>&Aaviian-^^ ^ \V\EUWfVERVA '^J^UDWSOl^ o -^:^UIBRARYG<^ %ii3AiNnjv\v^ '^Aojnvjjo^ ^OFCAllFORfc, .^^\[UfJlVfRy/A ^OfCAllFOi?^ 'Mwm\x>^ ^ Nt-UBRARYQ^ ^5j\EUNIVERS/4 ^lOSANCnZA* ^lUBRARYOc. i^iUI ^,!/OJnVT]0^ "^iJUOKVSOl^ \a3AIN(13UV^ ^40dllVOJO^ ^^ .t:.^^' ^.f^.....,.:^ ► V C- 5> » •' vW ^.r^iiwsoi^ "^/^aiAiNfliwv^ >&Aavjiaiii^ >&Aavaan-^^ § 1 I c^ ^ ^, "^^OJIIVDJO^ ^^M-IIBRARYQ^ 5 AV\El)NIVER% &AbV}janv^ SVIIBRARYQ^^ u3 1 ir^ ^ ^^OJITVDJO^ ^«»OJI1VJJO^ ^1 \WEUNIVERS//i ^•lOSANCElfj-^ o T?i30Mva)i^ "^/ja^AiNnjwv' ^OFCAllFOff^ o (•1 ^.OFCAUFOfi'^ ^^Aavjiain^"^ < ;r =1 .^lUBRARYQ^ 4^lUBRAHY&AavaaiH^ . Forster 395 Houyvvood r. Honywood ..24, 26 Hook V. Hook 133 Hopkins v. Hopkins 166, 299 Hopkinson, Rolt v 466 Horlock r. Smith 34 Horn V. Horn 235 Horner r. Swann 325 Hovenden, Majoribanks i'. ., 311 Howell, Buckley r 323 Doe d. Harris v 307 Hughes, Rann v 154 Hull and Sol by Railway, re . . 342 Hulse, Andrews v 367 Humphries r. Brogden 15 Hunt r. Coles 178 r. Remnant 517 Huntingdon, Doe d. Reay v. . 370, 371 Hurst r. Hurst 451 Hutchinson, Bcarpark r 350 Hyatt, Spyer r 400 Hyde v. D'allaway 490 xxu INDEX TO CASES CITED. I. PAGE Iggulden v. May 427 Ingilby v. Amcotts 292 Ingram, Buckeridge v 8 Union Bank of Lou- don r 4o8 Irving, Cuthbertson r 445 Isaac, Ee 22 Isherwood r. Oldknow 260 Ive's case 427 J. Jackson, Hogan v 20, 67 Lane v 91 • Gates d. Hatterley v. 140 • Pitt V 290 James, Broughton v 33o Green v 44.) ■ V. Plant 343 • Eomilly v 303 Jec '■. Audley '>7 Jeffs V. Day 185 Jekyll, Garland i- 366 Jenkin r. Vivian oo2 Jenkins v. Harvey 493 Jennings v. Jordan 407 ■ MiUs V 4C7 Joberns, Wilkinson r 144 John, Lewis r 457 Johnson, Bates v 465 ■ r. Faulkner 348 V. Johnson 225 Shaw I- 438 Johnston, Salkeld v 491 Joliffc, Rex V 493 Jolly r. Handcock 503 Jones, Ashton r 77 V. Davies 433 Doe d. Baker v 416 Doe d. Duroure v 68 Doe d. Wigan v 317 ■ r. Junes 251, 427, 464 Pitt V ,. .. 145 r. Robin 561 Roe d. Perry r 291 V. Smith 457 ■ r. Tripp 406 c. Williams 90 Youle V 199 Jope f. Morshead 383 Jordan, Jennings v 467 Whitbread v 457 K. Kay r. Oxley 343, 515 Keating, Hanson ( 426 PAGE Keech v. Hall 447 Kelson, Watts v 343, 515 Kemp, Doe d. Barrett v 341 Kennard v. Futvoye 464 Keuworthy v. Ward 140 Keppel V. Bailey 412 Ker r. Lord Dungannon .... 335 Kerr v. Pawson 385 Kilpin, Wells v 92 King, The, v. Lord of the Manor of Oundle .... 399 v. Lord Tarborough 342 King V. Smith 95, 179 r. Turner 381 Vanderplank v 290 Kingham, Chambers ;• 433 Kinnoul, Earl of , Hinchcliffe f . 343 Kinsman r. Rouse 490 Kite and Queinton's case .... 390 Knight, Doe d. Gamons v. . . 154 Knowles, Stroyan v 15 Lacey v. Hill 250, 400 Ladbury, Ex parte 423 Lamb, Surges v 26 Lambert, Carr v 551 Lampet's case 291 Lane r. Jackson 91 and Pers, Eylet i- 376 Thomas «' 14 Langford r. Selmes 424, 425 Lansley, Major r 238 Law r. LMwin 433 Lawes, Doe d. Winder r. 390, 397 Leak, Melling r 404 Leathes i\ Leathes 496 Lechmere and Lloyd, Re .... 307 Leeds, Duke of, r. Earl Amherst 20 Le Fleming, Shuttleworth v. . . 493 Legg V. Haekett 406 v. Strudwick 406 Leigh f. Tack 341 Leighton, Carleton r 292 Leman, Minet v 339 Leon, RoUason r 407 Lester r. Garland 98 Lewin v. Lewiu 116, 527 Lewis, Doe d. De Rutzen r. . . 417 r. .John 457 Liddell, Barrington r 335 Lightfoot, Doe d. Roylance v. 444 Menzies v 466 Lightowler, Crossley r 495 Lincoln, Bishop of, Bennett v. 360 Walsh V 360 INDEX 10 CASES CITED. XXUl PAGE Lingen, Ro '22 Liugwood V. Gyde 385 Lislo, White c 5G1 Littlcdale, Att.-Geu. r 301 Livcrscdgc, Doe d. Johnson v. 488 Llaudatf, Bishop of, Doe d. Lushington r 361 Llewellyn, Lord Dunravcu v. 123, 310, oil, 002, 554, 55G, 560, 561, 563 r. Eons 30 Lloyd r. Chectliam 99 Lock r. De Burgh 30 Lockyer r. Savage 98 Loug r. Blackall 332 V. Storie 99 Lopes, Porter v 144 Lord V. The Commissioners for the City of Sydney 341 Lowe, Faulkner r 198 Lowndes v. Norton 26 Lowrey v. Barker 423 Lucas r. Brandreth 20 r. Denuison 490 Lucena v. Luceua 313 Luck, Bcevor r 468 Lucy, Campbell r 222 Lukin, Curtis r 335 Liunley, Lord Ward v 165 Lyon V. Reed 427 M. McCarthy r. Goold 99 M'Culloch, Russell v 460 Macdonald, Cooper v 242 M'Donnell v. Pope 427 M'Gregor r. M'Gregor 140 Machell r. Weeding 229 Mackintosh r. Barber 328 Mackreth v. Sj^ramons 457 Maclean, Bowser v 369 Macpherson, Bi'ummell r 414 Magnay, Mines Royal So- cieties f 185 Mainwaring v. Bixter 54 Maisey, Doe d. Robey v 447 Maitland, Harnett v 404 Major r. Lansley 238 Majoribanks v. Hovenden .... 311 Mandevillc's case 278 Manners r. Charlcsworth .... 143 Marjoribanks, Nairn r 34 Marks r. Marks 291 Marlborough, Duchess of. Brace v 89, 465 Marston v. Roc d. Fox 222 I'AOE Martin v. Swannell 230 Martyn, Doe d. Brune r 150 V. Williams 412 Massey, Egerton i' 296 Mathew v. Blackmore 461 Matthew v. Bowler 458 Maundrcll r. Maundrell 316 Mawson, Barnes v 562 May, Igguldeu c 427 Mead, Garland r 392 Meads, Taylor r 239 Meakin, Doe d. Biddulph r. . . 15 Meame r. Moorson 517 Melling r. Leak 404 Mellor r. Spateman 542, 545 Menzies r. Lightfoot 466 Mercer and Mooi-e, Re 353 Merry, Day v 26 Merry weather, Saunders r. . . 415 Mestayer i\ Biggs 345 Metcalfe's trusts. Re 24 Meux, Baggott v 239 Micklethwait, Astley r 299 V. Micklethwait 26 Mid Kent Railway, Re, ex parte Styan 285 Middleton, Lord, Attorney- General r 300 Mildmay, Rex v 390 Mill, Hiern v 96 Miller r. Green 348, 410 Millership v. Brookes 155 Mills, Curling v 407 Grant v 458 r. Jennings 467 Patersou v 534 V. Trumper 30 Mines Royal Societies v. Mag- nay 185 Minet v. Leman 339 MinshuU r. Oakcs 412 Minton, Francis v 517 Moggr. Mogg 284 Moleyn's, Sir John de, case . . 88 Mollett, Tidy r 407 Monypenny v. Dcring . . 288, 290 Moore, FoUett v 459 Pollexfen c 457 r. Rawson 495 Moore r. Webster 242 Moorson, Meanie r 517 Morgan, Corder v 453 V. Hatchell 127 r. Swansea Urban Sani- tary Authority 119 Moncll, Scoonos r 340 Morris, Lord Aylesford r 497 Bickctt (■ 311 XXIV INDEX TO CASES CITED. PAGE Morris r. Moms 26 Morse, Stui-jris v 489 Morshead, Jope r 383 Morton. Smart r 15 Mostyn v. The West Mostjii Coal and Iron Company, Limited 471 Motley, Andi-ew r 222 Musrs-leton v. Bamett 105, 521, 524, 525 Murphy v. Glass 185 Muscott, Doe d. Twining v. . . 394 N. Nairn v. Marjoribanks 34 Nanny v. Edwards 451 Nash r. FUti 155 Watkius r 155 Nepean r. Doe 488 Newcome, Tui'viu v 335 Newman v. Newman 333 i: Selfe 451 New River Company, Davall v. 172 Newton v. Ricketts 312 Nickells v. Atherstone 427 Nicloson V. "Wordsworth . . 100, 231 Nixon, Scott ^^ 491 Noble, Fry I' 251, 318 Noel r. Bewley 296 Noke's case 471 Norris v. Harrison 30 • Robertson v 237 North, Potter r 562 Smyth r 423 Norton, Lowndes 26 Simmons v 25 Norwood, Crump (^.WooUey r. 133 O. Oakes, Minshull v 412 Gates d. Hatterley v. Jackson 140 Odium, Flarty r 99 Gldkuow, Isherwood v 260 Oliver, Doe d. Christmas v. . . 291 Orme's case 167 G'Rorkc v. Bolingbroke 497 Gundlc, Lord of Manor of, The King V 399 Gvington, Christie v 119 Owen, re 22 Owen, De Beauvoir r 491 Oxford, Earl of, Beavan r. . . 91 Gxley r. Kay 343, 515 P. PAGE Padget, Vint r 467 Page, Wilson v 562 Pain, Ridout v ^ Palmer, Cadell r 54, 332 v. Edwards 424 Parker v. Carter 243 Colville (• 82 V. Dee 84 r. Taswell 407 Parmenter r. Webber 424 Parratt, Doe d. Freestone v.. . 241 Parsons, Attorney -General v. 123, 365 Zouch V 69 Pascoe r. Pascoe 424, 425 Pass, Dennett v 352 Passingham, Doe d. Lloyd v. . 167 app., Pitty, resp. 126, 372 Pate r. Brownlow 551 Paterson r. MiUs 534 Patman v. Harland 479 Patrick, Shedden r 68 Patterson, Forster v 490 Pawson, Kerr i- 385 Paxton, Cholmeley r 26 Payne v. Barker 525 Peach, Doe d. Mansfield v. . . 311 Peacock r. Eastland 58 Whitton V 445 Pearce r. Cheslyn 408 Pearse, Heatman r 333 Pearsey, Doe d. Pring v 34 Pearson, Brooks v 98 Peck, Doe d. Flower r 416 Pedley, Hasluck v 31 Penrhyn, Lord, Dawkins v. . . 49 Pepler, Taunton v 159 Peppercorn v. Wayman 398 Perceval r. Perceval 285, 296 Perriu r. Blake 227, 269 PeiTyman's case 372 Pett, Doe d. Blight r 433 Pettitt, Stratton r 407 Petty V. Sty ward 459 Pew, Hale v 290 Pheysey v. Vicary 343 PhiUipps, Freeman v 562 Phillips, Acocks v 259 V. Caldcleugh 482 Cousins V 263 Duke of Beaufort v. . . 90 r. Phillips 392 V. Smith 24 Phipps V. Lord Ennismore 98 PickersgiU r. Grey 397 Pidgelcy v. Rawling 24 INDEX TO CASES CITED. XXV PAOK Pignet, Anderson v 252, 438 Pigot's case loo Pike, Wilmot r 4C4 Pincke, Shove v 214 Pitt I'. Jackson 290 r. Jones 145 Pitty, resp., Passingham, app. 126, 372 Plant, James r 343 Pluuuner r. Whiteley 30 Pockuell, Biukland r 458 Pollexfen v. Moore 457 Pollock r. Stacy 424 Pomfret, Earl of, v. Lord Windsor 404 Pontifex, Doe d. Church v. . . 345 Poole r. Bentley 408 Doe d. Biddulph v 427 Pope, M'Donuell r 427 Porter v. Lopes 144 Poitington's, Marj', case .... 49 Portland, Duke of, v. Hill . . 371 Potter V. North 562 Poultney 4'. Holmes 424 Powell, Pritchard v 544, 561 Powys V. Blagrave 25 Prat f. Colt 177 Preece v. Corrie 424 Prescott V. Barker 422 Holmes v 285 Price, Curtis v 274 V. Hall 285, 296 Harrington)' 510 • V. Worwood 416 Prickett, Steel r 341, 562 Prince, Doe d. Starling v 216 Pritchard, Doe d. Griffith v... 71 r. Powell 544, 561 Shaw (• 99 Procter, Bacon r 335 Prothcroe, Damerell v. . .382, 561 Provost of Beverley's case .... 272 Pugh, Harris v 178 Heath r 451 Pung, Ray v 317 Purvis r. Kayer 478 Q. Queen, The, r. Chorley 495 V. Corbctt 398 ('. Lady of Manor of Dalliugham 397 V. Gee 341 V. Wilson 398 Queen's College, Warrick v. 338, 493, 541 Queinton, case of Kite and . . 390 K. PAGE Rabbits, Wiltshire r 464 Raggct, Re 467 Ralph r. Carrick 335 Raudfield r. Randlield 397 Raun V. Hughes 154 Rawe «'. Chichester 427 Rawley r. Holland 328 Rawliug, Pidgcley v 24 Rawsou, Moore v 495 Ray r. Pung 317 Rayer, Purvis v 478 Red fern. Doe d. Hayne and His Majesty r 131 Reed r. Harvey 423 Lyon v 427 Reeve, Bennett v 542, 545 Regina v. Lady of Manor of Dallingham 397 Remnant, Hunt v 517 Rendall, Dyke r 250 Rex V. Jolitfe 493 V. Mildmay, Dams Jane St. John 390 r. Oundle, Lord of Manor of 399 r. Lord Yarborough .... 342 Reynolds v. Wright 350 Rhodes, Barlow v 343 V. Whitehead 285 Richardson, Cottee v 424 Glass V 398 Walker v 77 Rickett's trusts, Re 312 Ricketts, Newton v 312 Riddell v. Riddell 472 Rider r. Wood 134, 525 Ridout ('. Pain 7 Ries, Doe d. Pearson r 408 Rigby, Goodright d. Burton v. 49 Right d. Taylor v. Banks 381 d. Flower r. Darby. .404, 405 Riley v. Garnett 285 Rittson r. Stordy 172 Rivis ('. Watson 354 Roach V. Wadham 316 Robertson, Dugdale v 15 V. Norris 237 Robey, Trulock v 490 Robin, Jones f 561 Robinson, Brandon t-. ..98, 99, 239 Buttery «• 348 Roe d. Earl of Berkeley v. Archbishop of York 427 Doe d. Dixon v 259 d. Fox, Marston r 222 d. Perry r. Jones 291 Rogers v. Grazebrook 444 XXVI INDEX TO CASKS CITED. PAGE Rogers c. Taylor lo Rollason v. Leon 407 Eolpli, Barrett v 424 Eolt r. Hopkinson 4G6 Romilly r. James 303 Eooper r. Harrison 358, 517 Rose r. Bartlett 421 Rosling, Bond v 407 Rosslyn'LS, Re Lady, trust .... 335 Rous, Llewellyn r 30 Rouse, Kinsman v 490 Rowbotham v. Wilson 15 Rowe, Calmady r 342 Rowland v. Cuthbertson .... 250 Rowley v. Adams 412 ■ Ajipleton r 242 Rundall, Warren r 25 RusseU V. M'CuUocli 460 V. Russell 457 Webb V 263 S. Sabine, Bellamy v 96 St. Albans, Duke of, v. Skip- with 25 St. Leonards, Lord, Sugden r. 222 St. Sauveur, Sharp v 69, 172 Salisburj^, Mar-^uis of, Beau- mont V 424 Salkeld, Johnston ?' 491 Sandaman, Clements r 101 Sandys, Lady, Marquis of Downshire v 26 Saunders, Hill v 410 V. Merryweather . . 445 Savage, Adams v 328 Lockyer v 98 Saward v. Anstey 348 Scarborough v. Borman . . 99, 239 Earl of, Doe d. Lumley r 291 Scarisbrick v. Skclmersdale . . 335 Scholes V. Hargreaves 651 Scoones v. MorrcU 340 Scott, Berrington r 56 ■ Exton V 154 Doe d. Foster r 373 ■ V. Nixon 491 Scratton v. Brown 342 Seaton, Doe d. Strode v 410 Seaward v. Willock 290 Sebright, Baker r 26 Sefton, Earl of, Att.-Gen. v. . 301 V. Court .... 546 Selfc, Newman v 451 Selmes, Langford v 424, 425 PAGE Sewell, Cole v 288 Sharp r. St. Sauveur 69, 172 Sharpe, Clay v 453 Shaw v. Johnson 438 ■ V. Pritchard 99 Shedden v. Patrick 68 Sheldon, Du HourmeUn V. .. 172 Shelley's case . .268, 270, 274, 275, 278 Sheppard r. Duke 491 Shove V. Pincke 214 Shrapnell r. Blake 454 Shum, Taylor v 412 Slmttleworth v. Le Eleming. . 493 Sibthorpe, Attorney-Generalv. 300 Siggers v. Evans 231 Simmons v. Norton 25 Simpson, Doe d. Blesard v. . . 377 V. Dendy 341 Sims V. Thomas 179 Sitwell, Attorney- General v. . 358 Skelmersdale, Scarisbrick t: . . 335 Skipwith,Dukeof St. Albans V. 25 Slater, Spencer r 82 Sleeman, Doe d. Molesworth v. 562 Smalley v. Harding 423 Smaridge, Doe d. Clarke v. . . 407 Smart, Gee v 185 r. Morton 15 Smith, Ackroyd r 343 V. Adams 400 r. Earl Brownlow. .338, 541 !'. Darby 15 • V. Death 325 ■ V. Glasscock 397 — — ■ Horlock V 34 Jones V 457 King V 95, 179 Phillips V 24 V. Watts 425 Wilcox v 300 Smithsou r. Cage 14 Smyth, Ex parte 30 V. North 423 Smythe, Attorney- General v. . 300 Snape, Gibbons v 395 Snow r. Booth 489 Snowdon Slate Quarries Co., Ellas V 25 Sodor and Man, Bishop of, Vincent v 311 Solomon v. Solomon 463 Souter r. Drake 478 Southampton, Lord, v. Marquis of Hertford 335 Sowerby, Doc d. Gutteridge i\ 391 Sparke, Weeks r 544 Spatemau, Mellor r 542, 545 INDEX TO CASES CITED. XXVII PAGE Spencer's case 411, 471 Spencer v. Slater 82 SpUsbury, Doe rf. Burdett f. . . 312 Spyer v. Hyatt 400 Stables, Blackburn r 284 Stacy, Pollock v 424 Staflord, Earl of, r. Buckley. . 44 Stains, Halford v 335 Stausfield v. Hobson 490 Steele v. Prickett 341, ")G2 Steplicnson, Cooper r 504 r. Hill 370,371 Steward, Doe d. Shaw v 426 Stordy, Rittson r 172 Storie, Long v 99 Strattou r. Pettitt 407 Strickland, Doe d. Raycr r. . . 388 r. Strickland . . , , 232 Stroyan r. Knowles 15 Strudwick, Legg v 406 Sturgis r. Morse 489 Styan, ex parte 285 Sty ward. Petty v 459 Sugden r. Lord St. Leonards . 222 Swann, Horner r 325 Swannell, Martin v 230 Swansea, Mayor, &c. of, Duke of Beaufort v 342 Swansea Urban Sanitary Au- thority, Morgan v 119 Swift r. Swift 10 Sydney, Commissioners for the city of. Lord v 341 Symmons, Mackreth v 457 Symonds, Beale v 172 T. Tabor v. Tabor 402 Tack, Leigh » 341 Taltarum's case 46 Tanner, Chapman f 457 V. Elworthy 427 Taswell, Parker r 407 Taunton v. Pepler 159 Taylor r. Havgarth 172 Doe d". Reed v 148 V. Meads 239 Rogers v 15 r. Shum 412 f. Taylor 28 Tempest r. Tempest 221 Tetley v. Tctlcy 345 Thibault v. Gibson 458 Thomas v. Lane 14 Sims r 179 PAGE Tliompson, Betts v 338, 541 resp., Busher, app. . . 371 Doe d. LordDownev. 445 Dodds V 348 r. Hardinge 370 Thorn r. Woollcombe 424 Thornborough r. Baker 402 Thornton v. Finch 92 Thorp, Hatfield r 220 Thorpe r. Bcstwick 221 Tidy r. Mullett 407 Tiernoy r. Wood 174 Tiverton Market Act, in re . . 138 Tofield, Doe d. Tofield v 390 Tollemache v. Tollemache .... 26 Tomliu, Loi'd Bolton v 407 Tooker v. Anncslcy 26 Trcharne, Baillie «'. , 141 Davis V 15 Tresider, Dunstan v 562 Tripp, Jones v 466 Trower v. Butts 284 Trueman, Doe d. Bover v. . . 393 Trulock V. Robey 490 Trumper, Mills «;. .' 30 Trye, Lord Aldborough v. . . 497 Tuck, Edwards v 335 Tullett r. Armstrong 99, 239 Tunstall r. Boothby 99 Turner, Chadwick v 236 King f 381 Turvin v. Ncw'come 335 Tuttou V. Darke 259 Twyne's case 82 Tyrringham's case . . 551, 553, 554 TJ. Union Bank of London v, Ingram 458 Upton V. Bassett 82 ■ Welcome r 493 Urch r. Walker 231 Ui'lwin, Law v 433 V. Vanderplank v. King 290 Vane v. Vane 490 Vaughan, Viner v 25 Vicary, Pheysey r 343 Vickers r. Cowcll 459 Vincent v. Bishop of Sodor and Man 311 XXVIU INDEX TO CASES CITED. PAGE Viner v. Vaughan 25 Vint V. Padget 467 Vivian, Jeulan v o52 Voss, Re 240 Vyvyan v. Arthur 412 W. Wadham, Roach (' 316 Wadkiu, Barrow r 172 Wainewright r. ElweU 392 Wakeford; Wright r 311 Waldo i: Waldo 26 Wale i\ Commissioners of In- land Revenue 461 Walker, Allen v 185 r. Richai'dson 77 Urch r 231 Woodhouse v 25 Wallani, WUson v.... 423 Walsh V. Bishop of Lincoln . . 360 Walton, Ex parte 423 Ward, Berridge ;■ 341 Kenworthy r 140 Lord, V. Lumley 155 Warde, Bristow r 290 Wardle r. Brocklehurst 343 Ware v. Cann 19 Warman r. FaithfuU 408 Wari'en r. Ruudall 25 Warrick r. Queen's College . . 338, 493, 541 Waterhouse, Hall v 239 Watkins, Doe d. Lord Brad- ford V 405 r. Nash 155 Watson, Rivis v 354 Watts V. Kelson 343, 515 Smith V 425 Wayman, Peppercorn v 398 Webb V. Austin 410 V. Russell 263 Webber, Parmenter v 424 Weber, Fitch v 68 Webster, Moore r 242 Weeding, Machell v 229 Weeks v. Sparke 544 Welch, Haines r 29 Welcome r. Upton 493 Weld, Graves r 29, 404 Welden f. Bridgwater 551 Wellesley, Earl Cowley v. . . 24 r. Wellesley 20 Wells V. Gibbs 90 V. Kilpin 92 Wescombe, Da vies v 26 PAGE West, Grose v 341 Westbrook v. Blythe 422 West London and Crystal Palace Railway Company, Cole (• 14 West Mostyn Coal and Iron CompanvLimited, Mostynv. 471 Whalley, Ex parte 22 Wheate, Burgess v 19, 172 Whelpdale, Hadleston v 427 Whiclielo, Doe d. Gregory v. 108, 531, 540 Whieldon, Gordon v 240 Whisson, Aveline r 159 Whitbread v. Jordan 457 White, Goold v 378 r. Lisle 561 v. White 427 Wldtehead, Rhodes r 285 Whiteley, Plummer r 30 Whitfield r. Bewit 24 Whitstable, The Ereefishers of, Gann v 341 Whittaker, Doe d. Leach v. . . 391 Whitton V. Peacock 445 Wilcox r. Smith 300 Wilkinson v. Joberns 144 Willan, Chester r 141 Williams r. Bosanquet 411 • V. Games 145 v. Hayward 425 Jones V 90 Martyn v. 412 Willis r. Brown 205 Willock, Seaward r 290 Willoughby r. Willoughby . . 436 Wills r. Cattliug 425 Wilmot r. Pike 464 Wilson, Arden r 385 Beardman v 424 Doe d. Perry r 381 r. Eden 421 Greaves v 460 Harding r 343 ■ v. Page 562 The Queen v 398 Rowbotham r 15 V. Wallani 423 r. Wilson 335 Wiltshire r. Rabbits 464 Winder v. Lawes 397 Windsor, Lord, Earl of Pom- fret (• 404 Winter v. Lord Anson 458 Wishart f. Wylie 341 Wodohouse v. Farebrother . . 185 Wood r. Copper Miners' Com- pany , 185 INDEX TO CASES CITED. XXIX TAGE Wood, Rider i' 134, 525 Ticrney r 174 Woodgate, Biugliain v 371 Woodhouse r. Walker 25 Woodroffe, Doo d. Danioll v. . 216 Woolcombo, Thorn v 424 Woolfe i: Hill 26 Wordswortli, Nicloson v. 100, 231 Worthington c. Gimson .... 