendor and his heirs may thereout receive the rent charge agreed on, and to the further use that, if it be not paid within so many days, the vendor and his heirs may distrain, and to the further use that, in case of non-payment within so many more days, the vendor and his heirs may enter and hold possession till all arrears and expenses are paid ; aud subject to the rent charge, and to the powers and remedies for secu- ring payment thereof, to the use of the purchaser, his heirs and assigns for ever. The purchaser thus ac- quires an estate in fee simple in the lands, subject to a perpetual rent charge payable to the vendor, his heirs and assigns (r). It should, however, be carefully borne (?•) By stat. 17 & 18 Vict. c. 83, conveyances of any kind, in con- sideration of an annual sum payable in perpetuity, or for any indefinite period, were subject to the following duties: — Where the yearly sum should not exceed £5 Should exceed £5 and not exceed 10 10 „ 15 „ 20 » 25 „ 50 » > " » And when the sum should exceed £100, then for every £.50, and also for any fractional part of £50 .. 3 But these duties are now repealed by stat. 33 & 34 Vict. c. 99 ; and the Stamp Act, 1870 (stat. 33 & 34 Vict. c. 97), now provides (sect. 72,', that, where the consideration or any part of the consideration for a conveyance on sale consists of money payable periodically in perpetuity or for any indefinite period not terminable with life, such conveyance £5 £0 6 10 12 15 18 20 1 4 25 1 10 50 3 75 4 10 00 6 OF HEREDITAMENTS PURELY IXCORPOREAL. 321 in mind, that transactions of this kind are very different from those grants of fee simple estates which were made in ancient times by lords of manors, and from which quit or chief rents have arisen. These latter rents are rents incident to tenure, and may be distrained for of common right without any express clause for the pur- pose. But as we have seen (s), since the passing of the statute of Quia emptores (t) it has not been lawful for any person to create a tenure in fee simple. The modern rents, of which we are now speaking, are ac- cordingly mere rent charges, and in ancient days would have required express clauses of distress to make them secure. They were formerly considered in law as against common right (u), that is as repugnant to the feudal policy, which encouraged such rents only as were incident to tenure. A rent charge was accordingly regarded as a thing entire and indivisible, unlike rent service, which was capable of apportionment. And from this property of a rent charge, the law, in its hos- tility to such charges, drew the following conclusion : that if any part of the land, out of which a rent charge A release of issued, were released from the charge by the owner of {^ ° vas a the rent, either by an express deed of release, or virtually release of the by his purchasing part of the land, all the rest of the land should enjoy the same benefit and be released also (y). If, however, any portion of the land charged Apportion- should descend to the owner of the rent as heir at law, descent of part the rent would not thereby have been extinguished, as of the laml - in the case of a purchase, but would have been appor- tioned according to the value of the land; because such i- to l»e charged in respect of such consideration with ad valorem duty OD the total amount, which will or may, according to the terms of sale, be payable during the period of twenty years next after the day of the date of such instrument. (*) Ante, pp. 61, lit. {t) 18 Edw. I. c. 1. («) Co. Litt. 147 b. ( r, Litt. s. 222; Dennett v. Pa/8, 1 New Cases, 888. B.P. V 322 OF INCORPOREAL HEREDITAMENTS, Now enact- ment •, release nnt now an extinguish- ment. Apportion- ment by In- closnre O m- missioners. portion of the land came to the owner of the rent, not by his own act, but by the course of law (./■). But it is now provided (//), that the release from a rent charge of part of the hereditaments charged therewith shall nol extinguish the whole rent charge but shall operate only to bar the right to recover any part of the rent charge out of the hereditaments released; without prejudice, nevertheless, to the rights of all persons interested in the hereditaments remaining unreleased, and not concurring in or confirming the release. A recent statute empowers the Inclosure Commissioners to apportion rents of every kind on the application of any persons interested in the lands and in the rent (z). Bankruptcy of The Bankruptcy Act, 1870, provides for the dis- snbject to rent, claimcr by the trustee for the creditors of any property &c - that is not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the payment of any sum of money. But he cannot disclaim, if an application in writing has been made to him by any person interested in the property, requiring him to decide whether he will disclaim or not, and he has for a period of not less than twenty-eight days after the receipt of such application, or such further time as may be allowed by the court, declined or neglected to give notice whether he disclaims the same or not (a). Exoneration of The rent charges of which we are speaking are executors and ,, ~ ., -. , r , administrators usually further secured by a covenant tor payment, from liability entered into by the purchaser in the deed by which to day rent charges. they are granted. In order to exonerate the executors O) Litt. s. 224. (>j) Stat. 22 & 23 Vict. c. 35, s. 10. (r) Stat. 17 & 18 Vict. c. 97, ss. 10— 14. O) Stat. 32 & 33 Vict. c. 71, ss. 23, 24. The former act, 12 & 13 Vict. c. 106, s. 145, the pro- visions of which were very imper- fect, was repealed by Stat. 32 & 33 Vict. c. 83. OF HEREDITAMENTS PURELY INCORPOREAL. 323 or administrators of such a purchaser from perpetual liability under this covenant, it is now provided (b) that where an executor or administrator, liable as such to the rent or covenants contained in any conveyance on chief rent or rent charge, or agreement for such conveyance, granted to or made with the testator or intestate whose estate is being administered, shall have satisfied all then subsisting liabilities, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum agreed to be laid out on the property (although the period for laying out the same may not have arrived), and shall have conveyed the property, or assigned the agreement to a purchaser, he may distribute the residuary personal estate of the deceased without appropriating any part thereof to meet any future liability under such convey- ance or agreement. But this is not to prejudice the right of the grantor or those claiming under him to follow the assets of the deceased into the hands of the persons amongst whom such assets may have been distributed. Although rent charges and other self-existing incor- Incorporeal i -i v, r»,i vi n •, hereditaments poreal hereditaments of the like nature are no favourites gu bj e ct, as far with the law, yet, whenever it meets with them, it as possible, to , P ■, , the same rules applies to them, as far as possible, the same rules to as corporeal which corporeal hereditaments are subject. Thus, we oeredltament& have seen that the estates which maybe held in the one are analogous to those which exist in the other. So estates in fee simple, both in the one and in the other, may be aliened by the owner, either in his lifetime or by his will, to one person or to several as joint tenants or tenants in common (c), and, on his intestacy, will descend to the same heir at law. Bui in one respect the analogy fails. Land is essentially the subject of (h) Stat. 22 & 23 Vict c. 35, (c) Rivu v. Watson, 5 M. .V W. 265. v 2 324 OF INCORPOREAL HEREDITAMENTS. Tenure an ex- tenure: it may belong to a lord, bul be holden by his ception. 11. i tenant, by whom again it may be snb-let to another ; and so long as rent is rent service, a mere incident arising out of the estate of the payer, and belonging to the estate of the receiver, so long may it accompany, as accessory, its principal, the estate to which it belongs. But the receipt of a rent charge is accessory or incident to no other hereditament. True a rent charge springs from and is therefore in a manner connected with the land on which it is charged ; but the receiver and owner of a rent charge has no shadow of interest beyond the annual payment, and in the abstract right to this pay- ment his estate in the rent consists. Such an estate therefore cannot be subject to any tenure. The owner of an estate in a rent charge consequently owes no fealty to any lord, neither can he be subject, in respect of his estate, to any rent as rent service ; nor, from the nature of the property, could any distress be made for such rent service if it were reserved (d). So, if the owner of an estate in fee simple in a rent charge should die in- testate, and without leaving any heirs, his estate cannot escheat to his lord, for he has none. It will simply cease to exist, and the lands out of which it was payable will thenceforth be discharged from its payment (e). Common in Another kind of separate incorporeal hereditament which occasionally occurs is a right of common in gross. This is, as the name implies, a right of common over lands belonging to another person, possessed by a man, not as appendant or appurtenant to the owner- ship of any lands of his own, but as an independent subject of property (f). Such a right of common has therefore ahvays required a deed for its transfer. (d) Co. Litt. 47 a, 144 a ; 2 tive, she may distrain on all the Black. Com. 42. But it is said lands of the lessee. Co. Litt. 47 a, that the Queen may reserve a rent note (1); Bac. Abr. tit. Bent (B). out of an incorporeal hercdita- (e) Co. Litt. 298 a, n. (2). ment, for which, by her preroga- (/) 2 Black. Com. 33, 34. OF HEREDITAMENTS PURELY INCORPOREAL. 325 Another important kind of separate incorporeal here- Advowsons. ditament is an advowson in gross. An advowson is a perpetual right of presentation to an ecclesiastical benefice. The owner of the advowson is termed the patron of the benefice ; but, as such, he has no property or interest in the glebe or tithes, which belong to the incumbent. As patron he simply enjoys a right of nomination from time to time, as the living becomes vacant. And this right he exercises by a presentation Presentation, to the bishop of some duly qualified clerk or clergyman, whom the bishop is accordingly bound to institute to Institution, the benefice, and to cause him to be inducted into it ((/). Induction. When the advowson belongs to the bishop, the forms of presentation and institution are supplied by an act called collation (A). In some rare cases of advowsons Collation. donative, the patron's deed of donation is alone suffi- Donatives. cient (?'). And by the Stamp Act, 1870 (k), every ap- pointment, whether by way of donation, presentation or nomination, and admission, collation or institution to or licence to hold any ecclesiastical benefice, dignity or promotion or any perpetual curacy, is subject to an ad valorem duty according to the subjoined table (I). Where the patron is entitled to the advowson as his (g) 1 Black. Com. 190, 191. (A) 2 Black. Com. 22. (i) 2 Black. Com. 23. (h) Stat. 33 & 34 Vict. c. 97. (Z) If the net yearly value thereof exceeds — £50 and does not exceed £100 . . £10 100 „ „ 150 .. 2 150 „ „ 200 .. 3 200 „ „ 250 .. 4 250 „ „ 300 .. 5 And ulso (if such yearly value exceeds £300) . 7 And also (where such value shall exceed £300) for every £100 thereof over and above £200, a further duty of 5 L'.n in ill 'num. — Admission, collation, institution, or licence pro- ceeding upon a duly stamped donation, presentation or nomi- nation. 32G OF INCORPOREAL HEREDITAMENTS^ private property, lie is empowered by an act of parlia- Agreements mcnt of the reign of George IV. (m) to present any for resignation. ■, ■. -, • •,, i • r- i • clerk under a previous agreement with him tor his resignation in favour of any one person named, or in favour of one of two (w) persons, each of them being by blood or marriage an uncle, son, grandson, brother, nephew, or grand-nephew of the patron, or one of the patrons beneficially entitled. One part of the instru- ment by which the engagement is made must be depo- sited within two calendar months in the office of the registrar of the diocese (o), and the resignation must refer to the engagement, and state the name of the person for whose benefit it is made (_/>). History of Advowsons are principally of two kinds, — advowsons adrowsons of n , i i c • t»i i • . rectories. °* rectories, and advowsons ot vicarages. Ihe history of advowsons of rectories is in many respects similar to that of rents and of rights of common. In the very early ages of our history advowsons of rectories appear to have been almost always appendant to some manor. The advowson was part of the manorial property of the lord, who built the church and endowed it with the glebe and most part of the tithes. The seignories in respect of which he received his rents were another part of his manor, and the remainder principally consisted of the demesne and waste lands, over the latter of which wc have seen that his tenants enjoyed rights of common as appendant to their estates () Sect. 5. but this is clearly an error. (q) Aute, pp. 115, 308. OF HEREDITAMENTS PURELY INCORPOREAL. 327 as society advanced, this simple state of things became subject to many innovations, and in various cases the incorporeal portions of property became severed from the corporeal parts, to which they had previously be- longed. Thus Ave have seen (r) that the seignory of lands was occasionally severed from the corporeal part of the manor, becoming a seignory in gross. So rent was sometimes granted independently of the lordship or reversion to which it had been incident, by which means it at once became an independent incorporeal heredita- ment, under the name of a rent seek. Or a rent might have been granted to some other person than the lord, under the name of a rent charge. In the same way a right of common might have been granted to some other person than a tenant of the manor, by means of which grant a separate incorporeal hereditament would have arisen, as a common in gross, belonging to the grantee. In like manner there exist at the present day two kinds of advowsons of rectories; an advowson appendant to a manor, and an advowson in gross (s), which is a distinct subject of property, unconnected with any thing corporeal. Advowsons in gross appear Origin of ad- to have chiefly had their origin from the severance of I°^, ons m advowsons appendant from the manors to which they had belonged ; and any advowson now appendant to a manor, may at any time be severed from it, either by a conveyance of the manor, with an express exception of the advowson, or by a grant of the advowson alone independently of the manor. And when once severed from its manor, and made an independent incorporeal hereditament, an advowson can never become appen- dant again. So long as an advowson IS appendant to Conveyance of a manor, a conveyance of the manor, even by feoffment, au vuwsun - and without mentioning tin' appurtenances belonging to the manor, will be sufficient to comprise (lie ad- (r) Ante, p. 314. I I 2 Block. Com. 22 j Lit*, b. 617. 328 OF INCORPOREAL HEREDITAMENTS. vowson (/). But, when severed, it must be conveyed, like any other sepai-ate incorporeal hereditament by a deed of grant (u). History of ad- rowsons of vicarages. The advowsons of rectories were not unfrequently granted by the lords of manors in ancient times to monastic houses, bishoprics, and other spiritual corpo- rations (.r). When this was the case the spiritual patrons thus constituted considered themselves to be the most fit persons to be rectors of the parish, so far as the receipt of the tithes and other profits of the rectory was concerned ; and they left the duties of the cure to be performed by some poor priest as their vicar or deputy. In order to remedy the abuses thus occa- sioned, it was provided by statutes of Richard II. (y) and Henry IV. (z), that the vicar should be sufficiently endowed wherever any rectory was thus appropriated. This was the origin of vicarages, the advowsons of which belonged in the first instance to the spiritual owners of the appropriate rectories as appendant to such rec- tories (a) ; but many of these advowsons have since, by severance from the rectories, been turned into ad- vowsons in gross. And such advowsons of vicarages can only be conveyed by deed, like advowsons of rec- tories under similar circumstances. Next presen- tation. The church must be full. The sale of an ad vowson will not include the right to the next presentation, unless made when the church is full ; that is, before the right to present has actually arisen by the death, resignation or deprivation of the former incumbent (b). For the present right to pre- (0 Perk. s. 116; Co. Litt. 190 b, 307 a. See Attorney- General v. Sitmell, 1 You. & Coll. 559; Hooper v. Harrison, 2 Kay & John. 86. (?0 Co. Litt. 332 a, 335 b. O) 1 Black. Com. 384. (y) Stat. 15 Rich. II. c. 6. Or) Stat. 4 Hen. IV. c. 12. (a) Dyer, 351 a. (b) Alston v. Atlay, 7 Adol. & Ellis, 289. OF HEREDITAMENTS PURELY INCORPOREAL. 329 sent is regarded as a personal duty of too sacred a character to be bought and sold ; and the sale of such a right would fall within the offence of simony, — so Simony. called from Simon Magus, — an offence which consists in the buying or selling of holy orders, or of an eccle- siastical benefice (c). But, before a vacancy has actually occurred, the next presentation, or right of presenting at the next vacancy, may be sold, either together with, or independently of, the future presentations of which the advowson is composed ( d), and this is frequently done. Xo spiritual person, however, may sell or assign any patronage or presentation belonging to him by virtue of any dignity or spiritual office held by him, any such sale and assignment being void (e). And a clergy- man is prohibited by a statute of Anne (f) from pro- curing preferment for himself by the purchase of a next presentation ; but this statute is not usually considered as preventing the purchase by a clergyman of an entire advowson with a view of presenting himself to the living. "When the next presentation is sold, independently of Next presenta- the rest of the advowson, it is considered as mere p^p^ty 61 ° na personal property, and will devolve, in case of the de- cease of the purchaser before he has exercised his right, on his executors, and cannot descend to his heir at law (g). The advowson itself, it need scarcely be re- marked, will descend, on the decease of its owner intes- tate, to his heir. The law attributes to it, in "common with other separate incorporeal hereditaments, as nearly as possible the same incidents as appertain to the corpo- real property to which it once belonged. (c) Bac. Abr. tit. Simony; stats. s. 42. 31 Eliz. c. 6; 28 & 29 Vict. c. (J) Stat. 12 Anne, stat. 2, c. 12, 122, ss. 2, 5, 9. s. 2. (d) Fox v. Bislwp of Chester, (g) See Bennett v. Bishop of 6 Biug. 1. Lincoln, 7 Barn. & Cres. 113; 8 (e) Stat. 3 & 4 Vict. c. 113, Bing. 490. 330 OF INCORPOUKAL BEREDITAMENTS. Tithes. Tithes in lay hands. Conveyances of tithes. Tithes are another species of separate incorporeal hereditaments, also of an ecclesiastical or spiritual kind. In the early ages of our history, and indeed down to the time of Henry VIII., tithes were exclusively the pro- perty of the church, belonging to the incumbent of the parish, miless they had got into the hands of some monastery, or community of spiritual persons. They never belonged to any layman until the time of the dis- solution of monasteries by King Henry VIII. But this monarch, having procured acts of parliament for the dissolution of the monasteries and the confiscation of their property (A), also obtained by the same acts (i) a confirmation of all grants made or to be made by his letters-patent of any of the property of the monasteries. These grants were many of them made to laymen, and comprised the tithes which the monasteries had j)Os- sessed, as well as their landed estates. Tithes thus came for the first time into lay hands as a new species of property. As the grants had been made to the grantees and their heirs, or to them and the heirs of their bodies, or for term of life or years (/«:), the tithes so granted evidently became hereditaments in which estates might be holden, similar to those already known to be held in other hereditaments of a separate incorpo- real nature; and a necessity at once arose of a law to determine the nature and attributes of these estates. How sflT5h estates might be conveyed, and how they should descend, were questions of great importance. The former question was soon settled by an act of (A) Stat. 27 Hen. VIII. c. 28, intituled, " An Act that all Re- ligious Houses under the yearly Revenue of Two Hundred Pounds shall he dissolved, and given to the King and his heirs;" stat. 31 Hen. VIII. c. 13, intituled, " An Act for the Dissolution of all Monasteries and Abides;" and stat. 32 Hen. VIII. c. 24. (() 27 Hen. VIII. c. 28, s. 2; 31 Hen. VIII. c. 13, ss. 18, 10. (A;) Stat. 31 Hen. VIII. c. 13, s. 18; 32 Hen. VIII. c. 7, s. 1. OF HEREDITAMENTS PURELY INCORPOREAL. 331 parliament ( I), which directed recoveries, fines, and con- veyances to be made of tithes in lay hands, according as had been used for assurances of lands, tenements, and other hereditaments. And the analogy of the descent of estates in other hereditaments was followed in tracing the descent of estates of inheritance in tithes. But as Descent of tithes, being of a spiritual origin, are a distinct inherit- ance from the lands out of which they issue, they have not been considered as affected by any particular custom of descent, such as that of gavelkind or borough-English, to which the lands may be subject; but in all cases they descend according to the course of the common law(w). From this separate nature of the land and tithe, it also Tithes exist as follows that the ownership of both by the same person t hc laud. will not have the effect of merging the one in the other. They exist as distinct subjects of property; and a con- veyance of the land with its appurtenances, without mentioning the tithes, will leave the tithes in the hands of the conveying party (n). The acts which have been Commutation passed for the commutation of tithes (o) affect tithes in the hands of laymen, as well as those possessed by the clergy. Under these acts a rent charge, varying with the price of corn, has been substituted all over the kingdom for the inconvenient system of taking tithes in kind; and in these acts provision has been properly made for the merger of the tithes or rent charge in the Merger of land, by which the tithes or rent charge may at once be c h arge i n the made to cease, whenever both land and tithes or rent land, charge belong to the same person {]>). (I) Stat. 32 Hen. VIII. c. 7, s. 7. 54 ; <) & 10 Vict. c. 73 ; 10 & 11 (in) Doe d. Lushingtan v. Vict. c. 104; 14 & 15 Vict. c. 53; Bishop of Llandaff, 2 New Rep. L6 & 17 Vict. c. 124; 21 & 22 491; 1 Eagle on Tithes, 16. Vict. c. 53; and 23 & 24 Vict. (n) ( "/in/nil" a, v. Gatcombe, 2 c. 93. New Cases, 516. (/>) Slat. ) Ante, i>. 115. 334 OF COPYHOLDS. forming the demesnes of the manor, properly so called (c): other parts of the land he granted out to his villeins or slaves, permitting them, as an act of pure grace and favour, to enjoy such lands at his pleasure: hut sometimes enjoining, in return for such favour, the performance of certain agricultural services, such as ploughing the demesne, carting the manure, and other servile works. Such lands as remained, generally the poorest, were the waste lands of the manor, over which rights of common were enjoyed by the tenants (d). Thus arose a manor, of which the tenants formed two classes, the freeholders and the villeins. For each of these classes a separate Court was held: for the freeholders, a Court Baron (e); for Customary the villeins another, since called a Customary Court (f). Court. j n t | ie f ormer Coiu*t the suitors were the judges ; in the latter the lord only, or his steward () Ante, p. 117. OF copyholds. 335 lord, and in time became the custom of the manor. Tims arose copyholds of inheritance. Again, if a Copyholds of villein wished to part with his own parcel of land to mheritance - some other of his fellows, the lord would allow him to surrender or yield up again the land, and then, on payment of a fine, would indulgently admit as his tenant, on the same terms, the other, to whose use the surrender had been made. Thus arose the method, Surrender and now prevalent, of conveying copyholds by surrender admittance. into the hands of the lord to the use of the alienee, and the subsequent admittance of the latter. But by long custom and continued indulgence, that Avhich at first was a pure favour gradually grew up into a right. The will of the lord, which had originated the custom, The will of the ,i i .-nil •, /7\ l° r d gradually came at last to be controlled by it (A). controlled by the custom. The rise of the copyholder from a state of uncertainty Rise of copy- to certainty of tenure appears to have been very gra- t .°j nt e y S f° ° el " dual. Britton, who wrote in the reign of Edward I. (i), tenure. thus describes this tenure under the name of villein- age : " Villeinage is to hold part of the demesnes of any lord entrusted to hold at his will by villein services to improve for the advantage of the lord." And he adds that, " In manors of ancient demesne there were pure villeins of blood and of tenure, who might be ousted of their tenements at the will of their lord" (A). In the reign of Edward III., however, a case occurred in which the entry of a lord on his copyholder was ad- judged lawful, because he did not do his services, by which he broke the custom of the manor (Z), which seems to show that the lord could not, at the time, have ejected his tenant without cause (?n). And in (h) 2 Black. Com. 03 ct Beq., Law, 280. 117; Wright's Tenures 215 et (/•) Britton, 165. Beq.; 1 Scriv. Cop. 16; Garland (I) 5Tear Book, 13 Edw. III. v. Jehyll, 2 Bing. 292. 25a. (i) 2 !:• ry of Eng. {»,) I Rep. 21b. Mr. Ballam 336 OF COPYHOLDS. the reign of Edward IV. the judges gave to copy- holders a certainty of tenure, by allowing to them an action of trespass on ejection by their lords without just cause (n). "Now," says Sir Edward Coke(o), " copyholders stand upon a sure ground ; now they weigh not their lord's displeasure ; they shake not at every sudden blast of wind; they eat, drink and sleep securely ; only having a special care of the main chance, namely, to perform carefully what duties and services soever their tenure doth exact and custom doth require ; then let lord frown, the copyholder cares not, knowing himself safe." A copyholder has, ac- cordingly, now as good a title as a freeholder; in some respects a better ; for all the transactions relating to the conveyance of copyholds are entered in the court rolls of the manor, and thus a record is preserved of the title of all the tenants. In pursuing our subject, let us now follow the same course as we have adopted with regard to freeholds, and consider, first, the estates which may be holden in copyhold lands ; and, secondly, the modes of their alienation. states that a passage in Britton, in which the doctrine laid down which had escaped his search, is by Britton as to socmen, is erro- said to confirm the doctrine, that, neously applied to copyholders, so long as the copyholder did The passage from Britton, cited continue to perform the regular above, is also subsequently cited stipulations of his tenure, the lord by Lord Coke, but with a point- was not at liberty to divest him ing which spoils the sense, of his estate. 3 Hallam's Middle («) Co. Litt. 61 a. Equity has Ages, 261. Mr. Hallam was, per- also a concurrent jurisdiction, haps, misled in his supposition by Andrew* v. Hutee, 4 Kay & J. a quotation from Britton made 392. by Lord Coke (Co. Litt. 61a), («) Co. Cop. s. 9, Tr. p. 6. OF ESTATES IN COFYIIOLDS. 33 ', CHAPTER I. OF ESTATES IX COPYHOLDS. \Yith regard to the estates which may be holclen in Estates in copyholds, in strict legal intendment a copyholder can cop} have bnt one estate ; and that is an estate at will, the An estate at smallest estate known to the law, being determinable wl ' at the will of either party. For though custom has now rendered copyholders independent of the will of their lords, jet all copyholds, properly so called, are still expressly stated, in the court rolls of manors, to be holden at the will of the lord (a) ; and, more than this, estates in copyholds are still liable to some of the incidents of a mere estate at will. We have seen that, in ancient times, the law laid great stress on the feudal possession, or seisin, of lands, and that this possession could only be had by the holder of an estate of free- hold, that is, an estate sufficiently important to belong to a free man (b). Xow copyholders in ancient times belonged to the class of villeins or bondsmen, and held at the will of the lord lands of which the lord himself was alone feudally possessed. In other words, the hinds held by the copyholders still remained part and parcel of the lord's manor; and the freehold of these lands still continued vested in the lord; and this is the case at the present day with regard to all copy- holds. The lord of the manor is actually seised of all The lord is the lands in the possession of his copyhold tenants (c). f ail the copy- lie has not a mere incorporeal seignory over these as jjj^jjjj" he lias over his freehold tenants, or those who hold of (a) 1 Watk. Cop. U, 45; 1 (a) Watk. Descents, 51 (69, Sn iv. Cop. 605. 4th ed.) (h) Ante, pp. 22, 137. R.p. 7. 338 OF COrYHOLDS. him lands, once part of the manor, but which were anciently granted to freemen and their heirs (d). Of all the copyholds he is the feudal possessor; and the seisin he thus has is not without its substantial advan- tages. The lord having a legal estate in fee simple in the copyhold lands, possesses all the rights incident to such an estate (e), controlled only by the custom of The lord has a the manor, which is now the tenant's safeguard. Thus right to mines i • -i, , 11 1-7 i. and timber. ne possesses a right to all mines and minerals under the lands (f), and also to all timber growing on the surface, even though planted by the tenant (//). These rights, however, are somewhat interfered with by the rights which custom has given to the copyhold tenants; for the lord cannot come upon the lands to open his mines, or to cut his timber, without the copyholder's leave. And hence it is that timber is so seldom to be seen upon lands subject to copyhold tenure (A). Again, Lease of copy- if a copyholder should grant a lease of his copyhold lands, beyond the term of a year, without his lord's consent, such a lease would be a cause of forfeiture to the lord, unless it were authorized by a special custom of the manor (z). For such an act would be imposing on the lord a tenant of his own lands, without the authority of custom: and custom alone is the life of all copyhold assurances (J). So a copyholder cannot (77) Ante, pp. 307, 308. growth on the other. 3rd Rep. of (e) Ante, p. 77. Ileal Property Commissioners, (/ ) 1 Watk. Cop. 333; 1 Scriv. p. 15. Cop. 25, 508. See Bowser v. Mac- (*) 1 "Watk. Cop. 327; 1 Scriv. lean, 2 De G., F. & J. 415. Cop. 544; Doe d. Robinson v. (7/) 1 Watk. Cop. 332; 1 Scriv. Bousfield, 6 Q. B. 492. Cop. 499. (j) B y stat - 21 & 22 Vict. c. 77, (/<) There is a common pro- s. 3, the lords of settled manors verb, " The oak scorns to grow may be empowered to grant li- except on free land." It is cer- cences to their copyhold tenants tain that in Sussex and in other to lease their lands to the same parts of England the boundaries extent and for the same purposes of copyholds, may be traced by as leases may be authorized of the entire absence of trees on one freehold land. See ante, p. 26. side of a line, and their luxuriant OF ESTATES IN COPYHOLDS. 339 commit any waste, either voluntary by opening mines, Waste, cutting down timber or pulling down buildings, or permissive, by neglecting to repair. For the land, with all that is under it or on it, belongs to the lord: the tenant has nothing but a customary right to enjoy the occupation; and if he should in any way exceed this right, a cause of forfeiture to his lord would at once accrue (A). A peculiar species of copyhold tenure prevails in the north of England, and is to be found also in other parts of the kingdom, particularly within manors of the tenure of ancient demesne (/) ; namely, a tenure by copy of court roll, but not expressed to be at the will of the lord. The lands held by this tenure are Customary denominated customary freeholds. This tenure has lee ° s ' been the subject of a great deal of learned discus- sion (m) ; but the Courts of Law have now decided that, as to these lands, as well as to pure copyholds, the freehold is in the lord, and not in the tenant (n). The freehold If a conjecture may be hazarded on so doubtful a subject, it would seem that these customary freeholds were originally held at the will of the lords, as well as those proper copyholds in which the will is still expressed as the condition of tenure (0); but that these tenants early acquired, by their lord's indul- gence, a right to hold their lands on performance of (7<) 1 Watk. Cop. 331; 1 Scriv. Dodd, 3 Bos. & Pul. 378; Tlwmp- Cop. 526. See Doe d. Grubb v. son v. Hardinge, 1 C. B. 940. Earl of Burlington, 5 Barn. & (0) See Bract, lib. 4, fol. 208 b, Adol. 607. 209 a; Co. Cop. s. 32, Tr. p. 57. (0 Britt. 164 h, 165a. Sec In Stephenson v. Hill, 3 Burr. ante, p. 1 25. 1278, Lord Mansfield says, that (in) 2 Scriv. Cop. 666. copyholders had acquired a per- (n) Stephenson \. Hill,3BvuT. manenl estate in their lands before 1278; Doe d. llcag v. Hunting- these persons had done so. But Inn, I l.:i 1, 271; Doc d. Cook v. he does not state where he oh- Danvers,! East, 299; Burrellv. tained his information. / 2 340 OF COPYHOLDS. certain fixed services as the condition of their tenure; and the compliment now paid to the lords of other copyholds, in expressing the tenure to be at their will, was, consequently, in the case of these customary free- holds, long since dropped. That the tenants have not the fee simple in themselves appears evident from the fact, that the right to mines and timber, on the lands held by this tenure, belongs to the lord in the same manner as in oilier copyholds (p). Neither can the tenants generally grant leases without the lord's consent (q). The lands are, moreover, said to be parcel of the manors of which they are held, denoting that in law they belong, like other copyholds, to the lord of the manor, and are not merely held of him, like the estates of the freeholders (r). Jn law, there- fore, the estates of these tenants cannot, in respect of their lords, be regarded as any other than estates Freehold in at will, though this is not now actually expressed. If there should be any customary freeholds in which the above characteristics, or most of them, do not exist, such may with good reason be regarded as the actual freehold estates of the tenants. The tenants would then possess the rights of other freeholders in fee simple, subject only to a customary mode of alienation. That such a state of things may, and in some cases does exist, is the opinion of some very eminent law- yers (5). But a recurrence to first principles seems (2>~) Doe d. Reay v. Hunting- 59 b, n. (1); Sir W. Blackstone, ton, 4 East, 271, 273; Stephenson Considerations on the Question, v. Hill, 3 Burr. 1277, arguendo; &c.; Sir John Leach, Bingham Duke of Portland v. Hill, V.-C. v. Woodgate, 1 Russ. & Mylne, W., Law Rep. 2 Eq. 765. 32, 1 Tamlyn, 138. Tenements (q) Doe v. Dancers, 7 East, within the limits of the ancient 299,301,314. borough of Kirby-in-Kendal, in (?•) Burrel v. Dotfd, 3 Bos. & Westmoreland, appear to be an Pul. 378, 381; Doe v. Dancers, 7 instance; Busher, app., Thomp- East, 320, 321. son, resp., 4 C. B. 48. The free- (s) Sir Edward Coke, Co. Litt. hold is in the tenants, and the 59 b; Sir Matthew Hale, Co. Litt. customary mode of conveyance OF ESTATES IN COPYHOLDS. 341 to show that the question, whether the freehold is in the lord or in the tenant, is to be answered, not by an appeal to learned dicta or conflicting decisions, but by ascertaining in each case whether the well- known rights of freeholders, such as to cut timber and dig mines, are vested in the lord or in the tenant. It appears then that, with regard to the lord, a Copyholders, copyholder is only a tenant at will. But a copyholder, niitte/ in a who has been admitted tenant on the court rolls of a similar posi- manor, stands, with respect to other copyholders, in holders having a similar position to a freeholder who has the seisin. the seisin - The legal estate in the copyholds is said to be in such a person in the same manner as the legal estate of freeholds belongs to the person who is seised. The necessary changes which are constantly occurring of the persons who from time to time are tenants on the rolls, form occasionally a source of considerable profit to the lords. For by the customs of manors, on every change of tenancy, whether by death or alienation, Fines, fines of more or less amount become payable to the lord. By the customs of some manors the fine payable was anciently arbitrary; but in modern times, fines, even when arbitrary by custom, are restrained to two years' improved value of the land after deducting quit rents (t). Occasionally a line is due on the change of the lord ; but, in this case, the change must be by the acl of God and not by any act of the party (li). The tenants on the rolls, when once admitted, hold custo- Customary mary estates analogous to the estates which may be gous^free-" hold. has always been by deed of grant, ryman's case, 6 TJop. 84; Pax- or bargain and sale, without livery gingham, app., Pitty, resp., 17 of seisin, lease for a year, or inrol- C. B. 299. merit. Borne of the jndge ,how- (t) 1 Scriv. Cop. 384. ever, seemed to donbl the validity (//_) 1 \Yulk. Cup. '-'65. of such a custom! Sec also Per- 342 OF COPYHOLDS. holdcn in freeholds. These estates of copyholders are only quasi freeholds ;• but as nearly as the rights of the lord and the custom of each manor will allow, such estates possess the same incidents as the freehold Estate for life, estates of "which we have already spoken. Thus there may be a copyhold estate for life; and some manors admit of no other estates, the lives being continually renewed as they drop. And in those manors in which estates of inheritance, as in fee simple and fee tail, are allowed, a grant to a man simply, without mentioning his heirs, Avill confer only a customary estate for his life (v). But as the customs of manors, having fre- quently originated in mere caprice, are very various, in some manors the words " to him and his," or " to him and his assigns," or " to him and his sequels in right," will create a customary estate in fee simple, although the word heirs may not be used (.r). Estate pvr autre vie. It will be remembered that, anciently, if a grant had been made of freehold lands to B. simply, without mentioning his heirs, during the life of A., and B. had died first, the first person who entered after the decease of B. might lawfully hold the lands dming the residue of the life of A. ( y\ And this general occupancy was abolished by the Statute of Frauds. But copyhold lands were never subject to any such law (z). For the seisin or feudal possession of all such lands belongs, as we have seen (a), to the lord of the manor, subject to the customary rights. of occupation belonging to his tenants. In the case of copyholds, therefore, the lord of the manor after the decease of B. would, until lately, have been entitled to hold the (jo) Co. Cop. s. 49, Tr. p. See ante, pp. 18, 140. (x) 1 Watk. Cop. 109. (y) Ante, p. 20. 114. (r) Doe d. Foster v. Scott, 4 Barn. & Cress. 706; 7 Dow. & Eyl. 190. («) Ante, p. 337. OF ESTATES IX COPYHOLDS. 343 lands during the residue of A.'s life ; and the Statute of Frauds had no application to such a case(i). But now, by the act for the amendment of the laws with respect to wills (c), the testamentary power is extended to copyhold or customary estates pur autre vie (d); and the same provision, as to the application of the estate by the executors or administrators of the grantee, as is contained with reference to freeholds (e), is extended also to customary and copyhold estates (f). The grant of an estate pur autre vie, in copyholds, may, however, be extended, by express words, to the heirs of the grantee (^7). And in this event the heir will, in case of intestacy, be entitled to hold during the residue of the life of the cestui que vie, subject to the debts of his ancestor the grantee (A). An estate tail in copyholds stands upon a peculiar Estate tail in footing, and has a history of its own, which we shall C0 P3"° s * now endeavour to give (1). This estate, it will be re- membered, is an estate given to a man and the heirs of his body. With regard to freeholds, Ave have seen (A) that an estate given to a man and the heirs of his body was, like all other estates, at first inalienable ; so that no act which the tenant could do could bar his issue, or expectant heirs, of their inheritance. But, in an early period of our history, a right of alienation appears gradually to have grown up, empowering every free- (J) 1 Scriv. Cop. 63, 108; 1 (/) The attempt here made to Watk. Cop. 302. explain this subject is grounded (c) Stat. 7 Will. IV. & 1 Vict. on the authorities and reasoning c. 26. of Mr. Serjt. Scriven. (1 Scriv. (<7) Sect. 3. Cop. 67 et Beq.) Mr. Watkins (e) Ante, p. 21. sets out with righi principles, but (/) Sect. 6. seems strangely to stumhle on the (g) 1 Scriv. Cop. 64; 1 Watk. wrong conclusion. (1 Walk. C Cop. 303. chap. 4.) (h) Stat. 7 Will. IV. & 1 Vict. (/) Ante, p. 85 ct wq c. 20, s. 6. 