343 Worwood, Price r 416 Wright V. Barlow 311 Bradbury v 420 r. Burroughes 200 Reynolds v 350 V. Wakeford 311 Wyatt, Hodgkinson v 458 Wybrauts, Commissioners of Charitable Donations i' 489 Wylde, Ro 240 TAOE Wylie, Wishart v 34 1 Wynne r. Griffith 310 Y. Yarborough, Lord, Rex v. , . 342 Yates v. Aston 461 1'. Boen 69 Bridge r 140 Yellowly r. Gower 25 York, Archbishop of, Roe d. Earl of Berkeley r 427 Youle V. Jones 199 Zouch r. Parsons 69 ( xxxi ) TABLE OF ABBKEYIATIONS. Ad. & Ell Adolphus & Ellis's Queen's Bench Reports. Amb Ambler's Reports in Chancery from 1737 to 1783. App. Cas Appeal Cases. Ass Liber Assisarum. Atk AtkvTi's Reports in Chancery from 1736 to if 54. B. & A Bamewall & Alderson's Reports in the King's Bench from 1817 to 1822. B. & Ad Barnewall & Adolphus's Reports in the King's Bench. B. & C. or Barn. & Cress. ..Bamewall & Cresswell's Reports in the King's Bench. B. & P Bosanquet and Puller's Reports in the Com- mon Pleas from 1797 to 1804. B. R Bancum Regis, the King's Bench. B. & S Best & Smith's Reports in the Queen's Bench. Bac. Abr New Abridgment of the Law by Matthew Bacon, Grwillim & Dodd's Edition in 8 vols. Bac. Tr The Law Tracts of Lord Bacon. Beav Beavan's Reports in the Rolls Court. Bing Bingham's Reports in the Common Pleas. Bing. N. C Bingham's New Cases in the Common Pleas. Black. Com Blackstone's Commentaries. Bract Bracton do Legibus. Britt Britton's Treatise. Bro. Ab Brooke's Abridgment. Bro. C. C Brown's Cases in Chancery from 1778 to 1794. Brod. & Bing Broderip & Bingham's Reports in the Com- mon Pleas from 1819 to 1822. Burr BiuTow's Reports in the Iving's Bench from 1756 to 1772. C. B The Common Bench or Court of Common Pleas, also the Common Bench Reports. C. B. , N. S Common Bench Reports, New Series. C. P Common Pleas. C. P. Coop CharlesPurtonCooper'sReportsin Chancery. XXXU TABLE OF ABBREVIATIONS. C. P. D Common Pleas Division. Ca. t. Talbot Cases in Chancery in time of Lord Talbot. Ch. Ap Chancery Appeals. Ch. D Chancery Division. Cha. Ca Cases in Chancery, folio. Cha. Rep Eepoits in Chancery, folio. CI. k Fin Clark & Finnelly's Reports in the House of Lords. Co Coke's Reports, generally cited as Rep. — the Reports par excellence. Co. Cop Coke's Complete Copyholder. Co. Litt Coke upon Littleton. Co. Tr Coke's Law Tracts. Coll CoUyer's Reports in Chancery. Com Comyns's Reports. Com. Dig Chief Baron Comyns's Digest of the Law. Conn. & Laws Connor & Lawson's Reports in the Irish Court of Chancery. Coop G. Cooper's Reports in Chancery. Cowp Cowper's Reports in the King's Bench from 1774 to 1778. Cro. El s . . ^ . , ^ r, T I Croke's Reports in time of Elizabeth, James ^'•°-J^<= LandCharlesL Cro. Car ! Cro. & Jer. Crompton & Jervis's Reports in the Court of Exchequer. Cro. & M Crompton & Meeson's Reports in the Court of Exchequer. Cro. !M. & R Crompton, Meeson & Roscoe's Reports in the Court of Exchequer. „ ' T, Cruise on Fines and Recoveries. Cm. Kec ) De Gex, F. i: J De Gex, Fisher & Jones's Reports in Chan- cery. De Gex, M. & G De Gex, Macnaghten & Gordon's Reports in Chancery. De Gex & S De Gex & Smale's Reports in Chancery. Dom. Proc Domus Procerum, the House of Lords. Dougl Douglas's Reports. Dow. & Ryl Dowling & Rj-land's Reports in the King's Bench. Drew Drewry's Reports in the Court of Vice- Chancellor Kindersley. Drew. & Sma Drewry & Smale's Reportsinthe sameCourt. Dm. & War Drury & Warren's Reports in the Irish Court of Chancer)". Dniry Drury's Reports in the Irish Court of Chan- cery. Dyer Dyer's Reports in time of Henry VIII. , Edward VI., Mary and Elizabeth. TABLE OF ABBREVIATIONS. XXXlll E. & B Ellis & Blackburn's Queen's Bench Reports. E. B. & E Ellis, Blackburn & Ellis's Queen's Bench Reports. East East's Reports in the King's Bench. Eq. Ca. Ab Abridgment of Cases in Equity, folio. Esp Espinasse's Nisi Prius Rex^orts. Ex Exchequer Reports. Ex. D Exchequer Division. F. N. B Fitzhcrbert's Natura Brcvium. Feame, C. R Feame on Contingent Remainders andExe- cutoiy Devises. Butler's Edition. Fitz. Abr Fitzherbert's Abridgment. Fonbl. Eq Fonblanquo's Edition of the Anonymous Treatise on Equity. Giff Giffard's Reports in the Court of Vice- Chancellor Stuart. Gilb. Ten Chief Baron Gilbert's Treatise on Tenures. Gilb. Uses Chief Baron Gilbert's Treatise on Uses. H. Bl Henry Blackstone's Reports from 1788 to 17DG. H. & C Hiu'lstone & Coltman's Exchequer Reports. H. of L The House of Lords. H. & N Hurlstone & Norman's Exchequer Reports. Hale, P. C Sir- Matthew Hale's Treatise on Pleas of the Crown. Hard Hardres's Reports in the Court of Exche- quer, folio, from 1655 to 1C69. Hare Hare's Reports in Chancery. Hil Hilary Term. Inst Coke's Institutes. J. B. Moore J. B. Moore's Reports in the Court of Com- mon Pleas. Jac. & W Jacob & Walker's Reports in Chancery. Jacob Jacob's ditto. Johnson Johnson's Reports, Vice -Chancellor Wood. John. & Hem Johnson & Hemming's Reports, Vice-Chan- cellor Wood. Jones Sc Lat Jones & Latouche's Reports in the Irish Court of Chanceiy. Jur Jurist Reports. Jut., N. S Jurist Reports, New Series. Kay Kay's Reports in the Court of Vice-Chan- cellor Wood. Kay & John Kay & Johnson's Reports in the Court of Vice -Chancellor Wood, Keble Keble's Reports, folio. Keil. , Keilwey's Reports. Ij- J Law Journal Rei^orts. L. J J Lords .Justices. B..V. c XXXIV TABLE OF ABHREVIATIONS. L. R Law Reports of the Incorporated Council of Law Reporting. L. R., Ch., or L. R., Ch. Ap..Law Reports, Chancery Appeals. L. R., Eq Law Reports in Equity. L. T Law Times Reports. Leon Leonard's Reports, folio, in time of Elizabeth and James. Lev Levinz's Reports from 1C60 to 1695. Litt Littleton's Tenures. Lord Raym Lord Raymond's Reports. M. or Mich Michaelmas Term. M. & Cr Mylne & Craig-' s Reports in Chancery. M. R Master of the Rolls. M. & S Maide & Selwyn's Reports in the King's Bench. M. & W Mecson & Welsby's Reports in " the Ex- chequer. Mad. Form. Ang Madox's Formulare Anglicanum. Madd Maddock's Reports in the Vice- Chancellor's Court. Man. & Gran Manning & Granger's Reports in the Court of Common Pleas. Mer Merivale's Reports in Chancery from ISlo to 1817. Mod Modern Reports in time of Charles II. Moo Sir Fr. Moore's Rej^orts, foUo, in time of Elizabeth and James. Moo. & Scott Moore & Scott's Reports in the Common Pleas. My. & K Mj-lne & Keen's Reports in Chancery. Kev. & Man NcN-ille & Manning's Reports in the Queen's Bench. New Cas Bingham's New Cases in the Common Pleas. New Rep Bosanquet & Puller's New Reports in the Common Pleas. 0. Bridg Sir Orlando Bridgman's Judgments, edited by Bannister. P. C Privy Council. P. D Probate Division. P. Wms. or ] Peere Williams' Reports in Chancery from P. W j 1695 to 1735. Pasch Easter Term. Per. & Dav Perry & Davison's Reports in the Queen's Bench. Perk Perkins's Profitable Book. Phil Phillips's Reports in Chancery. Plowd Plowdcn's Commentaries or Reports, folio. Pollexf PoUexfen's Reports, foUo, from 1670 to 1684. Popham Popham's Reports, folio. TABLE OF ABBREVIATIONS. XXXV Pre. Cha Precedents in Chancery from 1G87 to 1722. Prest. Abstr Preston on Abstracts of Title. Prest. Conv Preston on Conveyancing. Price Price's Reports in the Court of E.x.chequer. Q. B Queen's Benc^h or Queen's Bench Reports. Q. B. D Queen's Bench Division. Rep The Rei^orts of Lord Coke. Ro. Ab Rolle's Abridgment. Rob. Gav Robinson on Gavelkind. Rop. Husb. & Wife Roper's Treatise on the Law of Husband and Wife. Edited by Jacob. Russ Russell's Reports in Chancery. Russ. & My Russell & Mylne's Reports in Chancery. S. C Same case. S. & S. or Sim. & Stu Simons and Stuart's Reports in the Vice- Chancellor's Court. Salk Salkeld's Reports, foHo, from 1 \V. & M. to 10 Anne. Sand. Uses Sanders on Uses and Trusts. Sax. Chro The Saxon Chi-onicle. Sch. & Lefr Schoales & Lefroy's Reports in Chancery in Ireland in time of Lord Redesdale. Scriv. Cop Scriven on Copyholds. Shep. Touch Sheppard's Touchstone of Common Assur- ances. Sim Simons's Reports in the Vice-Chancellor's Coiui;. Sir T. Raym Sir Thom.as Raymond's Reports. Sm. & Giff Smale & Giffard's Reports in the Court of Vice -Chancellor Stuart. Stark Starkie's Nisi Piius Reports. Stat Statute. Str Strange's Reports from 1716 to 1747. Sugd. Pow Sugden (afterwards Lord St. Leonards) on Powers. Sugd. V. & P Sugden (afterwards Lord St. Leonards) on Vendors and Purchasers. Swanst Swanston's Reports in Chancery in 1818 and 1819. T. Rep Term Reports in the King's Bench by Dum- ford and East, from 1785 to 1800. Tau Taunton's Reports in the Common Pleas from 1807 to 1819. Trin Trinity Term. Turn Turner's Reports in Chancery in 1822 and 1823. Turn. & Russ Turner and Russell's Reports in Chancery. Tyr Tyrwhitt's Reports in the Court of Ex- chequer. XXXvi TABLE OF ABBREVIATIOXS. y. & B Vesey & Beames's Reports in Chancery in 1813 and 1811. V.-C Vice-Chancellor. V.-C. B Vice-Chancellor Bacon. V.-C. E Vice-Chancellor of England, an office now abolished. V.-C. CI Vice-Chancellor Giffard. V. -C. H Vice-Chancellor Hall. V.-C. J Vice-Chancellor James. V. -C. M Vice-Chancellor Malins. V.-C. S Vice-Chancellor Stuart. V.-C. W Vice- Chancellor Wood or Vice- Chancellor Wickens. Ventr Ventris's Reports in time of Charles II. Vem Vernon's Reports in Chancery from 1680 to 1716. Ves. or Ves. Sen Vesey's Reports in Chancery from 1747 to 1755. Ves. Jun Vesey Jvuiior's Reports in Chancery from 1789 to 1816. Vin. Abr Viuer's Abridgment. W. Black Su' William Blackstone's Reports from 1746 to 1780. W. Rep The Weekly Reporter. Watk. Cop Watkins on Copyholds. Watk. Des Watkins on Descent. Wightw Wightwick's Reports in the Court of Ex- chequer. WHles WiUes's Reports. Wils Wilson's Reports in King's Bench and Com- mon Pleas from 1742 to 1769. Wms. Saund Saunders's Reports in time of Charles II. Edited by Serjeant Williams and Sir E. V. WiUiams. You. & Coll Tounge & CoUyor's Reports in the Equity Exchequer. You. & Coll. New Cas Younge & Collyer's Reports in Chancery. PEINCIPLES LAW OF REAL PROPERTY. 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 eoqioreal. kind. Trade was little practised {a), and consequently debts were seldom incurred. There were no public funds, and of course no funded propert}^ The public wealth consisted principally of land {b), 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 iude- moveable and indestructible, is evidently a different ^ ^^^^' ^ 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 bui'nt. No man, be he ever so feloniously disposed, can run away with an acre of land. The owner may be ejected, but the land remains where it was; and he, who has been wrong- fully turned out of possession, may be reinstated into the identical portion of land from which he had been removed. Not so with moveable property ; the thief Jrovcables destructible. {a) 3 Ilallani's Middle Ages, (b) 1 Hallain's Middle Ages, 367— 3G9. 158. R.P. B IXTRODrCTORY CHAPTER. Moveable and immoveable. may be discovered and punished ; but if lie has made 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 inimoreahle (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 Norman 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 dis- posed 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 (/). The lands granted were not given freely and for nothing ; but they were given to hold of the king, subject to the performance of certain military duties as the condition of their en- {c) Quandoque res mobiles, ut cattalla, ponuntur in vadimn, quandoque res immohiles, ut ter- rae, et tenementa, et redditus. Glanvillc, lib. x. c. G. Sec also lib. vii. c. 10, 17. ('0 Wright's Tenures, Gl, 02; 2 Black. Com. 48. [e) 2 Ilallam's Middle Ages, 424. (/) Wright's Tenure.?, G3. [For a more complete account of the earliest Engli.sh land laws and the effect thereon of the Xorman con- quest, the reader is referred to Stubbs, Constitutional History, §§ 74, 7o, 93—96, pp. 189—194, 250—267, 2nd ed. ; Freeman, Norman Conquest, ch. iii. § 2, vol. i. p. 79, 2nd ed. ; ch. xxiv. ^ 2, vol. v. p. 364.— Et>.] OF THE CLASSES OF PROPERTY. J joyment (fj). The king was still considered as in some sense the proprietor, and was called the lord para- mount {//) ; while the services to be rendered were regarded as incident or annexed to the ownership of > the land ; in fact, as the rent to bo paid for it. This feudal system of tenures, or holding of the lutroduction king, was soon afterwards applied to all 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 (/), who is followed by Blackstone (/«•), supposes that the introduction of tenures, as to lands of the Saxons, was accomplished at a stroke by a law (/) 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 con- siders it certain that the tenures of the feudal system were thoroughly established in England under the Conqueror {iii), he yet remarks that by the transaction, in question an oath of fidelity was required from the tenants of the great landowners, as well as from the (y) 1 Hallam' s Middle Ages, omnes libcri liomiues foedoro et 178, 179, note. sacramento affirment, quod intra (Ji) Coke upon Littleton, 6o a. ct extra universum regnuni An- ((') Wright's Tenures, 64, Co. gli^e Wilhelino regi domino suo {/c) 2 Black. Com. 49, 50. fideles esse volunt ; terras et ho- (0 The 52ndin"\Vilkins'sLege3 nores iUius omni fidclitatc ubiquo Anglo-Saxonicte ; it appears as servare ciun eo, et contra iniraicos Laws of "William the Conqueror et alienigenas defendere. Cf . the III. 2, in the Record Commis- version given in Stubbs' Select sioners' edition of the Ancient Charters, p. 83, 2nd ed. Laws and Institutes of England, {in) 2 Hallam's Middle Ages, and in Schmid, Die Gesetze der 429. Angfl Saolisen. Rtiitnimii^ lit 15 2 INTRODUCTORY CHAPTER. great landowners themselves, " thus breaking in upon the feudal compact in its most essential attribute, the exclusive dependence of a vassal upon his lord "(/?). The truth appears to be that Norman customs, and then- upholders and interpreters, Norman lawyers, were the real introducers of the feudal system of tenures into - the law of this countr3^ Before the conquest, land- owners were subject to military duties (o) ; and to a soldier it would matter little whether he fouglit by reason of tenure, or for any otlier reason. The dis- tinction 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 (;;) . Perhaps even they, in the time of the Conqueror, troubled themselves but little about the laws of landed property. The statutes of William In) 2 Hallam's Middle Ages, (o) Sharon Turner's Anglo- 430. Mr. Hallam refers to the Saxons, vol. ii. app. iv. c. 3, 5G0 ; Saxon Chronicle, which gives the 2 Hallam's Mid. Ages, 410. following account: — Postea sic (;;) Tlic Norman French was itinera disposuit ut jDcrvenerit in introduced by the Conqueror as festo Priinitianim ad SearebjTig the regular language of the courts (Sarnm), ubi ei obviam venerunt of law. See Hiime's History of ejus proceres ; et omiies prtedia England, vol. ii. 115, ai>pendixii. tenentes, qiwtquot essent nottz mc- on the Feudal and Anglo-Norman /loris per totam Angliam, hujus government and manners. Aspe- viri servi fuerunt, omncsque se cimenofthis language, which was illi subdidere, ejusque facti sunt often curiously intermixed by our vassali, ac ci fidelitatis juramenta lawyers "wdth scraps of Latin and prrcstiterunt se contra alios quos- pure English, will be given in a cunque illi fidos futuros. — Sax. future note. [But see now, as to Chron. anno 10S6. As to tliis the introduction of the French assembly at Salisbury, .see Free- language. Freeman, Norman man, Nonnan Conque.st, vol. iv. Conquest, ch. xxv. vol. v., e.spe- pp. C94, 09.') ; vol. v. p. 3G6. cially pp. 500. 528 -530.- Ed.] OF THE CLASSES 01' rilOPEUTV. are principally criminal, as are the laws of all balf- civilizecl nations. Life and limb are of more importance than propert}' ; and when the former are in danger, the security of the latter is not much regarded. When 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 ((/) . But in 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 w^ere things of too perishable and insigni-., ficant a nature to be subject to any feudal liabilities, and could 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 {f), and the attention of the legislature {u), moveable pro- perty passed almost unnoticed {x) . Lands, houses, and immoveable property, — things Lauds, tene- capable of being held in the way above described, — heredita" wcre called tenements or t/iinr/s Jield{y). They were "^ents. {q) 2 Hallam's Middle Ages, {t) See the Year-Books. 468. [u] See the Statutes. {)■) Co. Litt. 191 a, n. (1) II. 2. \x) 2 Black. Com. 384. (s) See Treatises of Glanville, {ij) Constitutions of Clai-cndou, Bracton, Britton, and Fleta ; the Art. 9; Glanville, lib. ix. cap. 1, Old Tenures, and the Old Natura 2, 3, passim ; Bracton, lib. 2, fol. Brcvium. 26 a ; stats. 20 Hen. III. c. 4 ; 13 b IXTUODUCTOllY CHAPTER. also denominated licreditaments, because, on tlie deatli of the owner, they devolved by law to his heir (s). 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 cla-ss; and the expression is in use to the present day. Goods aud The other, or moveable class of property, was known by the name of goods or chattels. The derivation of the word chattel has not been precisely ascertained («). Both it and the word goods are well known to be still in use as technical terms amongst lawyers. Teuo-.uents. go great w^as the influence of the feudal system, aud so important was the tenure or holding of lands, whether 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 au}^ other term more indicative of its fixed and inde- structible nature {h). 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, 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 M'hole system (c). 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 Edw. I. c. 1 ; Co. Litt. 1 b; Shep. {b) It is tlie only -n'ord used in Touch. 91. -the important statute De Donis, (;) Co. Litt. Ga; Shep. Touch. 13 Ed\v. I. c. 1; see Co. Litt. 01. 19 b. {a) Sec 2 Black. Com. 38o. [r] By statute 12 Car. II. c. 21. OF TUli; CLASSES OV rKOl'EllTY. obvious that the essential difference between lands and goods was to bo found in the remedies for the depri- vation of eitlier ; 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 acquii'e two other names more charac- teristic of their difference. The remedies for tlie 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 w^ere called real propertij, and P^^^""^^ • goods and chQiiah, personal properly {e). It appears then, that lands and tenements were de- signated, in later times, real properly, 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 p)ersonal property because the remedy for their abstraction was against the person who had taken them away. Personal property has been described as that which may attend the owner's person wherever he thinks proper to go (/), but goods {d) Glan%'ille, lib. x. c. 13; ^JfrsowaZis the expression " things, Bracton, lib. iii. fol. 101 b, par. 1 ; whether real, personal or mixed," 102 b, par. 4; Britton, 1 b; Fleta, in Co. Litt. 1 b and 6 a, and in lib. i. 0. 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 {e) The terms lands and tenc- same three classes. In the early ments, goods and chattels, are part of the last centuiy, the terms constantly 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 com- See 1 P. Wms. 553, 575, anno piled in the earlypart of the 17th 1719 ; Jiidout v. Fain, 3 Atkyns, century. The nearest ajiproxima- 4SG, anno 1747. tion the writer can find in either (/) 2 Black. Com. 10, 831; of the above books to the now 3 Black. Cum. 144, common division into real and INTllODUCTOKY CHAPTER. and cliattels were not usually called things personal till they had become too numerous and important to attend the persons of their owners. The terms real property and personal 2^^'operty 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 taken place, commerce has been widely extended, loans of money at interest have become common (r/), 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 2)ersonal 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 (/). 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 (/.•). {g) Such loans ■were formerly jun. 652 ; Bligh v. Brent, 1 You. considered unchristian. Glanville, & Coll. 268. lib. 7, c. 16 ; lib. 10, c. 3 ; 1 [i) Co. Litt. 20 a, n. (3) j Earl Reeves's History, 119, 262. Ferrers' case, 2 Eden, Appendix, (A) New Hiver shares are an p. 373. exception, Brybuttcr v. Bartho- (A) 1 Hallani's Middle Ages, lomew, 2 P. Wms. 127; see also 158. Bucherldgc v. Ingram, 2 Ves. OF THE CLASSES OF rROPERTY. But the most remarkablo exception to the original rule 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 (/), but his personal property ; it is but a chattel {>/)), though the rent may bo only nominal, and the term ninety or even 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 pecu- liar to themselves (»). 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 /ci 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 (/) Bracton, lib. 2, fol. 27 a, rity of leases given are farmiug par. 1. leases. (m) Co. Litt. 4Ga; correct Lord (^j) See as to the bad state of Coke's reference at note (w), from agriculture, 3 Hallam's Middle ass. 82 to ass. 28. Ages, 365; 2 Hume's Hist. Eng. (n) See as a specimen, Bac. 349. Abr. tit. Customs of London. {q) Gilh. Tenures, 39, 40 ; (o) See Madox's Formidare Watkins on Descents, 108 (113, Anglicanum, tit. Demise for 4th edit.); 2 Black. Com. 141. Tearp, in which the great majo- 10 INTRODUCTORY CHAPTER. ' of it. Ilis only remedy was an action for damages against his landlord (r), wlio was bound to warrant him quiet possession («). The farmer could therefore he scarcely said to he 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, nothing military or feudal in its nature, and was, con- sequently, exempt 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 {f). There is now perhaps as much personal property in the country as real ; possibly there may be more. Eeal ' 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 tlie most conspicuous is the feudal rule of descent, under which, as partially modified by amending acts {k), real property goes, when its owner dies intestate, to the //eir, while personal property is distributed, under the same circumstances, amongst the ncxi of hin of the in- testate by an administrator appointed for that purpose, {)■) 3 Elack. Com. 157, 158, propcrtyor personal estate, though 200. it is now clearly considered as (4) Bac. Abr. tit. Leases and such ; and see Swift v. Swift, 1 Do Terms for Years, and Covenant, Gex, F. & J. 160, 173 ; Belancij (B). • V. Bdancy, L. E., 2 Oh. Ap. 138. {{) Quarc, however, whether («) 3 & 4 Will. IV. c. 106, Lord Coke would have agreed amended by stat. 22 & 23 Vict, (hat a lease for years is personal c. 35, ss. 10, 20. OF Till-: CLAjjSiE.S Ul" I'UUl'KKl V, 11 formerly by the Court of Probate (x), and now by the Probate Division of the High Court of Justice. Besides the division of property into real aud per- sonal, there is another classification which deserves to bo 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, 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, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand" (~). 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- Corporcal and incorporeal. (x) Established by stat. 20 & 21 Vict. c. 77, amended by stat. 21 & 22 Vict. c. 95. {!/) Bract, lib. 1, c. 12, par. 3; lib. 2, c. 5, par. 7 ; Fleta, lib. 3, c. 1, sec. 4. (r) 2 Black. Com. 20. [The division, made by the English law, of hereditaments into cor- poreal and incorporeal is open to objection. It opposes the si(b- ject-mattcr of rights of one kind to rights of another kind. For ex- ample, land is said to be a cor- poreal hereditament, because it is a visible and tangible external object which descends to the heir upon the death of its owner in- testate : an annuity, which de- scends to the heir on the death of the person last entitled to the same intestate, is said to bo an incor- poreal hereditament, because it is not a visible and tangible ex- ternal object but a mere right, which is a conception of the mind. But on the death intes- tate of an owner in fee simple (see post, Chap. III.) of laud a right descends to the heir just as much as in the case of an an- nuity; what the heir acquii'es is a right of ownership, similar to that which his ancestor enjoyed, in virtue of which he is entitled to enter upon and hold the land, the subject-matter of that right. See, further, as to the division of hereditaments into coi"poreal and incorporeal, Austin on Jurispru- dence, pp. 372, 708, 804, 4th ed. ; Poste's Gains, pp. 132, 133 (Com- mentary on Gai. II., ^\ 12 — 14). —Ed.] 12 INTRODUCTORY CHATTEn. 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 presenta- tion to the parish church ; 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, forming 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 The distinc- to any manor. In the transfer or conveyance of in- the mode of corporeal property, when thus alone and self-existent, tranf>fer. formerly lay the practical distinction between it and 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 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 (/>). Incorporeal property, in our present highly artificial state of society, occupies an important posi- tion ; and such kinds of incorporeal property as are 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, {a) Co. Litt. 9 a. (6) Co. Litt. 48 b, 121 b, 143 a, 271b, n. (1). OF THE CLASSES OF ruoi'Era'Y. 13 tliat wliicli is real, and which, as wa have seen, Leing descendible to hcirfi, is known in law by ihe name of Jicrcditamcnts. Estates or interests in corj)oreal here- ditaments, or what is commonly called landed pro- perty, will accordingly form our next subject for con- sideration. ( H ) PART I. OF CORPOREAL HEREDITAMENTS. Terms of tlie la^v. A messuag-e. Tenement. Before proceeding to consider the estates wliich may be held in corporeal hereditaments or landed property, it is desirable that the legal terms made use of to designate 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 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 {h). 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 {(■). The word tenement is often used in law, as in ordinary language, to signify a house : it is indeed the regular synonyme which follows the term messuage ; a house being usually described in deeds as " all that messuage or tenement." But the more com- prehensive meaning of the word tenement, to which we have before adverted (r/), is still attached to it in legal interpretation, whenever the sense requires (r). Again, («) Thomas v. Lane, 3 Cha. Ca. 26; Keihv. 57. {h) Doe d. Clements v. Collins, 2 T. Rep. 489, 502 ; 1 Jarman on Wills, 779, 4th ed. {r) Shcp. Touch. 94 ; Co. Litt. 5 b, n. (1) ; Smithson v. Cage, fro. Jaf. .'i'2G ; T.ord Grosrenor T. TIampstcad Junction Bailwaij Company, 1 De Gex & Jones, 446 ; Cole V. West London and Crystal Palace Railway Company, 27 Bear. 242. {(I) Ante, p. 5. \e) 2 Black. Com. 16, 17, 59. OV CORPOREAL HEREDITAMENTS. 15 the word /(oul compreliends in law any ground, soil, or Laud, earth whatsoever (,/') ; but its strict and primary import is arable laud {(j). It will, however, include castles, houses, and outbuildings of all kinds ; for the ownership of land carries with it everything both above and below the surface, the maxim being chj'ks est soIiidi, ejus est usque ad ccclum. A pond of water is accordingly de- scribed as land covered with water (//) ; and a grant of land includes all mines and minerals under the surface {i). This extensive signification of the word laud may, how- ever, be controlled by the context ; as where land is spoken of in plain contradistinction to houses, it will not be held to comprise them (/.•) . So mines lying under Mines. a piece of land may be excepted out of a conveyance of such land, and they will then remain the corporeal pro- perty of the grantor, with such incidental powers as are necessary to work them (/), 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 Chambers, same manner, chambers may be the subjects of convey- ance as corporeal property, independently of the floors above or below them (»). The word premises is fre- Premises, (jueutly 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 (/) Co. Litt. 4 a ; Shep. Toucli. 8 E. & B. 123, affirmed 8 H. of L. 92; 2 Black. Com. 17; Coolcc, Cas. 348; Bommi v. BackJiouse, dem., Yates, vouchee, 4 Bing. 90. E. B. & E. 622, affirmed 9 H. of [g) Shop. Touch. 92. L. Cas. 503 ; Bugdaley. liobcrtson, {h) Co. Litt. 4 b. 3 Kay & J. G95 ; Stro>/an v. (0 2 Black. Com. 18. Knowlcs, 6 H. & N. 454 ; Smilh (/.•) 1 Jannan on Wills, 777, r. Darby, L. R., 7 Q. B. 716; 4th ed. Davis v. TrcJtarnc, 6 App. Cas. (/) Earl of Cardiyan v. Armi- 460. <j) Stat. 7 WiU. IV. & 1 Vict. c. 26, ss. 3, G. (c) Stat. G Anne, c. 18. See Ex parte Grant, Ves. 512; Kv jmrte WhaUfy, 4 Euss. 561 ; Be Imac, 4 Myl. k Craig, \l; Me Lbigen, 12 Sim. 104 ; Re Clossey, 2 Sm. & Gr. 46 ; Re Dennis, 7 Jur., N. S. 230 ; Re Owen, 10 Ch. D. 1G6. OF AN ESTATE FOR LIFE. 23 if such order be not complied with, then the cestui que vie shall be taken to bo dead, and any person claiming any interest in remainder, or reversion, or otherwise, may, enter accordingly. The act, moreover, provides («), that any person having any estate ^)?o' autre vie, who, after the determination of such estate, shall continue in pos- session of any lands, without the express consent of the persons next entitled, shall be adjudged a trespasser, and may be proceeded against accordingly. The owner of an estate for life is called a tenant for ;A tenant for life, for he is only a holder of the lands according to j ®~ the feudal principles of our law. A tenant, either for his own life, or for the life of another {2)ur autre vie), hathafrce- hath an estate of freehold, and he that hath a less estate cannot have a freehold {h). Here, again, the reason is, feudal. A life estate is such as was considered worthy the acceptance of a/>re 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 {d) . But this / distinction has long since disappeared ; and there are now some estates which may not even last a lifetime, but are yet considered in law as life estates, and are estates of freehold. Thus, an estate granted to a woman {Estate during- dui'ing her widowhood is in law a life estate, though ^ determinable on her marrying again {e) . Every life estate also may be determined by the civil death of the party, as well as by his natui'al death ; for which reason in conveyances the grant is usually made for the term I" (rt) Stat. 6 Anne, c. 18, s. 5. lib. 4,tr. 3, c. 9, par. 3, fol. 263 a; {b) Litt. 8. 57. rieta,lib.3,c. 12, s. 6; lib. 5, c. 5, (c) Watk. Desc. 108 (113, 4th s. 15. ed.) ; 2 Black. Com. 104. (e) Co. Litt. 42 a ; 2 Black. {(l) Bract, lib. 2, c. 9, fol. 26 b ; Com. 121. 24 OF CORPOREAL HEREDITAMENTS. Natural life, of a man's natural life (/) . Formerly a person by entering a monastery, and being profeued in religion, became dead in law {(j). 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 (/), which may still take place in criminal proceedings, though in civil proceedings it is now abolished (A-). Civil death was formerly occasioned also by attainder for treason or 1 felony; but all attainders are now abolished (/). Timber. Every tenant for life, unless restrained by covenant 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 Waste. course (n). But he is not allowed to cut timber, or to commit any other kind of uade (o) ; 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. Com. 121. [g) 1 Black. Com. 132. (A) Co. Litt. 3 b, n. (7), 132 b, n. (1) ; 1 Black. Com. 132; stat. 31 Geo. III. 0. 32, s. 17; 10 Geo. IV. c. 7, as. 28—37 ; 2 & 3 "WiU. rV. c. 115, 8. 4. See also Anstey's Guide to the Laws affecting Ro- man Catholics, pp. 24 — 27 ; 23 & 24 Vict. c. 134, 8. 7; Re Metcalfe's Trusts, 2 De Gex, Jones & Smith, 122. (i) Co. Litt. 132 b. 0') 4 Black. Com. 319, 380; Watk. n. 123 toGilb. Ten. (/.) By stat. 42 & 43 Vict. c. 59, 8. 3. (/) By stat. 33 & 34 Vict. c. 23. \m) Co. Litt. 41 b; 2 Black. Com. 35, 122. («) Phillips V. Smith, 14 M. & W. 589. As to thinnings of young timber, see Tldyeley v. Bawling, 2 Coll. 275 ; Bagot v. Bagot, 32 Beav. 509, 518; Earl Cowley v. Wellesleg, M.R.,LawRep., 1 Eq. 656 ; 35 Beav. 635. Explained in Ilonyivood v. Homjwood, L. R., 18 Eq. 306, 307, 308. (o) Co. Litt. 53 a; Whitjicld V. Bcwit, 2 P. Wms. 241 ; 2 Black. Com. 122, 281 ; 3 Black. Com. 224. OF AN ESTATE FOR LIFE. 25 to ruin, wliicli is called permissive waste (^j). 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 the case of a tenant for life, whose estate is equitable only (q). But there appears to be no sufficient ground for doubting the tenant's liability where he has the legal estate vested in himself (;•). So a tenant for life cannot plough up ancient meadow land (s) ; and he is not allowed to dig for gravel, brick, earth or stone, except in such pits or places as were open and usually dug when he came in (t) ; 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 uriste. But to con- tinue the working of existing mines, or to cut turf for sale in bogs already used for that purpose, is not ivaste; and the tenant may accordingly carry on such mines and cut tm'f in such bogs for his own profit {u) . By an old statute (r), the committing of any act of waste was a cause of forfeiture of the thing or place wasted, in case a icrit of ivaste was issued against the tenant for life. But this writ is now abolished {x) ; and a tenant Writ of waste for life is now liable only to damages in an action in the ^^*'^^'^^<^- High Court of Justice (y) for waste already done, or to be restrained by injunction from cutting the timber or committing any other act of waste, which he may {p) Co. Litt. 58 a; Woodhouse 4 App. Cas. 454. V. Walker, 5 Q. B. D. 404. [u) Co Litt. 54 b ; Coppimjer {q) Fou'i/s V. Blagrave, 4 De v. Gubbins, 3 Jones & Lat. 397. Gex, M. & G. 448, 458 ; Warren (<) The Statute of Gloucester, T. Etedall, 1 John. & Hem. 1. 6 Edw. I. c. 5; 2 Black. Com. (r) Yelloivly v. Gower, 11 Ex. 283; Co. Litt. 218 b, n. (2). 274, 293. (r) By stat. 3 & 4 Will. IV. (s) Simmons v. Norton, 7 Bing. c. 27, h. 36. 648. See Buke of St. Albans v. (y) Stats. 21 & 22 Vict. c. 27, Sklpwith, 8 Beav. 354. ss. 2, 3 ; 36 & 37 Vict. c. 66 ; 37 [t) Co. Litt. 53 b; Viner v. & 38 Vict. c. 83 ; 38 & 39 Vict. Vaughan, 2 Beav. 466 ; EUas v. c. 77. Snowdon Slate Quarries Companij, 26 OF CORPOREAL HEREDITAMENTS. Without im- peachment of waste. Equitable waste. New enact- ment as to be known to contemplate (s). If any of tlie timber is in such an advanced state that it would take injury by standing, the Court 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 («). And the Settled Estates Act, 1877 {b), now empowers the Chancery Division of the High Court, if it think proper, to authorize a sale of any timber, not being ornamental timber, growing on any settled estates. If, however, the estate is given to the tenant by a wTitten instru- ment (c) expressly declaring his estate to be uithout impeac/iment of tcasfe, 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 {d) ; but so that he does not pull down or deface the family mansion, or fell timber planted or left standing for ornament, or commit other injuries of the like natm'e ; all of which are termed equitable waste ; for the Court of Chancery, administering equity, restrained such pro- ceedings [e) . The Supreme Court of Judicature Act, (r) Stat. 36 & 37 Vict. c. 66, 8. 25, subsect. (8). («) 'looker v. Annesley^ 5 Sim. 235; Waldo v. Waldo, 7 Sim. 261 ; 12 Sim. 102 ; Tollemache v. Tollcniachc, 1 Hare, 456 ; Consett V. Bdl, 1 You. & CoU. New CaBes, 569 ; Gent v. Harrison, Johnson, 517 ; Honyicood v. Homjwood, L. R., 18 Eq. 306 : Lowndes v. Norton, V.-C. H., 25 W. R. 826; L. R., 6 Ch. D. 139. (i) Stat. 40 & 41 Vict. c. 18, s. 16, repealing and re-enacting' Btat. 19 & 20 Vict. c. 120, s. 11. (c) 2)ow7«ffw's case, 9 Rep. 10 b. (rf) Lev is Bowks' case, 11 Rep. 82 b; 2 Black. Com. 283 ; Burr/cs V. Lamb, 16 Ves. 185; Cholmeley V. Taxton, 3 Bing. 211 ; 10 Bam. & Cress. 