144 of corniOLDS. The statute De donis. holder to whose estate there was an expectant heir to disinherit such heir, by gift or sale of the lands. A man, to whom lands had been granted to hold to him and the heirs of his body, was accordingly enabled to alien the moment a child or expectant heir of his body was born to him ; and this right of alienation at last extended to the possibility of reverter belonging to the lord, as well as to the expectancy of the heir (/) ; till at length it was so well established as to require an act of parliament for its abolition. The statute De donis (m) accordingly restrained all alienation by tenants of lands which had been granted to themselves and the heirs of their bodies ; so that the lands might not fail to descend to their issue after their death, or to revert to the donors or their heirs if issue should fail. This statute was passed avowedly to restrain that right of alienation, of the prior existence of Avhich the statute itself is the best proof. And this right, in respect of fee simple estates, was soon afterwards acknowledged and confirmed by the statute of Quia emptores (n). Copyholders But during all this period copyholders were in a very very different different state from the freemen, who were the objects state from of the above statutes (0). Copyholders were most of them mere slaves, tilling the soil of their lord's demesne, and holding their little tenements at his will. The right of an ancestor to bind his he'ir(p), with which right, as Ave have seen (q), the power to alienate free- holds commenced, never belonged to a copyholder (r). And, until the year 1833, copyhold lands in fee simple descended to the customary heir, quite unaffected by freeholders. (/) Ante, p. 41. O) 13 EAw. I. c. 1 ; ante, p. 42. O) 18 Edw. I. c. 1. («) In the preamble of the statute De don la, the tenants are spoken of as feoffees, and as able by deed and feoffment to bar their donors, showing that freeholders only were intended. And in the statute of Quia emptores freemen are expressly mentioned. (2>) Ante, p. 77. (q) Ante, pp. 37—39. (r) Ei/let v. Lane and Pers, Cro. Eliz. 380. OF ESTATES IN COPYHOLDS. 3-4,5 any bond debts of his ancestor by which the heir of his freehold estates might have been bound (s). It would be absurd, therefore, to suppose that the right of alienation of copyhold estates arose in connexion with the right of freeholders. The two classes were then quite distinct. The one were poor and neglected, the other powerful and consequently protected (7). The one held their tenements at the will of their lords ; the other alienated in spite of them. The one were subject to the whims and caprices of their individual masters ; the other were governed only by the general laws and customs of the realm. Now, with regard to an estate given to a copyholder and the heirs of his body, the lords of different manors appear to have acted differently, — some of them per- mitting alienation on issue being born, and others forbidding it altogether. And from this difference appears to have arisen the division of manors, in regard to estates tail, into two classes, namely, those in which there is no custom to entail, and those in which such a custom exists. In manors in which there As to manors is no custom to entail, a gift of copyholds, to a man wliere tner e »a ... no custom to and the heirs of his body, will give him an estate entail. analogous to the fee simple conditional which a free- holder would have acquired under such a gift before the passing of the statute De donis(ii). Before he has issue, he will not be able to alien ; but after issue arc (*) 4 Rep. 22 a. classes of persons it may have (t) The famous provision of been subsequently construed to Magna Charta, c. 20, — "Nullus include— plainly points to a dis- liber homo capiatur vel imprisone- tinction then existing between free tur aut dissesiatur de aliquo libera ami not free. Wny else Bhould tenemento suo, &c, nisi per legale the word liber have been used at judicium parium Buorum vel per all ? legem terra. Nulli vendemus, (v) Ante, pp. .%, 42; Dor d. nulli negabimus, ant differemua Blesard v. Simpson, 4 New Cases, rectum vel justiciam,"— whatever 333; 3 Man. & Gran. 929. 346 OF COPYHOLDS. Alienation was anciently allowed. born to him, lie may alienate at his pleasure (u). In this case the right of alienation appears to be of a very ancient origin, having arisen from the liberality of the lord in permitting his tenants to stand on the same footing in this respect as freeholders then stood. When aliena- tion was not allowed. A custom to entail was established. Customary recovery. Forfeiture and re-grant. But, as to those manors in which the alienation of the estate in question was not allowed, the history appears somewhat different. The estate, being inalien- able, descended, of course, from father to son, accord- ing to the customary line of descent. A perpetual entail was thus set up, and a custom to entail estab- lished in the manor. But in process of time the original strictness of the lord defeated his own end. For, the evils of such an entail, which had been felt as to freeholds, after the passing of the statute De donis (x), became felt also as to copyholds (y). And, as the copyholder advanced in importance, different devices were resorted to for the purpose of effecting a bar to the entail ; and, in different manors, different means were held sufficient for this purpose. In some, a customary recovery was suffered, in analogy to the common recovery, by which an entail of freeholds had been cut off (z~). In others, the same effect was pro- duced by a preconcerted forfeiture of the lands by the tenant, followed by a re-grant from the lord of an estate in fee simple. And in others a conveyance by surrender, the ordinary means, became sufficient for the purpose ; and the presumption was, that a sur- render would bar the estate tail until a contrary custom was shown (a). Thus it happened that in all manors, in which there existed a custom to entail, a right grew up, empowering the tenant in tail, by some (v) Doe d. Sjjencer v. Clark, 5 Barn. & Aid. 458. (y- holds, 140. (A) Stat. 3&4 Will. IV. c. lOt. (i) See ante, p. 81 ; 1 Scriv. Copyholds, 60. (j) Stat, 1 & 2 Vict. c. 110, s. 11. (/•) Stat. 2& 3 Vict. c. 11, s. 5; ante, p. 84. OF ESTATES IN COPYHOLDS. 349 was registered (Z). And now, as we have seen, the lien of all judgments of a date subsequent to the 29th of July, 1864, has been abolished altogether (?» ). Copyholds are equally liable, with freeholds, to in- Bankruptcy, voluntary alienation on the bankruptcy of the tenant. The trustee for the creditors has now power to deal with any property of every description to which the bankrupt is beneficially entitled as tenant in tail, in Estates tail. the same manner as the bankrupt might have dealt with the same(ra). And the Bankruptcy Act, 1869, Trustee for creditors nectl provides that where any portion of the bankrupt's estate not be ad- consists of copyhold or customary property, or any like mitted - property passing by surrender and admittance or in any similar manner, the trustee shall not be compellable to be admitted to such property, but may deal with the same in the same manner as if such property had been capable of being and had been duly surrendered or otherwise conveyed to such uses as the trustee may appoint ; and any appointee of the trustee shall be admitted or otherwise invested with the property ac- cordingly (o). The descent of an estate in fee simple in copyholds Descent of an is governed by the custom of descent which may happen gf^pieTn ee to prevail in the manor; but, subject to any such custom, copyholds. the provisions contained in the act for the amendment of the law of inheritance (p) apply to copyhold as well as freehold hereditaments, whatever be the customary course of their descent. As, in the case of freeholds, (Z) Stat. 23 & 24 Vict. c. 38, (o) Stat. 32 & 33 Vict. c. 71, b. 1; ante, pp. 84, 86. s. 22. The former statutes rc- ( in ) Stat. L'7 & 28 Vict. c. 112; latin- to this Bubject were stats. ante, p. 85. 12 & 13 Vict. «•. L06, b. 209, and in) Stat. 32 & 33 Vict. c. 71, 21 & 25 Vict. c. 134,8. 114. B.25,par.(4),whichembodi( Q0 Stat. 3 & 4 Will. IV. c. 106. 3 & 4 Will. IV. c. 74, ss. 56— 73. 350 OF COPYHOLDS. the lands of a person dying intestate descend at once to his heir (q), so the heir of a copyholder becomes, imme- diately on the decease of his ancestor, tenant of the lands, and may exercise any act of ownership before the ceremony of his admittance has taken place (r). But as between himself and the lord, he is not completely a tenant till he has been admitted. Tenure. The tenure of an estate in fee simple in copyholds Fealty. involves, like the tenure of freeholds, an oath of fealty Suit of court, from the tenant (s), together with suit to the customary Escheat. court of the manor. Escheat to the lord on failure of heirs is also an incident of copyhold tenure. And be- fore the abolition of forfeiture for treason and felony (t) the lord of a copyholder had the advantage over the lord of a freeholder in this respect, that, whilst freehold lands in fee simple were forfeited to the crown by the treason of the tenant, the copyholds of a traitor escheated to the lord of the manor of which they were held {u). Rent. Rents (v) also of small amount are not unfrequent inci- Eelief. dents of the tenure of copyhold estates. And reliefs (x) may, by special custom, be payable by the heir (y). The other incidents of copyhold tenure depend on the arbitrary customs of each particular manor; for this tenure, as we have seen (z), escaped the destruction in which the tenures of all freehold lands (except free and common socage, and frankalmoign) were involved by the act of 12 Car. II. c. 24. A curious incident to be met with in the tenure of some copyhold estates is the right of the lord, on the (q) Ante, p. 93. (/•) 1 Scriv. Cop. 357; Right d. Taylor v. Banks, 3 Bar. & Ad. 664; King v. Turner, 1 My. & K. 456; Doc d. Perry v. Wilson, 5 Ad. & Ell. 321. (s) 2 Scriv. Cop. 732. (/) See ante, pp. 56, 122 et seq. («) Lord Cornmallis's case, 2 Ventr. 38; 1 Watk. Cop. 340; 1 Scriv. Cop. 522. (;>) Ante, p. 120. O) Ante, pp. 116, 118, 120. (y) 1 Scriv. Cop. 436. (z) Ante, p. 119. OF ESTATES IN COPYHOLDS. 35 1 death of a tenant, to seize the tenant's best beast, or other chattel, under the name of a heriot (a). Heriots Heriots. appear to have been introduced into England by the Danes. The heriot of a military tenant was his arms and habiliments of war, which belonged to the lord, for the purpose of equipping his successor. And, in analogy to this feudal custom, the lords of manors usually expected that the best beast or other chattel of each tenant, whether he were a freeman or a villein, should on his decease be left to them (Z»). This legacy to the lord was usually the first bequest in the tenant's will (c) ; and, when the tenant died intestate, the heriot of the lord was to be taken in the first place out of his effects (d), unless, indeed, as not unfrequently happened, the lord seized upon the whole of the goods (e). To the goods of the villein he Avas indeed entitled, the villein himself being his lord's property. And from the diffe- rence between the two classes of freemen and villein has perhaps arisen the circumstance, that, whilst heriots from freeholders seldom occur {f), heriots from copy- holders remain to this day, in many manors, a badge of the ancient servility of the tenure. But the right of the lord is now confined to such a chattel as the custom of the manor, grown into a law, will enable him to take (g). The kind of chattel which may be taken for a heriot varies in different manors. And in some cases the heriot consists merely of a money-payment. (a) 1 Scriv. Cop. 437 et seq. Lon. 1G40). U>) Bract. 86 a; 2 Black. Com. (/) By the custom of the manor 423, 424. of South Tawton, otherwise Ifcton, (c) Bract. GO a; Fleta, lib. 2, in the county of DeVon, heriots cap. 57. are still due from the freeholders (d) Bract. GO b; Fleta, lib. 2, of the manor; Damcrell v. l'ro- cap. 57. thcroc, 10 Q. B. 20; and in Sussex (e) See ArticulA oiservanda and some parts of Surrey heriots per provisionem episooporv/m from freeholders are not un- AnglicB, b. 26, Matth. Paris, 951; frequent. Additamenta, p. 201 (Wats'* cd. (y) 2 Walk. Cop. L29. 352 OF COPYIlol.I». Joint tenancy and in coin- All kinds of estates in copyholds, as well as in free- holds, may be held in joint tenancy or in common ; and an illustration of the unify of a joint tenancy occurs in the fact, that the admission, on the court rolls of a manor, of one joint tenant, is the admission of all his companions; and on the decease of any of them the survivors or survivor, as they take no new estate, require no new admittance (// ). The jurisdiction of the Court of Chancery in enforcing partitions between joint tenants and tenants in common did not formerly extend to copy- hold lands (i). But by an enactment of the present reign ( /') this jurisdiction has been extended to the par- tition of copyholds as well as freeholds. Act for com- mutation of certain mano- rial rights. The rights of lords of manors to fines and heriots, rents, reliefs and customary services, together with the lord's interests in the timber growing on copyhold lands, have been found productive of considerable inconveni- ence to copyhold tenants, without any sufficient corre- sponding advantage to the lords. An act of parlia- ment (k) was accordingly passed a few years ago, by which the commutation of these rights and interests, together with the lord's rights in mines and minerals, if expressly agreed on, has been greatly facilitated. The machinery of the act is, in many respects, similar to that by which the commutation of tithes was effected. The rights and interests of the lord are changed, by the commutation, into a rent-charge varying or not, as may be agreed on, with the price of corn, together with a (/j) 1 Watk. Cop. 272, 277. ((') Jope v. Morshead, 6 Beav. 213. (J) Stat. 4 & 5 Yict. c. 35, s. 85. See also stat. 13 & 14 Vict. c. CO, s. 30. (&) Stat. 4 & 5 Vict. c. 35 ; amended by stat. 6 & 7 Vict. c. 23, further amended and explained by stat. 7 & 8 Vict. c. 55, continued by stat. 14 & 15 Viet. c. 53, ex- tended by stat. 15 & 1G Vict, c. 51, amended by stat. 21 & 22 Vict. c. 94, continued by stats. 21 & 22 Vict. c. 53; 23 & 24 Vict. c. 81; 25 & 26 Vict. c. 73, and 30 & 31 Vict. c. 143; and amended by stat. 31 & 32 Vict. c. 80. OF ESTATES IN COPYHOLDS. 353 small fixed fine on death or alienation, in no case ex- ceeding the sum of five shillings (7). By the same act facilities were also afforded for the enfranchisement of Enfranchise- copyhold lands, or the conveyance of the freehold of such lands from the lord to the tenant, whereby the copyhold tenure, with all its incidents, is for ever de- stroyed. The enfranchisement of copyholds was autho- rized to be made, either in consideration of money to be paid to the lord, or of an annual rent charge, varying with the price of corn, issuing out of the lands enfran- chised, or in consideration of the conveyance of other lands (m). Provision was also made for charging the money, paid for enfranchisement, on the lands enfran- chised, by way of mortgage (n). The principal object of these enactments was to provide for the case of the lands being in settlement, or vested in parties not other- wise capable of at once entering into a complete arrange- ment ; but no provision was made for compulsory en- franchisement. More recently, however, acts have been The Copyhold passed to make the enfranchisement of copyholds com- 185 g| pulsory at the instance either of the tenant or of the lord (o). If the enfranchisement be made at the in- Compulsory stance of the tenant, the compensation is to be a gross men t. sum of money, to be paid at the time of the completion of the enfranchisement, or to be charged on the land by way of mortgage ; and where the enfranchisement is effected at the instance of the lord, the compensation is to be an annual rent charge, to be issuing out of the lands enfranchised ; subject to the right of the parties, with the sanction of the commissioners appointed under the act, to agree that the compensation shall be either (/) Stats. 4 & 5 Vict. c. 35,8.14; ss. 70, 71, 72; 7 & 8 Vict. c. 55, 15 & 10 Vict. c. 51, s. 41. 6. 4. O) Stats. 4 & 5 Vict. c. 35,88. (o) Stat. 15 & 1C Vict. c. 51, 5(1, 59, 73, 74, 75; 6 & 7 Vict. c. amended by Btat. 21 & 22 Vict. 23; 7 & 8 Vict. c. 55, s. 5. c. 1)4. (n) Stats. 4 & 5 Vict. c. ."..',, K.I'. A A 354 OF COrYIIOLDS. a gross sum or a yearly rent charge, or a conveyance of land to be settled to the same uses as the manor is settled (p). It is also provided that in any enfranchise- ment to be hereafter effected under the before-mentioned act, it shall not be imperative to make the enfranchise- ment rent charge variable with the prices of grain; but the same may. at the option of the parties or at the dis- cretion of the commissioners, as the case may require, be fixed in money or be made variable as aforesaid (q). Enfranchisements under these acts are irrespective of the validity of the lord's title (r). By the Copyhold Act, 1858, an award of enfranchisement, confirmed by the Commissioners, has been substituted for the deed of enfranchisement required by the act of 1852 (s). The acts also provide for the extinguishment of heriots due by custom from tenants of freeholds and customary Saving of cur- freeholds (t). But the curtesy, dower or freebench of d'fireebench persons married before the enfranchisement shall have been completed, is expressly saved (w); and all the commonable rights of the tenant continue attached to his lands, notwithstanding the same shall have become freehold (x). And no enfranchisement under these acts is to affect the estate or rights of any lord or tenant in any mines or minerals within or under the lands enfran- chised or any other lands, unless with the express con- sent in writing of such lord or tenant (?/). And nothing therein contained is to interfere with any enfranchisement Heriots. an and of com- monable rights. Mines and minerals. (j>) Stat. 15 & 16 Vict. c. 51, s. 7; 21 & 22 Vict. c. 94, s. 21. See Lingrvood v. Gijdc, L. R., 2 C. P. 72. (q) Stat. 15 & 16 Vict. c. 51, s. 41. See also stat. 21 & 22 Vict. c. 94, s. 11. (r) Kerr v. Pan-son, Rolls, 4 Jnr., N. S. 425 ; S. C. 35 Bear. 394. 0) Stat. 21 & 22 Vict. c. 94, s. 10. (t) Stat. 21 & 22 Vict. c. 94, s. 7, repealing stat. 15 & 16 Vict. c. 51, s. 27. O) Stat. 4 & 5 Vict. c. 35, s. 79; 15 & 16 Vict. c. 51, s. 34. O) Stat. 4 & 5 Vict. c. 35, s. 81; 15 & 16 Vict. c. 51, s. 45. (,?/) Stat. 15 & 16 Vict. c. 51, s. 48. See also stat. 21 & 22 Vict. c. 94, s. 14. OF ESTATES IN COPYHOLDS. 355 ■which may be made irrespective of the acts, where the parties competent to do so shall agree on such enfran- chisement (z). Where all parties are sni juris and agree to an enfranchisement, it may at any time be made by a simple conveyance of the fee simple from the lord to his tenant (a). (:) Stat. 15 & 16 Vict, c. 51, (a) 1 Watk. Cop. 3G2; 1 Scriv. s. 55. Cop. 653. A A 2 3o6 OF COPYHOLDS. CHAPTER II. OF THE ALIENATION OF COPYHOLDS. Customary Court. Homage. Courts may now be holden without the presence of any copy- holder. The mode in which the alienation of copyholds is at present effected, so far at least as relates to transactions inter vivos, still retains much of the simplicity, as well as the inconvenience, of the original method in which the alienation of these lands was first allowed to take place. The copyholder surrenders the lands into the hands of his lord, who thereupon admits the alienee. For the purpose of effecting these admissions, and of informing the lord of the different events happening within his manor, as well as for settling disputes, it was formerly necessary that his Customary Court, to which all the copyholders were suitors, should from time to time be held. At this Court, the copyholders present were called the homage, on account of the ceremony of homage which they were all anciently bound to per- form to their lord (a). In order to form a Court, it was formerly necessary that two copyholders at least should be present (b). But, in modern times, the holding of courts having degenerated into little more than an inconvenient formality, it has been provided by an act of the present reign, that Customary Courts may be holden without the presence of any copyholder ; but no proclamation made at any such courts is to affect the title or interest of any person not present, unless notice thereof shall be duly served on him within one month (c); and it is also provided, that where, by the custom of any manor, the lord is authorized, with («) Ante. p. 116. {b) 1 Scrir. Cop. 289. (c) Stat. 4 & 5 Vict, c. 35, s. 8G. OF THE ALIENATION OF COPYHOLDS. 357 the consent of the homage, to grant any common or waste lands of the manor, the Court must be duly sum- moned and holden as before the act (d). No Court can lawfully be held out of the manor ; but by immemorial custom, Courts for several manors may be held together within one of them (e). In order that the transactions at the Customary Court may be preserved, a book is provided, in which a correct account of all the pro- ceedings is entered by a person duly authorized. This book, or a series of them, forms the court rolls of the Court rolls. manor. The person who makes the entries is the Steward. steward ; and the court rolls are kept by him, but sub- ject to the right of the tenants to inspect them (f). This officer also usually presides at the Court of the manor. Before adverting to alienation by surrender and Grants, admittance, it will be proper to mention, that, when- ever any lands which have been demisable time out of mind by copy of court roll, fall into the hands of the lord, he is at liberty to grant them to be held by copy at his will, according to the custom of the manor, under the usual services (^7). These grants may be made by the lord for the time being, whatever be the extent of his interest (/*), so only that it be lawful : for instance, by a tenant for a term of life or years. But if the lord, instead of granting the lands by copy, should once make any conveyance of them at the common law, though it were only a lease for years, his power to grant by copy would for ever be destroyed (i). The steward, or his deputy, if duly authorized so to do, may also make grants, as well as the lord, whose (rf) Stat. 4 & 5 Vict. c. 35, s. 91. Cop. 111. (e) 1 Scriv. Cop. <>. (//) Doe d. Rayer v. Striok- (f) Ibid. 587, 588. land, 2 Q. B. 792. {g) 1 Watk. Cop. 23; 1 Scriv. (i) 1 Watk. Cop. 37. 358 of corviioi.ns. Grants may now be made out of the manor. servant he is (J). It was formerly doubtful whether the steward or his deputy could make grants of copy- holds when out of the manor (/c). But by the act(Z), to which we have before had occasion to refer, it is provided that the lord of any manor, or the steward, or deputy steward, may grant at any time, and at any place, either within or out of the manor, any lands parcel of the manor, to be held by copy of court roll, or according to the custom of the manor, which such lord shall for the time being be authorized and empowered to grant out to be held as aforesaid ; so that such lands be granted for such estate, and to such person only, as the lord, steward, or deputy, shall be authorized or empowered to grant the same. Alienation l>y Burrender. In Court. Out of court. "When a copyholder is desirous of disposing of his lands, the usual method of alienation is by surrender of the lands into the hands of the lord (usually through the medium of his steward), to the use of the alienee and his heirs, or for any other customary estate which it may be wished to bestow. This surrender generally takes place by the symbolical delivery of a rod, by the tenant to the steward. It may be made either in or out of Court. If made in Court, it is of course entered on the court rolls, together with the other proceedings ; and a copy of so much of the roll as relates to such sur- render is made by the steward, signed by him and stamped like a purchase deed ; it is then given to the purchaser as a muniment of his title (?n). If the sur- render should be made out of Court, a memorandum of the transaction, signed by the parties and the steward, is made, in writing, and duly stamped as before («). (J) 1 Watk. Cop. 29. (/.;) Ibid. 30. (0 Stat. 4 & 5 Vict. 87. court roll will be found in Ap- pendix (G). O) By the Stamp Act, 1870, the stamp duty on a memorandum (m) A form of such a copy of of a surrender if made out of OF THE ALIENATION OF COPYHOLDS. 359 In order to give effect to a surrender made out of Presentment, Court, it was formerly necessary that due mention, or ■presentment, of the transaction, should be made by the suitors or homage assembled at the next, or, by special custom, at some other subsequent Court (o). And in this manner an entry of the surrender appeared on the court rolls, the steward entering the presentment as part of the business of the Court. But by the recent now unneces- act, it is now provided that surrenders, copies of which ^' may be delivered to the lord, his steward, or deputy steward, shall be forthwith entered on the court rolls ; which entry is to be deemed to be an entry made in pursuance of a presentment by the homage (p). So that in this case, the ceremony of presentment is now dispensed with. When the surrender has been made, the surrenderor still continues tenant to the lord, until the admittance of the surrenderee. The surrenderee Nature of sur- acquires by the surrender merely an inchoate right, to nVh^ivntn be perfected by admittance (q). This right was formerly admittance. inalienable at law, even by will, until rendered devisable by the new statute for the amendment of the laws with respect to Avills (r) ; but, like a possibility in the case of freeholds, it may always be released, by deed, to the tenant of the lands (s). A surrender of copyholds may be made by a man to Surrender to the use of his wife, for such a surrender is not a direct w jf e< conveyance, but operates only through the instrumen- court, or on the copy of court roll (p) Stat. 4 & 5 Vict. c. 35, s. 89. if made in court, is the same as (q) Doe d. Tojieldv. Tofield,\\ on the sale or mortgage of a free- East, 24G ; Rex v. Dame Jane hold estate; hut if not made on 9t.JohnMildmay,5B, & Ad. 254] a sale or mortgage, the duty is Doe d. Winder v. Lawes, 7 Ad. 10*. Stat. 33 & 34 Vict. c. 97, & E. 196. sched. tit. Copyhold and customary (r) 7 Will. IV. & 1 Vict. c. 26, estates. s. 3. (o) 1 Watk. Cop. 79; 1 Scriv. 0) Kite and Quevnton't ease, Cop. 277. i Rep. 26 a ; Co. Litt. CO a. 360 OF COPYHOLDS. Surrender of lands of the wife. tality of the lord (t). And a valid surrender may at any time be made of the lands of a married woman, by her husband and herself: she being on such surrender separately examined, as to her free consent, by the steward or his deputy (ic). Admittance. Admittance may now be had out of the manor. When the surrender has been made, the surrenderee has, at any time, a right to procure admittance to the lands surrendered to his use ; and, on such admittance, he becomes at once tenant to the lord, and is bound to pay him the customary fine. This admittance is usually taken immediately (v) ; but, if obtained at any future time, it will relate back to the surrender ; so that, if the surrenderor should, subsequently to the surrender, have surrendered to any other person, the admittance of the former surrenderee, even though it should be subsequent to the admittance of the latter, will completely displace his estate (w). Formerly a steward was unable to admit tenants out of a manor (x) ; but, by the act for the im- provement of copyhold tenure, the lord, his steward, or deputy, may admit at any time, and at any place, either Avithin or out of the manor, and without holding a Court; and the admission is rendered valid without any presentment of the surrender, in pursuance of which admission may have been granted (y). Alienation by will. The alienation of copyholds by will was formerly effected in a similar manner to alienation inter vivos. It was necessary that the tenant who wished to devise his estate should first make a surrender of it to the use of his will. His will then formed part of the surrender, and no particular form of execution or attestation was (t) Co. Cop. s. 35; Tracts, p. 79. (u) 1 Watk. Cop. 63. («) See Appendix (G). (w) 1 Watk. Cop. 103. (x) Doe d. Leach v. Whittaker, 5 B. & Ad. 409, 435; Doe d. Gutteridge v. Sowerhj, 7 C. B., N. S. 599. (y) Stat. 4 & 5 Vict. c. 35, ss. 88, 90. OF THE ALIENATION OF COPYHOLDS. 361 necessary. The devisee, on the decease of his testator, was, until admittance, in the same position as a sur- renderee (z). By a statute of Geo. III. (a), a devise of copyholds, without any surrender to the use of the will, was rendered as valid as if a surrender had been made (b). The act for the amendment of the laws with respect to wills requires that wills of copyhold lands should be executed and attested in the same manner as wills of freeholds (c). But a surrender to the use of the will is still unnecessary ; and a surrenderee, or devisee, who has not been admitted, is now empowered to devise his interest (d). Formerly, the devisee under a will, was accustomed, at the next Customary Court held after the decease of his testator, to bring the will into Court; and a presentment was then made of the decease Presentment of the testator, and of so much of his will as related to the devise. After this presentment the devisee was admitted, according to the tenor of the will. But under the act for the improvement of copyhold tenure, the mere delivery to the lord, or his steward, or deputy steward, of a copy of the will is sufficient to authorize now unneces- its entry on the court rolls, without the necessity of any sar - v - presentment; and the lord, or his steward, or deputy steward, may admit the devisee at once, without holding any Court for the purpose (e). Sometimes, on the decease of a tenant, no person if no person came in to be admitted as his heir or devisee. In this taiH . c> t he lord case the lord, after making due proclamation at three ma y seize consecutive Courts of the manor for any person having 0) Wainewright v. Eln-ell, 1 O) Stat. 7 Will. IV. & 1 Vict. Mad. 627; Phillips v. Phillips, 1 c. 26, ss. 2, 3, 4, 5, 9 ; see ante, My. & K. 649, 66 1. p. 196. (a) 55 Geo. III. c. 192, 12th (d) Sect. 3. July, 1815. (e) Stat. 4 & 5 Vict. c. 35, ss. (6) Doe d. Nether cote v. Bart le, 88, 89, 90. 5 B. & Aid. 492. qnousqne. 362 OF COPYHOLDS. Provision in favour of in- fants, married women, luna- tics and idiots. right to the premises to claim the same and be admitted thereto, is entitled to seize the lands into his own hands quousque as it is called, that is, until some person claims admittance (f) ; and by the special custom of some manors, he is entitled to seize the lands abso- lutely. But as this right of the lord might be very prejudicial to infants, married women, and lunatics or idiots entitled to admittance to any copyhold lands, in consequence of their inability to appear, special pro- vision has been made by act of parliament in their behalf (y). Such persons are accordingly authorized to appear, either in person or by their guardian, attorney or committee, as the case may be (A) ; and in default of such appearance, the lord or his steward is empowered to appoint any fit person to be attorney for that purpose only, and by such attorney to admit every such infant, married woman, lunatic or idiot and to impose the proper fine(z'). If the fine be not paid, the lord may enter and receive the rents till it be satisfied out of them (k) ; and if the guardian of any infant, the husband of any married woman, or the committee of any lunatic or idiot, should pay the fine, he will be entitled to a like privilege (J). But no abso- lute forfeiture of the lands is to be incurred by the neglect or refusal of any infant, married woman, lunatic or idiot to come in and be admitted, or for their omis- sion, denial or refusal to pay the fine imposed on their admittance {in). (/) 1 Watk. Cop. 234; 1 Scriv. Cop. 355; Doe d. Bover v. Trve- man, 1 Barn. & Adol. 736. (g) Stats. 11 Geo. IV. & 1 Will. IV. c. 65 ; and 16 & 17 Vict. c. 70, s. 108 et seq. (A) Stats 11 Geo. IV. & 1 Will. IV. c. 65, ss. 3, 4; 16 & 17 Vict. c. 70, s. 108. (i) Stats. 11 Geo. IV. & 1 Will. IV. c. 65, s. 5 ; 16 & 17 Vict c. 70, s. 108, 109. (*) Stats. 11 Geo. IV. & 1 Will. IV. c. 65, ss. 6, 7; 16 & 17 Vict. c. 70, s. 110. (Z) Stats. 11 Geo. IV. & 1 Will. IV. c. 65, s. 8; 16 &. 17 Vict. c. 70, s. 111. O) Stats. 11 Geo. IV. & 1 Will. IV. c. 65, s. 9 ; 16 & 17 Vict. c. OF THE ALIENATION OF COPYHOLDS. 363 Although mention has been made of surrenders to Statute of Uses the use of the surrenderee, it must not, therefore, be t° copyholds } supposed that the Statute of Uses (n) has any appli- cation to copyhold lands. This statute relates ex- clusively to freeholds. The seisin or feudal possession of all copyhold land ever remains, as we have seen (o), vested in the lord of the manor. Notwithstanding that custom has given to the copyholder the enjoy- ment of the lands, they still remain, in contemplation of law, the lord's freehold. The copyholder cannot, therefore, simply by means of a surrender to his use from a former copyholder, be deemed, in the words of the Statute of Uses, in lawful seisin for such estate as he has in the use ; for the estate of the surrenderor is customary only, and the estate of the surrenderee cannot, consequently, be greater. Custom, however, has now rendered the title of the copyholder quite independent of that of his lord. When a surrender of copyholds is made into the hands of the lord, to the use of any person, the lord is now merely an instrument for carrying the intended alienation into effect ; and the title of the lord, so that he be lord de facto, is quite immaterial to the validity either of the surrender or of the subsequent admittance of the sur- renderee ( p). But if a surrender should be made Trusts. by one person to the use of another, upon trust for a third, the Court of Chancery would exercise the same jurisdiction over the surrenderee, in compelling him to perform the trust, as it would in the case of freeholds vested in a trustee. And when copyhold lands form Settlements, the subject of settlement, the usual plan is to surrender tli' in to the use of trustees, as joint tenants of a 70,8.112. See Doe a. Tmtovlmgv. (») Stat. 27 Ben. VIII. c 10 \ \fiuoott, 12 Mee. & Wels. 832, ante, p. L63. 842; Dimes V. (Irninl .1 H net inn ((>) Ante, p. 387. /",//„// Company, '■> Q. B. 469, (j>) 1 Watk. Cop. 71. 510. 364 OF COPYHOLDS. customary estate in fee simple, upon such trusts as will effect, in equity, the settlement intended. The trustees thus become the legal copyhold tenants of the lord, and account for the rents and profits to the persons bene- ficially entitled. The equitable estates which are thus created are of a similar nature to the equitable estates in freeholds, of which we have already spoken (g) ; and Separate use. a trust for the separate use of a married woman may be created as well out of copyhold as out of freehold lands (r). An equitable estate tail in copyholds may be •red bv*^ barred by deed, in the same manner in every respect as if the lands had been of freehold tenure (s). But the deed, instead of being inrolled in the Court of Chan- cery (t), must be entered on the court rolls of the manor (?<). And if there be a protector, and he consent to the disposition by a distinct deed, such deed must be executed by him either on, or any time before, the day on which the deed barring the entail is executed ; and the deed of consent must also be entered on the court rolls (x). Equitable estate be bar deed. Equitable estate cannot be surrendered, Exceptions. As the owner of an equitable estate has, from the nature of his estate, no legal right to the lands, he is not himself a copyholder. He is not a tenant to the lord : this position is filled by his trustee. The trustee, there- fore, is admitted, and may surrender; but the cestui que trust cannot adopt these means of disposing of his equit- able interest (y). To this general rule, however, there have been admitted, for convenience sake, tAvo excep- tions. The first is that of a tenant in tail whose estate (q) Ante, p. 157 et seq. (?•) See ante, pp. 214, 215. (5) See ante, pp. 47, 51 et seq. (0 Stat. 3 & 4 Will. IV. c. 74, s. 54. (?/) Sect. 53. It has recently been decided, contrary to the pre- valent impression, that the entry must be made within six calendar months. Honey wood v. Forster, M. B,., 9 W. B. 855; 30 Beav. 1 ; Gibbons v. Snape, 32 Beav. 130. (a?) Stat. 3 & 4 Will. IV. c. 74, s. 53. (y) 1 Scriv. Cop. 262. OF THE ALIENATION OF COPYHOLDS. 365 is merely equitable : by the act for the abolition of fines and recoveries (z), the tenant of a merely equitable Tenant of estate tail is empowered to bar the entail, either by estate tail may deed in the manner above described, or by surrender bar entiul l) y surrender in the same manner as if his estate were legal (a). The second exception relates to married women, it being provided by the same act (b) that, whenever a husband Husband and and wife shall surrender any copyhold lands in which rendeTrnfe^s" she alone, or she and her husband in her right, may have equitable any equitable estate or interest, the wife shall be sepa- rately examined in the same manner as she would have been, had her estate or interest been at law instead of in equity merely (c); and every such surrender, when such examination shall be taken, shall be binding on the married woman and all persons claiming under her ; and all surrenders previously made of lands similarly circumstanced, where the wife shall have been sepa- rately examined by the person taking the surrender, are thereby declared to be good and valid. But these methods of conveyance, though tolerated by the law, are not in accordance with principle; for an equitable estate is, strictly speaking, an estate in the contempla- tion of equity only, and has no existence anywhere else. As, therefore, an equitable estate tail in copyholds may properly be barred by a deed entered on the court rolls of the manor, so an equitable estate or interest in copy- holds belonging to a married woman is more properly conveyed by a deed, executed with her husband's con- currence, and acknowledged by her in the same manner as if the lands were freehold (d ). And the act for the abolition of fines and recoveries, by which this mode of conveyance is authorized, does not require that such a deed should be entered on the comt rolls. (a) Stat. 8 & 4 Will. IV. c. 71, B. 90. s. 50. ('■) See ante, p. 360. («) Sec ante, p. 347. (>h Stat. 8 & i Will. IV. c. 71, a,) Stut. 3 & I Will. rV.e. 71, b. 77. Bee ante, p. 222. 3G6 OF COrYIlOLDS. Remainders. Contingent remainders. Copyhold estates admit of remainders analogous to those which may be created in estates of freehold (e). And when a surrender or devise is made to the use of any person for life, with remainders over, the admission of the tenant for life is the admission of all persons having estates in remainder, unless there be in the manor a special custom to the contrary (f). A vested estate in remainder is capable of alienation by the usual mode of surrender and admittance. Contingent re- mainders of copyholds have always had this advantage, that they had never been liable to destruction by the sudden determination of the particular estate on which they depend. The freehold, vested in the lord, is said to be the means of preserving such remainders, until the time when the particular estate Avould regularly have expired (g). In this respect they resemble contingent remainders of equitable or trust estates of freeholds, as to which w r e have seen, that the legal seisin, vested in the trustees, preserves the remainders from de- struction (h); but if the contingent remainder be not ready to come into possession the moment the particular estate would naturally and regularly have expired, such contingent remainder will fail alto- gether (/). Executory devises. Executory devises of copyholds, similar in all re- spects to executory devises of freeholds, have long been permitted (A). And directions to executors to sell the copyhold lands of their testator (which di- (e) See ante, pp. 230, 252. (/) 1 Watk. Cop. 276 ; Doe d. II inder v. Lames, 7 Ad. & E. 195; Smithy. Glasscock, 4 C. B., N. S. 357; Rand field v. Rand- field, 1 Drew. & S. 310. See, however, as to the reversioner, Reg. v. Lady of the Manor of Dallingham, 8 Ad. & E. 858. (<7) Fearae, Cont. Rem. 319; 1 Watk. Cop. 196 ; 1 Scriv. Cop. 477; Pickersffillv. ffrfy,30Beav. 352. (A) Ante, p. 275. (/) Gilb. Ten. 266; Fearne, Cont. Rem. 320. (*) 1 Watk. Cop. 210. OF THE ALIENATION OF COFYIIOLDS. 367 rections, Ave have seen (/), give rise to executory interests) are still in common use ; for, when such a direction is given, the executors, taking only a power and no estate, have no occasion to be admitted; and if they can sell before the lord has had time to hold his three Customary Courts for making proclamation in order to seize the land quousque (m), the purchaser from them will alone require admittance by virtue of his executory estate which arose on the sale. By this means the expense of only one admittance is incurred ; whereas, had the lands been devised to the executors in trust to sell, they must first have been admitted under the will, and then have surrendered to the purchaser, who again must have been admitted under their sur- render. And in a recent case, where a testator devised copyholds to such uses as his trustees should appoint, and subject thereto to the use of his trustees, their heirs and assigns for ever, with a direction that they should sell his copyholds, it was decided that the trustees coidd make a good title without being admitted, even although the lord had in the meantime seized the lands quousque for want of a tenant (n). But it has recently been Lord not decided that the lord of a manor is not bound to accept c °p t n a S u r ren- a surrender of copyholds inter vivos, to such uses as the der inter vh-os surrenderee shall appoint, and, in default of appointment, uses . to the use of the surrenderee, his heirs and assigns (o). This decision is in accordance with the old rule, which construed surrenders of copyholds in the same manner as a conveyance of freeholds inter vivos at common law ( p). (Z) Ante, p. 299. The stat. 21 bett, 1 E. & B. 830; The (,h). The law of real property, in which term both freehold and copyhold interests are included, is full of rules and principles to be explained only by a reference to antiquity ; and many of those rules and principles were, it must be confessed, much more reasonable and useful when they were first insti- tuted than they are at present. The subjects, however, on which we are now about to be engaged, possess little of the interest which arises from antiquity ; although then present value and importance are unquestionably great. The principal interests of a personal nature, derived from landed property, are a term of years and Term of years, a mortgage debt. The origin and reason of the personal nature of a term of years in land have been already attempted to be explained (c) ; and at the present day, leasehold interests in land, in which amongst other things all building leases are included, form a subject sufficiently important to require a separate considera- Mortgage debt. tion. The personal nature of a mortgage debt was not O) Ante, p. 334. (b) Ante, p. 17. (c) Ante, p. 8. OF PERSONAL INTERESTS IN REAL ESTATE. 371 clearly established till long after a term of years was considered as a chattel {d). But it is now settled that every mortgage, whether with or without a bond or covenant for the repayment of the money, forms part of the personal estate of the lender or mortgagee (e). And when it is known that the larger proportion of the lands in this kingdom is at present in mortgage, a fact generally allowed, it is evident that a chapter devoted to mortgages cannot be superfluous. (d) Thornborovgh v. Baiter, 1 Swanst. 636. Cba. Ca. 283; 3 Swanst. 628, (e) Co. Litt. 208 a, n.(l). anno 1675 ; Tabor v. Tabor, 3 B B 2 372 OF PERSONAL INTERESTS IN REAL ESTATE. CHAPTER I. OF A TERM OF YEARS. At the present day, one of the most important kinds of chattel or personal interests in landed property is a term of years, by which is understood, not the time merely for which a lease is granted, but also the interest acquired by the lessee. Terms of years may practically Two kinds of be considered as of two kinds ; first, those which are terms of years. crea ted by ordinary leases, Avhich are subject to a yearly rent, which seldom exceed ninety-nine years, and in respect of which so large a number of the occupiers of lands and houses are entitled to their occupation ; and, secondly, those which are created by settlements, wills, or mortgage deeds, in respect of which no rent is usually reserved, which are frequently for one thousand years or more, which are often vested in trustees, and the object of which is usually to secure the payment of money by the owner of the land. But although terms of years of different lengths are thus created for different purposes, it must not, therefore, be supposed that a long term of years is an interest of a different nature from a short one. On the contrary, all terms of years of what- ever length possess precisely the same attributes in the eye of the law. A tenancy at wilL The consideration of terms of the former kind, or those created by ordinary leases, may conveniently be preceded by a short notice of a tenancy at will, and a tenancy by sufferance. A tenancy at will may be OF A TERM OF YEARS. 373 created by parol (a), or by deed; it arises when a person lets land to another, to hold at the will of the lessor or ^ person letting (b). The lessee, or person taking the lands, is called a tenant at will ; and, as he may be turned out when his landlord pleases, so he may leave when he likes. A tenant at will is not answerable for mere permissive waste (c). He is allowed, if turned out by his landlord, to reap what he has sown, or, as it is legally expressed, to take the emblements (d). But, Emblements. as this kind of letting is very inconvenient to both parties, it is scarcely ever adopted ; and, in construction of law, a lease at an annual rent, made generally with- out expressly stating it to be at will(e), and without limiting any certain period, is not a lease at will, but a lease from year to year (f ), of which we shall presently speak. When property is vested in trustees, the cestui Cestui que que trust is, as we have seen {g), absolutely entitled to J"^ such property in equity. But as the courts of law do not recognize trusts, they consider the cestui que trust, when in possession, to be merely the tenant at w r ill to his trustees (h). A tenancy by sufferance is w T hen a Tenancy by -, i . . in . , . •, sufferance, person, who has originally come into possession by a lawful title, holds such possession after his title has determined. A lease from year to year is a method of letting very Lease from commonly adopted: in most cases it is much more jeai oyea advantageous to both landlord and tenant than a lease (a) Stat. 29 Car. II. c. 3, s. 1. 7 Exch. Rep. 89. (b) Litt. s. 68; 2 Black. Com. (/) Right d. Flower v. Darby, 146 1 T. Rep. 159, 163. (r) Harnett v. Maltland, 15 ( g) Ante, p. 157. Mee. & Wels. 257. {K) Earl of Pom/ret v. Lord (d) Litt. s. 68 j see Graves v. Windsor, 2 Ves. sen. 472, 481. Weld, 5 B. & Adol. 105. See Helling v. Leah, 16 C. B. (e) Doe d. Bastow v. Cox, 11 652. Q. B. 122; Doc d. Dixie v. Bavies, 374 OF TERSONAL INTERESTS IN REAL ESTATE. at will. The advantage consists in this, that both land- lord and tenant are entitled to notice before the tenancy can be determined by the other of them. This notice mnst be given at least half a year before the expiration of the current year of the tenancy (i); for the tenancy cannot be determined by one only of the parties, except at the end of any number of whole years from the time it began. So that, if the tenant enter on any quarter day, he can quit only on the same quarter day : when once in possession, he has a right to remain for a year ; and if no notice to quit be given for half a year after he has had possession, he will have a right to remain two whole years from the time he came in ; and so on from year to year. A lease from year to year can be made by parol or word of mouth (J), if the rent reserved amount to two-thirds at least of the full improved value of the lands ; for if the rent reserved do not amount to so much, the Statute of Frauds declares that such parol lease shall have the force and effect of a lease at will only (A). A lease from year to year, reserving a less amount of rent, must be made by deed (7). The best way to create this kind of tenancy is to let the lands to hold " from year to year" simply, for much litigation has arisen from the use of more circuitous methods of saying the same thing (in). Lease for a number of years. A lease for a fixed number of years may, by the Statute of Frauds, be made by parol, if the term do not exceed three years from the making thereof, and if the rent reserved amount to two-thirds, at least, of (i) Right d. Flower v. Darhy, 1 T. Rep. 159, 163; and see Doe d. Lord Bradford v. WatJuns, 7 East, 551. (j) Legg v. Hachett, Bac. Abr. tit. Leases (L. 3); S. C. nom. Lcgg v. Strudwiclt, 2 Salk. 414. (£) 29 Car. II. c. 3, ss. 1, 2. (0 Stat. 8 & 9 Vict. c. 106, s. 3. (m) See Bac. Abr. tit. Leases and Terms for Years (L. 3) ; Doe d. Clarke v. Snia ridge, 7 (J. B. 957. OF A TERM OF YEARS. 375 the full improved value of the land(«). Leases for a longer term of years, or at a lower rent, were required, by the Statute of Frauds (o), to be put into writing and signed by the parties making the same, or their agents thereunto lawfully authorized by writing. But a lease of a separate incorporeal hereditament was always required to be made by deed(p). And the act Leases in to amend the law of real property now provides that ^nkedto be a lease, required by law to be in writing, of any tene- D 7 deed - ments or hereditaments shall be void at lata, unless made by deed(^r). But such a lease, although void as a lease for want of its being by deed, may be good as an agreement to grant a lease, ut res magis valeat quam pereat(r). It does not require any formal words No formal i -i r rrn i i words required to make a lease tor years, ine words commonly to make l a employed are " demise, lease, and to farm let ;" but lease « any words indicating an intention to give possession of the lands for a determinate time will be sufficient (s). Accordingly, it sometimes happened, previously to the act, that what was meant by the parties merely as an agreement to execute a lease, was in law construed as itself an actual lease ; and very many law suits arose out of the question, whether the effect of a memoran- dum was in law an actual lease, or merely an agree- ment to make one. Thus, a mere memorandum in •writing that A. agreed to let, and B. agreed to take, a (n) 29 Car. II. c. 3, s. 2 ; Lord Gex & Jones, 559; Pond v. lios- j;,,!/,,,, v. Tovtim, 5 A. & E. 856. lin(], Q. B. 8 Jur., N. S. 78 ; 1 (p) 29 Car. II. c. 3, s. 1. Best & Smith, 371; Tuhj v. fifol- (p) Bvrdv. Eigginson, 2 Adol. lett, 16 C. B., N. S. 298; Iiolla- & Ell. 696 ; 6 Adol & Ell. 821 ; son v. Leon, Exeh. 7 Jnr., N. S. K. C. 4 Nev. & Man. 505. See 608; 7 II. & N. 73, overruling the ante, p. 229. case of Stratton v. Pettitt, 16 (rj) Stat. 8 & 9 Vict. c. 106, s. 3, C. B. 420. repealing stat. 7 & 8 Vict. c. 76, (») Bac. Abr. tit. Leases and s. 4, to the same effect. Terms tor Years (K); Curling v. (r) Parker v. Tnxn-rll, V.-C. S., MUU, 6 -Man. & Gran. 17:!. 4 Jnr., N. S. 183, affirmed 2 De 376 OF PERSONAL INTERESTS IN REAL ESTATE. house or farm for so many years, at such a rent, was, if signed by the parties, as much a lease as if the most formal words had been employed (t). By such a me- morandum a term of years was created in the premises, and was vested in the lessee, immediately on his entry, instead of the lessee acquiring, as at present, merely a right to have a lease granted to him in accordance with the agreement (u). (t) Poole v. Bentley, 12 East, 1G8; Doe d. Walker v. Groves, 15 East, 244 ; Doe d. Pearson v. Ries, 8 Bing. 178; S. C. 1 Moo. & Scott, 259; Warman \. Faithfull, 5 Barn. & Adol. 1042; Pearce v. Ches- lyn, 4 Adol. & Ellis, 225. («) By the Stamp Act, 1870, leases, with some exceptions, are subject to an ad valorem duty on the rent reserved, as follows : — If the term If the term does not exceed 35 Years or is indefinite. 8. d. 6 1 1 6 2 2 6 5 7 6 10 5 being definite exceeds 85 Years, but (llM'S licit exceed 100 Years. If the term being definite exceeds 100 Years. Where the yearly rent shall not ex- s. d. £ s. d. £ s. d. ceed £5 6 030060 Shall exceed £5 and not exceed £10 10 060 12 10 „ 15 1 6 9 18 15 „ 20 2 12 1 4 20 „ 25 2 6 15 1 10 25 „ 50 5 1 10 3 50 75 7 6 2 5 ' 4 10 100 10 300600 And where the same shall exceed £100, then for every £50, and also for any fractional part of £50 5 1 10 ! 3 And any premium which may be paid for the lease is also charged with the same ad valorem duty as on a conveyance upon the sale of lands for the same consideration. The counterpart bears a duty of five shillings, unless the duty on the lease is less than five shillings, in which case the counterpart bears the same duty as the lease ; and if not ex- ecuted by the lessor, it does not require any stamp denoting that the proper duty has been paid on the original. Agreements for leases for any term not exceeding thirty- five years are subject to the same duty as leases. Leases of furnished houses for any term less than a year, where the rent for such term exceeds 2bl., are subject to a duty of half- a-crown. And any lease of a tenement or part thereof for any definite term less than a year, at a rent not exceeding the rate of \0l. per annum, is now chargeable with the stamp duty of one penny only. Stat. 33 & 34 Vict. c. 97. Covenants in a lease to make improvements OF A TEEM OF YEAES. 377 There is no limit to the number of years for which A lease may a lease may be granted; a lease may be made for 99, any number of 100, 1,000, or any other number of years; the only 5" ears - requisite on this point is, that there be a definite period J pgrioTfixed 6 of time fixed in the lease, at which the term granted for the ending, must end(u); and it is this fixed period of ending which distinguishes a term from an estate of freehold. Thus, a lease to A. for his life is a conveyance of an estate of freehold, and must be carried into effect by the proper method for conveying the legal seisin ; but a lease to A. for ninety-nine years, if he shall so long live, gives him only a term of years, on account of the absolute certainty of the determination of the interest granted at a given time, fixed in the lease. Besides the fixed time for the term to end, there must also be a time fixed from which the term is to begin ; and this time may, if the parties please, be at a future period (x). Thus, a lease may be made for 100 years A term may be from next Christmas. For, as leases anciently were ™g n p e j™"" contracts between the landlords and their husband- future time, men, and had nothing to do with the freehold or feudal possession (y), there was no objection to the tenant's right of occupation being deferred to a future time. When the lease is made, the lessee does not become Entry, complete tenant by lease to the lessor until he has entered on the lands let (z). Before entry, he has no estate, but only a right to have the lands for the term by force of the lease (a), called in law an interesse or additions to the property do not subject it to any additional duty. Stat. 33 & 34 Vict. c. 44 ; 33 & 34 Vict. c. 97, s. 98. (t) Co. Lilt. !r, b; 2 Black. Com. 143. (x) 2 Black. Corn. 143. (y) See ante, p. 9. (z) Lift. s. r,6; Co. Litt. 46 1>; Miller v. Green, 8 Bingh. 92; ante, p. 173. (a) Litt. s. 459 j Bac. Abr. tit. Leases and Terms for Years (M). OF PERSONAL INTERESTS IN REAL ESTATE. J /iter esse ter- mini. Bargain and sale. termini. But if the lease should be made by a bargain and sale, or any other conveyance operating by virtue of the Statute of Uses, the lessee will, as we have seen (b), have the whole term vested in him at once, in the same manner as if he had actually entered. Lease for roars by estoppel. Exception, where the les- sor has any interest. The circumstance, that a lease for years was anciently nothing more than a mere contract, explains a curious point of law relating to the creation of leases for years, which does not hold with respect to the creation of any greater interest in land. If a man should by indenture lease lands, in which he has no legal interest, for a term of years, both lessor and lessee will be estopped during the term, or forbidden to deny the validity of the lease. This might have been expected. But the law goes further, and holds, that if the lessor should at any time during the lease acquire the lands he has so let, the lease, which before operated only by estoppel, shall now take effect out of the newly-acquired estate of the lessor, and shall become for all purposes a regular estate for a term of years (c). If, however, the lessor has, at the time of making the lease, any interest in the lands he lets, such interest only will pass, and the lease will have no further effect by way of estoppel, though the interest purported to be granted be really greater than the lessor had at the time power to grant (d). Thus, if A., a lessee for the life of B., makes a lease for years by indenture, and afterwards purchases the reversion in fee, and then B. dies, A. may at law avoid his own lease, though several of the years expressed in the lease may be still to come ; for, as A. had an interest in the lands for the life of B., a term of years determinable on B.'s (b) Ante, p. 177. (r) Co. Litt. 47 b ; Bac. Abr. tit. Leases and Terms tor Years (O); 2 Prest. Abst. 211; Webb v. Austin, 7 Man. & Gran. 701. (d) Co. Litt. 47 b ; Rill v. Saunders, 4 Barn. & Cress. 529 ; Doc d. Strode v. Seaton, 2 Cro. Mee. & Rose. 723, I'M. OF A TERM OF YEARS. 379 life passed to the lessee. But if in such a case the lease was made for valuable consideration, Equity would oblige the lessor to make good the term out of the interest he had acquired (e). The first kind of leases for years to which we have adverted, namely, those taken for the purpose of occu- pation, are usually made subject to the payment of a yearly rent (f), and to the observance and performance Rent and c , • i • ■, covenants. ot certain covenants, amongst which, a covenant to pay the rent is always included. The rent and covenants are thus constantly binding on the lessee, during the whole continuance of the term, notwithstanding any assignment which he may make. On assigning lease- hold premises, the assignee is therefore bound to enter into a covenant with the assignor, to indemnify him against the payment of the rent reserved, and the observance and performance of the covenants contained in the lease (g). The assignee, as such, is liable to the landlord for the rent which may be unpaid, and for the covenants which may be broken during the time that the term remains vested in him, although he may never enter into actual possession (A), provided that such covenants relate to the premises let; and a covenant to do any act upon the premises, as to build a wall, is binding on the assignee, if the lessee has covenanted for himself and his assigns to do the act (7). But a cove- nant to do any act upon premises not comprised in the lease cannot be made to bind the assignee (/t). Cove- Covenants nants which are binding on the assignee are said to run the'iand!' 1 ^ 1 (r) 2 Prest. Abst. 217. (/') Sjteneer'8 case, 5 Rep. 16 a; (/) See ante, p. 233 et seq. Hemingway v. Fernandes, 13 (//) Sngd. Vend. & Pur. 30, Sim. 228. Src Minshull v. i:;tl> ed. Oakes, 2 II. & N. 79:?, 809. ( h ) Williams v. Bosanquet, 1 (Jt) Keppelv. JBailey,2M.y.& Bred. & King. 238; 3.J. B. Moore, Keen, 517. 500. 380 OF PERSONAL INTERESTS IN REAL ESTATE. with the land, the burthen of such covenants passing with the land to every one to whom the term is from time to time assigned. But when the assignee assigns • to another, his liability ceases as to any future breach (7). In the same manner the benefit of covenants relating to the land, entered into by the lessor, will pass to the as- signee; for, though no contract has been made between the lessor and the assignee individually, yet, as the latter has become the tenant of the former, a privity of estate is said to arise between them, by virtue of which the covenants entered into, when the lease was granted, become mutually binding, and may be enforced by the one against the other (m). This mutual right is also confirmed by an express clause of the statute before referred to (n), by which assignees of the reversion were enabled to take advantage of conditions of re-entry con- tained in leases (0). By the same statute also, the as- signee of the reversion is enabled to take advantage of the covenants entered into by the lessee with the lessor, under whom such assignee claims (p), — an advantage, however, which, in some cases, he is said to have pre- viously possessed (q). Proviso for re- The payment of the rent, and the observance and entry. performance of the covenants, are usually further se- cured by a proviso or condition for re-entry, which enables the landlord or his heirs (and the statute above mentioned (r) enables his assigns), on non-payment of the rent, or on non-observance or non-performance of the covenants, to re-enter on the premises let, and re- (l) Taylor v. Shum, 1 Eos. & (0) Ante, p. 236. Pul. 21 ; Eon-ley v. Adams, 4 M. (jy) 1 Wms. Saund. 240, n. (3); & Cr. 534. Martyn v. Williams, 1 H. & N. (to) Sugd. Vend. & Pur. 478, 817. note, 3rd ed. (q) Vyvyan v. Arthur, 1 Barn. O) Stat. 32 Hen. VIII. c. 34, & Cres. 410, 414. s. 2. (r) Stat. 32 Hen. VIII. c. 34. OF A TERM OF YEAFvS. 38 L possess them as if no lease had been made. The pro- viso for re-entry, so far as it relates to the non-payment of rent, has been already adverted to (s). The proviso for re-entry on breach of covenants was until recently v the subject of a curious doctrine ; that if an express Effect of licence were once given by the landlord for the breach ^^ of* of any covenant, or if the covenant were, not to do a covenant. certain act without licence, and licence were once given by the landlord to perform the act, the right of re-entry was gone for ever(^). The ground of this doctrine was, that every condition of re-entry is entire and indivisible ; and, as the condition had been waived once, it could not be enforced again. So far as this reason extended to the breach of any covenant, it Avas certainly in- telligible ; but its application to a licence to perform an act, which was only prohibited when done without licence, was not very apparent (u). This rule, which was well established, was frequently the occasion of great inconvenience to tenants ; for no landlord could venture to give a licence to do any act, which might be prohibited by the lease unless done with licence, for fear of losing the benefit of the proviso for re-entry, in case of any future breach of covenant. The only method to be adopted in such a case was, to create a fresh proviso for re-entry on any future breach of the covenants, a proceeding which was of course attended with expense. The term would then, for the future, have been deter- minable on the new events stated in the proviso; and there was no objection in point of law to such a course ; for a term, unlike an estate of freehold, may be made determinable, during its continuance, on events which were not contemplated at the time of its creation (x). By a recent act of parliament the inconvenient doctrine («) Ante, p. 235 O) 4 Jarman's Conveyancing, (t) Dumper* i case, 4 Rep. 1 I9j by Sweet, 377, n. (e). JJrvmmell v. Macjj/irr.vm, II Y< (x) 2 Prest. ConY. 199. 382 OF PERSONAL INTERESTS IN REAL ESTATE. New enact- ment. Restriction on effect of licence. Licence to one of several les- sees, or as to part only. Severance of reversion. The old law. above mentioned ceased to extend to licences granted to the tenants of crown lands (y). And by a more recent statute (r) it lias been provided, that every such licence shall, unless otherwise expressed, extend only to the permission actually given, or to any specific breach of any proviso or covenant made or to be made, or to the actual matter thereby specifically authorized to be done, but not so as to prevent any proceeding for any subsequent breach, unless otherwise specified in such licence. And all rights under covenants and powers of forfeiture and re-entry contained in the lease are to remain in full force, and are to be available as against any subsequent breach or other matter not specifically authorized by the licence, in the same manner as if no such licence had been given; and the condition or right of re-entry is to remain in all respects as if such licence had not been given, except in respect of the particular matter authorized to be done. Provision has also been made (a) that a licence to one of several lessees, or with respect to part only of the property let, shall not destroy the right of re-entry as to the other lessees, or as to the remainder of the property. It has been further provided (b) that where the reversion upon a lease is severed, and the rent or other reservation is legally apportioned, the assignee of each part of the reversion shall, in respect of the apportioned rent or other reservation allotted or belonging to him, have and be entitled to the benefit of all conditions or powers of re-entry for non-payment of the original rent or other reservation, in like manner as if such conditions or powers had been reserved to him as incident to his part of the reversion in respect of the apportioned rent or other reservation allotted or belonging to him. Before this enactment a grantee of part of the reversion could (y) Stat. 8 & 9 Vict. c. 99, s. 5. (a) Sect. 2. (z) Stat. 22 & 23 Vict. c. 35, (ft) Sect. 3. s. 1. OF A TERM OF YEARS. 383 not take advantage of the condition ; as if a lease had been made of three acres reserving a rent upon condi- tion, and the reversion of two acres were granted, the rent might be apportioned, but the condition was destroyed, " for that it is entire and against common right" (c). The above enactments however failed to provide for Waiver of a the case of an actual waiver of a breach of covenant. cov 'enant On this point the law stood thus. The receipt of rent by the landlord, after notice of a breach of covenant committed by his tenant prior to the rent becoming due, was an implied waiver of the right of re-entry (7/) ; Implied but if the breach was of a continuing kind, tins implied _ . ' . tt n 1111-1 • -i Continuing waiver did not extend to the breach which continued breach. after the receipt (e). An implied waiver of this kind did not destroy the condition of re-entry (f) ; but an actual waiver had this effect. Few landlords therefore Actual waiver. were disposed to give an actual waiver. The incon- venience which thus arose is now met by a subsequent act (g), which provides that, Avhere any actual waiver of the benefit of any covenant or condition in any lease on the part of the lessor, or his heirs, executors, ad- ministrators, or assigns, shall be proved to have taken place, after the passing of that act (A), in any one par- iicular instance, such actual waiver shall not be assumed or deemed to extend to any instance, or any breach of covenant or condition, other than that to which such waiver shall specially relate, nor to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear. (c) Co. Lift. 21.", a. Sec as to Jones, 5 Ex. Rep. 408. coparceners, Doc d. De Rutzen \. (/) Doe d. Flower v. Peck, 1 Lewis, -j A. & E. 277. B. & Adol. 128. (d) Co. Litt. 211 b ; Price v. (g) Stat. 23 & 21 Vict. c. 38, Worrvood, I B. & N. 512. s. 6. (e) Doe (1. Muslim v . QUufrvton, (A) 23rd July, 18G0. 6 (-1. B. 953 ; Doc d. Baker v. 384 OF TERSONAL INTERESTS IX REAL ESTATE. As to fire in- surance. Courts may relieve against forfeiture for non- insurance. Lessor to hare benefit of in- formal insur- ance. A condition of re-entry is, evidently, a very serious instrument of oppression in the hands of the landlord, when the property comprised in the lease is valuable, and the tenant by mere inadvertence may have com- mitted some breach of covenant. To forget to pay the annual premium on the insurance of the premises against fire might thus occasion the loss of the whole property ; although, on the other hand, the landlord might well consider such forgetfulness inexcusable, since it might end in the loss of the premises by fire whilst uninsured. In this matter some beneficial provisions have been made by recent enactments. The Courts, both of Equity (i) and of Law (A), have now poAver to relieve, upon such terms as they may think fit, against a for- feiture for breach of a covenant or condition to insure against fire, where no loss or damage by fire has happened, and the breach has, in the opinion of the Court, been committed through accident or mistake, or otherwise without fraud or gross negligence, and there is an insurance on foot at the time of the application to the Court in conformity with the covenant to insure. But where such relief shall be granted, a record or minute thereof is required to be made by indorsement on the lease or otherwise (/). And the Courts are not to relieve the same person more than once in respect of the same covenant or condition ; nor are they to grant any relief Avhere a forfeiture under the covenant in respect of which relief is sought shall have been already waived out of Court in favour of the person seeking the relief (?n). It is further provided (?i) that the persons entitled to the benefit of a covenant on the part of a lessee or mortgagor to insure against loss or damage by (i) Stat. 22 & 23 Vict. c. 35, s. 5; 23 & 24 Vict. c. 126, s. 3. s. 14. (m) Stat. 22 & 23 Vict. c. 35, (k) Stat. 23 & 24 Vict. c. 12(5, s. 6. s. 2. O) Sect. 7. (0 Stat. 22 & 23 Vict. c. 35, OF A TERM OF YEARS. 385 fire shall, on loss or damage by fire happening, have the same advantage from any then subsisting insurance relating to the building covenanted to be insured, effected by the lessee or mortgagor in respect of his interest under the lease or in the property, or by any person claiming under him, but not effected in con- formity with the covenant, as he would have from an insurance effected in conformity with the covenant. It was provided by the Statute of Frauds (o), that Statute of no leases, estates or interests, not being copyhold or qn ired writing customary interests, in any lands, tenements or here- to assign a ditaments, should be assigned, unless by deed or note in writing, signed by the party so assigning, or his agent thereunto lawfully authorized by writing, or by act or operation of law. And now, by the act to amend the New enact- law of real property ( p), it is enacted that an assignment of a chattel interest, not being copyhold, in any tene- ments or hereditaments, shall be void at law unless made by deed (q). A very beneficial provision for purchasers of lease- Protection of holds is made by the recent Act to which we have Gainst pre- already frequently referred (r). This Act provides that yious non- where, on a bond fide purchase after the passing of the against fire. Act of a leasehold interest under a lease containing a covenant on the part of the lessee to insure against fire, the purchaser is furnished with a written receipt of the person entitled to receive the rent, or his agent, for the last payment of rent accrued due before the completion of the purchase, and there is subsisting at the time of (o) 29 Car. II. c. 3, s. 3. sale or mortgage appears now to Q?) Stat. 8 & 9 Vict. c. 106, s. 3, be subject to a deed stamp of 10s. repealing stat. 7 & 8 Vict. c. 7fi, Stat. 33 & 3-1 Vict. c. 97. s. 3, to the same effect. (/•) Stat. 22 & 23 Vict. c. .i."., (q) Any assignment of a lease passed 13th August, 1859. upon any other occasion than a K.P. CC 38G OF PERSONAL INTERESTS IX KF.AI. ESTATE. the completion of the purchase an insurance in con- formity with the covenant, the purchaser or any person claiming under him shall not be subject to any liability by way of forfeiture or damages, or otherwise, in respect of any breach of the covenant committed at any time before the completion of the purchase, of which the purchaser had not notice before the completion of the purchase (s). Will of lease- Leasehold estates may also be bequeathed by will. ° s ' As leaseholds are personal property, they devolve in the first place on the executors of the will, in the same manner as other personal property ; or, on the decease of their owner intestate, they will pass to his adminis- trator. An explanation of this part of the subject Avill be found in the author's treatise on the principles of General devise, the law of personal property (t). It was formerly a rule that where a man had lands in fee simple, and also lands held for a term of years, and devised by his will all his lands and tenements, the fee simple lands only passed by the will, and not the leaseholds ; but if he had leasehold lands, and none held in fee simple, the leaseholds would then pass, for otherwise the will would be merely void(?<). But the act for the amendment of Wills' Act. the laws with respect to wills (v) now provides, that a devise of the land of the testator, or of the land of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a leasehold estate if the testator had no freehold estate which could be described by it, shall be construed to include the leasehold estates of the testator, or his leasehold estates to which such description shall extend, as well as freehold estates, unless a contrary 0) Stat. 22 & 23 Vict. c. 35, (//) Rose v. Bartlett, Cro. Car. s. 8. 292. (t) Part IV. Chaps. 3 & 1. (r) Stats. 7 Will. IV. & 1 Vict. c. 2G, s. 26. OF A TERM OF YEARS. 387 intention shall appear by the will. The act to which we have already referred (x) contains a provision for Exoneration of the exoneration of the executors or administrators of a ^mhiktoators lessee from liability to the rents and covenants of the of lessee. lease, similar to that to which Ave have already referred with respect to their liability to rents-charge in convey- ances on rents-charge (y). Leasehold estates are also subject to involuntary Debts. alienation for the payment of debts. By the act for Judgments. extending the remedies of creditors against the property of their debtors, they became subject, in the same manner as freeholds, to the claims of judgment credi- tors (z): with this exception, that, as against purchasers without notice of any judgments, such judgments had no further effect than they would have had under the old law (a). And, under the old law, leasehold estates, being goods or chattels merely, were not bound by judgments until a writ of execution was actually in the hands of the sheriff or his officer (b). So that a judg- ment had no effect as against a purchaser of a leasehold estate without notice, unless a writ of execution on such judgment had actually issued prior to the purchase. And if leaseholds should be considered to be " goods " within the meaning of the Mercantile Law Amendment Act, 1856 (c), then a purchaser without notice was safe at any time before an actual seizure under the writ. And now, as we have seen, no judgment of a date lateT than the 29th of July, 1864, can affect any land (./■; Stat. 22 & 23 Vict. c. 35, Jurist, N. S. 85; 3 E. & B. 737. B# 27. (b) Stat. 29 Car. II. c. 3, B. L6. (//) Ante, p. 322; Re Green, See Principles of the LawofPer- 2 DeGex, I'. \- .1. 121. sonaJ Property, p. 46, Lsted.j 17. i | Stat I & 2 Vin. r. 110; 2nd ed.; 48, 3rd, 4th and 5th eds. ; ante, p. 83. 50, 6th ed.; 51, 7th ed. („) Stat. 2&3Vict. c.ll,B.6s (<■) Stat. 19 & 20 Vict. c. 97, Westbroolt v. Blythe, Q, B., I b. 1. < C 2 388 OF PERSONAL INTERESTS IN REAL ESTATE. of whatever tenure, until such land shall have been actually delivered in execution by virtue of a writ of elegit or other lawful authority in pursuance of such judgment (d). Bankruptcy. In the event of bankruptcy leasehold or any other onerous property may now be disclaimed by the trustee for the creditors, notwithstanding he has endeavoured to sell, or has taken possession of such property, or exer- cised any act of ownership in relation thereto, and the same, if a lease, shall be deemed to have been surren- dered on the same date (e). But the trustee shall not be entitled to disclaim any property in pursuance of the act in cases where an application in writing has been made to him by any person interested in such property requiring such trustee to decide whether he will disclaim or not, and the trustee has, for a period of not less than twenty-eight days after the receipt of such application, or such further time as may be allowed by the Court, declined or neglected to give notice whether he disclaims the same or not (f). Underlease. The tenant for a term of years may, unless restrained by express covenant, make an underlease for any part of his term ; and any assignment for less than the Avhole term is in effect an underlease (g). On the other Underlease for hand, any assurance purporting to be an underlease, but which comprises the whole term, is, by the better opinion, in effect an assignment (h). It is true that in the whole term (d) Stat. 27 & 28 Vict. c. 112; ante, p. 85. (e) Stat. 32 & 33 Vict. c. 71, s. 23. (/) Sect. 24. (ff) See Sugd. Concise Vendors, 482; Cottee v. Richardson, 7 Ex. Rep. 143. (A) Palmer v. Edwards, 1 Doug. 187, n. ; Parmenter v. Webber, 8 Taunt. 593; 2 Prest. Conv. 124; Thorn v. Woollcombe, 3 B. & Adol. 586 ; Langford v. Selmes, 3 K. & J. 220, 227; Beau- mont v. Marquis of Salisbury , 19 Beav. 198, 210 ; Beardnwre v. Wilson, L. R. 4 C. P. 57. OF A TERM OP YEARS. 389 some cases, where a tenant for years, having less than tlnee years of his term to run, has verbally agreed with another person to transfer the occupation of the premises to him for the rest of the term, he paying an equivalent rent, this has been regarded as an underlease, and so valid (i), rather than as an attempted assignment which would be void, formerly for want of a writing (J), and now for want of a deed (&). It is, however, held that No distress can no distress can be made for the rent thus reserved (I). n ' But if a tenure be created, the lord, if he have no estate, must at least have a seignory (m), to which the rent would by law be incident ; and being thus rent service, it must by the common law be enforceable by distress (n). The very fact therefore, that no distress can be made for the rent by the common law, shows that there can be no tenure between the parties. And, if so, the attempted disposition cannot operate as an underlease (o). If, however, the disposition be by deed, and be executed by the alienee, it has been decided that the reservation of rent may operate to create a rent-charge (p), for which the owner may sue (g), and which he may assign, so as to entitle the assignee to sue in his own name (r). And if this be so, there seems no good reason why, under these circumstances, the statutory power of distress given to the owner of a rent seek (s), should not apply (/) Poultney v. Holmes, 1 (m) Ante, p. 314. Strange, 405; Prcece v. Carrie, 5 (to) Litt. sect. 213. Bing. 27; Pollock v. Stacy, \d) Barrett v. Rolph, 14 M. & Q. B. 1033. W. 348, 352. (j) Stat. 29 Car. II. c. 3, s. 3; O) Ante, p. 314. ante, p. 385. 0/) Baker v. QostUng, 1 Bing. (Jc) Stat. 8 & 9 Vict. c. 10f., s. N. C. 19. 3; ante, p. 385. (r) II illiams v. Wayward, Q. (I) Bac. Abr. tit. Distress (A); B., 5 Jur., N. 8. 1417; 1 Ellis vV v. Cooper, 2 Wilson, 375; Ellis, 1040. Preece v. Corrie, 6 Bing. L'l ; (j) Stat. 4 Geo. IL c. 28, s. 6 j Paxcoc v. Pascoe, 8 Bing. N. C. ante, p. 318. *«.»«. 390 OF PERSONAL INTERESTS IN REAL ESTATE. to the rent thus created (t). But on this point also opinions differ (u). No privity he- Every underlessee becomes tenant to the lessee who mradSie g rants tnc underlease, .and not tenant to the original underlessee. lessor. Between him and the underlessee, no privity is said to exist. Thus the original lessor cannot maintain any action against an underlessee for any breach of the covenants contained in the original lease (ar). His remedy is only against the lessee, or any assignee from Derivative him of the whole term. The derivative term, which is estate in oriS- veste( ^ m tne underlessee, is not an estate in the interest nal term. originally granted to the lessee : it is a new and distinct term, for a different, because a less, period of time. It certainly arises and takes effect out of the original term, and its existence depends on the continuance of such term, but still, when created, it is a distinct chattel, in the same way as a portion of any moveable piece of goods becomes, when cut out of it, a separate chattel personal. Husband's If a married woman should be possessed of a term rights m his f years l ier husband may dispose of it at any time wife s term. J ' . <, during the coverture, either absolutely or by way of mortgage (y) ; and in case he should survive her, he will be entitled to it by his marital right (z). But if he should die in her lifetime it will survive to her, and his will alone will not be sufficient to deprive her of it (a). And now by the Married Women's Property (t) Pascoe t. Pascoe, 3 Bing. 183. N. C. 905. {y) Hill v. Edmonds, 5 De ( M ) See v. Cooper, 2 Wils. Gex & S. 603, 607. 375; Longford v. Selmes, 3 K. & (z) Co. Litt. 46 b, 351 a. J. 220; Smith v. Watts, 4 Drew. (a) 2 Black. Com. 434 ; 1 Hop. 338; Wills v. Cattling, Q. B., 7 Hnsb. and Wife, 173, 177; Doe d. W. R. 448; Burton's Compen- Shaw v. Steward, 1 Ad. & Ell. dinm, pi. 1111. 300; as to trust terra, Donne v. (x) Holford v. Hatch, 1 Dongl. Hart, 2 Russ. & Mylne, 360; see OF A TERM OF YEARS. 391 Act, 1870, where any woman married after the 9th of August, 1870, the date of the act, shall during her marriage become entitled to any personal property (which would seem to include leaseholds) as next of kin or one of the next of kin of an intestate, such property shall, subject aud without prejudice to the trusts of any settlement affecting the same, belong to the woman for her separate use (b). In many cases landlords, particularly corporations, Renewable are in the habit of granting to their tenants fresh eases ' leases, either before or on the expiration of existing ones. In other cases a covenant is inserted to renew the lease on payment of a certain fine for renewal; aud this covenant may be so worded as to confer on the lessee a perpetual right of renewal from time to time as each successive lease expires (c). In all these cases Surrender in the acceptance by the tenant of the new lease operates as a surrender in law of the unexpired residue of the old term ; for the tenant by accepting the new lease affirms that his lessor has power to grant it ; and as the lessor could not do this during the continuance of the old term, the acceptance of such new lease is a surrender in law of the former. But if the new lease be void, the surrender of the old one will be void also ; and if the new lease be voidable, the surrender will be void if the new lease fail(rf). It appears to be now M-ttled, after much difference of opinion, that the granting of a new lease to another person with the consent of the tenant is an implied surrender of the also Hanson v. Keating, 1 Hare, 4 Kay & J. 1". 1 -, Duherbj v. Day, Rolls, 16 ( Ves. nay, 11 Q, B. 7'»l' ; Doe d. Bidr 825; 7 East, 237; Hare \. Bwrges, dulph v. l'o„ir, 1 1 Q. B. 713. 392 OF PERSONAL INTERESTS IN REAL ESTATE. old term (e). Whenever a lease, renewable either by favour or of right, is settled in trust for one person for life with remainders over, or in any other manner, the benefit of the expectation or right of renewal belongs to the persons from time to time beneficially interested in the lease ; and if any other person should, on the strength of the old lease, obtain a new one, he Avill be regarded in equity as a trustee for the persons benefi- cially interested in the old one(y). So the costs of renewal are apportioned between the tenant for life and remainder-men according to their respective pe- riods of actual enjoyment of the new lease (g). Special provisions have been made by parliament for facili- tating the procuring and granting of renewals of leases when any of the parties are infants, idiots or lunatics (A). And the provision by which the remedies against under-tenants have been preserved, when leases are surrendered in order to be renewed, has been already mentioned (i). More recently provisions have been made by parliament enabling trustees of renewable leaseholds to renew their leases (k), and to raise money by mortgage for that purpose (7). Provisions have also (e) See Lyon v. Reed, 13 Mee. Hadleston v. Mltelpdale, 9 Hare, & Wels. 285, 306 ; Creagh v. 775 ; Ainslie v. Harconrt, 28 Blood, 3 Jones & Lat. 133, 160 ; Beav. 313 ; Bradford v. Bromn- Kichells v. Atherstone, 10 Q. B. John, L. R. 3 Ch. 711. 