564; Davics v. Wescomb, 2 Sim. 425; Woolf v. Hill, 2 Swanst. 149; Waldo v. Waldo, 12 Sim. 107. {e) 1 Eonb. Eq. 33, n. ; Mar- quis of Doicnshire v. Lady Sandys, 6 Ves. 107 ; Burges v. Lamb, 16 Ves. 183 ; Bay v. Merry, 16 Ves. 375 a ; Wellesley v. Wellesley, 6 Sim. 497 ; Duke of Leeds v. Earl Amherst, 2 Phil. 117; Morris y. Morris, 15 Sim. 505 ; 3 De Gex & Jones, 323; Micklethwait v. Micklethtcait, 1 De Gex & Jones, 504; Baker v. Sebright, 13 Ch. D. 179. OF AN ESTATE FOR LIFE. 27 1873 (/), now provides that, after the time appointed equitable for the commencement of that act, namely, the first of "^'^^*^- November, 1875 (g), an estate for life without impeach- ■ ment of waste shall not confer, or be deemed to have ' conferred, upon the tenant for life any legal right to commit waste of the description known as equitable waste, unless an intention to confer such right shall expressly appear by the instrument creating such estate (//). As a tenant for life has merely a limited interest, he Leases by 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 Settled Estates Act, 1877 {i), that when the settlement is made "after the 1st of November, 1856 (/f), the day when the now repealed act to facilitate leases and sales of settled estates came in force (/), and does not contain an express declaration to the contrary, every tenant for life may Modem demise the premises or any part thereof (except the t';'^^'^*'^ ^oj" principal mansion-house and the demesnes thereof, and mise for other lands usually occupied therewith), for any term years ^'*^°^ not exceeding twenty-one years as to estates in England, and thirty-five years as to estates in Ireland, to take effect in possession at or within one year next after the making thereof ; 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 (/) Stat. 30 & 37 Vict. c. 66. 120, 21 & 22 Vict. c. 77, 27 & 28 Iff) Stat. 37 cfe 38 Vict. c. 83. Vict. c. 45, 37 & 38 Vict. c. 33, (A) Stat. 36 & 37 Vict. c. 66, and 39 & 40 Vict. c. 30. 8. 25, subsect. (3). (A) Stat. 40 & 41 Vict. c. 18, (i) Stat. 40 & 41 Vict. c. 18, s. 57. repealing and re-enacting and (/) Stat. 19 & 20 Vict. c. 120, amending stats. 19 & 20 Vict. c. ss. 44, 46. 28 OF CORPOREAL HEREDITAMENTS. benefit in the nature of a fine, wliich rent shall be incident to the immediate reversion ; and provided that such demise be not made without impeachment of waste, and do contain a covenant for pajonent of the rent, and Buch other usual and proper covenants as the lessor shall think fit, and also a condition of re-entry on non- payment of the rent for a period of twenty-eight days after it becomes due, or for some less period to be specified in that behalf ; and provided a counterpart of every deed of lease be executed by the lessee {m). 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 Leases by act (»). Leases may also be made by the authority of theSl''^ the Chancery Division of the High Court, on due application, whatever may be the date of the settlement, for terms not exceeding twenty-one years as to England, and thirty-five years as to Ireland, for an agricultural or occupation lease, forty years for a mining lease, or a lease of water, water-mills, way-leaves, water-leaves, 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 ; and where the Court shall be satisfied that it is the usual custom of the district, and beneficial to the inheritance, to grant leases for longer terms, any of the above leases, except agri- cultural leases, may be granted for such term as the Court shall direct (o) . The best rent must be reserved ; but in a mining, repairing or building lease, a pepper- corn or any smaller rent may be reserved for the first five years (p). In the case of a mining lease, a propor- tion of the rent is set' apart and invested, namely, one- fourth where the landlord is entitled to work the mines, otherwise three-fourths (q). {m) Stat. 40 & 41 Vict. c. 18, (o) Sect. 4. B. 46. See Taylor v. Taylor, 3 (p) Ibid, secondly. Cb. Div. 145. (q) Ibid, thirdly. (w) Sect. 48. OF AN ESTATE FOR LIFE. 29 If a tenant for life should sow the lands, and die Emblementa. before harvest, his executors will have a right to the emblements or crop {r). 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 mamage 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 (s) . And with respect to tenants at rack rent, it Enactment as is now provided [t), that where the lease or tenancy of rack rent. 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 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 were then determined by efHuxion 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 (>•) 2 Black. Com. 122 ; see {t) Stat. 14 & 15 Viet. c. 25, Graves v. JFdd, 5 Barn. & Adol. 8. 1 ; Haines v. Welch, L. R., 4 C. 105. P. 91. (s) 2 Black. Com. 123, 124. 30 OF CORPOREAL HEREDITAMENTS. no notice to quit sliall be necessary from either party to determine such holding. Apportion- As a consequence of the determination of the estate of a tenant for life the moment 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 was 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 (u). Formerly, also, when a tenant for life had a power of leasing («•), and let the lands accordingly, reserving rent periodically, his executors had no right to a proportion of the rent, in the event of his decease between two c^uarter days ; and, as rent is not due till midnight of the day on which it is made payable, if the tenant for life had died even on the quarter day, but before midnight, his executors lost the quarter's rent, which went to the person next entitled (x) . But by a modern act of parliament (?/), 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 act, however, did not apply unless the . demise were made by an instrument in writing [z). (m) Stat. 11 Geo. II. c. 19, s. 22, s. 2; lock v. De Bimjh, 4 De 15, explained by stat. 4 & 5 Gex & Smale, 470 ; Plummcr v. Will. IV. c. 22, s. 1. See Ex Whiteleij, Johnson, 585 ; Llewel- parte Smyth, 1 Swanst. 337, and hjn v. Eous, M. R., Law Rep., 2 the learned editor's note. Eq. 27 ; 35 Beav. 591. (ii-) See /?os<,PartII. Chap. III., (r) See Catthtj v. Arnold, as to a power of leasing. V.-C. W., 5 Jur., N. S. 361 ; 7 {x) Norris v. Harrison, 2 Mad. W. Hep. 245 ; 1 Johns. & Hem. 268. 651; Mills y. Tmmjjcr, L. R., 4 (//) Stat. 4 &' 5 Will. TV. c. Ch. 320. OF AN ESTATE FOR LIFE. 31 But the Apportionment Act, 1870 (a), now provides (b), Apportion- that after the passing of that act, which took place on "y^i^ ^ ' the 1st of August, 1870, all rents and other periodical payments 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 (c) tenants for life. Draining. and some other persons having limited interests, were empowered 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 [d). And if, in the opinion of the Court, such improvements would have been beneficial to all persons interested (c), the money expended in making such improvements, or in obtain- ing the authority of the Court, was to be charged on the inheritance of the lands, with interest at such rate as should have been agreed on, not exceeding five per cent, per annum, payable half-yearly (/ ) ; 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 num- ber {g). And under the provisions of more recent acts Government advances for (a) Stat. 33 & 34 Vict. c. 35 ; same purpose, stat. 3 & 4 Vict, draining. Hasluck v. Pedley, M. K., L. R., c. 55. 19 Eq. 271 ; Constable v. Con- (d) Sect. 3. stable, 11 Ch. D. 681. {e) Sects. 4, 5. (b) Sect. 2. (/) Sect. 8. (c) Stat. 8 & 9 Vict. c. 56, (y) Sect. 9. repealing a prior act for the 32 OF COlirOREAL HEREDITAMENTS. of parliament {//), called the Putlic Money Drainage Acts, tenants for life and other 0"s\Tiers of land may ob- tain advances from government for works of drainage, which may he completed within five years (?) ; such advances to be repaid by a rent-charge on the land, after the rate of 6/. 10s, rent-charge for every 100/. advanced, and to be payable for the term of twenty- Private two years (/.•) . By another act of parliament called the Drainage Private Money Drainage Act, 1849 (/), the owner of Act, 1849, ^j^y Iq;^^ Jq Great Britain or Ireland was empowered to borrow or advance money for the improvement 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 now repealed, a rent-charge, for the term of twenty-two years. This Improvement act, however, is now repealed by the Improvement of 1864?^ ^ ' Land Act, 1864 {m), which gives a very wide definition to the phrase " improvement of land," and contains pro- visions for facilitating the raising of money by way of rent- charge for that purpose. 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 (n). These loans are under the superintendence of the Inclosure Commissioners 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 (o). The Improvement of Land Act, 1864, contains provi- sions, amongst other things, for charging settled lands {!,) Stat. 9 & 10 Vict. c. 101, s. 34. explained and amended by stats. {I) Stat. 12 & 13 Vict. c. 100, 10 & 11 Vict. c. 11, 11 & 12 amended by stat. 19 & 20 Vict. Vict. c. 119, 13 & 14 Vict. c. 31, c. 9. and 19 & 20 Vict. c. 9. {m) Stat. 27 & 28 Vict. c. 114. (i) Stat. 10 & 11 Vict. c. 11, («) Sect. 26. 8. 7. (o) Stat. 19 & 20 Vict. c. 9, (A) Stat. 9 &J0 Vict. c. 101, s. 10. OF AN ESTATE FOR IJFE. 33 witli money subscribed for the construction of railways Railwaj's or or navigable canals upon or near to the lands, and which *^'"''' ^' will improve or benefit them (y^). An act, styled the Limited "LimitedOwners'ResidencesAct,1870, Amendment Act, denccs Act, 1871"(.7), now provides (;•) that the following shall bo l^J^l^^^^'''''^' improvements within the meaning of the Improvement of 1871. Land Act, 1864, namely, the erection of a mansion-house and such other usual and necessary buildings, outhouses and offices as are commonly appurtenant thereto and held and enjoyed therewith, and the completion of any mansion-house and such appurtenances as aforesaid, and the improvement of and addition to any mansion-house and such appurtenances as aforesaid already erected, and the improvement of and addition to any house which is capable of being converted into a mansion-house suit- able to the estate on which the same stands, so as such improvement and addition be of a permanent nature ; provided that every such mansion-house so erected or enlarged or converted is suitable to the estate on which it stands as a residence for the owner of such estate (s) . 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 (t). An act which bears the title of "The , Limited Owners' Eeservoirs and Water Supply Further Facilities Act, 1877" {u), adds the erection of reservoirs Eeservoirs and other works of a permanent character for the supply g^^ppuf*^'^ of water to the list of improvements authorized by the Improvement of Land Act, 1864 (x). In all other ' other im- I>rovements. (p) Stat. 27 & 28 Vict.c. 114, other lands in the neighboiu'hood 88. 78 et seq. of the same settled to the same {q) Stat. 31 & 35 Vict. c. 81. uses. {}■) Sect. 3. {() Stat. 33 & 3-i Vict. c. 5G, (»■) The term "estate" in this s. 4. section includes all lands upon (;<) Stat. 40 tS: 41 Vict. c. 31. ■which any of such improvements (j) Stat. 27 Sz 28 Vict. c. 114. is proposed to be made, and any R.P. D 34 OF CORPOREAL HEREDITAMENTS. respects, improvements which a tenant for life may wish to make nmst be paid for out of his o-«ti pocket ( ij) . Conveyance. , Tenants for life under wills are empowered by recent acts of parliament, to convey in certain cases, under the direction of the Chancery Division of the High Court, 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 lands is required for the pay- ment of the debts of the testator iz). These powers, however, are given to the tenant for life for the sake of making a 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 conveyance and transfer of real and personal property Sale of settled vested in mortgagees and trustees [a) . More recently, however, an act was passed, to which we have already referred (i), to facilitate leases and sales of settled estates (c). This act, and the acts by which it was amended, have now been repealed, amended and con- solidated by the Settled Estates Act, 1877 [d). Under this act, if the Chancery Division of the High Court should deem it proper and consistent with a duo regard {y) Nairn v. Marjoribanls, 3 («) Stat. 13 & 14 Vict. c. GO, Russ. 582 ; Hibbert v. CooJce, 1 s. 29. Sim. & Stu. 552 ; Caldecott v. {b) Ante, p. 27. Brown, 2 Hare, 144; Horloclc x. [c] Stat. 19 & 20 Vict. c. 120, Smith, 17 Beav. 572; Dunnes. amcuded by stats. 21 & 22 Vict. Dunne, 7 De Gex, M. & a. 207 ; c. 77, 27 & 28 Vict. c. 45, 37 & Dent V. Dent, 30 Beav. 363. 38 Vict. c. 33, and 39 & 40 Vict. (z) Stats. 11 Geo. IV. & 1 c. 30. Will. IV. c. 47, s. 12; 2 & 3 (r7) Stat. 40 & 41 Vict. c. 18. Vict. c. GO. OF AN ESTATE FOR LIFE. 3 -J for the interest of all pai-ties 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 purposes, namely, the redemption of the land tax, or of any in- cumbrance affecting the hereditaments sold or any other hereditaments settled in the same way, or the purchase of other hereditaments to be settled in the same manner, or in the payment to any person becoming absolutely entitled (e) . And the money is in the meantime to be invested in some or one of the investments in which cash under the control of the Court is for the time being authorized to be invested, and the interest or dividends paid to the tenant for life (/). But the powers of the act are not to be exercised if an express declaration that they shall not be exercised is contained in the settlement (g). The following new provision is contained in the Settled Estates Act, 1877, and is very important to tenants for life and other owners of limited estates. The Court is empowered (//), if it shall deem it proper Costs of pro- and consistent with a due regard for the interests of all protccfion'^of parties who are or may hereafter be entitled under the estate may settlement, and subject to the provisions and restrictions thereon? contained in the act, to sanction any action, defence, petition to Parliament, parliamentary opposition, or other proceedings appearing to the Court necessary for the jjrotection of any settled estate, and to order that all or any part of the costs and expenses in relation thereto be raised and paid by means of a sale or mort- gage of or charge upon all or any part of the settled estate, or out of the rents and profits thereof, or out of any monies or investments representing monies liable {e) Stat. 40 & 4 iVift. 0.18,3.34. (.<•/) Sect. 38. (/) Sect. 36. {/>) Sect. IT. d2 36 OF CORPOREAL HEREDITAMENTS. to be laid out in the purcliase of hereditaments to be settled in the same manner as the settled estate, or out of the income of such monies or investments, or out of any accumulations of rents, profits or income. Tenants for life, who have taken legal proceedings, by bringing or defending actions, for the protection of the estates comprised in their settlement, have obtained orders from the Court that the cost of such proceedings might be defrayed out of the proceeds of sale of part of the settled estates, irrespective of the provisions of the Settled Estates Act, 1877 (/). 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. (i) Re Earl Be la Warr's Estates, IG Ch. D. 587. ( 37 ) CIIArTEK II. OF AN ESTATE TAIL. The next estate we shall notice is an estate tail, or an Estate tail, estate given to a man and the heirs of his lody. 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, his estate, if left alone, will then determine. An estate General or tail may be either general, that is, to the heirs of his ^P^cial. 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, when 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 his issue by the wife specified. Estates tail may be also in tail male, or in Male or 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 {a) . 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, U, 15, 16, 21 ; 2 Black. Com. 113, 114. 38 OF CORPOREAL HEREDITAMENTS. Donee in tail, ' The c^Tier of an estate tail is called a 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, fi'om the person for or towards whom it is done. The owner of an estate tail is also called a tenant in 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 An estate tail has any issue of the kind mentioned in the gift. It is consequently an estate of freehold. We shall now pro- ceed to give a short history of this estate ; in doing which it will he necessary to advert to the origin and progress of the general right of alienation of lands. Tenant in tail. is a freehold. Feudal tenancies be- come here- ditary. It will readily be supposed that a mere system of life estates, continually granted by feudal lords to their tenants, would not long continue ; the son of the tenant would naturally be the first person who would hope to succeed to his father's tenancy : accordingly we 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 (6) ; 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 («) Wright's Tenui-es, IS. (V) 2 Black. Com. 221. {(T) 1 Reeves's Hist. Eng. Law, lOS. OF AN ESTATE TAIL. w9 succeed as heii's; so that an estate which had Locn f^ranted to a man and his heirs descended, on his decease, not only to his offspring, but also, in default of offspring, to his. other relations in a defined order of succession. Hence if 'it were wished to confine the inheritance to the offspring of the donee, it became necessary to limit the estate expressly to him and the To the donee heirs of his body (e), making what was then called a orhis Lodv^" condiJional gift, by reason of the condition implied in a conditioTiul the donation, that if the donee died without such parti- ^''^^*- cular heirs, or in case of the failure of such heirs at any future time, the land should revert to the donor (/"). 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 well an estate granted to a man and his heirs, as an estate confined to the heirs of the body of the grantee. In whichever method the estate might have been Two other granted, it is evident that, besides the tenant, there 1.^^^^ j''* Ih**^' were two other parties interested in the lands ; one, expectant the person who was the expectant heir of the tenant, iord.'° 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 who 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 parties. Let us, therefore, consider, in the first {e) Bracton, lib. 2, cap. 6, fol. 290 b, n. (1), V. 1. 17 b; cap. 19, fol. 47 a ; Co. Litt. (/) 2 Black. Com. 110. 40 OF CORPOREAL HEREDITAMENTS. 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. Right of alienation as against tlio heir. Frank -mar- riage. The right of an ancestor to defeat the expectation of his heir was not fully established at the time of Henry II. For it appears from the treatise of Glan- ■vdlle, written in that reign {g), that a larger right of alienation was possessed over 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 (h) ; so that if lands had been given to a man and Ms heirs generally, he was able to disappoint the expectation of his collateral heirs, but he could 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 (?). Such gifts as these were, however, as we shall presently see, almost the only kinds of aliena- tion, in ancient times, which occasioned 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, when lands were given to a daughter on her marriage, the daughter and her husband, or the donees in franli-marriage^ as they were called, held the lands granted, to them and the heirs of their two bodies free from all manner of service to the donor or his heirs (a mere oath of fealty or fidelity excepted), until the fourth degree of cou- {(j) 1 Reeves's Hist. Eng. Law, 223. (/() Ibid. 105. (0 Glanville, lib. 7, c. 1 ; 1 Reeves's Hist. 104. OF AN ESTATE TAIL. 41 sangiiiuity from the donor was passed (/.) ; and wlien lands were given to religious uses, the grantees in fraiika/moigi), as they were called, were for ever free Frankal- froni every kind of earthly or temporal service (/). ° Little or nothing, therefore, in these cases, remained . for the heir of the grantor. But the other modes of Other modes alienation which then prevailed were very different in ° ^ ^^°^ ^^^' their results, as well from such gifts as above described, as from the ordinary sales of landed property which occur in modern times. Eeady money was then ex- tremely scarce ; large fortunes, acquired by commercial enterprise, were not then expended in the purchase of country seats. The auction mart was not then esta- bHshed ; 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 services or rents to be from time to time performed or paid. This method was, in feudal language, termed subinfeudation. Subinfeuda- 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 ser^dces [m) ; and when no particular service was reserved, it was understood that the grantee held of the grantor, subject to the same services as the grantor {k) Litt. sects. 17, 19, 20. questions mentioned in Glanvillc (/) Ibid. sect. 135. (lib. 7, c. 1) as to the descent of (;«) All the forms of feoffments lands which had been p-rauted by given in Madox's Fomiulare 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 subin- almoign, and was afterwards con- feudation. Mr. Reeves's observa- firmed by the son of the grantor tion (1 Hist. Eng. Law, 106, n. (see title, Confirmation, No. 119) ; (;») ), that the reservation of ser- and No. 325 appears to have been vices was most commonhj made to a family transaction between a the feoffor, appears to be scarcely father and his son. Tlie curious strong enough. 42 OF CORPOREAL HEREDITAMENTS. the ancestor over the ex- pectations of his heirs becomes absolute. held of his superior lord (/?). 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 The poorer of to the heir as might at first be supposed : and this cir- cumstance may perhaps help to account for that which at any rate is an undoubted fact, that the power of an ancestor to destroy the expectation of his heirs, whether 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 ih.Q heirs of his hody, 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 A^'hich 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 (o). 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 heu's 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 hody, the power of the ancestor is not now so complete. The means by whicli this right of aliena- (/() Perkins's Profitable Book, Beets. 529, G53. (o) Bracton, lib. 2, cap. G, fol. 17 a. Niliil acquirit ex donatione facta antecessor!, quia cum dona- torio non est feoffatus. OF AN ESTATE TATT,. 43 tion was in this ease cm-tailed will appear iu the j account wo shall now give of the origin and progress of I the right of alienation as it affected the interest of the | lord. ' 1 The interest of the lord was evidently of two kinds ; Alienation as his interest in the rent and services during the con- Interests' of tinuance of the tenancy, and his chance or possibility the lord. oF again obtaining the land on failure of the heirs of his tenant. On tlio former of these interests, the in- Interest of road of alienation appears to have been first made, ^j^^ °^^^ !^^^| The tenants, by taking upon themselves to make grants services first 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 (7;), that no freeman should give or sell any more of his land than so as what remained might be sufficient to answer the ser- xdces he owed to his lord. The original services reserved on any conveyance were, however, always a charge on the land while in the hands of the under-tenants, and could be distrained for by the lord [q); although the enforcement of such services was doubtless rendered less easy by the division of the lands into various ownerships. The infringement on the lord's interest, expectant on Infringement the failure of the heirs of his tenant, appears to have interests ex- been the last step in the iDroffress of alienation. As the pectant on . . . failure of advantages of a free power of disposition became ajopa- heirs. rent, a new form of grant came into general use. The lands were given, not only to the tenant and his heirs, but to him and his heirs, or to uhomsoevcr he might wish to give or assign the land (r), or with other words expressly conferring on the tenant the power of aliena- tion (s) . In this case, if the tenant granted, or underlet [p) Chap. 32. (v) Madox's Fomiulare Angli- [q) Perkins's Profitable Book, caniun, Preliminary Dissertation, sect. 674. p. 5. The tendency towards the (*■) Bract, lib. 2, c. G, fol. 17 b. alienation of lands was perhaps 44 OF CORPOllEAh HERKDITAMENTS. as it were, part of his land, then, on his decsase 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- ipied had he or they been living (f). 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 J ^^^- place (;f). Grrants of land 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, Thefactof the in whatever form the grant were made, the fact of the an expectant existence of an expectant heir enabled the tenant to heir enables alienate, not only as against his heirs, but also as against alienate. the lord. If therefore lands were given to a man and his heirs, he could at once dispose of them (.r) ; and if lands were granted to a man and the heirs of his body, he could at once dispose of them as against the heu-s of his body. And he was able, the moment he had issue born — that is, the moment he had an expectant heir of the kind mentioned in the gift — to alienate the lands as against the lord also ; 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 fostered by the spirit of crusading; see 1 Watkins on Copyholds, pp. 149, 150. (i) Bract, ubi sup. («) See stat. 4 Edw. I. c. 6. {x) Perk. sect. 667—670; Co. Litt. 43 a. If a tenant of a con- ditional fee had a right of aliena- tion on having issue born, surely a tenant in fee simple must have had at least an equal right. See however Co. Litt. 43 a, n. (2) ; Wright's Tenures, 155, note. (y) Fitzherbert'sAbr.titleFor- medon, 62, 65; Britton, 93b, 94 a; Plowd. Comm. 246 ; 2 Inst. 333 ; Co. Litt. 19 a ; Year Book, 43 Edw. III. 3 a, pi. 13; Earl of OF AN ESTATE TAIL. 45 of sucli gifts was therefore in a great measure defeated ; originally, on failure of the issue the lands reverted to the donor ; hut 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- croachments, it was enacted in the reign of Edw, I. by the famous statute De_Donis Conditionalibus {a), — and Statute De 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 olBserved; 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. Since the passing of this statute, an estate given to Fee tail. 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 fee {feudum) anciently meant any estate feudally held of another person {h) ; iStafford v. Buckhi/, 2 Vcs. sen. also the Statute of Westminster 171. the Second. (-) Ante, p. 39. (i) Bracton, lih. 4, fol. 2G3 b, (ff) Stat. i:'. FAvr. I. c. 1, called par. G ; Selden, Tit. of Honoui-, 4G OF CORPOREAL HEREDITAMENTS. but its meaning is now confined to estates of inherit- ance, — that is, to estates which may descend to heirs ; so that Sifee may now be said to mean an inheritance (c). The word tail is derived from the French word talller, to cut, the inheritance being, by the statute Dc Bonis, cut down and confined to the heirs of the body strictly (r/) ; 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. Inconvenience When the statute began to operate, the inconvenience tails. " of the strict entails, created under its authority, became ■^ 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 encom-aged, as estates tail I were not liable to forfeiture longer than for the tenant's life ie) . The nobility, however, • would not consent to a repeal, which was many times attempted by the com- mons (/), and for about two hundred years the statute remained in force. At length the power of alienation was once more introduced, by means of a quiet decision of the judges, in a case which occurred in the twelfth Taitaruni's year of the reign of King Edward IV. {(j). In this destroyed. casc, called Tultanim^s case, the destruction of an entail was accomplished by judicial proceedings collusively taken against a tenant in tail for the recovery of the lands entailed. Such proceedings were not at that period quite unknown to the English law, for the monks part 2, c. 1, s. 23, p. 332 ; Wright's 187 ; 2 Black. Cum. 112. Tenures, p. 5. (t) 2 Black. Com. IIG. ((') Litt. 8. 1; Co.Litt. 1 b, 2a; (/) Cruise on Recoveries. Wriylit's Tenures, I). 149. {(j) Talinrniii's case, Yenr Book, {d) Litt. H. 18 ; Co. Litt. 181), 12 Edv,-. IV. 19. 327 a, n. (2) ; Wri-ht's T.nuns, '^«.. - OF AN ESTATE TAIL. 47 liad previously hit upon a similar device, for tlie pur- pose of evading the Statutes of Mortmain, by which ^ open conveyances of lands to their religious houses had been prohibited ; and this device they had practised with considerable success till restrained by act of par- liament {//). In the case of which Ave 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 oiformc- doii (i), so called because they claimed ^;er /o;7/mw doni, rormedon. 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, though without any of its reality. The tenant in tail, A recovery 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 icarrautcd the title ; and accordingly begged that he might defend the Warranty 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 e(iual value from the defaulter, (A) Statute of Westminster the Black. Com. 271. Second, 13 Edw. I. c. 32 ; 2 (/) Litt. ss. 088, 600. 48 OF CORPOREAL HEREDITAMENTS. who had thus cruelly failed in defending his title {k). 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 bui'den 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 barred of their right, but the donor, who had made the grant, and to whom the lands were to revert on failure The reversion of issue, had his reversion barred at the same time {m) . So also all estates which the donor might have given to other persons, expectant on the decease of the tenant in tail without issue, (and which estates are called re- maindcrs expectant on the estate tail,) were equally 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. Entail barred. barred. And remain- ders. 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 at first was questionable; and proceedings on {k) Co. Litt. 061 b; 2 Black. Com. 358. (0 2 Black. Com. 300. {m) 2 Black. Com. 3G0 ; Criiiso on Recoveries, 258. OF AN ESTATE TAIL. 40 the principlo of those above related, under the name of Common re- suffering common recoveries, maintained tlicir ground ^°^^^'^^' and long continued in common use as the undoubted privilege of every tenant in tail. The right to suffer a common recovery was considered as the inseparable incident of an estate tail, and every attempt to restrain this right was held void (») . Complex, however, as - the proceedings above related may appear, t he o rdi- 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 whojvas called the tenant to {hQ pr(eci2)e or writ (o). Tenant to the The proceedings then took place in the Court of Com- P'^*''^?®* mon Pleas, which had an exclusive jurisdiction in all real actions. A regular writ was issued against the i tenant to the jv'^cipe by another person, called the d eman dant ; the tenant in tail was then required by Demandant, the tenant to the prcecipe to warrant his title according to a supposed engagement for that purpose ; this was . called vouching the tenant in tail to warranty. The Vouching to 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 (n) Mary rortington''s case, 10 to the tenant to the prtecipe ap- Rep. 36 ; Co. Litt. 224 a ; Feame peared to be executed before the on Contingent Remainders, 260 ; end of the term in which the re- 2 Black. Com. 116; Daivkins t. covery was suffered, 1 Prest, Con. Lord renrhyii, 6 Ch. D. 318 ; 4 61 et seq. ; Ooodright d. Burton App. Cas. 51. V. Rigby, 5 T. Rep. 177. Reco- (o) By stat. 14 Geo. II. c. 20, veries, being in form judicial pro - commonly called Mr . Pigott' s Act, ceedinga, could only be suffered in it was sufficient if the conveyance term time. R.P. E 50 OF CORPOREAL HEREDITAMENTS. dii'ected to the slieriff to put tlie demandant into pos- session ( j?)) . The proceedings, as may be supposed, necessarily passed through numerous hands, so that < mistakes were not unfrequently made, and great ex- pense was always incurred (q). To remedy this evil, an act of parliament {r) was accordingly passed in the year 1833, on the recommendation of the commissioners Recoveries on the law of real property. This act, which in the wisdom of its design, and the skill of its execution, is '^ quite a model of legislative reform, a bolish ed 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 in- rolled in the Chancery Division of the High Court of Justice (.9) : by such a deed, a tenant in tail in posses- sion 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 A fine. remainders and reversion. This assurance was a fine. Fines were in t/ionsclres, though not in their operation on estates tail, of far higher antiquity than common recoveries {f). They were not, like recoveries, actions (/>) Cruiseon Recoveries, ch. 1, (s) The inrolment must be with - p. 12. in six calendar months after the (7) See 1st Report of Real Pro- exccutiOT, sect. 41. See sect. 74. perty Commissioners, 25. Disentailing deeds may be in- {>■) " An act for the abolition roUed in the Enrolment Depart- of fines and recoveries and for the ment of the Central Ofiice of the substitution of more simple modes High Court of Justice. Rules of of assurance." Stat. 3 & 4 Will. the Supreme Court, April, 1880, IV. c. 74, drau-n by Mr. Brodie; r. 4G (Ord. LXa, r. C) ; see r. 48 1 Hayes's Conveyancing, 155. (Ord. LXa, r. 8). (t) Cruise on Fines, chap. 1. OF AN ESTATE TAIL. 61 at law carried out tliroiigli every stage of the process ; but were fi ctitious 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 («). They were called fines from their having anciently put an end, as well to the pretended suit, as to all claims not made within a year and a day afterwards {x) , a summary method of ending all dis- putes, grounded on the solemnity and publicity of the proceedings as taking place in open court. This power of barring future claims was taken from fines in the reign of Edward III. (?/) ; but it was again restored, with an extension however of the time of claim to five years, by statutes of Eichard III. (;:) and Henry VII. («) ; by which statutes also provision was made for the open proclamation of all fines several times in court, during which proclamation all pleas were to cease ; and in Proclama- order that a fine might operate as a bar after non-claim for five years, it was necessary that it should be levied, as\ it was said, with proclamations. But, now, by a statute ' of the present reign {h), all fines heretofore levied in the Court of Common Pleas shall be conclusively deemed to have been levied with proclamations, and shall have the force and efi^ect of fines with proclamations. A judicial construction of the statute of Henry YII. (c), ' quite apart, as it should seem, from its real intention (d), (u) 2 Black. Com. 348. time to come." (.r) Stat. 18 Edw. I. stat. 4; {:) 1 Rich. III. c. 7. 