944 ; M'Donnell v. Pope, 9 Hare, (h) Stats. 11 Geo. IV. & 1 Will. 705; Davison v. Gent, 1 H. & N. IV. c. 65, ss. 12, 14—18, 20, 21 ; 744. 16 & 17 Vict. c. 70, ss. 113—115, (/) Rawe\. Chichester, Ambl. 133 — 135. 715; Gidding v. Gidding, 3 Russ. (i) Stat. 4 Geo. II. c. 28, s. 6 ; 241 ; Tanner v. Eln-orthy, 4 Beav. ante, p. 239. 487; Clegg v. Fishn-ick, 1 Mac. & (k) Stat. 23 & 24 Vict. c. 145, Gord. 294. s. 8. (<7) White v. White, 5 Ves. (?) Sect. 9. These provisions 554; 9 Ves. 560; Allan v. Back- apply only to instruments executed house, 2 Ves. & Bea. 65 ; Jacob, after the passing of the act (sect. 631 ; Greenwood v. Evans, 4 Beav. 34). The act passed 28th August, 44; Jones v. Jones, 5 Hare, 440; 1860. OF A TEEM OF YEAES. 393 been made for facilitating the purchase by such trustees of the reversion of the lands, when it belongs to an ecclesiastical corporation, and for raising money for that purpose by sale or mortgage (m); also for the exchange of part of the lands, comprised in any renewable lease, for the reversion in other part of the same lands, so as thus to acquire the entire fee simple in a part of the lands instead of a renewable lease of the Avhole (n). We now come to consider those long terms of years Long terms of of which frequent use is made in conveyancing, gene- 3 ears - rally for the purpose of securing the payment of money. For this purpose, it is obviously desirable that the person who is to receive the money should have as much power as possible of realizing his security, whether by receipt of the rents or by selling or pledging the land ; at the same time it is also desirable that the OAvnership of the land, subject to the payment of the money, should remain as much as possible in the same state as before, and that when the money is paid, the persons to whom it was due should no longer have anything to do with the property. These desirable objects are accomplished by conveyancers by means of the creation of a long term of years, say 1,000, which is vested (when the parties to be paid are numerous, or other circumstances make such a course desirable), in trustees, upon trust out of the rents and profits of the premises, or by sale or mortgage thereof for the whole or any part of the term, to raise and pay the money required, as it may become due, and upon trust to permit the owners of the land to receive the residue of the rents and profits. By this means the parties to be paid have ample security The parties for the payment of their money. Not only .have their s ' a ( Vm'ty '' ° trustees the right to receive on their behalf (if the;, think fit) the whole accruing income of the property, (»<) Stat. 23 & 24 Viet. c. 124, n, 35 38. (») Sect, 89. 394 OF 1'EUSONAL INTKKESTS IN REAL ESTATE. The ownership of the land, subject to the payment, re- mains as be- fore. but they have also power at once to dispose of it for 1,000 years to come, a power which is evidently almost as effectual as if they were enabled to sell the fee simple. Until the time of payment comes, the owner of the land is entitled, on the other hand, to receive the rents and profits, by virtue of the trust under which the trustees may be compelled to permit him so to do. So, if part of the rents should be required, the residue must be paid over to the owner ; but if non-payment by the owner should render a sale necessary, the trustees will be able to assign the property, or any part of it, to any purchaser for 1,000 years without any rent. But until these measures may be enforced, the ownership of the land, subject to the payment of the money, remains in the same state as before. The trustees, to whom the term has been granted, have only a chattel interest ; the legal seisin of the freehold remains with the owner, and may be conveyed by him, or devised by his will, or will descend to his heir, in the same manner as if no term existed, the term all the while still hanging over the whole, ready to deprive the owners of all substantial enjoyment, if the money should not be paid. Proviso for cesser. If, however, the money should be paid, or should not ultimately be required, different methods may be employed of depriving the trustees of all power over the property. The first method, and that most usually adopted in modern times, is by inserting in the deed, by which the term is created, a proviso that the term shall cease, not only at its expiration by lapse of time, but also in the event of the purposes for which it is created being fully performed and satisfied, or becoming unnecessary, or incapable of taking effect (o). This proviso for cesser, as it is called, makes the term endure so long only as the purposes of the trust require ; and, O) See Sugd. Vend. & Pur 508, 13th cd. OF A TERM OF YEARS. 395 when these are satisfied, the term expires without any act to be done by the trustees : their title at once ceases, and they cannot, if they would, any longer intermeddle with the property. But if a proviso for cesser of the term should not be inserted in the deed by which it is created, there is still a method of getting rid of the term, without disturbing the ownership of the lands which the term overrides. The lands in such cases, it should be observed, may not, and seldom do, belong to one owner for an estate in fee simple. The terms of which we are now speaking Terms are used are most frequently created by marriage settlements, and portions' Ug are the means almost invariably used for seeming the portions of the younger children ; whilst the lands are settled on the eldest son in tail. But, on the son's coming of age, or on his marriage, the lands are, for the most part, as we have before seen (p), resettled on him for life only, with an estate tail in remainder to his unborn eldest son. The owner of the lands is therefore probably only a tenant for life, or perhaps a tenant in tail. But, whether the estate be a fee simple, or an Any estate of estate tail, or for life only, each of these estates is, as i arger es tate avc have seen, an estate of freehold (rj), and, as such, is tlian a tcrm ol larger, in contemplation of law, than any term of years, however long. The consequence of this legal doctrine is, that if any of these estates should happen to be vested in any person, who at the same time is possessed of a term of years in the same land, and no other estate should intervene, the estate of freehold will infallibly swallow up the term, and yet be not a bit the larger. The term will, as it is said, be merged in the estate of Merger of the freehold (r). Thus, let A. and B. be tenants for a term of 1,000 years, and subject to that term, let C. be ( l>) Auto, ,,. 49. (,■) :; Prest. Conv. 219. See (j ) Ante, pp. 22, 35, 69. ante, pp. 289, 270. 396 OF PERSONAL INTERESTS IN REAL ESTATE. Surrenders now to be by deed. tenant for his life ; if now A. and B. should assign their term to C. (which assignment under such circumstances Surrender. is called a surrender), C. will still be merely tenant for life as before. The term will be gone for ever; yet C. will have no right to make any disposition to endure beyond his own life. He had the legal seisin of the lands before, though A. and B. had the possession by virtue of their term ; now, he will have both legal seisin and actual possession during his life, and A. and B. will have completely given up all their interest in the premises. Accordingly, if A. and B. should be trustees for the purposes Ave have mentioned, a surrender by them of their term to the legal owner of the land, will bring back the ownership to the same state as before. The act to amend the law of real property (s) now pro- vides that a surrender in writing of an interest in any tenements or hereditaments, not being a copyhold inte- rest, and not being an interest which might by law have been created without writing, shall be void at law unless made by deed. Accidental The merger of a term of years is sometimes occa- merger. sioned by the accidental union of the term and the immediate freehold in one and the same person. Thus, if the trustee of, the term should purchase the freehold, or if it should be left to him by the will of the former owner, or descend to him as heir at law, in each of these cases the term will merge. So if one of two joint holders of a term obtain the immediate freehold, his moiety of the term will merge ; or conversely if the sole owner of a term obtain the immediate freehold jointly with another, one moiety of the term will merge, and the joint ownership of the freehold will continue, subject only to the remaining moiety of the term (t). 0) Stat. 8 & 9 Vict. c. 106, s.3, repealing stat. 7 & 8 Vict. c. 76, s. 4, to the same effect. (/) Svf Ralph Boreifs case, 1 Ventr. 193, 195 ; Co. Litt. 186 a ; Burton's Compendium, pi. 900. OF A TERM OF YEARS. 397 Merger being a legal incident of estates, occurs quite irrespective of the trusts on which they may be held ; but equity will do its utmost to prevent any injury being sustained by a cestui que trust, the estate of whose trustee may accidentally have merged (u). The law, however, though it does not recognize the trusts of equity, yet takes notice in some few cases of property being held by one person in right of another, or in autre Estates held in droit, as it is called ; and in these cases the general rule autre lt# is, that the union of the term with the immediate free- hold Avill not cause any merger, if such union be occa- sioned by the act of law, and not by the act of the party. Thus, if a term be held by a person, to whose wife the immediate freehold afterwards comes by descent or devise, such freehold, coming to the husband in right of his- wife, will not cause a merger of the term (x). So, if the owner of a term make the freeholder his executor, the term Avill not merge (?/) ; for the executor is recognized by the law as usually holding only for the benefit of creditors and legatees; but if the executor himself should be the legatee of the term, it seems that, after all the creditors have been paid, the term will merge (z). And if an executor, whether legatee or not, holding a term as executor, should purchase the immediate freehold, the better opinion is, that this being liis own act, will occasion the merger of the term, except so far as respects the rights of the creditors of the testator («). There was until recently another method of disposing The term of a term when the purposes for which it was created F" 8 , have 1 L been kept on foot. (?/) See 3 Prest. Conv.320, 321. See Law v. T'rln-bi, lf> Sim. 377, (x) Doe d. Bliffht v. Pett, 11 and Lord St. Leonards' comments Adol. & Ellis, 842; Junes v. Da- on this case, Bug. V. & P. 507, vies, 5 H. & N. 766; 7 II. & N. 18th cd. 507. (a) Sugd. Vend. & Par. 506, (y) Co. Litt. 338 b. 18th ed. (;) 3 Prest. Con v. 310, 811. 398 OF PERSONAL INTERESTS IX REAL ESTATE. Assignment in trust to attend the inherit- ance. Case of a rent- charge. Consequence of a surrender of the term. had been accomplished. If it were not destroyed by a proviso for cesser, or by a merger in the freehold, it might have been kept on foot for the benefit of the owner of the property for the time being. A term, as we have seen, is an instrument of great power, yet easily managed ; and in case of a sale of the property, it might have been a great protection to the purchaser. Suppose, therefore, that, after the creation of such a term as we have spoken of, the whole property had been sold. The purchaser, in this case, often preferred having the term still kept on foot, and assigned by the trustees to a new trustee of his own choosing, in trust for himself, his heirs and assigns ; or, as it was technically said, in trust to attend the inheritance. The reason for this proceeding was that the former owner might, possibly, since the commencement of the term, have created some incumbrance upon the property, of which the purchaser was ignorant, and against which, if existing, he was of course desirous of being protected. Suppose, for in- stance, that a rent-charge had been granted to be issuing out of the lands, subsequently to the creation of the term : this rent-charge of course could not affect the term itself, but was binding only on the freehold, subject to the term. The purchaser, therefore, if he took no notice of the term, bought an estate, subject not only to the term but, also, to the • rent-charge. Of the existence of the term, however, we suppose him to have been aware. If uoav he should have procured the term to be surrendered to himself, the unknown rent- charge, not being any estate in the land, would not have prevented the union and merger of the term in the freehold. The term would consequently have been destroyed, and the purchaser would have been left without any protection against the rent-charge, of the existence of which he had no knowledge, nor any means of obtaining information. The rent-charge, by this means, became a charge, not only on the legal seisin, OF A TERM OF YEARS. 399 but also on the possession of the lands, and was said to be accelerated by the merger of the term (6). The preferable method, therefore, always was to avoid any merger of the term ; but, on the contrary, to obtain an The term assignment of it to a trustee in trust for the purchaser, j^ e °£ ass £Jn e( j his heirs and assigns, and to attend the inheritance. to attend the The trustee thus became possessed of the lands for the term of 1,000 years; but he was bound, by virtue of the trust, to allow the purchaser to receive the rents, and exercise what acts of ownership he might please. If, however, any unknown incumbrance, such as the rent-charge in the case supposed, should have come to light, then was the time to bring the term into action. If the rent-charge should have been claimed, the trustee of the term would at once have interfered, and informed the claimant that, as his rent-charge was made subse- quently to the term, he must wait for it till the term was over, which was in effect a postponement sine die. In this manner, a term became a valuable protection to any person on whose behalf it was kept on foot, as well as a source of serious injury to any incumbrancer, such as the grantee of the rent-charge, who might have neglected to procure an assignment of it on his own behalf, or to obtain a declaration of trust in his favour from the legal owner of the term. For it will be ob- served that, if the grantee of the rent-charge had obtained from the persons in whom the term was vested a declaration of trust in his behalf, they would have been bound to retain the term, and could not law- fully have assigned it to a trustee for the purchaser. If the purchaser, at the time of his purchase, Bhould if fche par- have had notice of the rent-charge 3 and should yet have no tice fthe procured an assignment of tlie term to a trustee for liis incumbrance own benefit, the Court ol ( hancery would, od the orst his purchase, (/,) :; I'r.-i. Conv, 160. 400 OF PERSONAL INTERESTS IN REAL ESTATE. he could not use the term Ilower barred I iy assignment of term. principles of equity, have prevented his trustee from making any use of the term to the detriment of the grantee of the rent-charge (c). Such a proceeding ■would evidently be a direct fraud, and not the pro- tection of an innocent purchaser against an unknown An exception, incumbrance. To this rule, however, one exception was admitted, which reflects no great credit on the gallantry, to say the least, of those who presided in the Court of Chancery. In the common case of a sale of lands in fee simple from A. to B., it was holden that, if there existed a term in the lands, created prior to the time when A.'s seisin commenced, or prior to his marriage, an assignment of his term to a trustee for B. might be made use of for the purpose of defeating the claim of A.'s wife, after his decease, to her dower out of the premises (d). Here B. evidently had notice that A. was married, and he knew also that, by the law, the widow of A. would, on his decease, be entitled to dower out of the lands. Yet the Court of Chancery permitted him to procure an assignment of the term to a trustee for himself, and to tell the widow that, as her right to dower arose subsequently to the creation of the term, she must wait for her dower till the term Avas ended. We have already seen (e), that, as to all women married after the first of January, 1834, the right to dower has been placed at the disposal of their husbands. Such husbands, therefore, had no need to request the concurrence of their wives in a sale of their lands, or to resort to the device of as- signing a term, should this concurrence not have been obtained. The owner of the inheritance subject to an "When a term had been assigned to attend the inhe- ritance, the owner of such inheritance was not re- (r) WUloughly v. WiUoiujhhy, {d) Sugd. Vend. & Pur. 510, 1 T. Rep. 763. 13th ed.; Co. Litt. 208 a, n. (1). (e) Ante, p. 227. OF A TERM OF YEARS. 401 garded, in consequence of the trust of the term in his attendant term had a i estate favour, as having any interest of a personal nature, sary, even in contemplation of equity ; but as, at law, he had a real estate of inheritance in the lands, subject to the term, so, in equity, he had, by virtue of the trust of the term in his favour, a real estate of inheritance in immediate possession and enjoyment (f). If the Term atten- term were neither surrendered nor assigned to a , ant £ y con " ^ ^ struction of trustee to attend the inheritance, it still was consi- law. dered attendant on the inheritance, by construction of law, for the benefit of all persons interested in the inheritance according to their respective titles and estates. An act has, however, been passed " to render the Act to render assignment of satisfied terms unnecessary" (y). This of satisfied act provides (h), that every satisfied term of years terms unneces which, either by express declaration or by construction of law, shall upon the thirty-first day of December, 1845, be attendant upon the reversion or inheritance of any lands, shall on that day absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall be attendant as aforesaid, except that every such term of years, which shall be so attendant as aforesaid by express declaration, although thei'eby made to cease and determine, shall afford to every person the same protection against every incumbrance, charge, estate, right, action, suit, claim, and demand, :is it would have afforded to him if it had continued to subsist, but had not been assigned or dealt with, after the said thirty-first day of December, 1845, and shall, for the purpose of such protection, be considered in every <<>nrf of law and of equity to be a subsisting term. (/) Sngd. Vend. & I'ur. 790, ( I) I) 2 404 OF PERSONAL rNTERESTS IN REAL ESTATE. nn agreement for a reconveyance on a certain given event. Tims, let us suppose freehold lands to be con- veyed by A., a person seised in fee, to B. and his heirs, subject to a proviso, that on repayment on a given future day, by A. to B., of a sum of money then Lent by B. to A., with interest until repayment, B. or his heirs "will reconvey the lands to A. and his heirs ; and with a further proviso, that until default shall be made in payment of the money, A. and his heirs may hold the land without any interruption from B. or his heirs. Here we have at once a common mortgage of freehold land (a). A., who conveys the land, is called the (a) The following duties are imposed by the Stamp Act, 1870, stat. 33 & 34 Vict. c. 97 : — Mortgage, bond, debenture, covenant, warrant of attorney to confess and enter up judgment, and foreign security of any kind : (1) Being the only or principal or primary security for— The payment or repayment of money not ex- ceeding 251. Exceeding '2~>l. and not exceeding 50£. 50?. 100J. 150Z. 200Z. 250?. 300Z. 100Z 150Z, 200J 250£ 300Z, For every 100Z. and also for any fractional part of 100Z. of such amount (2) Being a collateral or auxiliary or additional or sub- stituted security, or by way of further assurance for the above-mentioned purpose where the prin- cipal or primary security is duly stamped : For every 100Z. and also for any fractional part of 100?. of the amount secured (3) Transfer, assignment, disposition, or assignation of any mortgage, bond, debenture, covenant, or foreign security, or of any money or stock secured by any such instrument, or by any war- rant of attorney to enter up judgment, or by any judgment : £ s. d. 8 1 3 2 6 3 9 5 6 3 7 6 o l' i; o o G OF A MORTGAGE DEBT, 405 mortgagor; B., who lends the money, and to whom the land is conveyed, is called the mortgagee. The conveyance of the land from A. to B. gives to B., as is evident, an estate in fee simple at law. He thenceforth becomes, at law, the absolute owner of the premises* subject to the agreement under which A. has a right of enjoyment, until the day named for the payment of the money (i); on which day, if the money be duly paid, B. has agreed to re-convey the estate to A. If, when the day comes, A. should repay the money with in- terest, B. of course must re-convey the lands; but if the money should not be repaid punctually on the day fixed, there is evidently nothing on the face of the arrangement to prevent B. from keeping the lands to himself and his heirs for ever. But upon this arrange- ment, a very different construction is placed by a Court of law and by a Court of equity, a construction which well illustrates the difference between the two. The Courts of law, still adhering, according to their Construction ancient custom, to the strict literal meaning of the in { aw °' ° term, hold, that if A. do not pay or tender the money punctually on the day named, he shall lose the land for ever; and this, according to Littleton (c), is the origin / Tin- same dutj J as a i -n -I *s security for I such further V nioiify. For every 100/. and also for any fractional part & s. d. of 100/. of the amount transferred, assigned or disponed . . . . . . • • • • 6 And also where any further money is added to the money already secured (4) Reconveyance, release, discharge, surrender, re-sur- render, warrant to vacate, or renunciation of any Buch security as aforesaid, or of the benefit thereof, or of the money thereby secured : For every 100/. and also for any fractional part, of 100/. of the total amount or value of the money at any time secured .. .. o i; (//; See as to this, Doe d. Roylance v. Lightfoot, 8 Mee. & \V. 553 \ Doe d. Parsley v. I'":/, 2 ook book '•'>, «; Coote on Mortgages, I xx>k L24 j Eyre \. Hanson, l' Beai 5, ch. 4. 478. (») Nanny v. Edwards, 1 Kuss. (o) Stat 7 Geo. II. e. 20, s. -. 410 OF PERSONAL INTERESTS IN REAL ESTATE. Chancery, the Court is empowered, in any suit for fore- closure, to direct a sale of the property at the request County Courts, of either party instead of a foreclosure (p). And the equitable jurisdiction of the Court of Chancery is now extended to the County Courts with respect to all sums not exceeding five hundred pounds (cj). Power of sale. The mort- gagor's concur- rence cannot be required. New enact- ment. Statutory powers of sale, &c. In addition to the remedy by foreclosure, which, it will be perceived, involves the necessity of a suit in Chancery, a more simple and less expensive remedy is now usually provided in mortgage transactions ; this is nothing more than a power given by the mortgage deed to the mortgagee, without further authority, to sell the premises, in case default should be made in payment. When such a power is exercised, the mortgagee, having the whole estate in fee simple at law, is of course able to convey the same estate to the purchaser ; and, as this remedy would be ineffectual, if the concurrence of the mortgagor were necessary, it has been decided that his concurrence cannot be required by the purchaser (r). The mortgagee, therefore, is at any time able to sell ; but, having sold, he has no further right to the money produced by the sale than he had to the lands before they were sold. He is at liberty to retain to himself his principal, interest and costs ; and, having done this, the surplus, if any, must be paid over to the mortgagor. And, by a recent act of parliament (s), a power of sale, a poAver to insure against fire, and a power to require the appointment of a receiver of the rents, or in default to appoint any person as such receiver, have been O) Stat. 15 & 1G Vict. c. 86, s. 48 ; Hurst v. Hurst, 16 Beav. 374 ; Newman v. Selfe, 33 Beav. 522. (?) Stat. 28 & 29 Vict. c. 99, amended by stat. 30 & 31 Vict. c. 112. (r) Carder v. Morgan, 18 Ves. 314; Clay v. Sliarpe, Sugd. Vend. & Pur. Appendix, No. XIII. p. 1096, 11th ed. 0) Stat. 23 & 24 Vict. c. 145, part 2. OF A MORTGAGE DEBT. 4 1 1 rendered incident to every mortgage or charge by deed affecting any hereditaments of any tenure. These powers, however, do not arise until after the expiration of one year from the time when the principal money shall have become payable according to the terms of the deed, or after any interest on such principal money shall have been in arrear for six months, or after any omission to pay any premium on any insurance, which by the terms of the deed ought to be paid by the person entitled to the property subject to the charge (7). And no sale is to be made imtil after six months' notice in writing (m). But none of these powers are to be exer- cisable, if it be declared in the mortgage deed that they shall not take effect ; and Avhere there is no such decla- ration, then if any variations or limitations of any of the powers are contained in the deed, such powers shall be exercisable only subject to such variations or limita- tions (y). If, after the day fixed for the payment of the money Mortgagor is passed, the mortgagor should wish to pay off the "alemhir ^ mortgage, he must give to the mortgagee six calendar months' notice .-, , . .. . ... «, . . , of intention to months previous notice m writing ol his intention so to re pay. do, and must then punctually pay or tender the money at the expiration of the notice (w); for if the money should not be then ready to be paid, the mortgagee will be entitled to fresh notice ; as it is only reasonable that he should have time afforded him to look out for a fresh security for his money. Mortgages of freehold lands are sometimes made for Mortgages for long terms, such as 1,000 years. But this is not now J",',^"" 8 ° f often the case, as the feu simple is more valuable, and (0 Stat. 23 & 24 Vict. c. ] 15, (<■) Sect. 32, see mite, p. 295. s. 11. («') Shrapnell v. Blake, 2 Eq. (»; Sect 13. Ca. A.br. o\:\, pi. 34. -112 OF PERSONAL [NTERESTS IN REAL ESTATE. therefore preferred as a security. Mortgages for long terms, when they occur, are usually made by trustees, in whom the terms have been vested in trust to raise, by mortgage, money for the portions of the younger children of a family, or other similar purposes, 'flic reasons for vesting such terms in trustees for these pur- poses were explained in the last chapter (x). Mortgage of Copyhold, as well as freehold lands, may be the C ° K ° ' subjects of mortgage. The purchase of copyholds, it will be remembered, is effected by a surrender of the lands from the vendor into the hands of the lord of the manor, to the use of the purchaser, followed by the ad- mittance of the latter as tenant to the lord (;/). The mortgage of copyholds is effected by surrender, in a similar manner, from the mortgagor to the use of the mortgagee and his heirs, subject to a condition, that on payment by the mortgagor to the mortgagee of the money lent, together with interest, on a given day, the surrender shall be void. If the money should be duly paid on the day fixed, the surrender will be void accord- ingly, and the mortgagor Avill continue entitled to his old estate ; but if the money should not be duly paid on that day, the mortgagee will then acquire at law an absolute right to be admitted to the customary estate which was surrendered to him ; subject nevertheless to the equitable right of the mortgagor, confining the actual benefit derived by the former to his principal money, interest and costs. The mortgagee, however, is seldom admitted, unless he should wish to enforce his security, contenting himself with the right to admittance conferred upon him by the surrender ; and, if the money should be paid off, all that will then be necessary will be to procure the steward to insert on the court rolls a memorandum of acknowledgment, by the mortgagee, of (x) See ante, p. o'Jo. (//) Ante, pp. o'jS, LiGO. OF A MORTGAGE DEBT. 413 satisfaction of the principal money and interest secured by the surrender (r). If the mortgagee should have been admitted tenant, he must of course, on repayment, surrender to the use of the mortgagor, who will then be re-admitted. Leasehold estates also frequently form the subjects Mortgage of of mortgage. The term of years of which the estate ease 10 ' * - consists is assigned by the mortgagor to the mortgagee, subject to a proviso for redemption or re-assignment on payment, on a given day, by the mortgagor to the mort- gagee, of the sum of money advanced with interest ; and with a farther proviso for the quiet enjoyment of the premises by the mortgagor until default shall be made in payment. The principles of equity as to redemption apply equally to such a mortgage, as to a mortgage of freeholds; but, as the security, being a term, is always wearing out, payment will not be permitted to be so long deferred. A power of sale also is frequently inserted in a mortgage of leaseholds, and the statutory powers given by the act already referred to (a) extend also to leaseholds. From what has been said in the last chapter (b), it will appear that, as the mortgagee is an assignee of the term, he will be liable to the landlord, during the continuance of the mortgage, for the pay- ment of the rent and the performance of the covenants of the lease; against this liability the covenant of the mortgagor is his only security. In order, therefore, to obviate this liability, when the rent or covenants are onerous, mortgages of leaseholds are frequently made by way of demise or underlease: the mortgagee by Mortgage bj tliis means becomes the tenant only of the mortgagor, 0I ease " and consequently a mere stranger with regard to the landlord (c). The security of the mortgagee in this 0) 1 Scriv. Cop. 242; 1 Wail.. (/>) Ante, p. 379. Cop. i 17, 1 18. <>) See ante, p. 890. (. 15.7 1!). 656. (/') 2 & 8 Vict. c. 87, continued (Z) 3 Burr. 1374 ; 1 Fonb. Eq. by Btat. 13 & H Vict. c. :,c. 398. 416 OF PERSONAL INTERESTS IN REAL ESTATE. Repeal of the interest therein, avc re expressly excepted (o). But, by an act of parliament passed on the 10th of August, 1854 (p), all the laws against usury were repealed; so that, now, any rate of interest may be taken on a mortgage of lands, which the mortgagor is willing to pay. Mortgages to Xhe loan of money on mortgage is an investment trustees. frequently resorted to by trustees, when authorized by their trust to make such use of the money committed to their care : in such a case, the fact that they are trustees, and the nature of their trust, are usually omitted in the mortgage deed, in order that the title of the mortgagor or his representatives may not be affected by the trusts. It is, however, a rule of equity, that when money is advanced by more persons than one, it shall be deemed, unless the contrary be expressed, to have been lent in equal shares by each (q) ; if this were the case, the executor or administrator of any one of the parties would, on his decease, be entitled to receive his share (r). In order, therefore, to prevent the application of this rule, it is usual to declare, in all mortgages made to trustees, that the money is advanced by them on a joint account, and that, in case of the decease of any of them in the lifetime of the others, the receipts of the survivors or survivor shall be an effectual discharge for the whole of the money. Judgment "We have already defined a mortgage debt as an in- debts a charge , , • i -■ /• i,/\ -i • -> on mortgagee's t eres t m land ot a personal nature (s); and in accord- interest in. the ance Av it n this vieAv, it was held that iudffment debts lands. . & , . . against the mortgagee were a charge upon his interest (o) Sec Follett v. Moore, 4 Ex. (r) Petty v. Sty ward, 1 Cha. Rep. 410. Rep. 57; 1 Eq. Ca. Ab. 290; (/>) Stat. 17 & 18 Vict. c. 00. Yirkcrs v. Cornell, 1 Be'av. 529. (//) 3 Atk. 734; 2 Ves. sen. (s) Ante, p. 403. 258 ; 3 Ves. jun. G31. OF A MORTGAGE DEBT. 417 in the mortgaged lands (£). But it was afterwards provided (m), that where any mortgage should have New enaet- been paid off prior to, or at the time of, the conveyance of the lands to a purchaser or mortgagee for valuable consideration, the lands should be discharged both from the judgment and crown debts of the mortgagee. And by a still more recent statute, to which we have already referred (#), the lien of all judgments, of a date later than the 29th of July, 1864, has been abolished. Mortgages are frequently transferred from one per- Transfer of ,, -T,-, -1,1 • i mortgages. son to another. Ihe mortgagee may wish to be paid off, and another person may be willing to advance the same or a further amount on the same security. In such a case the mortgage debt and interest are assigned by the old to the new mortgagee ; and the lands which form the security are conveyed, or if lease- hold assigned, by the old to the new mortgagee, subject to the equity of redemption which may be subsisting in the premises ; that is, subject to the right in equity of the mortgagor or his representatives to redeem the premises on payment of the principal sum secured by the mortgage, with all interest and costs. During the continuance of a mortgage, the equity Equity of re- of redemption which belongs to the mortgagor is re- an^Jtabie garded by the Court of Chancery as an estate, which estate, is alienable by the mortgagor, and descendible to his heir, in the same manner as any other estate in equity ( i/ ) ; the Court in truth regards the mortgagor (0 Russell v. .)/• ( hillock, V.-C. 4 Jur., N. S. 802; S. C. 25 Beavan, W I, LJnr., X. S. 167; 8.C. 1 434. Kay & J. :{]:{. (./■) Stat. 27 & 28 Vict. c. 112, (?/) Stat. 18 & 19 Vict. <•. 15, ante, p. 85. s. 1 1 ; Qrewoes v. Wilson, Rolls, (y) See ante, p. L57 et seq. i:.i'. E E 418 OF PERSONAL INTERESTS IN HEAL ESTATE. as the owner of the same estate as before, subject only to the mortgage. In the event of the decease of the mortgagor, the land mortgaged will consequently devolve on the devisee under his will, or, if he should have died intestate, on his heir. And the mortgage debt, to which the lands are subject, was until recently payable in the first place, like all other debts, out of the personal estate of the mortgagor (r). As in equity the lands are only a security to the mortgagee, in case the mortgagor should not pay him, so also in equity the lands still devolved as the real estate of the mort- gagor, subject only to be resorted to for payment of the debt, in the event of his personal estate being in- The mortgage sufficient for the purpose. But by a recent act of marily°payable parliament (a) it is now prodded, that when any person out of the shall, after the 31st of December, 1854, die seised of mortgaged . , . • i i i lands. or entitled to any estate or interest in any land or other hereditaments which shall at the time of his death be charged with the payment of any sum of money by way of mortgage, and such person shall not, by his will or deed or other document, have signified any con- trary or other intention, the heir or devisee, to whom such lands or hereditaments shall descend or be devised, shall not be entitled to have the niortffao-e debt dis- charged or satisfied out of the personal estate or any other real estate of such person ; but the land or here- ditaments so charged shall, as between the different persons claiming through or under the deceased person, be primarily liable to the payment of all mortgage debts with which the same shall be charged ; every part thereof, according to its value, bearing a proportionate (r) See Yates v. Aston, i Q.B. (a) Stat. 17 & 18 Vict. c. 113, 182; Math civ v. Blackmore, 1 H. commonly called Locke King's & N. 762 ; Essay on Heal Assets, Act ; see Essay on Real Assets, p. 27. pp. 3G, 106. OF A MORTGAGE DEBT. 4 I 9 part of the mortgage debts charged on the whole there- of ; provided that nothing therein contained shall affect or diminish any right of the mortgagee to obtain full payment of his mortgage debt either out of the personal estate of the person so dying as aforesaid or otherwise ; provided also, that nothing therein contained shall affect the rights of any person claiming under any deed, will or document made before the 1st of January, 1855. This act, having given rise to many doubts, has been Act to explain. explained by another act (5), which provides (c), that in the construction of the will of any person who may die after the 31st of December, 1867, a general direc- tion that the debts, or that all the debts of the testator, shall be paid out of his personal estate, shall not be deemed to be a declaration of an intention contrary to or other than the rule established by the act, unless such contrary or other intention shall be further declared by words expressly or by necessary implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate. It is further provided (d), that the word "mortgage" shall be deemed to extend to any lien for unpaid purchase- money upon any lands or hereditaments purchased by a testator. The equity of redemption belonging to the mortgagor Mortgage of may again be mortgaged by him, either to the former ^^p^° n ie " mortgagee by way of further charge, or to any other person. In order to prevent frauds by clandestine mortgages, it is provided by an act of William and Mary (e), that a person twice moi'tgaging the same lands, without discovering the former mortgage to the (Jj) Stat. 30 & 31 Vict. c. 69. («) Stat. 4 & 5 Will. & Mary, (/■) Beet. 1. c. 16, s. 3 ; sec Kcnnard v. I'ut- (d) Sect. 2. voye, 2 Giff. 81. E I. 'I 420 OF PERSONAL IX 1'EUESTS IN KKAL ESTATE. Tacking. Mortgage for future debts. second mortgagee, shall lose his equity of redemption. Unfortunately, however, in such cases the equity of re- demption, after payment of both mortgages, is generally ■worth nothing. And if the mortgagor should again mortgage the lands to a third person, the act will not deprive such third mortgagee of his right to redeem the two former mortgagees (f). When lands are mort- gaged, as occasionally happens, to several persons, each ignorant of the security granted to the other, the general rule is, that the several mortgages rank as charges on the lands in the order of time in which they were made, according to the maxim qui prior est tempore, potior est jure (> Ante, |>. :;:. (d) 4 Edw. I. atat. 3, c. 6; (c) Bract, lib. 2, cap. 6, Eol. Lost. 275; Co. Litt. 884 a, n. (1). ■124 OF TITLE. Express war- Under an express warranty, the feoffor, and also his heirs, were bound, not only to give up all claim to the lands themselves, but also to give to the feoffee or his heirs other lands of the same value, in case of the eviction of the feoffee or his heirs by any person having a prior title () Bustard' & case, l Rep. Bac. Ab. tit. Covenant (15). 121 a. 426 OF TITLE. also, for further assurance thereof, by the bargainor, his heirs and assigns, and all claiming under him, unless restrained by express words (7). The word grant, by virtue of some other acts of parliament, also implies Act to amend covenants for the title (r). But the act to amend the the law of real 1 r> i -j .i i property. * aw °* rea * property now provides that an exchange or a partition of any tenements or hereditaments made by deed shall not imply any condition in law ; and that the word give or the word grant in a deed shall not imply any covenant in law in respect of any tenements or hereditaments, except so far as the word give or the word grant may by force of any act of parliament imply a covenant (5). The author is not aware of any act of parliament by force of which the word give implies a covenant. The absence of a warranty is principally supplied in modern times by a strict investigation of the title of the Covenants for person who is to convey ; although, in most cases, cove- nants for title, as they are termed, are also given to the piu-chaser. On the sale or mortgage of copyhold lands these covenants are usually contained in a deed of cove- nant to surrender, by which the surrender itself is immediately preceded (t), the whole being regarded as one transaction (u). By these covenants, the heirs of (q) Stat. 6 Anne, c. 35, ss. 30, s. 46. 34; 8 Geo. II. c. 6, s. 35. (5) Stat. 8 & 9 Vict. c. 106, (?•) As in conveyances by com- s. 4, repealing 7 & 8 Vict. c. 76, panies under the Lands Clauses s. 6. Consolidation Act, 1845, stat. 8 (t) By the Stamp Act, 1870, & 9 Vict. c. 18, s. 132 ; and in stat. 33 & 34 Vict. c. 97, such a conveyances to the governors of deed of covenant is now charged Queen Anne's Bounty, stat. 1 & with a duty of 10s., and if the ad 2 Vict. c. 20, s. 22. Convey- valorem duty on the sale or mort- ances by joint stock companies gage is less than that sum, then a registered under the Joint Stock duty of equal amount only is pay- Companies Act, 1856 (now re- able. pealed), also implied covenants («) Riddell v. Riddell, 7 Sim. for title. Stat. 19 & 20 Vict. c. 47, 529. title. OF TITLE. 427 the vendor are always expressly bound; but, like all other similar contracts, they are binding on the heir or devisee of the covenantor to the extent only of the pro- perty which may descend to the one, or be devised to the other (u). Unlike the simple clause of warranty in ancient days, modern covenants for title are five in number, and few conveyancing forms can exceed them in the luxuriant growth to which their verbiage has attained (w>). The first covenant is, that the vendor is seised in fee simple ; the next that he has good right to convey the lands ; the third, that they shall be quietly enjoyed ; the fourth, that they are free from in- cumbrances ; and the last, that the vendor and his heirs will make any further assurance for the conveyance of the premises which may reasonably be required. At the present day, however, the first covenant is usually omitted, the second being evidently quite sufficient without it ; and the length of the remaining covenants has of late years somewhat diminished. These cove- nants for title vary in comprehensiveness, according to the circumstances of the case. A vendor never gives Covenants for absolute covenants for the title to the lands he sells, but tltle , b >' a 7 vendor. always limits his responsibility to the acts of those who have been in possession since the last sale of the estate ; so that if the land should have been purchased by his father, and so have descended to the vendor, or have been left to him by his father's will, the covenants will extend only to the acts of his father and himself (x) ; but if the vendor should himself have purchased the lands, lie will covenant only as to his own acts(y), and the purchaser must ascertain, by an examination of the previous title, that the vendor purchased what he may properly re-sell. A mortgagor, on the other hand, Covenants for title by a mort- gagor. (r) Ante, pp. 77, 79. 