2 Black. Com. 349, 354 ; Co. Lift. {a) 4 Heu. VII. c. 24 ; .see also 121 a, n. (1). Stat. 31 EUz. c. 2. (y) Stat. 34 Edw. III. c. 16, a (i) Stat. 11 & 12 Vict. c. 70. curious specimen of the concise- (c) Bro. Abr. tit. Fine, pi. 1 ; ness of ancient acts of iDarliament. Dyer, 3a; Cruise on Fines, 173. This is the whole of it : " Also it (rl) 4 Reeves's Hist. Eng. Law, is accorded, that the plea of non- 135, 138; 1 Hallam's Const. Hist, claim of fines, which from hence- 14, 17. The deep designs attri- forth shall be levied, shall not be buted by Blackstone (2 Black, taken or holden for any bar in Com. 118, 354) and some others e2 62 OF CORPOREAL HEREDITAMENTS. Fines abolished. Settlements. gave to a fine by a tenant in tail the force of a bar to bis issue after non-claim by tbem for five years after the fine ; and this construction was confirmed by a statute of the reign of Henry YIII., which made the bar im- mediate (e). Since this time the effect of fines in bar- ring an entail, so far as the issue were concerned, remained unquestioned till their abolition ; which took place at the same time, and by the same act of parlia- ment (/), as the abolition of common recoveries. A deed inrolled in the Chancery Division of the High Court {g) has now been substituted, as well for a fine, as for a common recovery. Although strict and continuous entails have long been virtually abolished, their remembrance seems still to linger in many country places, where the notion of Iieir land, that must perpetually descend from father to son, is still to be met with. It is needless to say that such a notion is quite incorrect. In families where the estates are kept up from one generation to another, settlements are made every few years for this purpose ; thus in the event of a marriage, a life estate merely is given to the husband ; the wife has an allowance for pin-money during the marriage, and a rent- charge or annuity by way of jointure for her life, in case she should survive her husband. Subject to this jointure, and to the payment of such sums as may be agreed on for the portions of the daughters and younger sons of the marriage, the eldest sen u-lio may he horn of the marriage is made by the settlement tenant in tail. In case of his decease without issue, it is provided that the second son, and then the third, should in like manner be tenant in tail : and so on to the others ; and in de- to Henry VII. in procuring the passing of this statute, are shown by the above writers to have most probably had no existence. [e) 32 Hen. VIII. <■. 36. (/) 3 & 4 Will. IV. c. 74. (f/) See note (s) to p. .00, ante. OF AN ESTATE TAIL. 53 fault of sons, the estate is usually given to the daughters. By this means the estate is tied up till some tenant in tail attains the age of twenty-one years; when he is able, with the consent of the father, who is tenant for life, to bar the entail with all the remainders. Dominion is thus again acquired over the property, which dominion is usually exercised in a re-settlement on the next generation ; and thus the property is pre- served in the family. Primogeniture, therefore, as it Primogeni- obtains among the landed gentry of England, is a ciistoDi only, and not a right; though there can be no doubt that the custom has originated in the right, which was enjoyed by the eldest son, as heir to his father, in those days when estates tail could not be barred. Pri- mogeniture, as a custom, has been the subject of much remark {h). Where family honours or family estates are to be preserved, some such device appears necessary. But, in other cases, strict settlements of the kind re- ferred to seem fitted rather to maintain the posthumous pride of present owners, than the welfare of futui-e generations. The policy of the law is now in favour of the free disposition of all kinds of property ; and as it allows estates tail to be barred, so it will not permit the object of an entail to be accomplished by other means, any further than can be done by giving estates to the unborn children of Iiri)i(/ persons. Thus an estate | given to the children of an unborn child would be abso- ' lutely void {i) . The desire of individuals to keep up A perpetuity, their name and memory has often been opposed to this rule of law, and many shifts and devices have from time to time been tried to keep up a perpetual entail, or (/() See 2 Adam Smith' 8 "Wealth de Bentham, par Dumont, torn, of Nations, 181, M'Culloch'sedi- 1, p. 307. tion ; and M'Culloch's n. xix., (() Hai/ v. Earl of Coventry, 3 vol. 4, p. 441. See also Traites T. Rep. 86; BrudenellY. Ehvcs, 1 de Legislation Civile et Pcnale, East, 452, ouvrago cxtrait des Manuscrits 54 OF CORPOREAL HEREDITAMENTS. sometliing that might answer the same end (j). But such contrivances have invariably been defeated ; and no plan can be now adopted bj which lands can with J certainty be tied up, or fixed as to their future desti- I nation, for a longer period than the lives of existing ' persons and a term of twenty-one years after their decease (A-). "When the estate tail is preceded by a life interest. The concur- rence of the first tenant for life re- quired. Whenever an estate tail is not an estate in posses- sion, but is preceded by a life interest to be enjoyed by some other person prior to the possession of the lands 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, together with the reversion, could only be barred by a recovery, it was absolutely necessary that the first I tenant for life, who had the possession of the lands, should concur in the proceedings ; for no recovery could be suiiered, unless on a feigned action brought against the feudal holder of the possession (/). 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 {ni). When (J) See Fearne's Contingent Remainders, 253 et seq. ; Main- xvariiig v. Baxter, 5 Ves. 458. (A) Fearne's Contingent Re- mainders, 430 et seq. The period of gestation is also included, if gestation exist ; C'adell v. Falmcr, 7 Bligh, N. S. 202. {I) Ciiiise on Recoveries, 21. See however stat. 14 Geo. I£. c. 20. {m) See First Report of Real Property Commissioners, p. 32. OF AN ESTATK TAIL. 55 recoveries were aLolislied, the consent formerly ro- quirecl was accordingly still preserved, with some little niodiiication. The act abolishing recoveries has esta- Llished the office of protector, which almost alwaj'-s Protector, exists during the continuance of such estates under the settlement as may precede an estate tail. And the His consent consent of tlie protector is required to be given, either {^ar'ro- by the same deed by which the entail is barred, or by mainders and a separate deed, to be executed on or before the day of the execution of the former, and to be also inrolled in the Chancery Division of the High Court at or pre- viously to the time of the inrolment of the deed which bars the entail (//). Without such consent the remain- ders and reversion cannot be barred (o). In ordinary cases the protector is the first tenant for life under the settlement, in analogy to the old law(;;) ; but a power is given by the act, to any person entailing lands, to ' appoint, in the place of the tenant for life, any number of persons, not exceeding three, to be together protector of the settlement during the continuance of the pre- ceding estates {q) ; 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 to his own discretion [r). If^he should refuse to consent, the tenant The issue in tail may still bar his own issue ; as he might have b!u?[^ed\-ith- done before the act by levying a fine ; but he cannot bar ^^\ protec- estates in remainder or reversion. The consequence of such a limited bar is, that the tenant acquires a dis- posable estate in the land for so long as he has any («) Stat. 3 & 4 WiU. IV. c. 74, 1880, r. 4G (Ord. LXa, r. C) ; ss. 42—47. Such a deed may be see r. 48 (Ord. LXa, r. 8). inrolled in the Enrolment De- (o) Sects. 34, 35. partment of the Central Office of {p) Sect. 22. the High Court of Justice ; Rules {q) Sect. 32. of the Supremo Court, April, (r) Sects. 36, 37. 56 OF CORPOREAL HEREDITAMENTS. Base fee. Estate tail iu possession. Life estate under prior deed or will. I 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. This is called a base fee. 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 protector (s), and the tenant iu tail may, at any time by deed duly inrolled, bar the entail, remainders, and reversion at his own pleasure, ^nd where a previous estate for life exists, it does not confer the office of pro- tector, unless it be created by the same settlement which created the estate tail ; so that a tenant in tail in re- mainder expectant on an estate for life, created by some prior deed or will, may bar the entail, remainders and reversion, without the consent of the tenant for life under such prior deed or will (i^). reward of public ser vices. Estates tail The abovc-mentioned right of a tenant in tail to crown as tiie ^^^ ^^6 entail is subject to a few exceptions ; which, though of not very frequent occurrence, it may be as 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 YIII. (»), and it has been con- tinued by the act by which fines and recoveries were abolished (.r), and by the Settled Estates Act, 1877 {y), 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 particular acts of parlia- ment, and cannot be barred. (»•) See Sugd. Vend. & Pur. 593, llthed. [t) Berrinf/ton v. Scott, Exch. 18 January, 1875; 32L. T.,N. S. 125. in) Stat. 34 & 35 Hen. VIII. c. 20; Cruise on RecoTeries, 318. {x) Stat. 3 & 4 Will. IV. c. 74, s. 18 ; I)uke of Grafton'' s case, 5 New Cases, 27. ill) Stat. 40 & 41 Vict. c. 18, s. 55, OF AN ESTATE TAIL 57 Again, an estate tail cannot bo barred by any person Tenant in tail wlio is tcncoit ill tail after possibi/iti/ of imie extinct. biiity'oTissue This can only happen whore a person is tenant in extinct. special tail. For instance, if an estate be given to a f V 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 extinct (;:) ; 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 {a). Tenants in tail after possibility of issue extinct were prohibited from suffering common recoveries by a statute of the reign of Elizabeth {h), and a similar prohibition is contained in the Act for the Abolition of Fines and Recoveries (c) . But, as we have before remarked (rf), tenancies in special tail are not now common. In modern times, when it is intended to make a provision for the 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 (e), it was not lawful to give any estate directly to an unborn child. 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- ■{z) Litt. sects. 32, 33 ; 2 Black. (i) 14 EHz. c. 8. Com. 124. (c) 3 & 4 Will. IV. c. 74, s. 18. (a) Litt. sect. 34 ; Co. Litt. (d) Ante, p. 37. 40a ; 2 Black. Com. 125 ; Jee v. (e) See the Chapter on a Con- AucUeij, 1 Cox, 324. tingent Remainder. 58 OF CORPOREAL HEREDITAMENTS. Tenant in tail bands, or lands given by any of bis ancestors. After cxprovt.wite ^-^^ decease of the husband, a woman so tenant in tail ex provisioiie riri was prohibited by an old statute (/) from suffering a recovery without the assent, recorded or inroUed, 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 {(j). 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. t^^ An estate tail cannot be barred by ■will oi' con- tract, n '\ >~i^. It is important to observe that an estate tail can only be barred by an actual conveyance by deed, duly in- rolled according to the act of parliament by which a deed was substituted for a common recovery or fine (70 • Thus every attempt by a tenant in tail to leave the lands entailed by his will (/), and every contract to sell them, not completed in his lifetime by the proper bar (y), 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. Timber. Leases. A tenant in tail may cut down timber for his own benefit, and commit what waste he pleases, without the necessity of barring the entail for that purpose (A*). A tenant in tail was moreover empowered by a statute (/) 11 Hen. VII. c. 20. \g) Stat. 32 Hen. YIII. c. 30, B. 2. (A) Peacock v. FMstland, M. E,., L. R., 10 Eq. 17. (i) Cro. Eliz. 805; Co. Litt. Ill n: stnt. 3 & 4 Will. IV. c. 74. 8. 40. {j) Bac. Abr. tit. Estate in Tail(D); stat. 3 & 4 Will. IV. c. 74, s. 40. (A) Co. Litt. 224 a ; 2 Black. Com. Ho. OF AN ESTATE TAIL. 69 of Henry VIII. (/) 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 (/;/), 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 (;i). The_Act forNcwenact- the Abolition of Fines and Recoveries now empowers 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 anytime not exceeding twelve calendar months from the date of the lease, where a rent shall be thereby reserved, which, at the time of granting such lease, shall be a rack-rent, or not less than five- sixth parts of a rack-rent (o). It has been observed that, in ancient times, estates Forfeiture for tail were not subject to forfeiture for high treason be- yond the life of the tenant in tail (7;). This privilege they were deprived of by an act of parliament joassed '' in the reign of Henry YIII. [q)^ by which all estates of inheritance (under which general words estates tail were covertly included) were declared to be forfeited to (I) Stat. 32 Hen. VIII. c. 28 ; b. 35. Co. Litt. 44 a ; Bac. Abr. tit. {0) Stat. 3 & 4 Will. IV. c. 74, Leases and Terms for Years es. 15, 40, 41. (D) 2. ( /;) Ante, p. 46. (w) Co. Litt. 45 b ; 2 Black. (q) 26 Hen. VIII. c. 13, s. 5 ; Com. 319. see also 5 & 6 Edw. VI. c. 11, (») Stnt. 19 & 20 Vict. c. 120, «. 9. 60 OF COIirOREAL HEREDITAMENTS. Xcw enact- ment. Attainder. Debts to the crown. Judgment debts. the king upon any conviction of higli treason {r). But the act " to abolish forfeitures for treason and felony and to otherwise amend the law relating thereto" {s) now provides (t), 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 formani doni (ii) ; 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. (x), estates tail are charged, in the hands of the heii', with debts due from his ancestor to the crown, by judgment, recognizance, obligation, or other specialty, although the //cir 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 statute of the reign of Elizabeth {>/), 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 (z) . By an act passed at the com- mencement of Her present Majesty's reign debts, for the payment of which any judgment, decree, order or rule 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 {a). But a more recent statute has enacted (r) 2 Black. Com. 118. (s) Stat. 33 & 34 Vict. c. 23. (0 Sect. 1. (m) 3 Rep. 10; 8 Rep. 165 b; Cro. Eliz. 28. (x) Stat. 33 Hen. VIII. c. 39, 8. 75. (y) Stat. 13 Eliz. c. 4 ; and sec 14 Eliz. c. 7 ; 25 Geo. III. c. 35. (z) Com. Dig. Estates (B) 22. (a) Stat. 1 & 2 Vict. c. 110, 88. 13, 18. OF AN ESTATE TAIL. CI that no sucli judgment, decree, order or rule to Lo 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 (b). An estate tail may Baukruptcy. also he 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 {c). In addition to the liabilities above mentioned are the Husband and rights which the marriage of a tenant in tail confers on 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 duo 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 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. If an estate pur autre vie should be given to a per- Quasi entail. son and the heirs of his body, a qnaai entail, as it is called, will be created, and the estate will descend, during its continuance, in the same manner as an ordi- nary estate tail. But the owner of such an estate in possession may bar his issue, and all remainders, by an ordinary deed of conveyance (c?), without any inrol- ment under the statute for the abolition of fines and {h) Stat. 27 & 28 Vict. c. 112, s. 25, sub-section (4). 88. 1, 2. {d) Feame, Cont. Eem. 495 et {c) Stat. 3 & 4 Will. rV. c. 74, seq. ss. 5G— 73 ; 32 & 33 Vict. c. 71, 62 OF CORPOREAL HEREDITAMENTS. recoveries. If the estate tail be in remainder expectant on an estate for life, the concurrence of the tenant for life is necessary to enable the tenant in tail to defeat the subsequent remainders (e). (c) Allen y. Allen, 2 Dm. & Champion, 3 De Gex, M. & G-. War. 307, 324, 332 ; Edirarch v. 202, ( 0-3 ) alienation. CHAPTER III. OF AN ESTATE IX FEE SIMPLE. An estate in fee simple (fciidnm siinp/cx) is the greatest estate or interest which the law of England allows any person to possess in landed property [a) . A tenant in jTenant in fee fee simple is he that holds lands or tenements to him 'him^and hia and 7iis heirs [b) ; so that the estate is descendible, not ^^^^^'> merely to the heirs of /lis bod//, but to collateral rsla-! 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, ^^^^^ ° or in tail (c) . It is not, however, the mere descent of an estate in iRight of fee simple to collateral heirs, that has given to this estate its present value and importance : the unfettered right of alienation, which is now inseparably incident to this estate, is by far its most valuable quality. This right has been of gradual growth : for, as we have seen {d), 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 lord, who, when he gave to the ancestor, gave also to his heirs. In process of time, however, the ancestor acquired, as we have already seen {r), the right, first, of disappointing the expectations of his heir, and then of defeating the interests of his lord. The alienations, («) Litt. s. 11. {d) Ante, pp. 18, 19. (A) Litt. B. 1. (e) Ante, pp. 40—45. (c) Ante, pp. 23, 38. 64 OF CORPOREAL HEREDITAMENTS. Part of any lands could not anciently be granted to hold of the superior lord. Subinf euda • tion disad- vantageous to the superior lords. by wliicli 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 of the whole, to be holden of the superior lord. It was impossible to make a grant of part of the lands to be holden of the superior lord without his consent ; for 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 his own immediate tenants. The barons at the time of Edward I. accordingly, perceiving that, by the 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 (h). 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 (/) Co. Litt. 43 a. (ff) Such as marriage and wardship, to be hereafter ex- plained. See Bract, lib. ii. c. 19, par. 2. [h) By the stat. De Bonis, 13 Edw. I. c. 1, ante, p. 45. OF AN ESTATE IN FEE SIMPLE. 65 the same time obtained, for their tenants, facility of alienation of parts of their lands, to be holden 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 eniptorcs (/) ; ^"'^ emptores. so called from the words with 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 theml before. And it further enacts (/»•), that, if he sell any part of such his lands or tenements to any person, the feoifee 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 (/). 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 was 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 few other favoured places, formed exceptions to the general restraint on the power of testamentary alienation of (0 Stat. 18 Edw. I. c. 1. (»0 Wright's Tenures, 172; (k) Chap. 2. Co. Litt. Ill b, n. (1). (/) Wright's Tenures, 162. K.P. F or CORPOREAL HEREDITAMENTS. estates in fee simple («) ; for in tliese places tenements might be devised by will, in yirtue of a special custom. In process of time, liowever, a metbod 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 (o). This indirect mode of devising lands was intentionally restrained by the operation of a statute, passed in the reign of King Henry YIII. (7)), 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 expressly rendered devisable by will. This great change in the law was effected by statutes of the 32nd and 34th of Henry YIII. (•) Bystat. 12 Car. II. c. 24. intituled ''An Act concerning («) 2 .Black. Com. 104. See Uses and Wills." liowever 3 Black. Com. 224, OF AN ESTATE IN FEE SIMPLE. 67 of nominating an lieir to succeed to tlie 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 ]^^^°^^**^ ^ Deus Jiceredem facere potest, non homo if) ; 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 («). With respect to certain persons, exceptions occur to Excepted per- the riglit of alienation. Before the Naturalization Act, 1870 {v), if an alien or foreigner, under no allegiance to Alien. 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 (y). 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 (r/), except to defeat the prior right of the crown, where the correct ticcount is (.r) Litt. s. 198. given. \>j) Stat. 7 & 8 Yict. c. 66, s. 5. {t) 1 Eeevcs's Hist. Eng. Law, {£) Co. Litt. 2 b, 42 b; 1 Black. 105; Co. Litt. 191a, n. (l),vi. 3. Com. 371, 372; 2 Black. Com. («) Sogaii V. Jaclcson, Cowp. 249, 274, 293. 305; Co. Litt. 191 a, n. (1), vi. 10. («) Shep. Touch. 232; 4 Leo. {r) Stat. 33 Vict, c, 14. f2 68 OF CORPOREAl. HEREDITAMENTS. wliicli would have still continued. No person is con- sidered an alien who is born within the dominions of the crown, even though such person may be the child of an alien, unless such alien should be the subject of Calvin's case, a hostile prince {h). And in Calvinh 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 {d) ; 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 {c) ; and more recently, the children of a . natural -born mother, though born abroad, were rendered capable of taking any real or personal estate (/). 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 natm-al-born subject {g). And by a statute of the reign of William the Third all the king's natural-born subjects were enabled to trace ' their title by descent through their alien ancestors {h). 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 (/), or may be naturalized by act of parliament. But the Naturaliza- [b] 1 Black. Com. 373 ; Bacon's H. of L. Cas. 535 ; Fitch v. Weber, Abr. tit. Aliens (A). 6 Hare. 51. W 7 Rep. 1. (/) Stat. 7 & 8 Vict. c. 66, [d) 7 Rep. 18 a. s. 3. \e) Stats. 25 Edw. III. stat. 2; (y) Sect. 16. 7 Anne, c. 5 ; 4 Geo. II. c. 21 ; {h) Stat. 11 & 12 WiU. III. c, 13 Geo. III. c. 21 ; Doe dem. 6, explained by stat. 25 Geo. II. Diiroure v. Jones, 4 T. Rep. 300; c. 39. Shedden v. Patrick, 1 Macqueen's {i) 1 Black. Com. 374. OF A^' ESTATE IN FEE SIMFLE. 69 tion Act, 1870 (j), now provides (Z-) that real and The Natural- personal property of every description may be taken, \fjQ°^ ^°*' 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 l every description may be derived through, from or in ( succession to an alien in the same manner in all respects j 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, years, and also idiots and lunatics, though they may lunatics^ hold lands, are incapacitated from making a binding disposition of any estate in them. The conveyances of infants are generally voidable only (/), 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 (w?). But by a recent act of parlia-, Infants' mar- ment {n), every infant, not under twenty if a male, and 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 Chancery Division of the Highi Court. If, however, any disentailing assurance shalr have been executed by an infant tenant in tail under the provisions of the act, and such infant shall after- {j) Stat. 33 Vict. c. U, passed 307, 338. 12tli May, 1870, amended by (;;;) Yates v. Boen, 2 Strange, stats. 33 & 34 Vict. c. 102, and 1104; Sugd. Pow. 604, 8th ed. ; 35 & 36 Vict. c. 39. This statute Bac. Abr. tit. Idiots and Lunatics is not retrospective. Sharp v. (F) ; Stats. 7 & 8 Vict. c. 76, s. 7; St. Sanvcur, L. E., 7 Ch. Ap. 8 & 9 Vict. c. 106, s. 4. 343. (w) Stat. 18 & 19 Vict. c. 43, {k) 33 Vict. c. 14, s. 2. extended to the Court of Chan- [l) 2 Black. Com. 291 ; Bac. eery in Ireland by stat. 23 & 24 Abr. tit. Infancy and Age (I 3) ; Vict. c. 83 ; Ee Balion, 6 De Gex, Zouch V. Parsons, 3 Burr. 1794 ; Mac. & Gor. 201. Allen V. Allen, 2 Dru. & War. riage settle- ments. 70 OF CORPOREAL HEREDITAMENTS. ■wards die under age, siicli disentailing assurance shall thereupon become absolutely void (o). Under certain circumstances, also, for the sake of making a title to lands, infants have been empowered, by modern acts of parliament, to make conveyances of fee simple and other estates, under the direction of the Chancery Division of the High Court {p). 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 {q). Power is also given to the Chancery '•■ Division of the High Court in the case of infants (>'), and to the Lord Chancellor or either of the Lords Justices (.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 simj)le 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 Supreme of mortgage. The Supreme Court of Judicature Act, Judicature 1875 (m), provides that any jimsdiction usually vested Act, 1875. in the Lords Justices of Appeal in Chancery, or either of them, in relation to the jiersons and estates of idiots, ') lunatics and persons of unsound mind shall be exer- cised by such judge or judges of the High Coui-t of Justice or Court of Appeal as may be intrusted by the (o) Stat. 18 & 19 Vict. c. 43, This act has been amended by s. 2. Stat. 18 & 19 Vict. c. 13, and (p) See stats. 11 Geo. IV. «S: 1 extended by stat. 25 & 26 Vict. Wm. IV. c. 47, s. 11 ; 11 Geo. c. 8G. IV. & 1 wm. IV. c. 65, ss. 12, (/•) "The Trustee Act, 1850," 16, 31 ; 2 & 3 Vict. c. 60; 11 & stat. 13 & 14 Vict. c. 60, ss. 12 Vict. c. 87. 7, 8. {q) See stat. 16 & 17 Vict. c. (*) Stat. 30 & 31 Vict. c. 87, 70, 8. 108 et seq., repealing and s. 13. consolidating stats. 11 Geo. IV. (0 Stats. 13 & 14 Vict. c. 60, & 1 Will. IV. c. 65, and 15 & 16 ss. 3, 4 ; 15 & 16 Vict. c. 55, Vict. c. 48, and other acts, so far s. 11. as they relate to idiots and {a) Stat. 38 & 39 Vict. c. 77, lunatics in England and Wales. s. 7. OF AN ESTATE IN FEE SIMPLE. 71 Uueen's sign manual with the care and commitment of the custody of such persons and estates. Married women are. under a limited incapacity to Married alienate, as will hereafter appear. And before the ^™'^f^- abolition of forfeitm-e for treason and felony (v) persons 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, ofwhom their estates were holden (vr) . There are certain objects, also, in respect of which Excepted the alienation of lands is restricted. In the reign of ^ ^^^ ^' 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 °** f'<^ '^ 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 such lands or hereditaments, or money or per- sonal estate (other than stock in the public funds) be conveyed 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 audi death, and inrolled in the High Court of Chancery (y) within six calendar months next after the execution 1 {v) By Stat. 33 & 34 Vict. c. 23, (.r) Stat. 9 Geo. II. c. 36. passed 4th July, 1870. {>/) Such a deed may now be {w) Co. Litt. 42 b ; 2 Black. inrolled in the Enrolment Depart- Com. 290 ; Perkins, tit. Grant, mcut of the Central Office of the sect. 26 ; Com. Dig. tit. Capacity High Court of Justice ; Rules of (D) 6 ; 2 Shep. Touch. 232 ; Doe the Supreme Court, April, 1880, d. Griffith v. Fritchard, 5 Barn. & Eule 46 (Order LXa, r. 6) ; see Adol. 765. Rule 48 (Order LXa, r. 8), 72 OF CORPOREAL HEREDITAMENTS. thereof; and unless sucli stock be transferred six calendar months at least before tbe 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 {z) . 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 such conveyance or transfer, without fraud or collu- sion («) . And all gifts, conveyances and settlements for any charitable uses whatsoever made in any other manner or form than by that act is directed, are declared to be absolutely and to all intents and purposes null and void {b). Grifts to either of the two Universities, or any of their colleges, or to the college of Eton, Winchester or Westminster, for the support and main- tenance of the scholars only upon those foundations, are excepted (c). 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 2oth July, 1828 {d), the title to lands then already purchased for valuable consideration for charitable purposes is rendered valid, notwithstanding (r) Stat. 9 Geo. II. c. 36, s. 1. (c) Sect. 4. W Sect. 2. {d) Stat. 9 Geo. IV. c. 85. (b) Sect. 3. OF AN ESTATE IN FEE SIMPEE. 73 the want of an indenture duly attested and inrollcd; but the aot is retrospective merely (e). * The stringency of the provisions in the Mortmain Act has often been felt to be unnecessarily great, especially with regard to that part of 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 (/), which was passed on the 17th of New enact- May, 1861, provides that no assurance for charitable ^^^ ^' uses shall bo void by reason of the deed or assui'ance 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 Reservations // 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 ' {e) Stat. 9 Geo. IV. c. 85, s. 3. Roman Catholic Charities by an (/) Stat. 24 Yict. c. 9. Provi- act of the previous session, stat. bions were made with respect to 23 & 24 Vict. c. 134. 74 OF CORPOREAL HEREDITAMENTS. payment, reserved or made payable to tlie 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 Separate deed for himself (^z). The act further provides, that in all 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 inroUed : but it will be void, unless such separate deed be inroUed in the Chancery Division of the High Court within six calendar months next after the making or perfecting of the deed for conveyance {//). ' yof trust. Remarks on the act. This act, it will be observed, provided only for the reservation of a noitiiiial rent, except in the case of an assurance made bona fide on a sale for a full and valu- able consideration ; so that a gift of land to a charity, reserving a pecuniary rent or rent-charge to the grantor, would still have been 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 con- sideration 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 cer- tainly nothing in the former one, to preserve such a (g) Stat. 24 Vict. c. 9, s. 1. (h) Stat. 24 Vict. c. 9, s. 2. Such a deed may now be inrolled in the Enrohnent Department of the Central Office of the High Court of Justice ; Rules of the Supreme Court, April, 1880, Rule 46 (Order LXa, r. 6); see Rule 4 8 (Order LXa, r. 8). OF AN ESTATE IN FEE SIMPLE, 75 conveyance from becoming void by the decease of the vendor within twelve calendar months from the date of the deed. This oversight in the act has been provided i for by a more recent statute (/), which enacts that New enact- every full and bona fide valuable consideration which "^®°*' . ,, shall consist either wholly or partly of a rent or otlier ^ *^ annual payment reserved or made payable to the vendor or grantor, or to any other person, shall, for the pur- poses of the Mortmain Act, be as valid and have the^; same force and effect as if such consideration had beenl a sum of money actually paid at or before the making ' . of such conveyance without fraud or collusion. ' With regard to deeds and assurances already made As to deeds it has been provided by another act (y), that all money. \l^^ y maic really and bona fide expended before the IGth of May, in improve- 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 has also been provided (A-), that every deed or assur- ance by which 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- -^vitiiiu 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 iises, that if made bona fide for a full and valuable consideration, actually paid at or before the making of such deed or (0 Stat. 27 Vict. c. 13, s. 4. (/•) Stat. 2G & 27 Vict. c. lOG. (./) Stat. 25 Vict. c. 17, s. 5. 76 OF CORPOREAL HERED1TA.ME^'TS. 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 he void within the Mortmain Act, if it was made to take effect in possession for the charitable uses intended immediately from the making thereof, and without any power of revocation, and has been inroUed 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 inroUed, 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, 1866 {m). Where the original deed creating any charitable trust has been lost, the Chancery Divi- sion of the High Court is empowered to authorize the im'olment in its stead of any subsequent deed by which the trusts may sufficiently appear {n) . And power is now given to the clerk of inrolments in Chancery for the time being to inrol any conveyance for charitable uses, if he 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 pay- ment, or partly paid and partly reserved as aforesaid, without fraud or collusion, and that at the time of the application to the said clerk possession or enjoyment is held under such instrument, and that the omission to inrol the same in proper time has arisen from ignorance or inadvertence, or from the destruction thereof by time Land already or accident (o) . When land has been already devoted Where original deed lost. Power to inrol. in mortmain. (0 stats. 24 Vict. c. 9, s. 3 ; 27 Vict. c. 13, s. 1. (;w) Stats. 24 Vict. c. 9, s. 4 ; 27 Vict. c. 13, ss. 1, 2. (h) Stat. 27 Vict. c. 13, s. 3. (o) Stat. 35 & 36 Vict. c. 24, 8. 13, which now supersedes stat. 29 & 30 Vict. c. 57, by which OF AN ESTATE IN FEE SIMPLE. 77 to cliaritable purposes, the conveyance thereof to other trustees, or to another charity, does not fall within the purview of the Mortmain Act, and accordingly requires no special attestation or inrolment (^). The acknow- ledgment of deeds prior to inrolment in the Chancery Division of the High Court is now abolished {q) . All endowed charities are now placed under the control of the Charity Commissioners for England and Wales (r). Endowed schools were for a time placed under the care of certain commissioners, called the Endowed School Commissioners (s). But all their powers and duties are now transferred to and imposed on the Charity Commissioners {t) . An official trustee of charity lands has been appointed, in whom may be vested, by order of the Chancery Division of the High Court or of any judge having jurisdiction, any charity lands whenever the trustees do not or will 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 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 {u). But it is now provided that where the trustees of a charity have power to determine on any disposition of any property of the charity, a ma- jority, who are present at a meeting of their body duly constituted and vote on the question, shall have, and be The Charity Commis- Eudowecl schools. Official trustee. Majority of charity trus- tees present at a meeting may convey. power to authorize inrolments in these cases was given to the Court of Chancery. [p) Walker v. Bichardson, 2 Mees. & Wels. 882 ; Attorney- General V. Glyn, 12 Sim. 8-i ; AshtoHY. Jones, 28 Beav. 460. {q) Stat. 31 & 32 Vict. c. 41, 8. 3. (r) Stat. 16 & 17 Vict. c. 137, amended by stats. 18 & 19 Vict. u. 124, and 23 & 24 Vict. c. 136, explained by stat. 25 & 26 Vict, c. 112, and amended by stat. 32 & 33 Vict. c. 110. (.s) Stat. 32 & 33 Vict. c. .56, amended by stat. 36 & 37 Vict, c. 87. (/) Stat. 37 & 38 Vict. c. 87. {h) Stats. 16 & 17 Vict. c. 137, s. 48; 18 & 19 Vict. c. 124, s. 1.3. 78 OF CORPOREAL HEREDITAMENTS. deemed to have always liad, full power to execute and do all such assurances, acts and things as may be requi- site for carrying any such disposition into effect ; and all such assurances, acts and things shall have the same effect as if they were respectively executed and done by all such trustees and by the official trustee of charity lands (.r). Sites for schools. Literary and scientific in- stitutions. Play- grounds. Sites for places of TTorship and biu'ial. Further ex- ception in An important exception to the Mortmain Act has been introduced by acts of parliament passed to afford further facilities for the conveyance and endowment of sites for schools (//), by which one witness only is rendered sufficient for such a conveyance (:;), and the death of the donor or grantor within twelve calendar months from the execution of the deed will not render it void {a). But by these acts the necessity of inrol- ment does not appear to have been dispensed with (b). 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- vision has been made for the conveyance of sites for literary and scientific and other similar institutions (c) ; for faciHtating grants of land for the recreation of adults, and as play-grounds for children {d) ; and also to afford fmiher facilities for the conveyance of land for sites for places of religious v/orship and for burial places {e) . A further important inroad upon the Mort- main Act has also been made by an act (/), which (:r) Stat. 32 & 33 Vict. c. 110, s. 12, repealing stat. 23 & 24 Vict. e. 136, s. 16. (//) Stat. 4 & Vict. c. -38, ex- plained hystat. 