13th ed. (w) Sec Appendix (D). (y) See Appendix (D). (>■) Sug.i. Vend. & Pur, 16 428 01 riTLE. Covenants by trustees. always gives absolute covenants for title; for those who lend money are accustomed to require every pos- sible security for its repayment; and, notwithstanding these absolute covenants, the title is investigated on every mortgage, with equal, and indeed with greater strictness, than on a purchase. When a sale is made by trustees, who have no beneficial interest in the pro- perty themselves, they merely covenant that they have respectively done no act to encumber the premises. If the money is to be paid over to A. or B. or any persons in fixed amounts, the persons who take the money are expected to covenant for the title (z) ; but, if the money belongs to infants, or other persons who cannot covenant, or is to be applied in payment of debts or for any similar purpose, the purchaser must rely for the security of the title solely on the accuracy of his own investigation [a). Sixty years' title required. Advowson. The period for which the title is investigated is the last sixty years (Z>) ; and every vendor of freehold pro- perty is bound, at his own expense, to furnish the in- tended purchaser with an abstract of all the deeds, wills and other instruments which have been executed, with respect to the lands in question, during that period ; and also to give him an opportunity of examining such abstract with the original deeds, and with the probates or office copies of the wills ; for, in every agreement to sell is implied by law an agreement to make a good title to the property to be sold(c). The proper length of title to an advowson is, however, 100 years (d), as the presentations, which are the only fruits of the advowson, and, consequently, the only occasions when (z) Sngd. Vend. & Pur. 464, 13th ed. («) Ibid. 163. (h) Cooper v. Emery, 1 Phill. 388. (c) Sugd. Vend. 13th ed. (J) Ibid. 307. & Pur. 281, OF TITLE. 429 the title is likely to be contested, occur only at long intervals. On a purchase of copyhold lands, an abstract Copyholds, of the copies of com't roll, relating to the property for the last sixty years, is delivered to the purchaser. And Leaseholds, even on a purchase of leasehold property, the purchaser is strictly entitled to a sixty years' title (e); that is, supposing the lease to have been granted within the last sixty years, so much of the title of the lessor must be produced as, with the title to the term since its com- mencement, will make up the full period of sixty years. If the lease is more than sixty years old, the lease must be produced or its absence accounted for, and evidence given of the whole of its contents (f). But inter- mediate assignments upwards of sixty years old need not be produced. It is not easy to say how the precise term of sixty Eeason for re- years came to be fixed on as the time for which an ab- y^^^flj , y stract of the title should be required. It is true, that by a statute of the reign of Hen. VIII. (y), the time within which a writ of right (a proceeding now abo- lished (A)) might be brought for the recovery of lands was limited to sixty years ; but still in the case of re- mainders after estates for life or in tail, this statute did not prevent the recovery of lands long after the period of sixty years had elapsed from the time of a convey- ance by the tenant for life or in tail ; for it is evident, that the right of a remainder-man, after an estate for life or in tail, to the possession of the lands does not accrue until the determination of the particular estate (i). A remainder after an estate tail may, however, be barred (e) Purvis v. Rayer, 9 Price Black. Com. 196. 488; Souter v. Brake, o B. & (A) By stat. 3 & 4 Will. IV. Adol. 992. c. 27, b. 36. (/) trend v. IJuekley, Ex. (/) Ante, p. 212. See Sugd. Ch., L. B., 5 Q. B. 213. Vend. & Par. 609, llth ed. (y) 32 Hen. VIII. c 2; 8 430 OF TITLE. Duration of human life. by the proper means; but a remainder after a mere life estate cannot. The ordinary duration of human Life is therefore, if not the origin of the rule requiring a sixty \«ars' title, at least a good reason for its continuance. For, so long as the law permits of vested remainders after estates for life, and forbids the tenant for life, by any act, to destroy such remainders, so long must it be necessary to carry the title back to such a point as will afford a reasonable presumption that the first person mentioned as having conveyed the property was not a tenant for life merely, but a tenant in fee simple (j). Concurrence. of parties in- terested. Application of purchase- money. The abstract of the title will of course disclose the names of all parties, who, besides the vendor, may be inlcrested in the lands; and the concurrence of these parties must be obtained by him, in order that an unin- cumbered estate in fee simple may be conveyed to the purchaser. Thus, if the lands be in mortgage, the mortgagee must be paid off out of the purchase-money and must join to relinquish his security and convey the legal estate (k). If the Avife of the vendor would, on his decease, be entitled to dower out of the lands (/), she must release her right and separately acknowledge the purchase deed(m). And when lands were sold by trustees, and the money was directed to be paid over by them to certain given persons, it was formerly obli- gatory on the purchaser to see that such persons were actually paid the money to which they were entitled, unless it were expressly provided by the instrument creating the trust, that the receipt of the trustees alone should be an effectual discharge (n). The duty thus imposed being often exceedingly inconvenient, and (j) See Mr. Brodie's opinion, 1 Hayes's Conveyancing, 564; Sugd. Vend. & Pur. 305, 13th ed. (*) Ante, p. 407. (0 Ante, p. 223. (m) Ante, p. 222. O) Sugd. Vend. & Pur. 13th ed. HI, OF TITLE. 431 tending greatly to prejudice a sale, a declaration, that the receipt of the trustees should be an effectual dis- charge, was usually inserted, as a common form, in all settlements and trust deeds. The act to simplify the transfer of property (o) provided that the bona fide pay- ment to, and the receipt of, any person, to whom any money should be payable upon any express or implied trust, or for any limited purpose, should effectually discharge the person paying the same from seeing to the application or being answerable for the misapplica- tion thereof, unless the contrary should be expressly declared by the instrument creating the trust. But this act was shortly afterwards repealed, without, how- ever, any provision being made for such instruments as had been drawn without any receipt clause upon the faith of this enactment (p). Subsequently it was en- Newenact- acted that the bond fide payment to and the receipt of men ' any person to whom any purchase or mortgage money should be payable upon any express or implied trust, should effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary should be expressly declared by the instrument creating the trust or security (q). And at length it has again been Trustees' re - generally provided that the receipts in writing of any good^dis^ trustees or trustee for any money payable to them or charges. him, by reason or in the exercise of any trusts or powers reposed or vested in them or him, shall be sufficient discharges for the money therein expressed to be re- ceived, and shall effectually exonerate the persons paying such money from seeing to the application thereof, or from being answerable for any loss or mis- application thereof (r). O) Stat. 7 & 8 Vict. c. 76, (y) Stat. 22 & 23 Vict. c. 35, s. 10. s. 23. (//) Stat. 8 & 9 Vict. c. 10G, (r) Stat. 23 & 24 Vict. c. 145, s. 1. s. 29. This aci extends only to ■±'■12 OF TITLE. Supposing, however, that, through carelessness in investigating the title, or from any other cause, a man should happen to become possessed of lands, to which some other person is rightfully entitled; in this case it is evidently desirable that the person so rightfully en- title! to the lands should be limited in the time during which he may bring an action to recover them. To deprive a man of that which he has long enjoyed, and still expects to enjoy, will be generally doing more harm than can arise from forbidding the person rightfully entitled, but who has long been ignorant or negligent as to his rights, to agitate claims which have long lain Statutes of dormant. Various acts for the limitation of actions and suits relating to real property have accordingly been passed at different times (s). By a statute of the reign of George III. (t) the rights of the crown in all lands and hereditaments are barred after the lapse of sixty years. With respect to other persons, the act now in Stat. :; & 4 force (u) was passed in the reign of King William IV., " » c ' at the suggestion of the real property commissioners. By tins act, no person can bring an action for the re- covery of lands but within twenty years next after the time at which the right to bring such action shall have first accrued to him, or to some person through whom he claims (x) ; and, as to estates in reversion or re- mainder, or other future estates, the right shall be deemed to have first accrued at the time at which any such estate became an estate in possession (y). But a instruments executed after its c. 53, and 24 & 25 Vict. c. 62, s. 2. passing (sect. 34). It passed the (w) Stat. 3 & 4 Will. IV. c. 27, 28th of August, 18G0. amended as to mortgagees by stat. O) See 3 Black. Com. 106, 306, 7 Will. IV. & 1 Vict. c. 28. 307; stat. 21 Jac. I. c. 16; Sugd. O) Sect. 2. See Nepean v. Vend. & Pur. 608 et seq. 11th ed. Doe, 2 Mee. & Wels. 894. (0 Stat. 9 Geo. III. c. 16, (y) Sect. 3. See Doe d. Joh n- amended by stat. 24 & 25 Vict. c. son v. Limersedge, 11 Mee. & 62, and extended to the Duke of Wels. 517. Cornwall bv stats. 23 & 24 Vict. OF TITLE. 433 written acknowledgment of the title of the person en- titled, given to him or his agent, signed by the person in possession, will extend the time of claim to twenty years from such acknowledgment (z). If, however, Disabilities. when the right to bring an action first accrues, the person entitled should be under disability to sue by reason of infancy, coverture (if a woman), idiocy, lunacy, unsoundness of mind, or absence beyond seas, ten years are allowed from the time when the person entitled shall have ceased to be under disability, or shall have died, notwithstanding the period of twenty years above mentioned may have expired (a), yet, so that the whole period do not, including the time of dis- ability, exceed forty years (b) ; and no further time is allowed on account of the disability of any other person than the one to whom the right of action first accrues (c). By the same act whenever a mortgagee has obtained Mortgagee in possession of the land comprised in his mortgage, the P 0fesesMon - mortgagor shall not bring a suit to redeem the mort- gage but within twenty years next after the time when the mortgagee obtained possession, or next after any written acknowledgment of the title of the mortgagor, or of his right to redemption, shall have been given to him or his agent, signed by the mortgagee (d). By Advowson. the same act the time for bringing an action or suit to enforce the right of presentation to a benefice is limited to three successive incumbencies, all adverse to the right of presentation claimed, or to the period of sixty years, if the three incumbencies do not together amount to that time (e) ; but whatever the length of the incum- bencies, no such action or suit can be brought after the 0) Stat. 3 & 4 Will. IV. c. 27, (S) Sect. 28. See Hyde y. s. 14. See Doe d. Curzon v. Ed- Dallamay, 2 II arc, 528 ; Tridock monds, 6 Mee. & Wels. 295. v. Eotey, 12 Sim. 402; Lnras v. (a) Sect. 16. Beimison, 13 Sim. 584; Stans- (b) Sect. 17. field v. Bolton, 16 Beav. 236. (r) Sect. 18. (' ) Sect. 30. B.P. F F 434 OF TITLE. Judgments. Legacies. Rents. Tithes. expiration of 100 years from the time at which adverse possession of the benefice shall have been obtained (/). Money secured by mortgage or judgment, or otherwise charged upon land, and also legacies, are to be deemed satisfied at the cud of twenty years, if no interest should be paid, or written acknowledgment given in the mean- time (g). The right to rents, whether rents service or rents charge, and also the right to tithes, when in the hands of laymen(A), is subject to the same period of limitation as the right to land(z). And in every case where the period limited by the act is determined, the right of the person who might have brought any action or suit for the recovery of the land, rent or advowson in question within the period, is extinguished (k). Commons, ways, water- courses, and light The several lengths of uninterrupted enjoyment which Avill render indefeasible rights of common, ways and watercourses, and the use of light for buildings, are re- gulated by another act of parliament (Z), of by no means easy construction, on which a large number of judicial decisions have already taken place. Title-deeds. On any sale or mortgage of lands, all the title-deeds in the hands of the vendor or mortgagor, which relate exclusively to the property sold or mortgaged, are (/) Stat. 3 & 4 Will. IV. c. 27, s. 33. (g) Sect. 40. This section ex- tends to legacies payable out of personal estate ; Sheppard v. Duke, 9 Sim. 567. And in this case absence beyond seas is now no disability. Stat. 19 & 20 Vict. c. 97, s. 10. (It) Dean of Ely v. Bliss, 2 De Gex,M. & G. 459. (0 Stat. 3 & 4 Will. IV. c. 27, s. 1. As to the time required to support a claim of modus Din ii di, or exemption from or dis- charge of tithes, see stat. 2 & 3 Will. IV. c. 100, amended by stat. 4 & 5 Will. IV c. 83; Salkeld v. Johnston, 1 Mac. & Gord. 242. The circumstances under which lands may be tithe free are well explained in Burton's Compen- dium, ch. 6, sect. 4. (7t) Sect. 34; Scott v. Nixon, 3 Dru. & War. 388; De Beaux-air v. Owen, 5 Ex. Rep. lfi(!. (I) Stat. 2 & 3 Will. IV c. 71. OF TITLE. 435 handed over to the purchaser or mortgagee. The pos- Importance of session of the deeds is of the greatest inportance ; for si( ^ l'° bses " if the deeds were not required to be delivered, it is evident that property might be sold or mortgaged over and over again to different persons, without much risk of discovery. The only guarantee, for instance, which a purchaser has that the lands he contracts to purchase have not been mortgaged, is that the deeds are in the possession of the vendor. It is true that, in the counties Registration, of Middlesex and York, registries have been established, a search in which will lead to the detection of all deal- ings with the property (m); but these registries, though existing in Scotland and Ireland, do not extend to the remaining counties of England or to Wales. Generally speaking, therefore, the possession of the deeds is all that a purchaser has to depend on : in most cases this protection, coupled with an examination of the title they disclose, is found to be sufficient ; but there are certain circumstances in which the possession of the deeds can afford no security. Thus, the possession of the Possession of -, t r n '• '±. i deeds no safe- deeds is no safeguard against an annuity or rent-charge „ nar ^ aL , a i n < payable out of the lands; for the grantee of a rent- a rent-charge. charge has no right to the deeds (w). So the possession Nor against of the deeds, showing the conveyance to the vendor of bein g tenant an estate in fee-simple, is no guarantee that the vendor for life onl y- (m) See ante, p. 186. the vendor's solicitor, who con- (») The writer met lately with ducted the sale, but had never an instance in which lands were, seen the settlement, was not aware from pure inadvertence, sold as that any charge had been made free from incumbrance, when in on the lands. The vendor, a per- fact they were subject to a rent- son of the highest, respectability, charge, which had been granted was, as often happens, ignorant by the vendor on his marriage to of the legal effect of the settle- secure the payment of the pro- ment he had signed. The charge miuins of a policy of insurance was fortunately discovered by ae- on his life. The marriage set- cident shortly before the comple- tlement was, as usual, prepared tion of the sale, by the solicitor for the wife ; and I K 2 436 or TITLE. Difficulty in sale of a rever- sion, for want of evidence that no pre- vious sale lias been made. Sale of rever- sions. is not now actually seised only of a life estate; for, since he acquired the property, be may, very possibly, have married; and on his marriage he may have settled the lands on himself for his life, with remainder to his children. Being then tenant for life, he will, like every other tenant for life, be entitled to the custody of the deeds (0); and if he should be fraudu- lent enough to suppress the settlement, he might make a conveyance from himself, as though seised in fee, deducing a good title, and handing over the deeds ; but the purchaser, having actually acquired by his purchase nothing more than the life interest of the vendor, would be liable, on his decease, to be turned out of possession by his children ; for, as marriage is a valuable consideration, a settlement then made cannot be set aside by a subsequent sale made by the settlor. Against such a fraud as this, the registration of deeds seems the only protection. In some cases, also, per- sons are entitled to an interest, which they would like to sell, but are prevented, from not having any deeds to hand over. Thus if lands be settled on A. for his life, with remainder to B. in fee, A. during his life will be entitled to the deeds ; and B. Avill find great diffi- culty in disposing of his reversion at an adequate price ; because, having no deeds to give up, he has no means of satisfying a purchaser that the reversion has not previously been sold or mortgaged to some other per- son. If, therefore, B.'s necessities should oblige him to sell, he will find the want of a registry for deeds the cause of a considerable deduction in the price he can obtain. It may here be remarked, that as few people would sell a reversion unless they were in difficulties, equity, whenever a reversion was sold, threw upon the purchaser the onus of showing that he gave the fair (a) Sugd. Vend. & Pur. 4G8, 11th ed. or title. 437 market price for it(p). But it is now provided that New enact- no purchase, made bond fide, and without fraud or ment " unfair dealing, of any reversionary interest in real or personal estate shall hereafter be opened or set aside merely on the ground of undervalue (q). Where the title-deeds relate to other property, and Covenant to cannot consequently be delivered over to the purchaser, P roduce deeds, he is entitled, at the expense of the vendor, to a cove- nant for their production (r), and also to attested Attested copies of such of them as are not enrolled in any court C0 P les - of record (s) ; but as the expense thus incurred is usually great, it is in general thrown on the purchaser, by express stipulation in the contract. The covenant Covenant to for the production of the deeds will run, as it is said, runs with the with the land ; that is, the benefit of such a covenant lana - will belong to every legal owner of the land sold for the time being ; and the better opinion is, that the obligation to perform the covenant will also be binding on every legal owner of the land, in respect of which the deeds have been retained (t). Accordingly, when a purchase is made without delivery of the title-deeds, the only deeds that can accompany the lands sold are the actual conveyance of the land to the purchaser, and the deed of covenant to produce the former title- deeds. On a future sale, therefore, these deeds will (j>) Lord Aldborough v. Trye, the stamp duty on a separate 7 CI. & Fin. 43G ; Darir.s v. deed of covenant for the produc- Coopcr, 6 My. & Cr. 270; Sugd. tion of title deeds on a sale or Vend. & Pur. 23.1, 113th ed. ; Ed- mortgage is 10s., and if the ad wards v. Burt, 2 De Gex, M. & valorem duty on the sale or niort- Q. ,-,.-. gage is less than that sum, then {q) Stat. 31 Vict. c. 4. a duty of equal amount only is O) Sugd. Vend. & Pur. 376, payable. See ante, pp. is I, 101. ISth ed.; Cooper v. Emery, L0 (*) Sugd. Vend. & Pur. 373, Sim. GOO. By the Shun]. Act, Kith ed L870, Btat, 83 & 34 Vict. c. 97, (0 Ibid. 377. 438 (>!•' TITLE be delivered to the new purchaser, and the covenant, running with the land, will enable him at any time to obtain production of the former deeds to which the covenant relates. Search in Mid dieses ami York regis- tries. Search for fines, re- coveries, ami disentailing deeds. Deeds acknow- ledged by mar- ried women. Crown and judgment debts. When the lands sold are situated in either of the counties of Middlesex or York, search is made in the registries established for those counties (u): this search is usually confined to the period which has elapsed from the last purchase-deed, — the search presumed to have been made on behalf of the former purchaser being generally relied on as a sufficient guarantee against latent incumbrances prior to that time; and a memorial of the purchase-deed is of course duly registered as soon as possible after its execution. As to lands in all other counties, also, there are certain matters affecting the title, of -which, every purchaser can readily obtain information. Thus, if any estate tail has existed in the lands, the piuchaser can always learn whether or not it has been barred ; for the records of all fines and recoveries, by which the bar was formerly effected (r), are preserved in the offices of the Court of Common Pleas ; and, now, the deeds which have been substituted for those assurances are enrolled in the Court of Chan- cery (m>). Conveyances by married women can also be discovered by a search in the index, which is kept in the Court of Common Pleas, of the certificates of the acknowledgment of all deeds executed and acknowledged by married women (ar). So, we have seen, that debts due from the vendor, or any former owner, to the crown, prior to the 1st of November, 1865 (y), or O) Ante, p. 186. (c) Ante, pp. 44, 47. (w) Ante, pp. 47, 49. As to fines and recoveries in Wales and Cheshire, see stat. 5 & 6 Vict. c. 32. O) Stat. 3 & 4 Will. IV. c. 74, ss. 87, 88; ante, p. 222. See Jolly v. Hcmdcoch, Ex. 16 Jur. 560; S. C. 7 Exch. Rep. 820. (y) Ante, p. 89. OF TITLE. 439 secured by judgment prior to the 23rd of July, 1860 (z), together with siuts which may be pending concerning the land («), all which are incumbrances on the land, are always sought for in the indexes provided for the purpose in the office of the Court of Common Pleas. Life annuities, also, which may have been Life annuities. charged on the land for money or money's worth prior to August, 1854, may generally be discovered by a search in the office of the Court of Chancery, amongst the memorials of such annuities (Z»). And those which have been granted since the 26th of April, 1855, otherwise than by marriage-settlement or will, may be found in the registry now established in the Court of Common Pleas (c). And, lastly, the bankruptcy or Bankruptcy or insolvency of any vendor or mortgagor may be dis- lnsCMenc -5- covered by a search in the records of the Bankrupt or Insolvent Courts ; and it is the duty of the purchaser's or mortgagee's solicitor to make such search, if he has any reason to believe that the vendor or mortgagor is or has been in embarrassed circumstances (77). The acts for relief of insolvent debtors are now repealed and the court abolished (e). Some mention should here be made of two acts of parliament which have recently been passed, one of which is intituled " An Act to facilitate the Proof of Title to and the Conveyance of Ileal Estates" (f), and the other, " An Act for obtaining a Declaration of Title" (g). The latter of these acts empowers persons Act for obtain- claiming to be entitled to land in possession for an ti( °, of title " (z) Ante, p. 85. (d) Cooper v. StepJicrison, Q. B. (n) Ante, p. 89. 16 Jur. 4_M. (b) Ante, p. 315. The lands (e) Stat. 32 & 33 Vict. c. 83. charged are not, however, neces- (/) Stat. 25 & 26 Vict. c. 53. sadly mentioned in the memorial. (g) Stat. 25 & 26 Vict. c. 67. (r) Ante, p. 316. 440 OF TITLE. estate in fee simple, or claiming power to dispose of such au estate, to apply to the Court of Chancery by petition in a summary way for a declaration of title. The title is then investigated by the Court, and if the Court shall be satisfied that such a title is shown as it would have compelled an unwilling purchaser to accept, an older is made establishing the title, subject, however, to appeal as mentioned in the act. Act to facili* The former act establishes an office of land registry, of title to and ^ 11( 1 contains provisions for the official investigation of conveyance oi titles, and for the registration of such as appear to be real estates. ' ° .,., good and marketable. Lands may be registered either with or without an indefeasible title. For the provi- sions of this act reference should be made to the act itself. It has not yet attained sufficient success to justify any lengthened account of it in an elementary work like the present. The system of official investi- gation of title once for all is a good one. Compensa- tion, however, ought to be made to those whose estates may by any error be taken from them in their absence. When land is once registered under this act, it ceases, if situate in Middlesex or Yorkshire, to be subject to the county registry of deeds. All land which is placed under the operation of the act becomes subject to the system of registration thereby established. If the act- should lead to an efficient system of registration of assurances throughout the kingdom, it would, in the author's opinion, be the means of conferring a great benefit on the community. This, how r ever, cannot be advantageously done without resort to the printing of registered deeds and of probates of wills, and above all the abolition of payment by length. The author's views on this subject Avill be found in a paper read by him before the Juridical Society, on the 24th of March, 1862, intituled " On the true Kemedies for the OF TITLE. 441 Evils which affect the Transfer of Land" (A), and to which he begs to refer the reader. Such is a very brief and exceedingly imperfect out- line of the methods adopted in this country for render- ing secure the enjoyment of real property when sold or mortgaged. It may perhaps serve to prepare the student for the course of study which still lies before him in this direction. The valuable treatise of Lord St. Leonards on the law of vendors and purchasers of estates will be found to afford nearly all the practical information necessary on this branch of the law. The title to purely personal property depends on other principles, for an explanation of which the reader is referred to the author's treatise on the principles of the law of personal property. From what has already been said, the reader will perceive that the law of England has two different systems of rules for regu- lating the enjoyment and transfer of property ; that the laws of real estate, though venerable for their an- tiquity, are in the same degree ill adapted to the requirements of modern society; whilst the laws of personal property, being of more recent origin, are proportionably suited to modem times. Over them both has arisen the jurisdiction of the Court of Chan- cery, by means of which the ancient strictness and simplicity of our real property laws have been in a measure rendered subservient to the arrangements and modifications of ownership, which the various necessi- ties of society have required. Added to this have been continual enactments, especially of late years, by which many of the most glaring evils have been reme- died, but by which, at the same time, the symmetry of the laws of real property has been greatly impaired. Those laws cannot indeed be now said to form a (A) Published in a separate form, by II. Sweet, 3, Chancery Lane. 1 12 OF TITLE. system : their present state is certainly not that in which they can remain. For the future, perhaps the wisest course to be followed would be to aim as far as possible at a uniformity of system in the laws of both kinds of property; and, for this purpose, rather to take the laws of personal estate as the model to which the laws of real estate should be made to conform, than on the one hand to preserve untouched all the ancient mles, because they once were useful, or, on the other, to be annually plucking off, by parliamentary enact- ments, the fruit which such rules must, until eradicated, necessarily produce. 443 ) APPENDIX (A). Referred to, p. 98. — ♦ — The case of Muggleton v. Barnett was shortly as fol- lows (a) : — Edward Muggleton purchased in 1772 certain copyhold property, held of a manor in which the custom was proved to be, that the land descended to the youngest son of the person last seised, if he had more than one ; and if no son, to the daughters as parceners ; and if no issue, then to the youngest brother of the person last seised, and to the youngest son of such youngest brother. There was, how- ever, no formal record upon the rolls of the Court of the custom of the manor with respect to descents, hut the custom was proved by numerous entries of admission. The pur- chaser died intestate in 1S12, leaving two granddaughters, the only children of his only son, who died in his lifetime. One of the granddaughters died intestate and unmarried, and the other died leaving an only son, who died in 1854 without issue, and apparently intestate, and who was the person last seised. On his death the youngest son of the youngest brother of the purchaser brought an ejectment, and the Court of Exchequer, by two against one, decided against him. On appeal, this decision was confirmed by the Court of Exchequer Chamber, by four judges against three. But much as the judges differed amongst themselves as to the extent of the custom amongst collaterals, they appear to have all agreed that the act to amend the law of inheritance had nothing to do with the matter. The act, however, ex- pressly extends to lands descendible according to the custom of borough English or any other custom ; and it enacts that («) The substance of these ob- newspaper, 4 Jur., N. S., Tart 2, serrations basalread] appeared in pp. •">, 66. of the " Jurist" 444 APPENDIX. in every case descent shall be traced from the purchaser. Under the old law, seisin made the stock of descent. By the new law, the purchaser is substituted in every case for tin- person last seised. The legislature itself has placed this interpretation upon the above enactment. A well known statute, commonly called the Wills Act (b), enacts, "that it -hall lie lawful lor every person to devise or dispose of by bis will, executed in manner hereinafter required, all real estate which he shall be entitled to, either at law or in equity, at the time of his death, and which, if not so de- vised or disposed of, would devolve upon the heir at law or customary heir of him, or, if he became entitled by de- scent, of his ancestor." Now the old doctrine of possessio fratris was that, — that if a purchaser died seised, leaving a son and a daughter by his first wife, and a son by his second wile, and the eldest son entered as heir to his father, the possession of the son made his sister of the whole blood to inherit as his heir, in exclusion of his brother of the half- blood ; but if the eldest son did not enter, his brother of the half-blood was entitled as heir to his father, the purchaser. This doctrine was abolished by the statute. Descent in every case is to be traced from the purchaser. Let the eldest son enter, and remain ever so long in possession, his brother of the half-blood will now be entitled, on his decease, in preference to his sister of the whole blood, not as his heir, but as heir to his father (c). Let us now take the converse case of a descent according to the custom of borough English, and let the purchaser die intestate, leaving a son by his first wife, and a son and daughter by his second wife. Here it is evident, that the youngest son has a right to enter as customary heir. He enters accordingly, and dies intestate, and without issue. Who is the next heir since the statute ? Clearly the brother of the half-blood, for he is the customary heir of the pur- chaser. As the common law, which is the general custom (b) Stat. 7 Will. IV. & 1 Vict. Statutes, pp. 280, 281 (1st ed.); c. 26, s. 3, ante, p. 196. 2G7, 208 (2nd ed.; (c) See Sugden's Real Property APPENDIX. 445 of the realm, was altered by the statute, and a person became entitled to inherit who before had no right, so the custom of borough English, and every other special custom, being ex- pressly comprised in the statute, is in the same manner altered ; and the stock of descent, which w T as formerly the person last seised, is now, in every case, the purchaser and the purchaser only. Suppose, therefore, that Edward Muggleton, the pur- chaser, who died in 1812, had left a son by his first wife, and a son and a daughter by his second wife, and that the youngest son, having entered as customary heir, died intes- tate in 1 854, — who would be entitled ? Clearly, the elder son, as customary heir, being of the male sex, in preference to the daughter. Before the act the sister of the whole blood would have inherited, as customary heir to her younger brother, and the elder brother, being of the half-blood to the person last seised, could not have inherited at all ; but since the act the descent is traced from the purchaser, and the elder brother would, accordingly, be entitled, not as heir to his half-brother, but as heir to his father. The act then breaks in upon the custom. By the custom before the act the land descended to the sister of the person last seised, in default of brothers of the whole blood. By the act the pur- chaser is substituted for the person last seised, and whoever would be entitled as heir to the purchaser, if he had just died seised, must now be entitled as his heir, however long ago his decease may have taken place. Let us put another case : Suppose the father of Edward Muggleton, the purchaser, had been living in 1854, when hie issue failed. It is clear, that under the act the father would have been entitled to inherit, notwithstanding the custom. Here, again, the custom would have been broken in upon by the act, and a person would have been entitled to inherit who before was not. Suppose, again, thai the father of Edward Muggleton had been the purchaser, and thai Edward Muggleton was his 446 APPENDIX. youngest son, ami that the estate, instead of being a fee- simple, had been an estate tail. Estates tail, it is well known, follow customary modes of descent in the same manner as estates in fee. The purchaser, bowever, or donee in tail, is and was, both under the new law and under the old, the stock of descent. The Courts appear to have been satisfied that in lineal descents according to the custom the youngest was invariably preferred. It is clear, therefore, that, when the issue of Edward Muggleton failed in 1854, the land would have descended to the plaintiff as youngest son of the next youngest son of the purchaser, although the plaintiff was but the first cousin twice removed of the per- son last seised. The change, however, which the act has accomplished is simply to assimilate the descent of estates in fee to that of estates tail. The purchaser is made the stock in lieu of the person last seised. It is evident, therefore, that upon the supposition last put, of the father of Edward Muggleton being the purchaser, although the estate was an estate in fee, the plaintiff would have beeu entitled as customary heir. The step from this case to that which actually occurred is very easy. On failure of the issue of the purchaser (whether after his decease or in his lifetime it matters not), the heir to be sought is the heir of the purchaser, and not the heir of the person last seised ; and if the descent be governed by any special custom, then the customary heir of the pur- chaser must be sought for. Who, then, was the customary heir of Edward Muggleton, the purchaser? The case in Muggleton v. Barnett expressly states, that the land descends, if no issue, to the youngest son of the youngest brother of the person last seised, that is, of the stock of descent. There is no magic in the phrase "last seised." These words were evidently used in the statement of the custom as they would have been used before the act in a -tatement of the common law. It would have been said that the land descends, for want of issue, to the eldest son AprEXDix. 447 of the eldest brother of the person last seised. It would have been taken for granted that every body knew that seisin made the stock. The law, however, is now altered in this respect. The purchaser only is the stock. If Edward Muggleton had died without leaving issue, the plaintiff clearly would have been entitled. His issue fails after his decease ; but so long as he is the stock, the same person under the same custom must of necessity be his heir. It was expressly stated in the case, that there was no formal record with respect to descents. This is important, as showing that the person last seised was mentioned in the statement of the custom simply in accordance with the ordi- nary rule of law, that the person last seised was the stock of descent prior to the act. If, however, there had been such a formal record, still Edward Muggleton, the purchaser, died seised. If he had not died seised, it might be said, according to the strict construction placed upon the records of customary descent, that the custom did not apply, and that his heir according to the common law was entitled (d). But in the present case the custom is expressly stated to be gathered from admissions only; and so long as the person last seised was by law the stock of descent, it is evident that a statement of the custom, as applying to the person last seised, was merely a statement with reference to the stock of descent as then existing. The act alters the stock of descent, and so far alters the custom. It substitutes the purchaser for the person last seised, whatever may be the custom as to descents. It follows, therefore, that the plain- tiff' in Muggleton v. Burnett, being the customary heir of the purchaser, was entitled to recover. Since these observations were written the following remark- have been made by Lord St. Leonards, on the case of Muggleton v. Harnett: — " In the result, the Exchequer and Exchequer Chamber, with much diversity of opinion as to the extent of the custom, decided the case against the claimant, who claimed as heir by the custom to the last (,l) Payne v. Barker, 0. Bridg. 18; Eider v. Wood, 1 Kay &J.64 I. 448 APPENDIX. purchaser, which he was ; because he was not heir by the custom to the person last seised. And yet the act extends t<> all customary tenures, and alters the descent in all such cases as well as in descents by the common law, by substi- tuting the last purchaser as the stock from whom the descent is to be traced for the person last seised. The Court, per- haps, hardly explained the grounds upon which they held the statute not to apply to this case" (e). ( give them a public character? " But it is said th.it there are cases which have decided " that where there are numerous private prescriptive rights " reputation is admissible ; and the case of Weeks v. " Sparke (g) is relied upon as establishing that proposition. " The reasons given by the different judges in that case " would certainly not be satisfactory at this day ; some put- " ting it on the ground of the custom of the circuits, some " upon the ground that where there was proof of the enjoy- " ment of the right, reputation was admissible. Both these " reasons are now held to be insufficient. It may be that " the evidence admitted was that of reputation from deceased " commoners, which would be admissible on the same prin- " ciple that the statement of a deceased person in possession " of laud abridging or limiting his interest is admissible ; " but that reason does not apply to the present case, because " the statements are used to extend, not to limit the rights. " It was also said that the case of Weeks v. Sparke (g) had " since been sanctioned by the Court of Queen's Bench in " that of Pritchard v. Powell (h), where it was held that " reputation was admissible to prove common between two " wastes pur cause de vicinage. But the claim in that case " was treated as a matter of immemorial custom (see p. 603); " and reputation in support of a custom is admissible. " We are of opinion, therefore, that the evidence of repu- " tation offered in this case was, according to the well estab- " fished rule in the modern cases, inadmissible, as it is in " reality in support of a mere private prescription ; and the " number of these private rights does not make them to be " of a public nature. " Therefore the judgment must be affirmed." Judgment affirmed. (,y) 1 M. & S. 679. (h) 10 Q. B. 589. APPENDIX. -](,7 The substance of the argument of the Court appears to be The snbstance this : Common appendant is not a right of all tenants, but of tlie a ''■-"' , r. ■ n\ , „ „ ment of the only ot certain of the tenants, namely, the tenants of arable Court. land ; and being the individual right of some, and not the general right of all, it is not of so public a nature as to war- rant the admission of evidence of reputation concerning it. The authorities cited are : — 1. Note (I) to Jlellor v. Spateman (i). This is as fol- Serjeant Wil- lows: — "Common appendant, being the common law right Rains's note - " of every free tenant of a manor on the lord's wastes (Com. " Dig. tit. Common (B)), is confined to such and so many " cattle as the tenant has occasion for, to plough and manure " his laud, in proportion to the quantity thereof." 2. The case of Bennett v. Reeve (K). It is there said — Bennett v. " The reason for common appendant appears to be this, that ^ eeve - " as the tenant would necessarily have occasion for cattle, " not only to plough but likewise to manure his own land, " he must have some place to keep such cattle in whilst the " corn is growing on his own arable land, and therefore of " common right (if the lord had any waste) he might put his " cattle there when they could not go on his own arable land. " This is a simple and intelligible reason for this custom, and " is said to be the reason in Co. Litt. 122 a." 3. Comyn's Digest, tit. Common (B). It is there said — Comyn's " Common appendant is of common right. 1 Rol. 396, 1. 44. Dl o ust - " For if a man had enfeoffed others, before the Statute of " Quia Etnptores Terrarnm, of lands parcel of his manor, " the feoffees should have common for their commonable " cattle within the wastes, &c. of the lord, as incident to " their feoffment. 2 Inst. 8.3, 6, per 2 J. ; 1 Rol. 396, 1. 45 ; " 4 Co. 37." The last authority is Lord Coke's Commentary on the Statute of Morton, which is set out at length in the judgment of the Court. (i) l WmB. Baund. :;i' - > .1. (6th edit.) (/«•) Willes, 227, 281 it ii '1 468 APPENDIX. Admitted ex- It is admitted thai common appendant cannot belong to cepfaons. aU y | )Ut ara |ji e ] alH i % i t ( . am 1( ,t belong to a house, as such, exclusive of any yard or place for cattle, nor can it belong to ancient meadow or pasture, nor to an ancient wood (/), nor to the bed of a river, nor, it is presumed, to the soil of a highway, nor to mines and minerals, of all which there may be tenants. All these are admitted exceptions. But the admission of an exception is not necessarily the destruc- The rule. tiou of a rule. And it is submitted that, as a rule, in the times of the Normans, all tenants were tenants of arable land, that the meadow and pasture lands were subservient to the arable, that by land was primarily meant arable land, that the exceptions depend simply on the nature of their subject-matter, and that the rights of the owners of arable land in a manor were the rights of the whole agricultural public in that manor, and, as such, of a sufficiently public nature to make reputation properly admissible in questions concerning them. A tenant in former times required a house to live in, arable land for his maintenance, pasture for his cattle, acorns for his pigs, and wood for fuel and repairs. Accordingly, in the argument in Hill v. Grange (m), it is said, " Every- " thing is placed in writs by the rule of the register aceord- " ing to its dignity ; for which reason a messuage is placed " before land, and land before meadow, and meadow before " pasture, et sic de similibus. And everything is ranked " and distinguished in dignity according to its necessary use " in life ; for to have a house for a man to dw T ell in, and to " defend his body against the coldness and inclemency of the " air, is more necessary than to have land to plough for " bread ; and to have land for bread is again more neces- " sary than to have meadow for hay for cattle ; and to have " meadow for hay, which will serve the whole year, is more " necessary than pasture, et sic de similibus." Here it is said that land is for bread. By "land" is meant "arable land," according to the well-understood meaning of the (I) See Earlof Sefton v. Court, (?») Plowd. 164, 169. 5 B. & C. 917, 922. APPENDIX. 469 word iu ancient times. And the land was for bread. The land was Every tenant took land because he desired to live upon the ^ or bread. corn it grew. Meadow, pasture or wood, without arable land, was of no use, and therefore not taken alone. The meadow and pasture were required to support the horses, cattle and sheep, by means of which the land was tilled and manured, and the woods in those days were chiefly valuable as affording sustenance for the pigs. Porci inannulati, or unrung pigs, are the objects of frequent animadversion in sundry old court rolls (n). In Domesday Book the meadow In Domesday, land is frequently measured by ploughs. Tims in Ken- mea ,. w mea_ 1 J j r o snred by sington (Chenesit) there was land to ten ploughs, meadow ploughs, for two ploughs, pasture for the cattle of the village, and pannage for two hundred hogs (o). By " meadow for two ploughs" was meant so much meadow as would support the oxen necessary for two ploughs (p). So in the ancient Meadows he- Saxon grants (q), and also in the Norman grants made prior j on g ecl t0 to the statute of Quia E nip tores (;•), meadows and pastures are mentioned with other appurtenances as belonging to the land (s). So in the Abbreviatio Placitorum it is recorded that in Michaelmas term, 2 John, Walter de Witifeld re- covers his seisin of twenty acres of pasture and forty acres of wood belonging to his free tenement (t). The land was measured amongst the Saxons by hides and Hides and yard lands (virgatce), of which four usually went to a hide. y s ' Thus the Saxon Chronicle, in speaking of Domesday, says — " So very narrowly, indeed, did he commission them to trace it out, that there was not one single hide nor yard land, nay, moreover (it is shameful to tell, though he thought it no shame to do it), not even an ox, nor a cow, (re) See those of the manor of (r) Stat. 18 Edw. I. c. 1. Wimbledon. (s) Mad. Form. Angl. No. 288, 0) Bawdwen's Translation of p. 178; No. 296, p. 181; No. 298, Domesday, Middlesex, p. 25. p. 182; No. 338, p. 257; No. 360, (p) Sir II. Ellis's Introduction p. 274; No. 362, p. 275; No. 364, to Domesday, vol. 1, pp. 103, p. 276; No. 580, p. 328. 149, n. (4). (0 Abbreviatio Placitorum, p. (17) Sharon Turner's Anglo- 27. See also Hil. 4 John, p 37. Saxons, vol. 2, pp. 555, 556. 470 APPENDIX. plowlands and oxganes. Gain and tillage syno- nymous. nor a swine was there left, that was not set down in his writ" (//). A hide land was supposed to be as much arable land as would maintain a family. It was accordingly called familia by the Venerable Bede (a;), though in some rare cases the term "hide" appears to have been applied to pasture and wood (y). But amongst the Normans lands were measured by plowlands (carucatce) and oxgangs (bovata;), terms exclusively applicable to arable land, a plowland being as much as a plough could till, and an ox- gang as much as an ox-team could till (z). A writ for an oxgang of marsh Avas held ill, "because an oxgang is always of a thing which lies in tillage" (a). Though, as Lord Coke observes (b), " a plowland may contain a messuage, wood, meadow, and pasture, because that by them (he plow- man and the cattle belonging to the plow are maintained." Gain and tillage were synonymous terms, gaigner signifying to till and gainnre tillage. So beasts of the plough and O) Sax. Chro. Anno 1085, p. 289, Ingrain's edit. The learned trans- lator puts "yard of land," which he explains to he the fourth part of an acre; hut the expression is £ynbe lanber*, yard land, which comprised several acres, varying in different places. Gibson rightly translates the passage thus: "ut ne onica esset hyda out rlrgata terrcB." Gibson's Sax. ('hnm. p. 186. O) Co. Lift. 69a; Sir H.Ellis's Introduction to Domesday, vol. 1, p. 145. (//) Sir II. Ellis's Introduction to Domesday, vol. 1, p. 148. (z) Ibid. vol. 1, p. 156. Lord Coke, however, says that an oxgang was as much as an ox could till. («) Eitz. Abr. tit. Briefs, 241. The learned editor of Co. Litt. erroneously supposes that the writ was held ill on account of the un- certainty of the term oxgang ; Co. Litt. 69 a, n. (z). And he further adds, " See infra, a like case as to the uncertainty of virgata." The case referred to appears to he that mentioned by Lord Coke in Co. Litt. 69 a — "A fine shall not he received de una virgata terra, for the uncertainty; ride 3!) Hen. VI. 8." But on reference to the Year Book it will be found that all that was decided was, that if a grant was anciently made of two virgatcs of land, on which two messuages have since been built, and part of which has since been converted into meadow, pasture and wood, the deed of grant must be pleaded in its terms, and the land de- manded by the names appropriate to its present state of messuage, land, meadow, pasture and wood, the change being alleged. And in Sheppard's Touchstone, p. 12, Jfovata and virgata are both men- tioned amongst the proper terms to pass land by fine. (//) Co. Litt. 69 a. APPENDIX. 471 cattle, which tilled and manured the laud, were exempt from distress if any other could be found (c). And the ancient Distress. law with respect to tithe corresponded with this state of Tithes, things. As a rule, every kind of produce was titheable. But no tithe was payable for grass used for the agistment or feeding of any cattle or sheep employed in the tillage or manurance of arable land within the parish ; because the parson thereby got better tithes from the arable laud (d). The pasture laud was thus treated by law as subservient to the arable, and excused from tithe on the ground that it tended to make the arable land more profitable. The statutes of Merton (e) and Westminster the second (/) The Statutes treat tenants entitled to common appendant as a well-known ?£ Mert ° n an(1 , „ "' estminster class, the former speaking of them as feoffees, the latter as the second. tenants or the lord's men. Both statutes relate only to common of pasture, that being a right, and the only right, always given by the law ; and the latter statute expressly excepts common of pasture claimed by auy one in any other manner than of common right he ought to have, " alio modo quam de jure communi habere deberet." By these statutes the lord was enabled to improve his wastes, pro- vided he left sufficient common for the tenants. The tenants exercising these rights of common were often The lord's called generally the lord's freemen. Thus, in the reign of freemeo - King John, Amauricus Comes Hebraicarum grants to a tenant as to his freeman, for his service and homage, a yard land, with a messuage to the same land belonging, and with all its appurtenances, to hold of him and his heirs to the tenant and his heirs at a certain rent; "and I will," the deed proceeds, "that he shall have common in my town of M. like my other freemen (sicut alii liberi mei homines) in woods and waters and pastures and ways and paths" (g). So, in the second year of the reign of King Jchn, the men of Prunhull, in Sussex, complain that the abbot of Battle (c) Com. Dig. tit. Distress (C); (/) Stat. 13 Edw. I. c. U\. And 2 luht. 132. tat :: & I Edw. VI. c ::, s. 2. (d) 1 Eagle on Tithes, 289,290. (g) Mad. Form. Angl. No. 303, O) Stat. 20 Hen. III. c. 4. p. 184. 472 APPENDIX. and the abbot of Robertsbridge bad levied a fine in the King's Court of a certain marsh which belonged to their free tenement in Prunhull, of which their predecessors were seised as of right in the time of Henry the king's father (A). So the men of Ormadan, to the number of forty, release to the abbess anil convent of Dora their rights of common in certain lands (t). So, in the reign of King Henry III., Richard de Stoches grants to the monks of Bruerne certain lauds in frankalmoigne, and also grants them common of pasture with the other men of the same fee (k). The men are mentioned generally, not as certain particular tenants, but the whole of the tenants of that fee or feud. Land menns arable land. The fact that when "land" is spoken of in legal instru- ments arable land is always understood, unless the con- trary appears, shows the importance attached to arable land, and tends to prove that the tenants of the arable lands in a manor were not merely certain individual tenants, but were in ancient times all the tenants as a class. When every tenant held and lived upon arable land, nothing could be more natural than that by the word "land" arable land should be primarily understood. Exceptions. Commonable beasts. The exceptions to the rule, that common appendant is the common law right of every free tenant of a manor, depend simply on this, that the special nature of certain subjects of tenure renders common appendant inappropriate to their enjoyment. Common appendant was the right which every free tenant of arable land had, by the common law, to de- pasture upon the lord's wastes all cattle subservient to the tillage and manurance of such land, namely, horses, kine and sheep, which are thence called commonable beasts; and the number of beasts to be put upon the common was as many as were levant and couchant upon the land, — that is, as many as the land was capable of maintaining on it by its {K) Abbrcviatio Placitorum, p. 32. (0 Mad. Form. Angl. No. 153, p. 8J (*) Mad. Form. Angl. No. 341, pp. 258, 259. See also No. 361, pp. 274, 275. APPENDIX. 473 produce through the winter. Common appendant could No common not be claimed in respect of a house without any curtilage a nouse - or yard ; for it was truly said, "beasts cannot be rising and lying down on a house, unless it be on the top of the house" (7). But a curtilage was supposed to belong to a house or cottage unless the contrary appeared (m). So No common common appendant could not be claimed in respect of ancient ^ or anc i en t t o i i -i . ,„ meadow, meadow or pasture ; tor the meadow and pasture itselt helped to depasture the beasts which tilled and manured the arable land to which it belonged ; and meadow and pasture did not require beasts to till it. The tenant who had pasture laud of his own would not require to put so many cattle on the lord's wastes ; and by custom common appendant might be limited to a certain number of beasts («). But the fact that the tenant might feed his beasts elsewhere did not destroy his claim to common appendant (o) ; and even if arable land was converted into meadow or pasture, the right to common appendant still remained, for the land might be ploughed up again ( p). In some cases the meadow land was periodically allotted to the owners of the arable land in the manor, giving rise to an exceptional estate of inheritance peculiar to meadow land. The freehold was Lot mead. not in the lord, but in the tenants (; 4; Coin. I > I l< . tit. Common (B). vol. 85, p. 470; Caseainl opinion. (o) Year Book, 17 Edw. III., of Sir Orlando Bridgman, L2 34b; 1 Rol. Abr. tit. Common Jar., N. S., pt. 1, p. 103; and see (D), 8. Pate .. Brownlow, 1 Kcble, 87C. (/>; Tyrringham'8oate,i K p. (r) Co. Litt. 48 b. 474 APPENDIX. that of common right every freeholder is entitled to common appendant in the lord's wastes. Common ap- pendant need not be pre- scribed for. The authorities above cited from Williams's Saunders, Willes's Reports, and Comyn's Digest (s), are strictly in accordance with the principles above stated. And Lord Coke's Commentary on the Statute of Merton, which is cited at length by the court in the judgment in Lord Danraven v. Llewellyn (t), so far from shaking these authorities, evidently confirms them. The court, however, says, that common appendant is not a common right of all tenants, but belongs only to each grantee, before the statute of Quia Emptores, of arable land by virtue of his individual grant, and as an incident thereto, and is as much a peculiar right of the grantee as one derived by express grant or by pre- scription. But the principle that common appendant is not a peculiar right, but the common right of all tenants, is not only asserted by the authorities above mentioned, and consistent with the language of the legislature and of ancient documents, but it has produced doctrines of law which are undeniable, and which turn solely on the dis- tinction that this kind of common is of common right, whilst other kinds are not. These doctrines are two. First, because common appendant is of common right, therefore a man need not prescribe for it (w). Lord Coke, who lays down this doctrine, had previously said that appendants are ever by prescription (x). Mr. Hargrave, in his note, reconciles the two doctrines thus: that "as appendancy cannot be without prescription, the former always implies the latter ; and therefore, if one pleads common appendant, it is unnecessary to add the usual form of prescribing" (y). In other words, common appendant is not a peculiar right belonging to each grantee, but a common right belonging to all, and so well known to the law as such, that it is sufficient in pleading merely to mention its name, without entering (s) Ante, p. 4G7. (J) Aute, p. 4GL («) Co. Litt. 122 a; Year B< >ok, 21 Hen. VI., 10 a; Fitz. Nat. Brev. 179, n. (J). O) Co. Litt. 121 b. (y) Co. Litt. 122 a, n. (2); Jen- kin v. Vivian, Popham, 201. appendix; 475 into a more minute description. Had it been a peculiar right belonging to each grantee, it would have been neces- sary to set it out, the tenant claiming that he, and all those whose estate he had, from time immemorial used to place so many beasts of such a kind upon such a common. In this respect common appendant resembles the customs of gavel- kind and borough English, which are known to the law and need not be particularly described, whereas any other cus- tomary mode of descent requires to be particularly stated (r). Secondly, "If a man purchase part of the land wherein Common a p- common appendant is to be had, the common shall be appor- P CI1(lant >- luUl i 7 • • /» -7i n be appor- tioned because it is oj common right ; but not so of a com- tioned. mon appurtenant, or of any other common of what nature soever" (a). Here common appendant is distinguished from all other kinds of common, on the simple ground of its being of common right or a right given by the law. Tyrringham 's Tyrringtom't case (b) turned on this distinction. The tenant there lost case - his common by claiming it as annexed to meadow and pas- ture; whereby was understood ancient meadow and pasture, to which, as we have seen (c), common cannot be appendant. Common may, however, by a grant or prescription, be appurtenant to meadow and pasture; and such in this case it was held to be. The owner of part of the land over which the common Avas claimed, purchased the premises in respect of which it was claimed, and then demised them to the plaintiff, who put in two cows into the residue of the land over which the right of common had existed. The defendant, who was the farmer of the owner of this land, with a little dog drove out the cows ; and it was held that he was justified in so doing. By the union of part of the land wherein the common was to be had with the premises in respect of which it was to be had, the entire right of common was destroyed, because it was merely common appurtenant. "Forasmuch as the court resolved thai the common was appurtenant and not appendant, and ho against common right, it was adjudged that by the said purchase all the common was extinct " (d). Common appurtenant is Common ap- (z) Bac. Abr. tit. Customs (H). (<) Ante, p. 17::. („) Co. Litt. 122a. (>h I Rep (6; 4 Eep. G<; b. 476 APPENDIX. put-tenant is against common right because it depends upon a special common right S ran *> cither expressed or implied from long usage ; and the law accordingly allows it to fail altogether whenever it can- not be exercised in its integrity. But common appendant, being of common right, a right common to every free- holder, is favoured by the law, and allowed to he appor- tioned on the union of the tenements in respect of which it is claimed with part of the lands over which the right is exercised. Had the common been appendant in Tyrring- ham's case, it is clear that the court would have held the plaintiff justified in putting in an apportioned number of cattle on the residue of the lands over which the right of common originally existed. These considerations would probably be of themselves sufficient to show that the proposition laid down in books of authority, that common appendant is the common law right of every tenant of freehold lands, is as accurate as any general proposition can be, and is not to be explained away into a number of distinct and peculiar grants, made only to certain tenants individually. The court in Lord Dunraven v. Llewellyn assumes as a fact that such grants were actually made in the case before it, according to the explanation given by Lord Coke. And in many cases it may be taken as historically true that such grants were made. But rights of common were far more important in ancient times than they are at present (e'\ and in many places in England they appear to have existed long before the feudal rules of tenure were introduced by the Normans. Lot meads, in particular, were of Saxon or German rather than of Norman Common fields, origin. And there is reason to believe that the rights of common over common field lands, about which the Court of Exchequer, in the twenty-seventh year of the reign of Queen Elizabeth, confessed themselves "at first altogether ignorant" (f), were at least of Saxon, if not in many cases (e) See Mr. Beale's suggestive Essay on Commons Preservation, Essays, p. 109; Abbreviatio Pla- citorum, Mich. 4 John, p. 36; Trin. 4 John. p. 40; Easter, 7 & 8 John, p. 51. (/) Sir Miles Corbet's Case, 7 Rep. 5 b. APPENDIX. 477 of ancient British origin ((/). Agriculturists were not then very enterprising. An "assart," or reclamation of waste. Assart. was of rare occurrence (h). The British cultivators were often left by the Saxon conquerors, and the Saxons by the Normans ; and each retained their ancient customs, which by degrees grew up into rights (i). The Norman lawyers applied as best they could the feudal rules of tenure to the state of things they found actually existing. The notions about property were then unripe (k). So long as a man could feed his horse or his cow on the waste, put his hogs into the woods to grub for acorns, and cut timber for fuel or repairs, it was not of the slightest consequence to him whe- ther the property in the wastes and woods was in himself or in somebody else. In Domesday, as we have seen, woods are usually measured only by the number of pigs they can feed. Many forests, moors and marshes, being quite unpro- fitable and often inaccessible, do not appear to have been taken into account. When it became necessary that they should have some legal owner, the lord of the manor was the only person in whom the ownership could be considered to vest. But the right of a tenant of arable land to put his cattle on the waste probably existed in many cases quite irrespective of any actual grant. The tenant and his rights were there already, and the feudal law adapted itself to the existing circumstances, giving to the lord the property in the waste, and to the tenant the right of taking the herbage by the mouths of his cattle. The following passage from Maine's Ancient Law (/), Maine on illustrates the sort of change that probably took place. Primogenitnre. Speaking of the rule of primogeniture he says : — " The ideas (g) Sec Arclneologia, vol. 34 Domesday, vol. 1, p. 102 p. Ill, vol. 37, p. 383. See also (/) 1 Sharon Turner's Anglo- post, as to the Welsh custom of Saxons, 324, 325; 2 ih. 542, 643; co-tillage. The Saxon term "yard Palernve's Rise and Progress of the land" is, according to the author's F-neJisli ( 'oniin<>mvcalth,vol. l,pp. experience, generally applied to 26, 27, 28, 88, 77. lands in common fields. (/.') See Palgrave, vol. l,pp. 71 {]/) 1, irts, or assarts, are men- etseq. tioned but rarely in Domesday. (0 P. 237, 1st edit. Sir II. Ellis's rntrodnction to 478 , APPENDIX. " and social Conns which contributed to the formation of •' the system wore unquestionably barbarian and archaic ; " but as soon as' courts and lawyers were called in to inter- " prel and define it, the principles of interpretation which " they applied to it were those of the latest Roman juris- " prudence, and were therefore excessively refined and " matured. In a patriarchally governed society, the eldest " son may succeed to the government of the agnatic group, " and to the absolute disposal of its property. But he is " not therefore a true proprietor. He has correlative duties " not involved in the conception of proprietorship, but quite " undefined and quite incapable of definition. The later " Roman jurisprudence, however, like our own law, looked " upon uncontrolled power over property as equivalent " to ownership, and did not, and in fact could not, take " notice of liabilities of such a kind that the very concep- " tion of them belonged to a period anterior to regular law. " The contact of the refined and the barbarous notion had " inevitably for its effect the conversion of the eldest son " into legal proprietor of the inheritance. The clerical and " secular lawyers so defined his position from the first ; but " it was only by insensible degrees that the younger brother, " from participating on equal terms in all the dangers and " enjoyments of his kinsman, sank into the priest, the soldier " of fortune, or the hanger-on of the mansion. The legal " revolution was identical with that which occurred on a " smaller scale and in quite recent times through the greater " part of the Highlands of Scotland. When called in to " determine the legal powers of the chieftain over the " domains which gave sustenance to the clan, Scottish juris- " prudence had long since passed the point at which it could " take notice of the vague limitations on completeness of " dominion imposed by the claims of the clansmen, and it " was inevitable therefore that it should convert the patri- " mony of many into the estate of one." Wales. A change of a somewhat similar nature appears to have taken place in the principality of Wales. The land in dis- pute in the case of Lord Dunraven v. Llewellyn was situate in the county of Glamorgan in Wales. Wales, as is APPENDIX. 479 well known, was conquered by King Edward the First, who, by the Statutum Wallice, 12 Edw. L, sometimes called the statute of Rhuddlan, subjected it in great measure to English law(m). Before this time large tracts of land had doubtless been given to Englishmen, who vanquished the natives and took their lands. But the rest of Wales was governed by its own laws and customs, of which copies and translations were published in the year 1841, under the direction of the commissioners of public records. In one of these it is thus provided : — " Three things that " are not to be done without the permission of the lord " and his court : building on a waste, ploughing on a waste, " and clearing wild land of wood on a waste ; and there " shall be an action for theft against such as shall do so, " because every ivild and ivaste belongs to the country and ' ; kindred in common, and no one has a right to exclusive " possession of much or little of land of tbat kind" («). Again it is said that " every habitation ought to have a bye " road to the common waste of the 'trev' or vill" (o). So an oak, a birch or a witch elm could not be cut without the permission of the country and lord (p) ; but any person might take fuel from a decayed or hollow tree (q). As land was inalienable, and descended equally amongst all the sons, the landowners in the same place were probably in most cases of kin to one another. Hume says in his History of England (r), speaking of the time of the conquest by Edw. I. — " The rude and simple manners of the natives, as well " as the mountainous situation of their country, had made " them entirely neglect tillage and trust to pasturage alone " for their subsistence." This statement, however, appears too sweeping. The wars in which they were then engaged (m) See 1 Bl. Com. 93, 94; (o) Welsh Laws, t.k. 9, eh. 25, Bale's Hist, of Common Law, No. 8, p. 525, fol. edit, by Record pp. 218 ctseq.; 2 Reeves's Hist. Commissioners. Eng. Law, ch. 9, p. 92. O) Ibid, bk. 13, ch. 2, No. 238. («) Cyvreithiau Cymrn, Welsh (, <;35. (<') Bac.Abr.tit. Copyhold(E); (g) Stat. 2 & 3 Will. IV. c. 71. Fbitton and Crachroode'x cos,', I (h) Steel v. Priekett, i' Stark. Rep. ::i b. 463; Doe i. Molesworth \. Hlcc- (A) Wilson v. Page, 4 Esp. 71. man, '■> <.,>. B. 298 j and Bee Barm s I I 2 484 APPENDIX. custom as he alleges it (/). He may, however, if he pleases allege the right as belonging hy custom to all the customary tenements of the manor (m), and in that case evidence as to the other tenements will he admissible in his behalf; but at the same time he Avill expose his claim to be met by evidence relating to any other tenement in the manor standing in the same situation as his own (»). For these reasons the author is of opinion that the case of Lord Dunraven v. Llewellyn was, on the point in question, wrongly decided. There was another point decided, namely, this, that evidence of actual exercise is not essential to the admission of evidence of reputation. With this decision the author has no faidt to find. (I) Dunstan v. Tresider, 5 T. («) 1 Scriv. Cop. 597, 3rd edit.; Eep. 2. Cort v. BvrTtleck, 1 Doug. 218, (to) See Potter v. North, 1 219, 223; Freeman v. PMlHppg, Wms. Sannd. 346, 348 ; 1 Lev. 4 Man. & Sel. 486, 495. 268. ( 485 ) APPENDIX (D). Referred to, pp. 192, 292, 427. — ♦ — A Deed of Grant. This Indenture made the second day of January (a) [in Date, the eleventh year of the reign of our Sovereign Lady Queen Victoria by the grace of God of the United Kingdom of Great Britain and Ireland Queen Defeuder of the Faith and] in the year of our Lord 1848 Between A. B. of Parties. Cheapside in the city of London Esquire of the lirst part C. D. of Lincoln's Inn in the county of Middlesex Esquire of the second part and Y. Z. of Lincoln's Inn aforesaid gentleman of the third part (6) Whereas by indentures of Recital of the lease and release bearing; date respectively on or about the f onve y ance to ~ J the vendor, hrst and second days of January 1838 and respectively made or expressed to be made between E. F. therein described of the one part and the said A. B. of the other part for the consideration therein mentioned the messuage or tenement lands and hereditaments hereinafter described and intended to be hereby granted with the appurtenances were conveyed and assured by the said E. F. unto and to the use of the said A. B. his heirs and assigns for ever And Whereas Recital of the the said A. B. hath contracted and agreed with the said contract for C. D. for the absolute sale to him of the inheritance in fee simple in possession of and in the said messuage or tenement lands and hereditaments hereinbefore referred to and herein- after described with the appurtenances free from all incum- brances at or for the price or sum of one thousand pounds (a) The words within brackets ante, pp. 291,292. If this should are now most frequently oinitteil. not be intended, the deed would (J) The reason why V. '/.. is be made between A. B. of the one made a party to this deed is, that part, ami < '. D. of the other part, the widow of C. D. may be barred ai bath pecimen given, p. 182. or deprived of her dower. Bee 486 AITEXIUX. Testatum. Consideration Receipt. Now this Indenture "Witnessetii that for carrying the said contract for sale into effect and in consideration of the sum of one thousand pounds of lawful money of Great Britain to the said A. B. in hand well and truly paid by the said C. D. upon or immediately before the sealing and de- livery of these presents (the receipt of which said sum of one thousand pounds in full for the absolute purchase of the inheritance in fee simple in possession of and in the mes- suage or tenement lands and hereditaments hereinafter de- scribed and intended to be hereby granted with the appurte- nances he the said A. B. doth hereby acknowledge and of and from the same and every part thereof doth acquit release and discharge the said C. D. his heirs executors administrators and assigns [and every of them for ever by these presents]) He the said A. B. Hatii granted and confirmed aud by these presents Doth grant and confirm xmto the said C. D. and his heirs (c) All that messuage or tenement situate lying and being at &c. commonly called or known by the name of &c. {here describe the pre- Gencral words, mises) Together with all and singular the houses out- houses edifices buildings barns dovehouses stables yards gardens orchards lights easements ways paths passages waters watercourses trees woods underwoods commons and commonable rights hedges ditches fences liberties privileges emoluments commodities advantages hereditaments and appurtenances whatsoever to the said messuage or tene- ment lands hereditaments and premises hereby granted or intended so to be or any part thereof belonging or in any- wise appertaining or with the same or any part thereof Operative words. Parcels. (c) If the deed were dated at any time between the month of May, 18-11 (the date of the statute 4 & 5 Vict. c. 21 ; ante, pp. 172, 179), and the first of January, 1845 (the time of the commence- ment of the operation of the Trans- fer of Property Act, ante, p. 1 72), the form would be as follows : — " He the said A. B. Doth by these " presents (being a deed of release " made in pursuance of an Act of Parliament made and passed in the fourth year of the reign of her present Majesty Queen Vic- toria intituled An Act for ren- dering a Release as effectual for the Conveyance of Freehold Es- tates as a Lease and Release by the same Parties) grant bargain sell alien release and confirm unto the said C. D. and his heirs." APPENDIX. 487 now or at any time heretofore usually held used occupied or enjoyed [or accepted reputed taken or known as part parcel or member thereof] And the reversion and reversions re- Estate, mainder and remainders yearly and other rents issues and profits of the same premises and every pai-t thereof And all the estate right title interest use trust inheritance pro- perty possession benefit claim and demand whatsoever both at law and in equity of him the said A. B. in to out of or upon the said messuage or tenement lands hereditaments and premises hereby granted or intended so to be and every part and parcel of the same with their and every of their appurtenances And all deeds evidences and writings re- And all deeds, lating to the title of the said A. B. to the said hereditaments and premises hereby granted or intended so to be now in the custody of the said A. B. or which he can procure without suit at law or in equity To have and To hold the said Habendum, messuage or tenement lands and hereditaments hereinbefore described and all and singidar other the premises hereby granted or intended so to be with their and every of their rights members and appurtenances unto the said C. D. and his heirs (df) To such uses upon and for such trusts intents Uses to bar and purposes and with under and subject to such powers ower " provisoes declarations and agreements as the said C. D. shall from time to time by any deed or deeds instrument or instru- ments in writing with or without power of revocation and new appointment to be by him sealed and delivered in the presence of and to be attested by two or more credible wit- nesses direct limit or appoint And in default of and until any such direction limitation or appointment and so far as any such direction limitation or appointment if incomplete shall not extend To the use of the said C. D. and his assigns for and during the term of his natural life without impeach- ment of waste And from and after the determination of that estate by forfeiture or otherwise in his lifetime To tbc use of the said Y. Z. and his heirs during the life of the said C. D. In trust nevertheless for him the said C. D. and his (d) If tbe dower of C. D.'s simply be " To tbe use of the said widow sbould not be intended to " C. I), bis heirs and assigns for be barred, the form would here " ever." 488 ArPENDJX. Covenants for title. That the ven- dor is seised in fee. That the ven- dor has good right to con- vey. For qnict en- joyment. assigns and after the decease of the said C. D. To the use of the said C. D. his heirs and assigns for ever And the Baid A. B. doth hereby for himself his heirs (e) executors and administrators covenant promise and agree with and to the said ('. I), his appointees heirs and assigns in manner follow- ing that is to say that for and notwithstanding any act deed matter or thing whatsoever hy him the said A. B. or any person or prisons lawfully or equitably claiming or to claim by from through under or in trust for him made done or committed to the contrary (f) [he the said A. B. is at tho time of the sealing and delivery of these presents lawfully rightfully and absolutely seised of or well and sufficiently entitled to the messuage or tenement lands hereditaments and premises hereby granted or intended so to be with the appurtenances of and in a good sure perfect lawful absolute and indefeasible estate of inheritance in fee simple without any manner of condition contingent proviso power of revo- cation or limitation of any new or other use or uses or any other matter restraint cause or thing whatsoever to alter change charge revoke make void lessen or determine the same estate And that for and notwithstanding any such act matter or thing as aforesaid] he the said A. B. now hath in himself gootl right full power and lawful and absolute authority to grant anil confirm the said messuage or tenement lands hereditaments and premises hereinbefore granted or intended so to be with their appurtenances unto the said C. D. and his heirs to the uses and in manner aforesaid and according to the true intent and meaning of these presents And that the same messuage or tenement lands hereditaments and premises with the appurtenances shall and lawfully may accordingly from time to time and at all times hereafter be held and enjoyed and the rents issues and profits thereof received and taken by the said C. D. his appointees heirs and assigns to and for his and their own absolute use and benefit without any lawful let suit trouble denial hind- rance eviction ejection molestation disturbance or inter- ruption whatsoever of from or by the said A. B. or any person or persons lawfully or equitably claiming or to (e) See ante, pp. 77, 78. (/) See ante, p. 427. APPENDIX. 489 claim by from through under or in trust for him And that ((/) free and clear and freely and clearly acquitted For freedom exonerated and discharged or otherwise hy him the said r com lncum " ° J brances. A. B. his heirs executors or administrators well and suf- ficiently saved defended kept harmless and indemnified of from and against all and all manner of former and other [gifts grants bargains sales leases mortgages jointures dowers and all right and title of dower uses trusts wills entails statutes merchant and of the staple recognizances judgments extents executions annuities legacies payments rents aud arrears of rent forfeitures re-entries cause and causes of forfeiture and re-entry and of from and against all and singular other] estates rights titles charges and incum- brances whatsoever had made done committed executed or willingly suffered by him the said A. B. or any person or persons lawfully or equitably claimiug or to claim by from through under or in trust for him And moreover that he For further the said A. B. and his heirs and all and every persons and assurance - person having or lawfully claiming or who shall or may have or lawfully claim any estate right title or interest whatsoever at law or in equity in to or out of the said messuage or tenement lands hereditaments and premises hereinbefore granted or intended so to be with their appur- tenances by from through under or in trust for him or them shall and will from time to time and at all times hereafter upon every reasonable request and at the costs and charges of the said C. D. his appointees heirs and assigns make do and execute or cause or procure to be made done and exe- cuted all and every or any such further and other lawful and reasonable acts deeds things grants conveyances and assurances in the law whatsoever for further better more perfectly and effectually granting conveying and assuring the said messuage or tenement lands hereditaments and pre- mises hereinbefore granted or intended so to be with their appurtenances unto the said C. D. and his heirs to (he uses and in manner aforesaid and according to the true intent and meaning of these presents as l»y him the said C. 1). his appointees heirs or assigns or his or their counsel in (lie law (g) The w>rd thai i- here a pronoun. 490 ArrENDix. fdiall or may be reasonably advised or devised and required [so that no such further assurance or assurances contain or imply any further or any other warranty or covenant than against the person or persons who shall make and execute the same and his her or their heirs executors and administrators acts and deeds only and so that the person or persons who shall be required to make and execute any such further assurance or assurances be not compelled or compellable for making or doing thereof to go or travel from liis her or their dwelling or respective dwellings or usual place or places of abode or residence] In Witness, &c. On the back is endorsed the attestation and further receipt as follows: — Signed sealed and delivered by the within-named A. B. C. D. and Y. Z. in the presence of John Doe of London Gent. Richard Roe Clerk to Mr. Doe. Received the day and year first within written > of and from the within-named C. D. the sumi of One Thousand Pounds being the consider- >£ 1000. ation within mentioned to be paid by him to' me. (Signed) A. B. Witness John Doe Richard Roe. ( 491 ) APPENDIX (E). Referred to p. 220, n. O). — -♦ — On the decease of a woman entitled by descent to an estate in fee simple, is her husband, having had issue by her, en- titled, according to the present law, to an estate for life, by the curtesy of England, in the whole or any part of her share ? (a) In order to answer this question satisfactorily, it will be necessary, first, to examine into the principles of the ancient law, and then to apply those principles, when ascertained, to the law as at present existing. Unfortunately the authori- ties whence the principles of the old law ought to be derived do not appear to be quite consistent with one another ; and the consequence is, that some uncertainty seems unavoidably to hang over the question above propounded. Let us, how- ever, weigh carefully the opposing authorities, and endea- vour to ascertain on which side the scale preponderates. Littleton, "not the name of the author only, but of the law itself," thus defines curtesy: "Tenant by the curtesie of England is where a man taketh a wife seised in fee simple or in fee tail general, or seised as heir in tail especial, and hath issue by the same Avife, male or female, born alive, albeit the issue after dieth or liveth, yet if the wife dies, the husband shall hold the laud during his life by (lie law of England. Ami he is called tenant by the curtesie of England, because this is used in no other realme, but in Eugland only " (&). And, in a subsequent section, he adds, "Memorandum, that, in every case -where a man taketh a wife seised of such an (a) The substance of the fol- appeared in the "Jurist" news- lowing observations has already paper for March II, L846. {b) Litfc s. 85. 492 APPENDIX. estate of tenements, &c., as the issue which he hath by bis wife may by possibility inherit the same tenements of such an estate as the wife bath, as heir to the icife ; in this case, after the decease of the wife, he shall have the same tene- ments by the curtesie of England, hut othcrivise not" (c). " Memorandum," says Lord Coke, in his Commentary (d), " this word doth ever betoken some excellent point of learn- " ing." Again, "As heir to the wife. This doth imply a secret of law ; for, except the wife be actually seised, the heir shall not (as hath been said) make himself heir to the wife ; and this is the reason, that a man shall not be tenant by the curtesie of a seisin in law." Here, we find it asserted by Littleton, that the husband shall not be tenant by the curtesy, unless he has had issue by his wife capable of in- heriting the land as her heir; and this is explained by Lord Coke to be such issue as would have traced their descent from the wife, as the stock of descent, according to the maxim, " seisina facit stipitem." Unless an actual seisin had been obtained by the wife, she could not have been the stock of descent ; for the descent of a fee simple was traced from the person last actually seised; "and this is the reason," says Lord Coke, " that a man shall not be tenant by the cur- tesy of a mere seisin in law." The same rule, with the same reason for it, will also be found in Paine 's case (e), where it is said, "And when Littleton saith, as heir to the wife, these words arc very material ; for that is the true reason that a man shall not be tenant by the curtesy of a seisin in law; for, in such case, the issue ought to make himself heir to lain who was last actually seised." The same doctrine again appears in Blackstone(y). "And this seems to be the principal reason why the husband cannot be tenant by the curtesy of any lands of which the wife was not actually seised ; because, in order to entitle himself to such estate, he must have begotten issue that may be heir to the wife; but no one, by the standing rule of law, can be heir to the an- cestor of any land, whereof the ancestor was not actually seised ; and, therefore, as the husband had never begotten (r) Litt. s. 52. 0) 8 Rep. 3G a. (d) Co. Litt. 40 a. (/) 2 Black. Comm. 128. APPENDIX. 493 any issue that can be heir to those lands, he shall not bo tenant of them by the curtesy. And hence," continues Black- stone, in his usual laudatory strain, "we may observe, with how much nicety and consideration the old rules of law were framed, and how closely they are connected and interwoven together, supporting, illustrating and demonstrating one an- other." Here we have, indeed, a formidable array of a\itho- rities, all to the point, that, in order to entitle the husband to his curtesy, his wife must have been the stock from whom descent should have been traced to her issue ; for the prin- cipal and true reason that there could not be any curtesy of a seisin in law is stated to be, that the issue could not, in such a case, make himself heir to the wife, because his descent was then required to be traced from the person last actually seised. Let us, then, endeavour to apply this principle to the pre- sent law. The act for the amendment of the law of inherit- ance (g) enacts (h), that, in every case, descent shall be traced from the purchaser. On the decease of a woman entitled by descent, the descent of her share is, therefore, to be now traced, not from herself, but from her ancestor, the pur- chaser from whom she inherited. With respect to the per- sons to become entitled, as heir to the purchaser on this descent, if the woman be a coparcener, the question arises, which has already been discussed (i), whether the surviving lister equally with the issue of the deceased, or whether such issue solely, are now entitled to inherit ? And the conclu- sion at which we arrived was, that the issue solely succeeded to their mother's share. But, whether this be so or not, nothing is clearer than that, on the decease of a woman en- titled by descent, the persons who next inherit take as heir to the purchaser, and not to her ; for, from the purchaser alone can descent now be traced ; and the mere circumstance of having obtained an actual seisin does not now make the heir the stock of descent. How, then, can her husband be entitled to hold her lands as tenant by the curtesy? If (//) 3 & 1 Will. IV. c. 106. (0 Appendix (B),nntc p. I 19. (h) Sect. :.'. 494 AITENDIX. tenancy by the curtesy was allowed of those lands only of which the wife had obtained actual seisin, because it was a neces- sary condition of curtesy that the wife should be the stock of descent, and because an actual seisin alone made the wife the stock of descent, how can the husband obtain his curtesy in any case where the stock of descent is confessedly not the wife, but the wife's ancestor? Amongst all the recent alter- ations of the law, the doctrine of curtesy has been left un- touched ; there seems, therefore, to be no means of deter- mining any question respecting it, but by applying the old principles to the new enactments, by which, indirectly, it may be affected. So far, then, as at present appears, it seems a fair and proper deduction from the authorities, that, whenever a woman has become entitled to lands by descent, her husband cannot claim his curtesy, because the descent of such lands, on her decease, is not to be traced from her. But, by carrying our investigations a little further, we may be disposed to doubt, if not to deny, that such is the law ; not that the conclusion drawn is unwarranted by the authorities, but the authorities themselves may, perhaps, be found to be erroneous. Let us now compare the law of curtesy of an estate tail with the law of curtesy of an estate in fee simple. In the section of Littleton, which we have already quoted (I), it is laid down, that, if a man taketh a wife seised as heir in tail especial, and hath issue by her, born alive, he shall, on her decease, be tenant by the curtesy. And on this Lord Coke makes the following commentary: "And hero Littleton intendeth a seisin in deed, if it may be attained unto. As if a man dieth seised of lands in fee simple or fee tail general, and these lands descend to his daughter, and she taketh a husband and hath issue, and dieth before any entry, the husband shall not be tenant by the curtesy, and yet, in this case, she had a seisin in law ; but, if she or her husband had, during her life, entered, he should have been tenant by the curtesy" (m). Now, it is well known that {I) Sect. 35. O) Co. Litt. 29 a. APPENDIX. 495 the descent of an estate tail is always traced from the pur- chaser or original donee in tail. The actual seisin which might be obtained by the heir to an estate tail never made him the stock of descent. The maxim was, " Possessio fratris de feudo simpliei facit sororem esse haBredem." Where, therefore, a woman who had been seised as heir or coparcener in tail died, leaving issue, such issue made them- selves heir not to her, but to her ancestor, the purchaser or donee ; and Avhether the mother did or did not obtain actual seisin was, in this respect, totally immaterial. When actual seisin was obtained, the issue still made themselves heir to the purchaser only, and yet the husband was entitled to his curtesy. When actual seisin was not obtained, the issue were heirs to the purchaser as before ; but the husband lost his curtesy. In the case of an estate tail, therefore, it is quite clear that the question of curtesy or no curtesy depended entirely on the husband's obtaining for his wife an actual seisin, and had nothing to do with the circumstance of the wife's being or not being the stock of descent. The reason, therefore, before mentioned given by Lord Coke, and repeated by Blackstone, cannot apply to an estate tail. An actual seisin could not have been required in order to make the wife the stock of descent, because the descent could not, under any circumstances, be traced from her, but must have been traced frorn the original donee to the heir of his body per formam doni. Again, if we look to the law respecting curtesy in incor- poreal hereditaments, we shall find that the reason above given is inapplicable ; for the husband, on having issue born, was entitled to his curtesy out of an advowsou and a rent, although no actual seisin had been obtained, in the wife's lifetime, by receipt of the rent or presentation to the advow- son (n). And yet, in order to make the wife the stock of descent as to such hereditaments, it was necessary that an actual seisin should be obtained by her («). The husband, therefore, was entitled to his curtesy where the descent to (n) Walk. Descents, 39 (17, (<<) Walk. Descents, CO (67, Ithed.) Hliul.j 49G APPENDIX. the issue was traced from the ancestor of his wife, as well as where traced from the wife herself. In this case also, the right to curtesy was, accordingly, independent of the wife's being or not being the stock from which the descent was to be traced. We are driven, therefore, to search for another and more satisfactory reason why an actual seisin should have been required to be obtained by the wife, in order to entitle her husband to his curtesy out of her lands ; and such a reason is furnished by Lord Coke himself, and also by Blackstone. Lord Coke says (p), " "Where lands or tenements descend to the husband, before entry he hath but a seisin in law, and yet the wife shall be endowed, alheit it be not reduced to an actual possession, for it lieth not in the power of the wife to bring it to an actual seisin, as the husband may do of his wife's land when he is to be tenant by curtesy, which is worthy the observation." It would seem from this, therefore, that the reason why an actual seisin was required to entitle the husband to his curtesy Avas, that his wife may not suifer by his neglect to take possession of her lands ; and, in order to induce him to do so, the law allowed him curtesy of all lands of which an actual seisin had been obtained, but refused him his curtesy out of such lands as he had taken no pains to obtain possession of. This reason also is adopted by Blackstone from Coke : "A seisin in law of the husband will be as effectual as a seisin in deed, in order to render the wife dowable : for it is not in the wife's power to bring the husband's title to an actual seisin, as it is in the husband's power to do with regard to the wife's lands ; which is one reason why he shall not be tenant by the curtesy but of such lands whereof the wife, or he himself in her right, was actually seised in deed" (q). The more we investigate the rides and principles of the ancient law, the greater will appear the probability that this reason was indeed the true one. In the troublous times of old, an actual seisin was not always easily acquired. The doctrine of continual claim shows that peril was not unfrequently incurred in entering Q>) Co. Litt. 31 a. (?) 2 Black. Com. 131. APPENDIX. 497 on lands for the sake of asserting a title ; for, in order to obtain an actual seisin, any person entitled, if unable to approach the premises, was bound to come as near as he dare (r). And " it is to be observed," says Lord Coke, " that every doubt or fear is not sufficient, for it must con- cern the safety of the person of a man, and not his houses or goods ; for if he fear the burning of his houses or the taking away or spoiling his goods, this is not sufficient" (s). That actual seisin should be obtained was obviously most desir- able, and nothing could be more natural or reasonable than that the husband should have no curtesy where he had failed to obtain it. Perkins seems to think that this was the reason of the ride ; for in his Profitable Book he answers an objection to it, founded on an extreme case. "But if pos- session in law of lands or tenements in fee descend unto a married woman, which lands are in the county of York, and the husband and his wife are dwelling in the county of Essex, and the wife dieth within one day after tbe descent, so as the husband could not enter during the coverture, for the shortness of the time, yet he shall not be tenant by the curtesy, &c; and yet, according to common pretence, there is no default in the husband. But it may be said that the husband of the woman, before the death of the ancestor of the woman, might have spoken unto a man dwelling near unto the place where the lands lay, to enter for the woman, as in her right, immediately after the death of her ancestor," &c. (t). This reason for the rule is also quite consistent with the circumstance that the husband was entitled to his curtesy out of incorporeal heredita- ments, notwithstanding his failure to obtain an actual seisin. For if the advowson were not void, or the rent did not become payable during the wife's life, it was obviously impossible for the husband to present to the one or receive the other; and it would have been unreasonable that ho Bhould suffer for not doing an impossibility, the maxim being "impotentia excusat legem." This is the reason, indeed, usually given to explain this circumstance ; and it (r) Litt. B8. 419, 421, (O Perk. 170. (*) Co. Litt. 253b. B.P. K K 49S APPENDIX. will be found both in Lord Coke (/() and Blackstone (x). This reason, however, is plainly at variance with that mentioned in the former part of this paper, and adduced by them to explain the necessity of an actual seisin, in order to entitle the husband to his curtesy out of lands in fee simple. There still remains, however, the section of Littleton, to which we have before referred (v), as an apparent authority on the other side. Liftleton expressly says, that when the issue may, by possibility, inherit, of such an estate as the wife hath, as heir to the wife, the husband shall have his curtesy, but otherwise not; and we have seen that, accord- ing to Lord Coke's interpretation, to inherit as heir to the wife, means here to inherit from the wife as the stoch of descent. But the legitimate mode of interpreting an author certainly is to attend to the context, and to notice in what sense he himself uses the phrase in question on other occa- sions. If now we turn to the very next section of Littleton, Ave shall find the very same phrase made use of in a manner, which clearly shows that Littleton did not mean, by inherit- ing as heir to a person, inheriting from that person as the stock of descent. For, after having thus laid down the law as to curtesy, Littleton continues : "And, also, in every case where a woman taketh a husband seised of such an estate in tenements, &c, so as, by possibility, it may happen that the wife may have issue by her husband, and that the same issue may, by possibility, inherit the same tenements of such an estate as the husband hath, as heir to the husband, of such tenements she shall have her dower, and othenvise not" (z). Now, nothing is clearer than that a wife was en- titled to dower out of the lands of which her husband had only seisin in law (a) ; and nothing, also, is clearer than that a seisin in law only was insufficient to make the husband the stock of descent : for, for this purpose, an actual seisin was recpuisite, according to the rule "seisina facit stipitem." In this case, therefore, it is obvious that Littleton could not («) Co. Litt. 20 a. (.-) Litt. s. 53. (./•) 2 Black. Com. 127. («) Watk. Descents, 32 (12, (y) Sect. 52. llhed.). APPENDIX. 499 mean to say that the husband must have been made the stock oj descent, by virtue of having obtained an actual seisin : for that would have been to contradict the plainest rules of law. What, then, was his meaning ? The subse- quent part of the same section affords an explanation: "For, if tenements be given to a man and to the heirs which he shall beget of the body of his wife, in this case the wife hath nothing in the tenements, and the husband hath an estate tail as donee in special tail. Yet, if the husband die without issue, the same wife shall be endowed of the same tenements, because the issue which she, by possibility, might have had by the same husband, might have inherited the same tenements. But, if the wife dieth leaving her husband, and after the husband taketh another wife and dieth, his second wife shall not be endowed in this case,ybr the reason aforesaid? This example shows what was Littleton's true meaning. He was not thinking, either in this section or the one next before it, of the husband or Avife being the stock of descent, instead of some earlier ancestor. He was laying down a general rule, applicable to dower as well as to curtesy ; namely, that if the issue that might have been born in the one case, or that were born in the other, of the surviving parent, could not, by possibility, inherit the estate of their deceased parent, by right of representation of such parent, then the surviving parent was not entitled to dower in the one case, or to curtesy in the other. It is plain that, in the example just adduced, the issue of the hus- band by his second marriage could not possibly inherit his estate, which was given to him and the heirs of his body by his first wife ; the second wife, therefore, was excluded from dower out of this estate. And, in the parallel case of a gift to a woman and the heirs of her body by her first husband, it is indisputable that, for a precisely similar reason, her second husband could not claim his curtesy on having issue by her ; for such issue could not possibly inherit their mother's estate. All that Littleton then intended to state with respect, to curtesy, was the rule laid down by the Statute dc Donis(i), which (J>) 18 Edw. r. c 1. E K 2 500 APPENDIX. provides that, where any person gives lands to a man and his wife and the heirs of their bodies, or where any person gives land in frankmarriage, the second husband of any such woman shall not have any thing in (he land so given, after the death of his wife, by the law of England, nor shall the issue of the second husband and wife succeed in the inheritance (c). When the two sections of Littleton are read consecutively, without the introduction of Lord Coke's commentary, their meaning is apparent ; and the intervening commentary not only puts the reader on the wrong clue, but hinders the recovery of the right one, by removing to a dis- tance the explanatory context. If our construction of Littleton be the true one, it throws some light on the question discussed in Appendix (B), on the course of descent amongst coparceners. We there en- deavoured to show that the issue of a coparcener always stood in the place of their parent, by right of represen- tation, even where descent was traced from some more remote ancestor as the stock. Littleton, with this view of the subject in his mind, and never suspecting that any other could be entertained, might well speak generally of issue inheriting as heir to their parent, even though the share of the parent might have descended to the issue as heir to some more remote ancestor. The authorities adduced in Appendix (B) thus tend further to explain the language of Littleton ; whilst the language of Littleton, as above explained, illustrates and confirms the authorities previously adduced. Having at length arrived at the true principles of the old law, the application of them to the state of circumstances produced by the new law of inheritance will be very easy. A coparcener dies leaving a husband who has had issue by her, and leaving one or more sisters surviving her. The descent of her share is now traced from their common parent, the purchaser. But, in tracing this descent, we have seen, in Appendix (B), that the issue of the deceased coparcener (c) Sec Bac. Abr. tit. Curtesy of England (C), 1. APPENDIX. 501 would inherit her entire share by representation of her. And the condition which will entitle her husband to curtesy out of her share appears to be, that his issue might possibly inherit the estate by right of representation of their de- ceased mother. This condition, therefore, is obviously ful- filled, and our conclusion consequently is, that the husband of a deceased coparcener, who has had issue by her, is en- titled to curtesy out of the whole of her share. But in order to arrive at this conclusion, it seems that we must admit, first, that Lord Coke has endeavoured to support the law by one reason too many ; and, secondly, that one laudatory flourish of Blackstone has been made without occasion. ( 502 ) APPENDIX (F). Referred to, p. 264. If the rule of perpetuity, which restrains executory interests within a life or lives in being and twenty-one years after- wards, be, as is sometimes contended (a), the only limit to the settlement of real estate by way of remainder, the follow- ing limitations would be clearly unobjectionable : — To the use of A., a living unmarried person, for life, with remainder to the use of his first son for life, with remainder to the use of the first son of such first son, born in the lifetime of A., or within twenty-one years after his decease, for life, with remainder to the use of the first and other sons of such first son of such first son of A., born in the lifetime of A., or •within twenty-one years after his decease, successively in tail male, with remainder to the use of the first son of the first son of A., born in his lifetime, or within twenty-one years after his decease, in tail male, with remainder to the use of the second son of such first son of A., born in the lifetime of A., or within twenty-one years after his decease, for life, with remainder to the use of his first and other sons, born in the lifetime of A., or within twenty-one years after his decease, successively in tail male, with remainder to the use of the second son of the first son of A., born in his life- time, or within twenty-one years after his decease, in tail male, with remainder to the use of the third son of such first son of A., bom in the lifetime of A., or within twenty-one years after his decease, for life, with remainder to the use of his first and other sons, born as before, successively in tail male, with remainder to the use of such third son of the first son of A., born as before, in tail male, with like remainders to the use of the fourth and every other son of such first son . («) Lewis on Perpetuity, p. 408 ct scq. APPENDIX. 503 of A., born as before, for life respectively, followed by like remainders to the use of their respective first and other sons, born as before, successively in tail male, followed by like remainders to the use of themselves in tail male ; with remainder to the use of the first son of A. in tail male, with remainder to the use of the second son of A. for life ; with similar remainders to the use of his sons, and sons' sons, born as before ; with remainder to the use of such second son of A. in tail male, and so on. It is evident tbat every one of the estates here limited must necessarily arise within a life in being (namely, that of A.) and twenty-one years afterwards. And yet here is a settlement which will in all probability tie up the estate for three generations : for the eldest son of a man's eldest son is very frequently born in his lifetime, or, if not, will most pro- bably be born within twenty-one years after his decease. And great grandchildren, though not often born in the life- time of their great grandfather, are yet not unusually born Avithin twenty-one years of his death. Now if a settlement such as this were legal, it would, we may fairly presume, have been adopted before now ; for conveyancers are fre- quently instructed to draw settlements containing as strict an entail as possible ; and the Court of Chancery has also sometimes had occasion to carry into effect executory trusts for making strict settlements. In these cases it would be the duty of the draftsman, or of the court, to go to the limit of the law in fettering the property in question. But it may be safely asserted that in no single case has a settle- ment, such as the one suggested, been drawn by any con- veyancer, much less sanctioned by the Court of Chancery. The utmost that on these occasions is ever done is, to give life estates to all living persons, with remainder to their first and other sons successively in tail male. As, therefore, the best evidence of a man's having had no lawful issue is that none of his family ever heard of any, so the best evidence that such a settlement is illegal is that no conveyancer ever heard of such a draft being drawn. ( 504 ) APPENDIX (G). Referred to, pp. 358, 3G0. Consideration. Snrrcndcr. Parcels. Estate. The Manor of \ A General Court Baron of John Freeman Fairfield in / Esq. Lord of the said Manor holden in and the County of { for the said Manor on the 1st day of Janu- Middlesex. J ary in the third year of the reign of our Sovereign Lady Queen Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland Queen Defender of the Faith and in the year of our Lord 1840 Before John Doe Steward of the said Manor. At this Court comes A. B. one of the customary tenants of this manor and in consideration of the sum of £1000 of law- ful money of Great Britain to him in hand well and truly paid by C. D. of Lincoln's Inn in the county of Middlesex Esq. in open court surrenders into the hands of the lord of this manor by the hands and acceptance of the said steward by the rod according to the custom of this manor All that messuage &c. [here describe the premises] with their appurtenances (and to which same premises the said A. B. was admitted at the general Court holden for this manor on this 12th day of October 1838) And the reversion and reversions remainder and remainders rents issues and profits thereof And all the estate right title interest trust benefit property claim and demand whatsoever of the said A. B. in to or out of the same premises and every part thereof To the use of the said C. D. his heirs and assigns for ever according to the custom of this manor. Admittance. Now at this Court comes the said C. D. and prays to be admitted to all and singular the said customary or copy- hold hereditaments and premises so surrendered to his use at this Court as aforesaid to whom the lord of this manor APPENDIX. 505 by the said steward grants seisin thereof by the rod To have and To hold the said messuage hereditaments and Habendum. premises with their appurtenances unto the said C. D. and his heirs to be holden of the lord by copy of court roll at the will of the lord according to the custom of this manor by fealty suit of court and the ancient annual rent or rents and other duties and services therefore due and of right accustomed And so (saving the right of the lord) the said C. D. is admitted tenant thereof and pays to the lord on such his admittance a fine certain of £50 and his fealty is Fine £50. respited. (Signed) John Doe Steward. INDEX. Abeyance, inheritance in, 256. Abstract of title, vendor bound to furnish an, 428. Accumulation, restriction on, 305. Acknowledgment of deeds by married women, 222, 438. Actions, real and personal, 7. Administrator, 10, 322. Admittance to copyholds, 335, 341, 360, 361, 504. Advowson appendant, 311. agreements for resignation, 326. conveyance of, 327. in gross, 311, 325, 327. of rectories, 326. of vicarages, 328. proper length of title to, 428. limitation of actions and suits for, 433. AGREEMENTS, what required to be in writing, 162. stamps on, 163, n. for lease, 375. stamps on, 376. Aids, 116, 118. A i.i i:x, 68, 161. Alienation of real estate, 17, 18, 37, 38, 40, 41, 43, 59, 61, 63, 64, 65, 66, 71, 77, 90, 'J'J, 240. power of, unconnected with ownership, 288. of executory interests, 302. of copyhokls, 846, 866, 358, 360, 504. Ambassadors, children of, 64. 508 INDEX. Ancestor, descent to, 102, 109, 110. formerly excluded from descent, 102. Ancient demesne, tenure of, 126, 339. incidents of tenure in fee, 114, 463. Annuities for lives, enrolment of memorial of, now unnecessary, 31C. registration of, 31G. search for, 439. Anticipation, clause against, 21 G. Appendant incorporeal hereditaments, 307, 309, 311. common appendant, 115, n., 463. Application of purchase-money, necessity of seeing to the, 430. Appointment, powers of, 194, 284, 289. — See Powers. Apportionment of rent, 28, 382. of rent-charge, 321. by Inclosure Commissioners, 322. Appurtenances, 313. Appurtenant incorporeal hereditaments, 313, 314. rights of common and of way, 313. Arms, grant of, 140, n. directions for use of, 280. Assart, 477. Assets, 78. Assignee of lease liable to rent and covenants, 379. Assignment of satisfied terms. 401. of lease, 385. of chattel interest must be by deed, 385. Assigns, G3, 141. Assurance, further, in deed of grant, 489. Attainder of tenant in tail, 56. of tenant in fee, GG, 122. abolition of, 23, 5G, GG, 161. Attendant terms, 398, 399, 401. Attestation to deeds, 184, 285. to wills, 196, 198, 287, 361. to deeds exercising powers, 285, 286. Attested copies, 437. Attorneys' and Solicitors' Act, 1870. .192. Attornment, 237, 308. now abolished, 238, 309. INDEX. 509 Auction, sale of land by, 163. opening of biddings abolisbed, 1G3. Autre droit, estates in, 397. Autre vie, estate pur, 20, 22. quasi entail of, 58. in a rent-charge, 319. in copyholds, 342.. B. Bankruptcy, 90, 349, 388. of tenant in tail, 57. of cestui epic trust, 16G. of tenant in fee, 90. of trustee, 1GG. search for, 439. exercise of powers in, 283. of owner of land subject to rent-cbarge, 322. power of trustee in, as to copyholds, 349. as to lcasebolds in, 388. Bargain and sale, 175, 176, 193, 194, 378, 425. required to be enrolled, 177, 193. for a year, 177, 179. of lands in Yorkshire, 125. Bastardy, 122. Bedford Level registry, 187. Benefice with cure of souls, 92. Biddings, opening of, abolished, 1G3. Borough English, tenure of, 12G. Breach of covenant, waiver of, 383. actual waiver of, ns;;. implied waiver, 383. Burial grounds, vesting of property in, 168. C. Calvin's case, 64. Canal Bhares, personal property, 8. ( Iesseb of u term, proviso for, 894. Cestlj «pie trust, L67, L66, 274. i- tenanl at will, :;7:i. tie, 20, 21. 510 INDEX. Chambers, 14. Chancery Amendment Act, 1S58. .171. ancient, 151, 158. modern, L68, 171. interposition of, between mortgagor and mortgagee, 407. Charities, Incorporated, 75. CiiAKiTY, conveyance to, 07, 69. inrohnent of, 7-. new trustees of, 108. commissioners, 72. official trustee, 72. investment of funds, 75. Chattels, 0, 7, 7, n. Cheltenham, manor of, 308. Codicil, 201. Collation, 325. Commissioners of Inclosurcs, 134, 309, n., 310, 322. Common, tenants in, 132. Common forms, 191. Common, rights of, 115, n., 309, 310, 313, 403. of copyholds, 354. appendant, 463, 468, 472. commonable beasts, 472. no common for a house, 473. ancient meadow, 473. appendant need not be prescribed for, 474. shall be apportioned, 475. appurtenant is against common right, 476. writ of novel disseisin, 481. the remedy ascertained the right, 481. extinguishment of rights, 483. fields, 309, 310, 476. metropolitan commons, 310. in gross, 324. * limitation of rights of, 434. Common Law Procedure Act, 1854.. 170, 184. Commutation of tithes, 331. of manorial rights, 352. Companies, joint stock, 75. Condition of re-entry for non-payment of rent, 235. demand of rent formerly required, 235. modern proceedings, 235. INDEX. 511 Condition formerly inalienable, 236. for breach of covenants, 381. effect of licence for breach of covenant, 381, 382. effect of waiver, 383. Conditional gift, 36, 42. Consent of protector, 51. as to copyholds, 347, 364. Consideration on feoffment, 143, 152, 154, 158. a deed imports a, 144. Consolidation of securities, 421. Construction of wills, 19, 201, 205, 210. of law as to attendant terms, 401. of words, 15, 19. Contingent remainders, 252, 256. anciently illegal, 253. Mr. Fearne's Treatise on, 257. definition of, 257. example of, 257, 266. rules for creation of, 259, 263. formerly inalienable, 266, 267. destruction of, 268. now indestructible, 268, 275, 277. trustees to preserve, 272, 273. of trust estates, 274. of copyholds, 366. Continuing breach of covenant, 383. Conveyance, fraudulent, 76. of advowson, 327. of tithes, 330. by tenant for life, 32. voluntary, 76. by deed, 141, 145, 178, 229. by married women, 222. to uses, 180, 181. Coparceners, it!». descent amongst, 109, 449. fc Copyholds, definition of, 333. origin of, 333. for lives, .'{.; I, 342. of inheritance, 335. history of, :'>:>.">. estates in copyhold, .".';7. estate tail in, ill:;, 846. 512 INDEX. Copyholds, estate pur autre vie, 342. customary recovery, 346. forfeiture ami re-grant, 34 G. equitable estate tail in, 364, 365. ancient state of copyholders, 333, 344. alienation of, 346, 356, 358, 360, 504. subject to debts, Ills. power of trustee in bankruptcy as to, 349. trustee in bankruptcy need not be admitted, 340. descent of, IMS. tenure of, 350. commutation of manorial rights in, 352. enfranchisement of, 353. mortgage of, 412. grant of, 357, 358. seizure of, 3G1. contingent remainders of, 3GG. deposit of copies of court roll, 414. abstract of title on purchase of, 429. Copyhold Acts, 1852 and 1858. .353. Corporation, conveyance to, 74. Corporeal hereditaments, 10, 13, 323. now lie in grant, 229. COSTS, mortgage to secure, 421. Counterpart, stamp on, 145, 146. Counties palatine, 87, 169, n. County Courts, equity jurisdiction of, 15S, 1G8, 410. agreements for sale or lease, 164. Court of Probate, 199. Court, suit of, 11G, 117, 121. customary, 334, 356, 358. rolls, 333, 357, 358. Covenant to stand seised, 194. Covenants in a lease, 379. run with the land, 379. effect of licence for breach of, 381. waiver of breach of, 383. for quiet enjoyment, implied by certain words, 425. for title, 426,427, 428, 488. to produce title deeds, 437. foYF.RTURE, 214,433. Creditors, conveyances to defraud, 76. judgment, 83.— Sec Judgment Debts. INDEX. 5 1 3 Creditors may witness a will, 199. sale of copyhold estates for benefit of, 348. Crown debts, 56, 87, 166, 348. registration of, 89. search for, 90, 438. forfeiture to the, 122, 161. limitation of rights of, 432. CURTESY, tenant by, 218, 219, 220, n. of gavelkind lands, 125, n., 219. as affected by the new law of inheritance, 220, 491. of copyholds, 354, 368. Customary freeholds, 339, 340, 341. recovery, 346. Customs, 333, 482, 483. Cy pres, doctrine of, 265. D. Daughters, descent to, 98, 108, 449. Death, civil, 23. gift by will in case of, without issue, 206. Debts, crown, 56, 87, 166, 348, 438. where trustees and executors may sell or mortgage to pay, 212. devise in fee or in tail charged with, 212. of deceased traders, 79. judgment, 56, 81, 165, 283, 348, 387. liability of lands to, 77, 79, 303. of leaseholds to, 387. simple contract, 78. charge of, by will, 80, 211, 213. creditors who now stand in equal degree, 80. copyholds now liable to, 348. liability of trust estates to, 164. Deed, 144. of grant, 173, 192, 485. alteration, rasure or addition in, 144, 145. whether signing necessary to, 148. poll, 146, 147. required to transfer incorporeal hereditaments, 229. on grant of rent-charge, 315. of grant, conveyance of reversion by, 233. Deeds, stamps on, 145. similarity of, 189. B.P. L L 514 INDEX. Demand for rent, 235. Demandant, 46. Demesne, the lord's, 115, 334. Demise, implies a covenant for quiet enjoyment, 42.1. Denizen, G4. Descent, 10. of an estate in fee simple, 96, 41.;. of an estate tail, 101. gradual progress of the law of, 93. of gavelkind lands, 1 2 1. of borough English lands, 126. of an equitable estate, 162. of tithes, 331. of copyholds, 349. Destruction of entails, 43. Devise.— See AYill. Disabilities, time allowed for, 4:',:!. Disclaimer, 93, 209, 388. Distress, 234, 471. clause of, 317. for rent reserved by underlease, 389. Dockets, 82. Donative advowsons, 325. Donee in tail, 35. Doubts, legal, 149. Dower, 223, 224. action for, 228. of gavelkind lands, 225. under old law independent of husband's debts, 221. old method of barring, 225. under the recent act, 227. declaration against, 227. modern method of barring, 291. uses to bar, 292, 487. of copyholds, 354, 369. formerly defeated by assignment of attendant term, 400. release of, by acknowledgment of purchase deed, 430. leases by tenant in, 228. Draining, 29, 30, 310. Duplicate Deed, stamp on, 145, 146. INDEX. 515 E. Easements, limitations of right to, 434. Educational Association, conveyance to, 74, 168. Ejectment of mortgagor by mortgagee, 407. Elegit, writ of, 81, 83, 34S. Emblements, 27, 372. Enclosure.— See Inclosure. Enfranchisement of copyholds, 353. Enrolment.— See Inrolment. Entail.— See Tail. Entireties, husband and wife take by, 217. Entirety, 100. Entry, necessary to a lease, 173, 377. tenant's position altered by, 173, 174. right of, supported a contingent remainder, 269. on court roll of deed, barring estate tail, must be made within six months, 364, n. power of, to secure a rent-charge, 318. Equitable assets, 78. waste, 25. estate, 157, 159, 160, 317. no escheat of, 160. forfeiture of, 161. creation and transfer of, 162. descent of, 162. liable to debts, 164. tail in lands to be purchased, 159. tail in copyhold may be barred by deed, 364. surrender of, 3(i.">. of alien, 161. curtesy of, 219. Equity follows the law, 159. a distinct system, 169. of redemption, 408. is an equitable estate, 47. mortgage of, 4 1 9. Ebabueb, 111. Escheat, 121, 122, 122, n., 123, 123, n. none of trust estates, 160. none of a rent-charge, 824. of copyholds, 360. L L 2 516 INDEX. Escrow, 144. ESCUAGE, 118. Estate daring widowhood, 22. legal, 157. pur autre vie, 20, 22, 319, 342. in autre droit, 397. leases and sales of settled, 25, 26, 32, 63. grant of, 36. tail, 34, 35, 42, 51, 52, 101, 140, 158, 203, 205, 207, 208, 248, 249. for life, 16, 17, 19, 22, 33, 140, 15S, 205, 318. for life in copyholds, 342. in fee simple, 140, 320. in fee simple in copyholds, 347. ancient incidents of the tenure, 114, 463. no escheat of trust, 160. forfeiture of trust, 161. of life, 269. creation and transfer of trust, 162. must be marked out, 180. of wife, 216. particular, 231. one person may have more than one, 243. words of limitation, 245. in remainder, 246, 248. where the first estate is an estate tail, 249. forfeiture of life, 142, 269. in copyhold, 337, 342, 347, 504. sale of, by trustee in bankruptcy, 249. at will, 337. equitable, 157. equitable for life and in tail, 159. in fee, 160. equitable, in mortgaged lands, 418. Estoppel, lease by, 378. Exchange, implied effect of the word, 425. power of, 294, 295. statutory provision for, 309, n. Execution of a deed, 144, 285, 286. EXECUTORS, directions to, to sell land, 299, 300. devise of real estate independent of assent of, 211. where they may sell or mortgage to pay debts, 212. exoneration of, from liability to pay rent-charges, 322. exoneration of, from rents and covenants in leases, 387. INDEX. 517 Executory devises.— See Executory Interest. Executory interest, 252, 253, 277, 278, 301, 303. creation of, under Statute of Uses, 278. by will, 299, 366. alienation of, 302. limit to creation of, 304. in copyholds, 366. where preceded by estate tail, 305. Father, descent to, 102, 109. his power to appoint a gnardian, 119. Fealty, 117, 118, 121, 123, 233, 350. Fee, meaning of term, 42. simple, 59, 62, 113, 114, 140. joint tenants in, 129. equitable estate in, 160. gift of, by will, 205, 208. estate of, in a rent-charge, 320. customary estate in, 340, 347. Fee tail, 42, 140. Feme Covert.— See Married Woman ; Wife. Feoffment, 38, n., 136, 149, 154, 232. to the use of feoffor, 152. forfeiture by, 142. deed required for, 148. by idiots and lunatics, 142. by infants of gavelkind lands, 142. by tenant for life, 142. writing formerly unnecessary to a, 143. Feudal system, introduction of, 3. abolition of, 6, 62. feuds originally for life, 17, 244. tenancies become hereditary, 35, 244. FEUDUM novum ut antiquum, 102. Fields, common, 310. Fine, 47, lit, 605. formerly used to convey wife's lands, 221. attornment could lie compelled on conveyance by, 237. payable to lord of copyholds, 341. Fines, search for, 438. 518 i.M)i:\. Fire, relief against forfeiture for non-insurance, 384. protection of purchasers of leaseholds as to insurance, 385. power to insure against, in mortgages, 384, 410. Foreclosure, 409. court may direct sale of property instead of, 410. Forfeiture for treason, 50, G6, 122, 122, n., 350. abolition of, 23, 56, CO, 122. by feoffment, 11-. and re-grant of copyholds, 346. formedon, 44. Frankalmoign, 38, 127. Frankmarriage, 37. Frauds, Statute of— (see Statute 29 Car. II. c. 3), 20, 1-17, 162, 164, 165, 196, 234, 374, 375, 385, 414. Freebench, 354, 368. Freehold, 22, 35, 59, 02. customary freeholds, 339, 340. any estate of, is larger than estate for term of year's, 395. Gain, 470. Gavelkind, 124, 142. curtesy of gavelkind lands, 219. dower of gavelkind lands, 225. General occupant, 20. residuary devisee, 202. registry, 435, 440. words, 183, 486. Gestation, period of, included in time allowed bv rule of perpetuity, 304. Gift, conditional, 36, 42. in tail, 113, 208. in fee, 113, 208. to use of feoffee, 143. with livery of seisin, 139, 151. to husband and wife and a third person, 217. their heirs, 217. Give, word used in a feoffment, 139. warranty formerly implied by, 423, 425. Goods, 6, 7, n.. INDEX. 519 GRAND serjeanty, 124. Grant, deed of, 173, 192, 233, 485. an innocent conveyance, 192. construed most strongly against grantor, 18. incorporeal hereditaments lay in, 229. proper operative word for a deed of grant, 193. of copyholds, 357, 358. implied effect of the word, 193, 425. Gross, incorporeal hereditaments in, 314. seignory in, 314. common in, 324. advowson in, 325, 327. Guardian, 119. H. Habendum, 183, 188, 189, 487, 505. Half-blood, descent to, 105, 110, 444. Heir, anciently took entirely from grantor, 18. at first meant only issue, 35. alienation as against, 37. is appointed by the law, 63, 93. bound by specialty, 77. at law, 92. apparent, 93. presumptive, 93. cannot disclaim, 93. word "heirs" used in conveyance of estate of inheritance, 140. is a word of limitation, 140, 245. devise to, 210. contingent remainder to, 251, 255. gift to " heirs," 255. ' Hereditaments, 5, 7. incorporeal, 11, 229, 307, 323. HJEBIOTS, 351, 354. HIDES and yard lands, 469. High treason, 122, 350. Homage, 11G, 35G. Honour, titles of, 8, 332. HULL registry, 186. Husband, right of, in his wife's lands, 92, 2U, 220, 890. Married Women's Property Act, 1870. .216, 891, 520 INDEX. Husband and wife one person, 217. cannot convey to his wife, 21 S. unless by Statute of Uses, 218. holding over, is a trespasser, 221. appointment by, to bis wife, 288. I. Idiots, G5, 142, 362. Immoveable property, 2, 5. Implication, gifts in a will by, 208. Improvements, 30, 31, 70. Inclosuke, 309. conveyance of, will cany adjoining waste, 313. commissioners, 131, 301), n., 310, 322. partition by, 131. Incorporated charities, 75. Incorporeal property, 11, 229, 307, 323. not subject to tenure, 321. Indenture, 146. Indestructibility of land, 1. Induction, 325. Infants, 65, 142, 289, 302, 362, 433. marriage settlements, 65, 289. Inheritance, law of.— See Descent. trust of terms to attend the, 398, 399. owner of, subject to attendant term, had a real estate in equity, 400. Innocent conveyance, 192. Inrolment of deeds barring estate tail, 47, n., 49, 364. of conveyance for charitable uses, 72, 74. of bargain and sale, 177, 193. of memorial of deeds as to lands in Middlesex and York- shire, 186, 438. of memorial of annuities for lives, 315, 316, 439. Insolvency, 90, 439. Institution, 325. INSURANCE, forfeiture of lease for non-, courts may relieve, 384. protection of purchaser of leaseholds against non-, 385. Intention, rule as to observing in wills, 204, 207. INDEX. 521 Inteeesse termini, 378. Interest, stipulation to raise, void, 415. stipulation to diminish, good, 415. former highest legal rate of, 415. Intestacy, 10, 21, 92. Investment of charity funds, 75. Issue, in tail, bar of, 47, 52. devise to, of testator, 203. devise in case of death without, 206. Joint stock companies, 75. Joint tenants for life, 128. in tail, 128. in fee simple, 129. of copyholds, 352. trustees made, 130. tenancy, severance of, 132. estate, no curtesy of, 219. no dower of, 224, 226. Jointube, 226. equitable, 226. Judgment Debts, 56, 81, 83, 86, 165. lien of, now abolished, 85. in counties palatine, 87. registry of, 83. as to trust estates, 164. as to powers, 283. as to copyholds, 348. search for, 83, 85, 438. as to leaseholds, 387. limitation of actions on, 434. against a mortgagee, 416. K Knight's service, 116, 119. Land, indestructibility of, 1, 5. term, 7, n., 14, 472. 522 INDEX. Lands, liability of, for debts, 77, 7'J. Lapse, 202, 203. Lease and release, 1 7-?, 171, 1 78, 192. an innocent conveyance, 192. agreements for, 375. stamp duty on agreements for, 376, n. from year to year, 373. for a term of years, 8, 372. for a number of years, 113, 173, 374, 377. for years, is personal property, and why, 8, 10. for life, 113. entry, necessary, 173, 377. 1a tenant in tail, 65. by tenant in dower, 228. for a year abolished, 179. leases in writing to be by deed, 375. no formal words required in a, 375. by tenant for life, 26, 293. by husband of wife's lands, 220. power to, 26, 293. by copyholder, 338. stamps on, 376, n. by estoppel, 378. rent reserved by, 379. mortgagor cannot make a valid, 406. forfeiture of, 123, n. Leaseholds, will of, 386. mortgage of, 413. disclaimer of, in event of bankruptcy, 388. purchaser of, protection against non-insurance, 385. entitled to a sixty years' title, 429. Legacies, limitation of suits for, 434. charge of, 213. Legal doubts, 149. estate, 157, 317. Licence, effect of licence for breach of covenants in a lease, 381, 383. restrictions on effect of, 382. •to demise copybolds, 338, n. Lien of vendor, 414. Life, estate for, 16, 17, 10, 22, 33, 140, 205, 242. joint tenants for, 128. equitable estate for, 159. tenant for, concurrence of, to bar entail, 51. estate for, in a rent-charge, 318. index. 523 Life, estate for, in copyholds, 335, 342. tenant for, entitled to custody of title-deeds, 435. Light, limitation of right to, 434. Limitation, of estates, 139, 180, 502. of a vested remainder after a life estate, 242. words of, 140, 245. statutes of, 432. Limited Owners Residences Act, 1870. .31. Lis pendens, 89. Literary institutions, 73, 74, 168. Livery in deed, 138. in law, 139. of wardship, 11G. of seisin, 136, 138, 139, 141, 149, 151. corporeal hereditaments formerly lay in, 229. Loans, 8. Logic, scholastic, 262. London, custom of, 61. Lunatic, 65, 142, 362, 433. M. Males preferred in descent, 98, 103, 104. Manors, 115, 126, n., 334. rights of lords of, to wastes by side of commons, 311. common appendant, 115, n., 463. Marriage, 116, 200. settlements, 65, 273, 295. MARRIED woman, separate property of, 91, 214, 215. has no disposing power, 91, 214. Married Women's Property Act, 1870.. 21 6, 390. conveyance of her land*, 222. surrender of her copyhold lands, 360, 365. rights of, in her husband's lands, 222, 226 rights of, in her husband's copyholds, 368. admittance of, to copyholds, 362. husband's rights in her term, 390. appointment by, 288. release of powers by, 299. release of her right to dower, 224, 430. Maternal ancestors, descent to, id:;, hi. Meadows, 24, 469, i::;. 524 INDEX. Merger, 239, 270, 396. none of tithes in the land, 331. of tithe rent-charge, 331. of a term of years in a freehold, 395. none of estates held in autre droit, 397. Messuage, term, 13. Middlesex registry, 186, 438. Mines, 11, 24, 77. sale under powers reserving, 297. right of the lord of copyholds to, 338, 354. Modus decimandi, 434, n. Money land, 159. Mortgage, 370, 403. construction of, in law, 405. for payment of debts, 212, 213, 420. legacies, 212, 213. stamps on, 404. origin of term, 406. legal estate in, 406. to trustees, 416. equity of redemption of, 408, 419. foreclosure of, 409. power of sale in, 410. statutory power of sale in, 410. appointment of receiver in, 410. fire insurance in, 384, 410. repayment of, 411. of copyholds, 412. of leaseholds, 413. by underlease, 413. interest on, 415. to joint mortgagees, 416. now primarily payable out of mortgaged lands, 418. 30 & 31 Vict. c. 69.. 419. tacking, 420, 422. for future advances, 421. for future costs, 421. for long term of years, 411. transfer of, 417. effect of two mortgages by same person, 421. Mortgagee and mortgagor, relative rights of, 407. judgment against, 416. MORTGAGOR, covenants for title by a, 427. limitation of his rights to redeem, 433. INDEX. 525 Mortgagor must give notice of intention to repay mortgage money, 411. Mortmain, 44, 67, 68, 71, 72, 74, 75. Mother, descent to, 110, 111. Moveables, 2, 5. N. Natural ife, 23. Naturalization, 64. act of 1S70..64, 161. New trustees, 167, 168, 169. Next presentation, 328, 329. Norman conquest, 2. Notice of an incumbrance, 84, 399. for repayment of mortgage money, 411. 0. Occupant, 20. of a rent-charge, 319. Operative words, 183, 188, 486. Ownership, no absolute ownership of real property, 1 7. OXGANGS, 470. Palatine, judgments in counties, 87. Paramount, cmeen is lady, 2, 114. Parcels, 183, 188, 486, 504. Particular estate, 231. Parties to a deed, 182, 188, 485. person taking benefit need not be a party, 147. Partition, 99, 133, 135, 309, n., 425. 31 & 32 Vict. c. 40.. 135. of copyholds, 352. Paternal ancestors, descent to, 103, 104, 109, 110. Patron of a living, 325. Pebpbstuitt, 60, 264, 304, 602. Personal property, 7, 370. 526 INDEX. Petit serjeanty, 124. Play grounds, 74. PLOUGHLANDS, 470. Pond, description of, 14. Portions, terms of years used for securing, 395. Possession, mortgagee in, 433. Possibility, alienation of, 266, 267. of issue extinct, tenant in tail after, 53. on a possibility, 262. common and double, 262. Posthumous children, 2G0. Power, 282, 289. vested in bankrupt or insolvent, 283. Compliance with formalities of, 2S4. attestation of deeds executing, 285. equitable relief on defective execution of, 286. exercise of, by deed, 284. exercise of, by will, 287, 290. extinguishment of, 290, 298. suspension of, 290. of leasing, 293. estates under, how they take effect, 297. release of, 299. of sale in mortgages, 410. of sale and exchange in settlements, 294, 295. Precipe, tenant to the, 46. Premises, term, 14. Prescription, 313. Presentation, 325. next, 328, 329. sale or assignment of, by spiritual person, when void, 329. Presentment of surrender of copyholds, 359. of will of copyholds, 361. Primogeniture, 49, 99, 477. Privity between lessor and assignee of term, 380. none between lessor and under-lessee, 390. Probate, Court of, 199. Proclamations of fine, 48. Professed persons, 23. Professional remuneration, 189, 190, n., I'.f.'. INDEX. 527 Protector of settlement, 51, 347, 364. Pur autre vie, estate, 20, 22, 58, 319, 342. Purchase, meaning of term, 96. when heir takes by, 210. deed, specimen of a, 182. deed, stamps on, 184, 185. money, application of, 430. PURCHASER, voluntary conveyances void as to, 76. judgments formerly binding on, 82, 89. protection of, without notice, 84, 348, 399. descent traced from the last, 96, 444. conveyance to the use of, 180. relief against mistaken payment by, 295. protection against non insurance against fire, 385. Q. Quasi entail, 58. Queen is lady paramount, 2, 114. Quia emptores, statute of (see statute 18 Edw. I. c. 1). Quit rent, 120, 123. R. Rack-bent, enactment as to tenants at, 27. Railway shares, personal property, 8. Real property, 7, 10. act to amend the law of, 173, 179, 234, 239, 267, 268, 271, 426. Receiver, power to appoint in a mortgage, 410. Recital of contract for sale, 182, 485. of conveyance to vendor, 182, 188. Recognizances, 86. RECOVER] es, » arch for, 138. RECOVEBY, 4 1, 4."., 17. customary, 346. Rectories, advowsons of, 326. Redemption, equity of, 108, 1 19. RE-ENTBT, condition of, 235, 236, 380. not now destroyed by licence Tor breach of covenant, 381. not now destroyed by waiver of breach of covenant, 888. 528 INDEX. Register of judgments, 83. of deeds, 186, 435, 438. search in the, 438. of annuities, 316. Registration of title, 435. Regrant after forfeiture, 346. Release, proper assurance between joint tenants, 131. conveyance by, 172, 174, 178, 192, 238. from rent-charge of part of hereditaments not an extinguish- ment, 322. of powers by married women, 299. Relief, 116, 118, 120, 123, 350. Religious association, conveyance to, 74, 168. Remainder, 232, 239. bar of, after an estate tail, 45, 51. arises from express grant, 232. no tenure between particular tenant and remainder- man, 240. vested, 241, 242. vested, may be conveyed by deed of grant, 242. estates in remainder, 246. definition of vested, 243. example of vested, 257. contingent. — See Contingent Remainder. of copyholds, 366. Remuneration, professional, 189, 190, n., 192. Renewable leases, 239, 391, 392. Rent, 233. quit, 120, 123. demand for, 235. remedy by statute, 236. reservation of, 234. apportionment of, 28, 321. of estate in fee simple, 118, 120. service, 235, 237, 240, 350. passes by grant of reversion, 237. not lost now by merger of reversion, 239. none incident to a remainder, 240. seek, 314, 318. of copyhold, 350. limitations of actions and suits for, 434. Rent charge, 314, 434. power to grantee to distrain for, 318. estate for life in, 318. INDEX. 529 Rent charge, estate in fee simple in, 320. release of, 321, 322. apportionment of, 322. accelerated by merger of prior term, 398. grantee of, has no right to the title deeds, 435. creation of, under the Statute of Uses, 316. bankruptcy of owner of land subject to, 322. exoneration of executors and administrators from liability to pay, 322. Residuary devise, 202. Resignation, agreement for, 326. Resulting use, 154. Reversion, 232, 237. bar of, expectant on an estate tail, 45, 51. on a lease for years, 232. severance of, 382. on lease for life, 233. difficulty in making a title to, 436. purchaser of, 436. 31 Vict. c. 4.. 437. Revocation, conveyance with clause of, 76. of wills, 200, 201. River, soil of, 312. rights of owner of adjoining lands to, 312. Road, soil of , 311. Rule in Shelley's ease, 243, 246, 249, 251, n. Rules, technical, in construing a will, 205. S. Sale of copyhold estates by trustee in bankruptcy, 349. of settled estates, 25, 26, 32, 53. for payment of debts, 212, 213, 303. power of, in settlements, 294, 295. contract for, 485. Satisfied terms, 401. Scholastic logic, 262. Schools, sites for, 73. Scientific institutions, 73, L68. Scintilla juris, 281, 282. Si.A--ii')i;i;, ri-lit- ..f t>\\ ncr i»f adjoining lands to, 312. oj the ' rown to, 312. K.I'. M M 530 INDEX. Seignory, 307. in gross, 314. Seisin, 97, 136, 176, 281, 341. transfer of, required to be notorious, 176, 259. actual seisin required for curtesy, 219. legal seisin required for dower, 224. of copyhold lands, is in the lord, 337. Seizure of copyholds, 361. Separate property of wife, 92, 214, 215, 364. Serjeanty, grand, tenure of, 124. petit, tenure of, 124. Services, feudal, 40. Settled Estates, leases and sales of, 25, 26, 32, 53, 220. Settlement, 49. protector of, 51, 347, 364. on infants on marriage, 65, 289. extract from a, 273. of copyholds, 363. Severalty, 100, 133. Severance of joint tenancy, 132. of reversion, 382. Shelley's case, rule in, 243, 246, 249, 251, n. Shifting use, 278, 280, 281, 282. no limitation construed as, which can be regarded as a remainder, 281. in copyhold surrenders, 367. Signing of deeds, 148. of wills, 196, 197. Simony, 329. Sites for schools, 73. Socage, tenure of free and common, 117, 118. derivation of word, 117, n. SOIL of river, 312. of road, 311. Sons, descent to, 9S, 107. Special occupant, 20. Specialty, heir bound by, 77. Springing uses, 278, 280, 281, 282. Stamps on deeds, 145, 146, 185, 186, 230. abolition of progressive duty, 146. INDEX. 531 Stamps on purchase deeds, 184, 185, 404. on conveyances in consideration of annuities, 320. on agreements, 163, n. on declarations of trust, 1 G3, n. on appointment of new trustees of charity property, 168, 169. on presentation to ecclesiastical benefice, 325. on agreements for leases, 376. on orders of court vesting trust property, 167. on lease for year now repealed, 173, n. on surrender of copyholds, 358, n. on leases, 376, n. on assignment of leases, 385, n. on covenant to surrender copyholds, 426, n. on appointment of new trustees, 169. on covenant for production of title deeds, 437, n. on mortgages, 404. Statutes cited : 9 Hen. III. c. 29 (Magna Charta, freemen), 345. 9 Hen. HI. c. 32 (Magna Charta, alienation), 40. 20 Hen. III. c. 4 (approvement), 5, 464, 471. 4 Edw. I. c. 6 (warranty), 41, 423. 6 Edw. I. c. 3 (warranty), 424. 6 Edw. I. c. 5 (waste), 24. 13 Edw. I. c. 1 (De donis), 5, 6, 17, 42, 43, 60, 270, 344, 424, 499. 13 Edw. I. c. 18 (judgments), 81, 165, 424. 13 Edw. I. c. 32 (mortmain), 44. 13 Edw. I. c. 46 (commons), 471. 18 Edw. I. c. 1 (Quia emptores), 18, 60, 61, 81, 114, 115, 123, 268, 308, 321, 344, 469. 18 Edw. I. c. 2 (apportionment of services), 61. 18 Edw. I. stat. 4 (fines), 48. 25 Edw. III. stat. 2 (natural-born subjects), 64. 34 Edw. III. c. 13 (fines), 48. 15 Rich. II. c. 6 (vicarages), 328. 4 Hen. IV. c. 12 (vicarages), 328. 1 Rich. IH. c. 1 (uses), 153. 1 Rich. III. c. 7 (fines), 48. 4 Hen. VII. c. 24 (fines), 48. 11 Hen. VII. o. 20 (tenant in tail ex 2>rovisione viri), 54, 424. 19 lien. VII. c ]r, (naes), 165. 21 Hin. XIII. <•. 1 (executors renouncing), 300, 367. 26 Hen. \ HI. c. L3 (forfeiture for treason), 66, 122. 27 Hen. VIII. c. LO (Statute of Dses), L6, • '■-', L42, 150,151,168, I 66, I 75, 195, 209, 222, 226, 277, 278, 299, 368. M M 2 532 INDEX. Statutes cited : 27 Hen. VIII. c. 10, ss. 4, 5 (rent-charge), 316. 27 lien. VIII. e. 16 (enrolment of bargains and sales), 177, 193. 27 Hen. VIII. c. 28 (dissolution of smaller monasteries), 330. 31 Hen. VIII. c. 1 (partition), 133. 31 Hen. VIII. c. 13 (dissolution of monasteries,) 330. 32 Hen. VIII. c. 1 (wills), 18, 62, L33, 195, L96, 301. 32 Hen. VIII. c. 2 (limitation of real actions), 429. 32 Hen. VHI. c. 7 (conveyances of tithes), 330, 331. 32 Hen. VIII. c. 24 (dissolution of monasteries, 330. 32 Hen. VIII. c. 28 (leases by tenant in tail, &c), 55, 220. 32 Hen. VIII. c. 32 (partition), L33. 32 Hen. VIH. c. 34 (condition of re-entry), 236, 380. 32 Hen. VIII. c. 36 (fines), 48, 54. 33 Hen. VIII. c. 39 (crown debts), 56, 88. 34 & 35 Hen. VIII. c. 5 (wills), 62, 195. 34 & 35 Hen. VIII. c. 20 (estates tail granted by crown), 53. 37 Hen. VIII. c. 9 (interest), 406. 3 & 4 Edw. VI. c. 3 (commons), 471. 5 & 6 Edw. VI. c. 11 (forfeiture for treason), 50, 122. 5 & 6 Edw. VI. c. 16 (offices), 92. 5 Eliz. c. 26 (palatine courts), 193. 13 Eliz. c. 4 (crown debts), 57, 87. 13 Eliz. c. 5 (defrauding creditors), 76. 13 Eliz. c. 20 (charging benefices), 92. 14 Eliz. c. 7 (collectors of tenths), 57. 14 Eliz. c. 8 (recoveries), 53. 27 Eliz. c. 4 (voluntary conveyances), 76. 31 Eliz. c. 2 (fines), 48. 31 Eliz. c. 6 (simony), 329. 39 Eliz. c. 18 (voluntary conveyances), 77. 21 Jac. I. c. 16 (limitations), 432. 12 Car. II. c. 24 (abolishing feudal tenures), 6, 62, 119, 124, 196, 350. 15 Car. II. c. 17 (Bedford level), 187. 29 Car. H. c. 3 (Statute of Frauds), s. 1 (leases, &c, in writing), 147, 162, 179, 196, 234, 373, 374, 375, 414. s. 2 (exception), 148, 234, 374, 375. s. 3 (assignments, &c. in writing), 385, 389, 414. s. 4 (agreements in writing), 162. s. 5 (wills), 196. ss. 7, 8, 9 (trusts in writing), 162, 163. s. 10 (trust estates), 164, 165. s. 12 (estate pur autre vie), 18, 21. s. 16 (chattels), 387. 2 Will. & Mary, c. 5 (distress for rent), 235. 3 & 4 Will. & Mary, c. 14 (credit >rs), 78, 79, 165. INDEX. 533 Statutes cited : 4 & 5 Will. & Mary, c. 1G (second mortgage), 419, 420. 4 & 5 Will. & Mary, c. 20 (docket of judgments), 82. 6 & 7 Will. III. c. 14 (creditors), 78. 7 & S Will. III. c. 36 (docket of judgments), 82. 7 & 8 Will. III. c. 37 (conveyance to corporations), 75. 10 & 11 Will. III. c. 16 (posthumous children), 260. 11 & 12 Will. III. c. 6 (title by descent), 64. 2 & 3 Anne, c. 4 (West Biding registry), 186. 4 & 5 Anne, c. 16, ss. 9, 10 (attornment), 238, 309. s. 21 (warranty), 424. 5 Anne, c. 18 (West Biding registry), 186, 193. 6 Anne, c. 18 (production of cestui que vie), 21, 22, 221. 6 Anne, c. 35 (East Biding registry), 186, 193, 426. 7 Anne, c. 5 (natural-born subjects), 64. 7 Anne, c. 20 (Middlesex registry), 186. 8 Anne, c. 14 (distress for rent), 235. 10 Anne, c. 18 (copy of enrolment of bargain and sale), 193. 12 Anne, stat. 2, c. 12 (presentation), 329. 12 Anne, stat. 2, c. 16 (usury), 415. 4 Geo. II. c. 21 (aliens), 64. 4 Geo. II. c. 28 (rent), 235, 236, 239, 314, 318, 389, 392. 7 Geo. II. c. 20 (mortgage), 407, 409. 8 Geo. II. c. 6 (North Biding registry), 186, 193, 426. 9 Geo. II. c. 36 (charities), 67, 68. 11 Geo. II. c. 19 (rent), 28, 235, 238. 14 Geo. II. c. 20 (common recoveries), 46, 51. s. 9 (estate pur autre vie), 21. 25 Geo. II. c. 6 (witnesses to wills), 198. 25 Geo. II. c. 39 (title by descent), 64. 9 Geo. III. c. 16 (crown rights), 432. 13 Geo. III. c. 21 (natural-born subjects), 64. 25 Geo. III. c. 35 (crown-debts), 57, 87. 31 Geo. III. c. 32 (Boman Catholics), 23. 39 Geo. III. c. 93 (treason), 122. 39 & 40 Geo. III. c. 56 (money land), 160. 39 & 40 Geo. III. c. 88 (escheat), 123. 39 & 40 Geo. III. c. 98 (accumulation), 305, 306. 41 Go. III. c. 109 (General Inclosnre Act), 309. 41 (Jen. III. c. 98 (stamps), ISO. 47 Geo 111. sess. 2, c. 24 (forfeiture to the crown), 123. 47 Geo. III. sess. 2, c. 25 (half-pay ami pensions), 92. 47 Geo. III. c. 74 (debts of traders), 79, 165. 48 Geo. 111. <•. 1 19 (stamps), 186. 49 i.-.- HI. c. 128 (offices), 92. 53 Geo. IH. c. ill (inrolment of memorial of life annuities), 816. 54 Geo. III. c. 1 16 (attainder), 122. 534 INDEX. Statutes cited : 54 Geo. III. c. 16S (attestation to deeds exercising powers), 285. 55 Geo. III. c. 184 (stamps), 1 16, 186. 55 Geo. III. c. 192 (surrender to use of will), 3G1. 57 Geo. III. c. 99 (benefices), 92. 59 Geo. III. c. 94 (forfeiture to the crown), 123. 1 & 2 Geo. IV. c. 121 (crown debts), 87. 3 Geo. IV. c. 92 (annuities), 316. 6 Geo. IV. c. 16 (bankruptcy), 283. 6 Geo. IV. c. 17 (forfeited leaseholds), 123. 7 Geo. IV. c. 45 (money land), 1G0. 7 Geo. IV. c. 7."> (annuities), 316. 9 Geo. IV. c. 31 (petit treason), 122. 9 Geo. IV. c. 85 (charities), 68. 9 Geo. IV. c. 94 (resignation), 326. 10 Geo. IV. c. 7 (Koman Catholics), 23. 11 Geo. IV. & 1 Will. IV. c. 20 (pensions), 92. 11 Geo. IV. & 1 Will. IV. c. 47 (sale to pay debts), 32, 66, 79, 165, 303. 11 Geo. IV. & 1 Will. IV. c. 60 (trustees), 167. 11 Geo. IV. & 1 Will. IV. c. 65 (infants, &c.), 66, 362, 392. 11 Geo. IV. & 1 Will. IV. c. 70 (administration of justice), 87, 193. 2 & 3 Will. IV. c. 71 (limitation), 434, 483. 2 & 3 Will. IV. c. 100 (tithes), 434. 2 & 3 Will. IV. c. 115 (Roman Catholics), 23. 3 & 4 Will. IV. c. 27 (limitations), 432. s. 1 (rents, tithes, &c), 434. s. 2 (estate in possession), 432. s. 3 (remainders and reversions), 432. s. 14 (acknowledgment of title), 433. s. 16—18 (disabilities), 433. s. 28 (mortgage), 433. s. 30 (advowson), 433. s. 33 (advowson), 434. s. 34 (extinguishment of right), 434. s. 36 (abolishing real actions), 24, 99, 134, 429. s. 39 (warranty not to defeat right of entry), 425. s. 40 (judgments, legacies, &c.), 434. 3 Sc 4 Will. IV. c. 42 (distress for rent), 2.T.. 3 & 4 Will. IV. c. 74 (fines and recoveries abolished), 47, 49, •22-1, 299, :)i7. ss. 4, 5, 6 (ancient demesne), 127. s. 14 (warranty), 425. 8. 15 (leases), 56. INDEX. 535 Statutes cited : 3 & 4 Will. IV. c. 74, s. IS (reversion in the crown), 53, 54. s. 22 (protector), 52. s. 32 (protector), 52. ss. 34, 35, 36, 37 (protector), 52. s. 40 ('will, contract), 55, 56. s. 41 (inrolment), 47, 56. ss. 42 — 47 (protector), 53. ss. 50—52 (copyholds), 347, 365. s. 53 (equitable estate tail in copyholds), 364. s. 54 (entry on court rolls), 364. ss. 56 — 73 (bankruptcy), 57, 349. ss. 70, 71 (money land), 160. s. 74 (inrolment), 47. ss. 77— 80 (alienation by married women), 222, 299, 365. ss. 87, 88 (index of acknowledgments), 438. s. 90 (wife's equitable copyholds), 365. 3 & 4 Will. IV. c. 87 (inclosure, inrolment of award), 309. 3 & 4 Will. IV. c. 104 (simple contract debts), 79, 165, 348. 3 & 4 Will. IV. c. 105 (dower), 223, 227, 369. 3 & 4 Will. IV. c. 106 (descents), 10, 95, 96, 103, 105, 106, 210, 256, 349, 459, 493. 4 & 5 Will. IV. c. 22 (apportionment), 28, 29. 4 & 5 Will. IV. c. 23 (trust estates), 123, 161, 167. 4 & 5 Will. IV. c. 30 (common fields exchange), 310. 4 & 5 Will. IV. c. 83 (titbes), 434. 5 & 6 Will. IV. c. 41 (usury), 415. 6 & 7 Will. IV. c. 19 (Durham), 87. 6 & 7 Will. IV. c. 71 (commutation of tithes), 331. 6 & 7 Will. IV. c. 115 (inclosure of common fields), 310. 7 Will. IV. & 1 Vict. c. 26 (wills), 196, 206, 287, 289, 319, 343. s. 2 (repeal of old statutes), 121, 319, 361. s. 3 (property devisable), 21, 121, 196, 267, 319, 343, 359, 361, 444. ss. 4, 5 (copyholds), 361. s. i; (estate par autre vie), 21, 319, 343. s. 7 (minors), 120. s. 9 (execution and attestation), 196, 361. s. 10 (execution -l appointments), 536 INDEX. Statutes cited : 7 Will. IV. & 1 Vict. c. 26, ss. 14—17 (witnesses), 190. ss. 18—21 (revocation), 200, 201. s. 23 (subsequent disposition), 201. s. 21 (will to speak from death of testator), 202. s. 25 (residuary devise), 202. s. 20 (general devise), 386. s. 27 (general devise an exercise of general power), 289. s. 28 (devise without words of limi- tation), 20, 206. s. 29 (death without issue), 207. ss. 30, 31 (estates of trustees), 210. s. 32 (estate tail, lapse), 203. s. 33 (devise to issue, lapse), 203. 7 Will. IV. & 1 Vict. c. 28 (mortgagees), 432. 1 Vict. c. 39 (tithe commutation), 331. 1 & 2 Vict, c. 20 (Queen Anne's bounty), 426. 1 & 2 Vict. c. 64 (tithes), 331. 1 & 2 Vict. c. 69 (trust estates), 167. 1 & 2 Vict. c. 106 (benefices), 92. 1 & 2 Vict. c. 110 (judgment debts, insolvency), 57, 82, 83, 84, 87, 90, 166, 283, 348, 387. 2 & 3 Vict. c. 11 (judgments, &c), 82, 83, 84, 87, 88, 89, 166, 348, 387. 2 & 3 Vict. c. 37 (interest), 415. 2 & 3 Vict. c. 60 (mortgage to pay debts, infants), 32, 66, 303. 2 & 3 Vict. c. 62 (tithes), 331. 3 & 4 Vict. c. 15 (tithes), 331. 3 & 4 Vict. c. 31 (inclosure), 309, 310. 3 & 4 Vict. c. 55 (draining), 29. 3 & 4 Vict. c. 82 (judgments), 83, 84. 3 & 4 Vict. c. 113 (spiritual persons), 329. 4 & 5 Vict. c. 21 (abolishing leases for a year), 172, 179, 186, 486. 4 & 5 Vict. c. 35 (copyholds), 126, 352, 353, 354, 356, 357, 358, 359, 360, 361. 4 & 5 Vict. c. 38 (sites for schools), 73. 5 Vict. c. 7 (tithes), 331. 5 & 6 Vict. c. 32 (fines and recoveries in Wales and Cheshire), 438. 5 & 6 Vict. c. 54 (tithes), 331. 5 & 6 Vict. c. 116 (insolvency), 90. 6 & 7 Vict. c. 23 (copyholds), 352, 353. 6 & 7 Vict. c. 73 (solicitor's bills), 190. 6 & 7 Vict. c. 85 (interested witnesses), 199. INDEX. 537 Statutes cited : 7 & 8 Vict. c. 37 (sites for schools), 73. 7 & 8 Vict. c. 55 (copyholds), 352, 353. 7 & 8 Vict. c. 66 (aliens), 63, 64. 7 & S Vict. c. 76 (transfer of property, now repealed), 136, 137, 172, 186. s. 2 (conveyance by deed), 172. s. 3 (partition, exchange, and assignment by deed), 100, 134, 3S5. s. 4 (leases and surrenders by deed), 234, 375, 396). s. 5 (alienation of possibilities), 302. s. 6 (the words grant and exchange), 426. s. 7 (feoffment), 65. s. 8 (contingent remainders), 253, 268, 271. s. 10 (receipts), 431. s. 11 (indenting deeds), 147. s. 12 (merger of reversion on a lease), 239. s. 13 (time of commencement), 172. 7 & 8 Vict. c. 96 (insolvency), 90, 134. 8 & 9 Vict. c. 18 (lands clauses consolidation), 426. 8 & 9 Vict. c. 56 (draining), 29, 30. 8 & 9 Vict. c. 99 (tenants of crown lands), 239, 382. 8 & 9 Vict. c. 106 (amending law of real property), 136, 137, 148, 179, 186, 239, 271, 273. s. 1 (contingent remainders), 253, 431. s. 2 (grant), 173, 230. s. 3 (deed), 100, 134, 142, 148, 234, 240, 374, 375, 385, 389, 396. s. 4 (feoffment, &c), 65, 142, 426. s. 5 (indenture), 147. s. 6 (possibilities), 267, 302. s. 7 (married women), 222. s. 8 (contingent remainders), 268. s. 9 (reversion on lease), 239. 8 & 9 Vict. c. 112 (satisfied terms), 401, 402. 8 & 9 Vict. c. 118 (Inclosure Act), 135, 309, 310. 8 & 9 Vict. c. 119 (conveyances), 189, L92. 8 & 9 Vict. c. 124 (leases), 189, 192. 9 & 10 Vict. c. 70 (inclosure), 135, 309, 310. 9 & 10 Vict. c. l:\ (tithes), 331. 9 & 10 Vict. c. 101 (draining ), 30. 10 & 11 Vict. c. 11 (draining), 80. 10 & 11 Vict. c. 38 (draining I, 310. 10 & 11 Vict. c. 102 (bankruptcy and : . 90. 10 & 11 Vict. c. i"l (tithes), 331. 10 & 11 Vict. c. ill (incloeure), 135,809,310. 538 INDEX. Statutes cited: 11 & 12 Vict. c. 70 (proclamations of fines), 18. 11 & 12 Vict. c. 87 (infant heirs), G6, 303. 11 & 12 Vict. c. 0!) (inclosure), 135, 310. 11 & 12 Vict. c. 119 (draining), 30. 12 & 13 Vict. c. 26 (leasing), 293. 12 & 13 Vict. c. 49 (sites for schools), 73. 12 & 13 Vict. c. 83 (inclosure), 135, 309, 310. 12 & 13 Vict. c. 89 (treasury commissioners), 88. 12 & 13 Vict. c. 100 (drainage), 30. 12 & 13 Vict. c. 106 (bankruptcy), 283, 322, 349. 13 & 14 Vict. c. 17 (leasing), 293, 294. 13 & 14 Vict. c. 28 (religious and educational.trusts), 168. 13 & 14 Vict. c. 31 (draining), 30. 13 & 14 Vict. c. 56 (interest), 415. 13 & 14 Vict. c. 60 (trustees), 32, 66, 123, 134, 161, 162, 167, 168, 352. 13 & 14 Vict. c. 97 (stamps), 146, 173, 185, 230. 14 & 15 Vict. c. 24 (sites for schools), 73. 14 & 15 Vict. c. 25 (emblements, distress, &c), 27, 235. 14 & 15 Vict. c. 53 (enclosure, tithes), 309, 331, 352. 14 & 15 Vict. c. 83 (Lords Justices), 83. 14 & 15 Vict. c. 99 (evidence), 199. 15 & 16 Vict. c. 24 (Wills Act Amendment), 197. 15 & 16 Vict. c. 48 (lunatics), 66. 15 & 16 Vict. c. 49 (sites for schools), 73. 15 & 16 Vict. c. 51 (copyhold enfranchisement), 352, 353, 354, 355. 15 & 16 Vict. c. 55 (trustees), 66, 167. 15 & 16 Vict. c. 76 (common law amendment), 235, 236, 407. 15 & 16 Vict. c. 79 (inclosures), 135, 309, 310. 15 & 16 Vict. c. 86 (chancery amendment), 440. 16 & 17 Vict. c. 51 (succession duty), 275, 276, 298. 16 & 17 Vict. c. 70 (idiots and lunatics), 66, 362, 392. 16 & 17 Vict. c. 83 (witnesses), 199. 16 & 17 Vict. c. 107 (crown bonds), 88. 16 & 17 Vict. c. 124 (copyholds, inclosures, tithes), 331. 16 & 17 Vict. c. 137 (charity commissioners), 72, 73, 168. 17 & 18 Vict. c. 75 (alienation by married women), 222.- 17 & 18 Vict. c. 83 (stamps), 320. 17 & 18 Vict. c. 90 (usury law repeal), 316, 416. 17 & 18 Vict. c. 97 (inclosures), 135, 309, 310, 322. 17 & 18 Vict. c. 112 (literary and scientific institutions), 73, 168. 17 & 18 Vict, c. 113 (mortgage debts), 418. 17 & 18 Vict. c. 125 (common law procedure), 25, 170, 171, 184. ixdex. 539 Statutes cited : 18 & 19 Vict. c. 13 (estate of idiots and lunatics), OG. 18 & 19 Vict. c. 15 (purchasers' protection), 83. ss. 2, 3 (palatine courts), 87. ss. 4, 5 (notice to purchaser), 84. s. 6 (registration of judgments), 84. s. 10 (orders in bankruptcy), 84. s. 11 (mortgages), 417. ss. 12 — 14 (annuities), 316. 18 & 19 Vict. c. 43 (settlements on infants), 65, 289. 18 & 19 Vict. c. 124 (charity commissioners), 72, 73, 75, 168. 19 & 20 Vict. c. 9 (drainage), 30, 31. 19 & 20 Vict. c. 47 (joint-stock companies), 75, 426. 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act), 387, 434. 19 & 20 Vict. c. 108, s. 73 (acknowledgment of deeds by married women), 222. 19 & 20 Vict. c. 120 (leases and sales of settled estates), 26, 32. s. 1 (limitation), 26. s. 2 (leases), 27. s. 11 (sales), 25. s. 23 (sales) 33. s. 25 (investment of purchase-money), 33. s. 26 (exercise of powers), 33. ss. 32, 33 (leases by tenant for life), 26, 220 > 221, 228. s. 34 (execution of counterpart), 26. s. 35 (repeal of former acts), 55. s. 42 (reversion in the crown), 53. ss. 44, 46 (commencement of act), 26. 20 & 21 Vict. c. 14 (joint-stock companies), 75. 20 & 21 Vict. c. 31 (inclosures), 135, 309, 310. 20 & 21 Vict. c. 77 (Court of Probate), 10, 199. 21 & 22 Vict. c. 27 (Chancery Amendment Act), 24, 171. 21 & 22 Vict. c. 45 (county of Durham), 87. 21 & 22 Vict. c. 53 (inclosurc, tithes), 135, 309, 331, 352. 21 & 22 Vict. c. 60 (joint-stock companies), 75. 21 & 22 Vict. c. 77 (settled estates), 26, 27, 32, 221, 338. 21 & 22 Vict. c. 94 (commutation of manorial rights), 352, 353, 354. 21 & 22 Vict. c. 96 (Court of Probate), 10, 199. 22 Vict. c. 27 (literary institutions), 74. 22 & 23 Vict. c. 36 (property amendmenl and relief of tru I 211, 885. oflicence),8 s. 3 (severance of reversion), 882. .. ( relief to be recorded B84. 540 iM)i:x. Statutes cited: 22 & 23 Vict. c. 35, B. 6 (court to grant relief once only), 384. s. 7 (lessor to have benefit of informal in- surance), 384. s. 8 (protection of purchasers against non- insurance, &c), 386. s. 10 (rent-charge), 322. s. 12 (powers), 286. s. 13 (purchase-money, mistaken payment), 296. s. 14 (trustees of wills), 211, 384. s. 1 5 (trustees), 2 1 2. s. 1G (executors, power to raise money), 212. s. 17 (purchasers and mortgagees), 212. ss. 19, 20 (inheritance, descent), 10, 95, 96, 98, 106. s. 21 (assignment of personalty), 181. s. 22 (index of crown debtors), 88. s. 23 (payment of mortgage or purchase- money), 431. s. 27 (liability of executors for rents, &c), 387. s. 28 (exoneration of executors from rent- charges, &c), 323. 22 & 23 Vict. c. 43, ss. 10, 11 (inclosure acts amendment, parti- tion), 309, 310. 23 & 24 Vict. c. 38 (property amendment), 83, 86. s. 1 (judgments), 85, 166, 349. s. 2 (writs of execution to be registered), 85, 166. s. 6 (restriction of waiver), 383. s. 7 (uses, scintilla juris), 382. 23 & 24 Vict. c. 53 (Duke of Cornwall), 432. 23 & 24 Vict. c. 81 (completing proceedings under tithe commu- tation acts), 309, 352. 23 & 24 Vict. c. 83 (infants' settlements), 65. 23 & 24 Vict. c. 93 (commutation of tithes), 331. 23 & 24 Vict. c. 115, s. 1 (crown bonds, &c), 88. s. 2 (entering satisfaction on judgment), 83. . 23 & 24 Vict. c. 124, ss. 35, 39 (purchase of reversion of lease- holds), 393. 23 & 24 Vict. c. 126.. 230. s. 2 (relief from forfeiture, &c), 384. s. 3 (indorsement, on lease), 384. ss. 26, 27 (dower), 228. 23 & 24 Vict. c. 134 (Roman Catholic Charities), 23, 68. 23 & 24 Vict. c. 136 (charities), 72, 168. INDEX. 541 Statutes cited : 23 & 24 Vict. c. 136, s. 16 (majority of trustees, power of, to sell, &c), 73. 23 & 24 Vict. c. 145 (power of sale, &c), 295, 410. ss. 8, 9 (renewal of leases, and raising money), 392. s. 10 (consent to sale, &c), 296. s. 11 (powers to sell, &c, in mortgages), 411. s. 13 (notice of sale), 411. s. 27 (powers to appoint new trustees), 168. s. 28 (appointment of new trustees notwith- standing death of testator), 169. s. 29 (trustees' receipts good discharges), 431. s. 32 (negative declaration in settlements), 296, 411. s. 34 (extent of the act), 168, 432. 24 Vict. c. 9 (conveyance of land to charitable uses), 68, 71. s. 1 (reservation of rent, &c), 69. ss. 2 — 5 (separate deed), 69, 74. 24 & 25 Vict. c. 62 (limitation as to crown suits), 432. s. 2 (Duke of Cornwall, limitations as to suits by), 432. 24 & 25 Vict. c. 91, s. 31 (stamps), 146. 24 & 25 Vict. c. 95 (repeal of criminal statutes), 122. 24 & 25 Vict. c. 96, s. 28 (destruction, &c. of title deeds), 145. 24 & 25 Vict. c. 100 (attainder), 122. 24 & 25 Vict. c. 134 (bankruptcy), 348. 25 Vict. c. 17 (charities), 70. 25 & 26 Vict. c. 53 (title and conveyance of real estates), 439. 25 & 26 Vict. c. 67 (declaration of title), 439. 25 & 26 Vict. c. 73 (inclosure commissioners), 309, 352. 25 & 26 Vict. c. 86 (lunatics), 66. 25 & 26 Vict. c. 89 (joint-stock companies), 75, 76. 25 & 26 Vict. c. 108 (sale, minerals), 297. 26 & 26 Vict. c. 112 (charity commission), 72, 168. 26 & 27 Vict. c. 106 (charities), 71. 27 Vict. c. 13 (charities), 70, 71. 27 & 28 Vict. c. 46 (settled estates), 27, 32. 27 & 28 Vict. c. 112 (judgmeni , 67, 86, 86, 166,283, 349, 388, ■117. 27 & 28 Vict. c. 114 (improvement of land), 30, 81. 28 & 29 Vict. c. 40 (Connty Palatine of Lancaster), 169. 28 & 29 Vict. c. 96 (stamps), L85. 28 & 29 Vict. c. 99 (county courts), 158, 168, U0. 28 & 29 Vict. c. 101 (crown suits), 89. 542 INDEX, Statutes cited : 28 & 29 Vict. c. 122 (simony), 329. 29 & 30 Vict. c. 57 (enrolment of charity deeds), 72. 29 & 30 Vict. c. 122 (metropolitan commons), 310. 30 & 31 Vict. c. 47 (lis pendens), 90. 30 & 31 Vict. c. 48 (unctions of estates), 163, 164. 30 & 31 Vict. c. 69 (mortgage debts), 419. 30 & 31 Vict. c. 87 (Court of Chancery), 66. 30 & 31 Vict. c. 131 (companies), 75. 30 & 31 Vict. c. 142 (county courts), 158, 164, 410. 30 & 31 Vict. c. 143 (expiring laws continuance), 353. Ill Vict. c. 4 (sales of reversions), 437. 31 & 32 Vict. c. 40 (partition), 135. 31 & 32 Vict. c. 44 (sites of buildings for religious purposes), 74. s. 3 (inrolment of deed), 72. 31 & 32 Vict. c. 54 (judgments), 87. 31 & 32 Vict, c. 89 (commons), 309, 352. 32 & 33 Vict. c. 36 (burial grounds), 168. 32 & 33 Vict. c. 46 (specialty and simple contract debts), 80, 165. 32 & 33 Vict. c. 71 (bankruptcy), 57, 90, 166, 283, 322, 349, 388. 32 & 33 Vict. c. 83 (Insolvency Court), 90, 283, 322, 439. 32 & 33 Vict. c. 107 (inclosure), 310. 32 & 33 Vict. c. 110 (charities), 72, 73, 168. 33 Vict. c. 14 (naturalization), 63, 65, 161. 33 & 34 Vict. c. 23 (abolition of attainders), 23, 56, 66, 122, 161. 33 & 34 Vict, c. 28 (attorneys' and solicitors' remuneration), 192, 421. 33 & 34 Vict. c. 34 (trust funds), 75. 33 & 34 Vict. c. 35 (apportionment), 29. 33 & 34 Vict, c. 44 (stamps), 377. 33 & 34 Vict. c. 56 (limited owners residence), 31. 33 & 34 Vict. c. 93 (married women's property), 216, 217, 223, 391. 33 & 34 Vict. c. 97 (stamps), 143, 146, 163, 168, 169, 173, 184, 186, 320, 325, 359, 376, 377, 385, 404, 426, 437. 33 & 34 Vict. c. 99 (stamps repeal), 173, 184, 185, 320. 33 & 34 Vict. c. 102 (naturalization), 65. Statutes, merchant and staple, S6. Steward of manor, 357. Stops, none in deeds, 188, 192. Subinfeudation, 38, 60. INDEX. 543 Succession duty, 275, 298. Sufferance, tenant by, 373. Suit of Court, 117, US, 121, 123, 350. Surrender of life interest, 271. of copyholds, 335, 317, 358, 363, 364, 365, 504. nature of surrenderee's right, 359. of copyholds of a married woman, 360. of a term of years, 396, 39S. in law, 391. SURVIVORS of joint tenants entitled to the whole, 129. of copyhold joint tenants do not require fresh admittance, 352. T. Table of descent, explanation of, 106. Tacking, 420. Tail, estate, 34, 35, 42, 43, 49, 51, 52, 57, 140, 158,203, 205, 207, 248, 249. derivation of word, 42. destruction of entails, 43. quasi entail, 58. constructive estate, in a will, 207. bar of estate, 45, 47, 51, 53, 54, 347, 364. descent of estate, 19, 57, 101. tenant in, after possibility of issue extinct, 53. tenant in, ex provisione viri, 54. equitable estate, 159. no lapse of an estate, 203. joint tenants in, 128. estate not subject to merger, 270. in copyholds, 343, 346, 347, 349. equitable, in copyholds, 364. Taltarum's case, 43. Tenant for life, 22, 26, 32, 51— (and see Life). in tail, 3.1— (and Bee Tail). for life, feoffment by, 142. in dower, leases by, 228. in fee Bimple, 59 — (and see FEB Simple). in common, L32. of copyhold, 352* at will, 872. right of, to inspect court rolls, 857. by sufferance, 872. 544 i\di:x. Tenements, 5, 6, 7, n., 8, 1 3. Tenure of an estate in fee simple, 113, 123. Tenure, rise of copyholds to certainty of, 335. of an estate tail, 113. none of purely incorporeal hereditaments, 324. of copyholds, 350. by knight service, 115, 119. Tenures, feudal, introduction of, 3. Term of years, tenant for, 8, 370, 372, 379 — (and see Lease). for securing money, 393. husband's rights in his wife's, 390. attendant on the inheritance, 398. mortgage for, 411. for securing portions, 395. attendant by construction of law, 401. Testatum, 1S2, 187, 197, 486. Thellusson, will of, Mr., 306. act, 306. " Things real, personal, or mixed," 7, n. Tillage, 470. Timber, 23, 24, 25, 55, 77. on copyhold lands, 338. TIME, unity of, in joint tenancy, 128, 131. within which an executory interest must arise, 303. limited for making entry on court roll of deed, 364, n. Tithes, 330, 471. lay, 330. distinct from the land, 331. commutation of, 331. limitations of actions for, 434. Title, 423. covenants for, 426, 427, 488. sixty years required, 428. reasons for requiring sixty years, 429. act for obtaining a declaration of, 439. act to facilitate proof of, 440. Title deeds, destruction, &c. of, 145, n. mortgage by deposit of, 414. importance of possession, 435. who entitled to custody of, 435. covenant to produce, 437. attested copies of, 437. Titles of honour are real property, 8, 332. INDEX. 545 Traders, debts of, 79. Transfer of mortgages, 417. of property, act to simplify (7 & 8 Vict. c. 76), 172. Treason, forfeiture for, 56, 66, 122, 122, n., 161. abolition of forfeiture, 23, 56, 66, 122, 161. Trustee Act, 1850. .167. Trustees, made joint tenants, 130. bankruptcy of, 166. acts for appointing new, 167, 168 of charity property, 73, 168. official trustee of, 72. stamps on appointment of new, 169. where they may sell or mortgage to pay testator's debts or legacies, 211. estates of, under wills, 209. to preserve contingent remainders, 272, 273. such trustees not now required, 273. of copyholds, tenants to the lord, 361. mortgages to, 116. covenants by, on a sale, 128. receipts of, good discharges, 431. Trusts, 151, 155,271. declarations of, stamp on, 163, n. in a will, 209. contingent remainders of trust estates, 271. of copyholds, 363. for separate use, 92, 211, 215, 361. for alien, 161. See also Equitable Estate. Turf, 24. U, V. Vendor, lien of, for unpaid purchase-money, 111. covenants for title by a, 427, 488. Vested remainder, 2! 2, 252. definition of, 213. See also REMAINDER. VlCABAGES, advowsons of, 328. UNBOBH persons, gifts to, 51, 263, 261, 265, 502. Underlease, 388, 390. mortgage by, I L3. Unities of a joint tenancy, L28, L81. VOLUNTAS? conveyance, 76. B.P. N N 546 INDEX. Vouching to warranty, 46. Uses, 151, 153, 175, 176, n., 188, 278, 282, 301. explanation of, 152, 282. statute of, does not apply to copyholds, 363. no use upon a use, 156. conveyance to, 180, 181. doctrine of, applicable to -wills, 209. springing and shifting, 278. examples of, 279, 280. power to appoint a use, 284. to bar dower, 292, 487. Usury laws, repeal of the, 416. W. Waiver of breach of covenant in a lease, 383. Wales, common appendant in, 478. Wardship, 116, 119. Warranty, 44, 46, 423. formerly implied by word give, 423. effect of express, 424. now ineffectual, 424. WASTE, 23, 24, 25, 77. equitable, 25. by copyholder, 339. common appendant, 115, n., 463. strips of, by the road-side, 311. Water, description of, 14. limitation of right to, 434. WAY, rights of, 313, 434. Widow, dower of, 223, 227, 228. freebench of, 368. Widowhood, estate during, 22. WIFE, separate property of, 91, 214, 215, 216, 364. Married Women's Property Act, 1870. .216, 390. conveyance of her lands, 222. rights of, in her husband's lands, 223, 226, 368. appointment by, and to, 288, 289. surrender of copyholds to use of, 359, 365. surrender of wife's copyholds, 360, 365. husband's right in her term, 390. See also Married Woman. Will, tenant at, 372. INDEX. 547 Will, cannot bar an estate tail, 54. construction of, 19, 20, 204. ignorance of legal rules, 205, 210. alienation by, 61, 195, 360. witnesses to, 196, 198, 287, 361. revocation of, 200, 201. of real estate, now speaks from testator's death, 202. gift of estate tail by, 203, 205, 207, 208. gift of fee simple by, 205, 208. uses and trusts in a, 209. exercise of powers by, 287, 288. executory devise by, 299, 301. of copyholds, 360. of leaseholds, 386. of Mr. Thellusson, 306. charge of debts by, 80, 211, 312. devise to heir, 210. devise in fee or in tail charged with debts, 212. Wills, Statute of, 195. new acts, 21, 196, 206, 207, 287, 319, 386. Amendment Act, 1852.. 197. Witnesses to a deed, 184. to a will, 196, 198, 287, 361. to a deed executing powers, 285. Words, construed according to their usual sense, 15, 20. Writ of elegit, 81, 83. registration of, 86. WRITING, employment of, on transfer of incorporeal property, 11. formerly unnecessary to a feoffment, 143. nothing but deeds formerly called writings, 144. now required, 147. bargain and sale for a year must be in, 179. required to assign a lease, 385. contracts and agreements in, 162. trusts of lands required to be in, 162. Wrong, estate by, 141. Year to year, tenant from, 373. York registry, 180, 193, 438. Yorkshire, bargain and sale of lands in, 125. LONDON : PRINTED BY C. ROWORTH AND SONS, NEWTON STREET, W.C. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 825 578 8 m m \i\\\\\ 111