7 & 8 Vict. c. 37; extended and further explained by stat. 12 & 13 Vict. c. 49, amended by stat. 14 & 15 Vict. c. 24 ; and extended by stat. 15 & 16 Vict. c. 49. (--) Stat. 4 & 5 Vict. c. 38, s. 10. (a) Stat. 7 & 8 Vict. c. 37, s. 3. {!>) See stat. 4 & 5 Vict. c. 38, s. 16. (r) Stat. 17 & 18 Vict. c. 112. {d) Stat. 22 Vict. c. 27. ((') Stat. 36 & 37 Vict. c. 50. (/) Stat. 31 & 32 Vict. c. 44, passed 13th .July, 1868. OF AN ESTATE IN FEE SIMPLE. 79 provides that all alienations, except by will, bona fide favour of made after the passing of that act to a trustee or puI.po°es, trustees on behalf of any society or body of persons education, . . arts litera- associated together for religious purposes, or for the turc, sciouoe, 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 section of the act 24 Yict. 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 afore- said, 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 dis- position may at any time be inroUed in the Chancery Division of the High Court if thought fit (//). And by Public Park?, a more recent statute all gifts and assurances of land of jiugeumr" any tenure, by deed, or by will or codicil, for the pur- Act, isii. poses only of a public park, a school-house for an ele- mentary school, or a public museum, are rendered valid notwithstanding the Statutes of Mortmain (/). But every such will or codicil, and every such deed made otherwise than for full and valuable consideration, must be made twelve calendar months at least before the death of the testator or grantor, and must be inrolled in the books of the charity commissioners within six calendar months next after the time when the same {g) Ante, p. 74. the High Court of Justice; Rules {h) Stat. 31 & 32 Vict. c. 44, of the Supreme Court, April, s. 2. Such a deed may now be 1880, Rule 4G (Order LXa, r. 6) ; inrolled in the Enrolment De- see Rule 48 (Order LXa, r. 8). partment of the Central Office of (0 Stat. 34 Vict. c. 13, 8. 4. 80 OF CORPOREAL HEREDITAMENTS. sliall come iuto operation (J). But the act does not authorize any gift by will or codicil of more than twenty acres of land for any one public park, or of more than two acres of land for any one public museum, or of more than one acre of land for any one school-house (/.•). Corporation. Incorporated charities. 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 (/). For, this alienation to a body having perpetual existence was an injuiy to the lord, who was then entitled to many advantages, to be here- after detailed, so long as the estate was in j^i'ivate hands ; but in the hands of a corporation these advan- tages ceased. In modern 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 (m). And it is now provided 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 received by way of equality of exchange or partition, in the pur- chase 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 mortmain (u). It is further provided (o), that all corporations 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 con- sistent with the trusts on which such monies are held, without being deemed thereby to have acquired or {j) Stat. 34 Vict. c. 13, s. 5. {k) Sect. 6. (/) 2 Black. Com. 209. {>h) Stat. 7 & 8 Wm. III. c. 37. («) Stat. 18 & 19 Vict. c. 124, s. 3.j. (o) Stat. 33 & 34 Vict. c. 34. OF AN ESTATE IN FEE SIMPLE. 81 become possessed of any land withm tlie 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. Provision has been Incorporation 1,1 1 p ii • !• n J. j_ p 1 •/' of trustees of lately made tor the mcorporation oi trustees oi chanties certain for religious, educational, literary, scientific and public chanties, charitable purposes by means of a certificate of registra- tion of the trustees as a corporate body, to be granted by the Charity Commissioners of England and Wales, with power to hold and convey lands in the same manner as the trustees might do without such incorpo- ration {p). Every joint-stock company registered under Joint-stock the Joint-Stock Companies Acts {q) has also power to ^o"^P^^^^- hold lands (r) ; but no company formed for the pur- pose of promoting art, science, religion, charity or any other like object, not involving the acquisition of gain by the company or by the individual members thereof, shall, without the sanction of 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 condi- tions as they think fit (s) . By a statute of the reign of Elizabeth, conveyances Conveyances •^ ™ 1 1 p ii ^^^ defraud - of landed estates, and also of goods, made lor the pur- ^^g creditors, pose of delaying, hindering or defraudmg creditors, (ij) Stat. 35 & 36 Vict. c. 24. Vict. c. 89, and amended by stat. [q] Stat. 19 & 20 Vict. c. 47, 30 & 31 Vict. c. 131. amended by stats. 20 & 21 Vict. (r) Stat. 25 & 26 Vict. c. 89, c. 14, and 21 & 22 Vict. c. 60, and s. 18. now consolidated by stat. 25 & 20 (b) Sect. 21. R.P. G 82 OF CORPOEEAL HEREDITAMENTS. are void as against them ; unless made upon good^ wliich here means ra/uahk, consideration, and bond fide, to any person not having, at the time of the con- Voluntary veyance, any notice of such fraud (f). And, by a sub- or^wkh au^' Sequent statute of the same reign and the judicial in- clause of re- terpretatiou of the words thereof, voluntary convey- vocation, void '- • -, ■, as against ances of any estate m lands, tenements, or other here- pui-chasers. clitaments whatsoever, and conveyances of such estates 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 {ii). 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 property to any purchaser ; and the pui'chaser, even though he have full notice of the settlement, will hold the lands without danger of interruption from the per- sons on whom they had been previously settled {x). But if the settlement be founded on any valuable con- sideration, such as that of an intended marriage, it can- not be defeated (?/). The methods by which a tenant in fee simple can alienate his estate in his lifetime will be reserved for 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 (s), grant leases of any length, and charge the lands with {t) Stat. 13 Elk. c. 5 ; Ticyne's p. Soi. case, 3 Eep. 81a; 1 Smith's {x) Upton v. Bassett, Cro. EKz. Leading Cases, 1 ; Spencer v. 444 ; 3 Eep. 83 a ; Sugd. Vend. Slater, 4 Q. B. D. 13. & Pur. 586, 13tli ed.; Sugd. Pow., (») Stat. 27 Eliz. c. 4, made ch. 14, 8th ed. perpetual by 39 Eliz. c. 18, s. 31. (y) Colr'ile v. Parl-er, Cro. Jac. See 2 Dart's V. & P. 889, 890, 158; Sugd. Potv., ch. 14, 8th ed. 5th ed., and the cases there (r) 3 Black. Com. 223. cited ; 'Williams on Settlements, OF AN ESTATE IN FEE SIMPLE. 83 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 volun- tary alienation, been established by very slow degrees («). 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 {h). But the spirit of feudalism, which attained 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 (c). On this footing the law of England long continued. It allowed Heirs miglit any person, by any deed or writing under seal (called bound by a special contract or specialty) to bind or charge his specialty, heirs, as well as himself, with the payment of any debt, or the fulfilment of any contract : in such a case the heir was liable, on the decease of his ancestor, to pay the debt or fulfil the contract, to the value of the lands which had descended to him from the ancestor, but not further {d). The lands so descended were called assets Assets. by descent, from the Frenh word asse~, enough, be- cause the heir was bound only so far as he had lands descended to him enough or sufficient to answer the («) See Co. Litt. 191 a, n. (1), count of the reasons for it, will vi. 9. be found in Bac. Abr. tit. Heir {h) Glanville, lib. vii. c. 8 ; and Ancestor (F). Bract. 61 a; 1 Reeves's Hist. Eng. (c) Britt. 64 b. Law, 813. These authorities ap- {d) Bac. Abr. tit. Heir and pear to be express ; the contrary Ancestor (F) ; Co. Litt. 376 b. doctrine, however, with an ac- g2 OF CORPOREAL HEREDITAMENTS. debt or contract of his ancestor (e) . If, however, the heir was not expressly named in such l3ond or contract, he was under no liabihty(/). When the power of testamentary alienation was granted, a debtor, who had thus bound his heirs, became enabled to defeat his creditor, by devising his estate by his will to some other person than his heir; and, in this case, neither heir nor devisee was under any liability to the cre- ditor {(/) . Some debtors, however, impelled by a sense of justice to their creditors, left their lands to trustees in trust to sell them for the payment of their debts, or, which amounts to the same thing, charged their lands, by their wills, with the payment of their debts. The creditors then obtained pajTuent by the bounty of their debtor; and the Court of Chancery, in distri- buting this bounty, thought that " equahty was equity," and consequently allowed creditors by simple contract to participate equally with those who had obtained bonds binding the heirs of the deceased (h). In such a case the lands were called equitable assets. At length an act of William and Mary made void all devises by will, as against creditors by specialty in which the heirs were bound, but not further or other- wise (/) ; but devises or disjDOsitions of any lands or hereditaments for the payment of any real and just debt or debts were exempted from the operation of the statute (A-). Creditors, however, who had no specialty (e) 2 Black. Com. 2-14 ; Bac. to the terms thereof, operate in Abr. tit. Heir and Ancestor (1). law to bind the heirs and real (/) Dyer, 271 a, pi. 25; Plow. estate, as if heirs were expressed. 457. By the Conveyancing and (y) Bac. Abr. ubi sup. Law of Property Act, 1881, stat. (h) Parker v. Dee, 2 Cha. Cas. 44 & 45 Vict. c. 41, s. 59, a 201; Bailei/ v. Mhis, 7 Vea. 319; covenant, and a contract under 2 Jarm. Wills, 618, 4th ed. seal, and a bond or obligation (i) Stat. 3 Will. & Mary, c. 14, under seal, made after the 31st s. 2, made perpetual by stat. 6 & December, 1881, though not ex- 7 Will. III. c. 14. pressed to bind the heirs, shall, (A) Stat. 3 Will. & Mary, c. 14, so far as a contraiy intention is s. 4. not expressed therein and subject OF AN ESTATE IN FEE SIMPLE. 85 binding tlie heirs of their debtor, still remained without remedy against either heir or devisee ; unless the debtor chose of his own accord to charge his lands by his will with the payment of his debts; in which case, as we have seen, all creditors were equally entitled to the benefit. So that, till within the last few years, a land- owner might incur as many debts as he pleased, and yet leave behind him an unencumbered estate in fee simple, unless his creditors had taken proceedings in his lifetime, or he had entered into any bond or specialty binding his heirs. At length, in 1807, the fee simple Debts of de- estates of deceased traders were rendered liable to the traders payment, not only of debts in which their heirs were bound, but also of their simple contract debts (/), or debts arising in ordinary business. By a subsequent statute [m), the above enactments were consolidated and amended, and facilities were afforded for the sale of such estates of deceased persons as were liable by law, orby their own wills, to the payment of their debts. But, notwithstanding the efforts of a Eomilly were exerted to extend so just a liability, the lands of all deceased persons, not traders at the time of their death, continued exempt from their debts by simple contract, till the year 1833 ; when a provision, which, but a few years before, had been strenuously opposed, was passed without the least difficulty (;;). All estates in fee In 1833 lands simple, which the owner should not' by his will have jed^X^lT " charged with, or devised subject to, the payment of his debts. debts, were then rendered liable to be administered in the Court of Chancery, for the payment of all the just debts of the deceased owner, as well debts due on simple contract as on specialty. But, out of respect to the ancient law, the act provided that all creditors by special contract, in which the heirs were bound, should (0 By Stat. 47 Geo. III. c. 74. {n) Stat. 3 & 4 Will. IV. c. [m) Stat. 11 Geo. IV. & 1 WiU. 104. ~ IV. c. 47. ^ 86 OF CORPOREAL HEREDITAMENTS. Former eflPoct of a charge of debts by will. All creditors now 8tand in equal degree. Estate of de- ceased insol- vent to be be paid tlie full amount of the debts due to them before any of the creditors by simple contract, or by specialty in which the heirs were not bound, should be paid any part of their demands. If, however, the debtor should by his last ^vill have charged his lands with, or demised them subject to, the payment of his debts, such charge was still valid, and every creditor, of whatever kind, had an equal right to participate in the produce. Hence arose this curious result, that a person who had in- curred debts, both by simple contract, and by specialty in which he had bound his heirs, might, by merely charging his lands with the payment of his debts, place all his creditors on a level, so far as they might have occasion to resort to such lands; thus depriving the creditors by specialty of that priority to which they would otherwise have been entitled (o). This anomaly has now been remedied by an act which j)royides that, in the administration of the estate of any person who shall die on or after the 1st of January, 1870, no debt or liability of such person shall be entitled to any priority or preference by reason merely that the same is secured by or arises under a bond, deed or other instrument under seal, or is otherwise made or constituted a spe- cialty debt ; but all the creditors of such person, as well specialty as simple contract, shall be treated as standing in equal degree and be paid accordingly out of the assets of such deceased person, whether such assets are legal or equitable ; provided that the act shall not pre- judice or afEect any lien, charge or other security which any creditor may hold or be entitled to for the payment of his debtjj^ And a more recent act (q) further provides (r), that in the administration by the High (o) See the Author's Essay on Real Assets, p. 39. {p) Stat. 32 & 33 Vict. c. 46. {q) The Supreme Coiirt of Ju- dicature Act, 1875, stat. 38 & 39 Vict. c. 77. {>■) Sect. 10, repealing sect. 25, subsection (1), of the Supreme Court of Judicatm-e Act, 1873, stat. 36 & 37 Vict. c. 66. OF AN ESTATE IN FEE SIMPLE. 87 Court of Justice thereby established of the assets of any distributed as person who may die after the commencement of that ['^ bankruptoy , , T , by High. act(.s), and whose estate may prove to be insufficient Court of for the payment in full of his debts and liabilities, the '^''^*''=^- same rules shall prevail and be observed as to the re- spective rights of secured and unsecured creditors, and as to debts and liabilities proveable, and as to the valua- tion of annuities and future and contingent liabilities respectively, as may be in force for the time being under the law of bankruptcy with respect to the estates of persons adjudged bankrupt (/) ; and all persons who, in any such case, would be entitled to prove for and receive dividends out of the estate of any such deceased person, may come in under the decree or order for the administration of such estate, and make such claims against the same, as they may respectively be entitled to by virtue of that act. A creditor who has taken legal proceedings against Judgment his debtor, for the recovery of his debt, in the debtor's lifetime, and has obtained the judgment of a court of law in his favoui', has long had a great advantage over creditors who have waited till the debtor's decease. The first enactment which gave to such a creditor a remedy against the lands of his debtor was made in the reign of Edward I. {u), shortly before the passing of the statute of Quia Emptorcs (x), which sanctioned the full and free alienation of fee simple estates. By this /? enactment it is provided, that, when a debt is recovered 6r~ acknowledged in the King's Court, or damages awarded, it shall be thenceforth in the election of him that sueth for such debt or damages to have a writ of {s) Ist November, 1875. («) Stat. ISEdw.I. c. 18, called {t) See the chapter on Bank- the Statute of Westminster the ruptcy of Traders in the Author's Second. "Principles of the Law of Per- {x) Stat. 18 Edw. I. c. 1. sonal Property." 88 OF CORPOREAL HEREDITAMENTS. fieri facias unto the slieriff of the lands and goods, or that the sheriff deliver to him all the chattels of the debtor (saving only his oxen and beasts of his plough), and the one half of his land, until the debt be levied Writ of elegit, according to a reasonable price or extent. The writ issued by the court to the sheriff, under the authority of this statute, was called a writ of elegit ; so named, because it was stated in the writ that the creditor had elected {elegit) to pursue the remedy which the statute had thus provided for him ( y) . One moiety only of the land was allowed to be taken, because it was neces- sary, according to the feudal constitution of our law, that, whatever were the difficulties of the tenant, enough land should be left him to enable him to perform the services due to his lord (::). The statute, it will be ob- served, was passed prior to the time when the alienation of estates in fee simple was sanctioned by parliament ; and there can be no doubt, that long after the passing of this statute the vendors and purchasers of landed property held a far less important place in legal con- Constraction sideration than they do at present. This circumstance of the statute. < p ^i i j i i i ,- may account lor the somewhat harsh construction, which was soon placed on this statute, and which con- tinued to be appKed to it, until its replacement by an enlarged and amended act of modern date {a) . It was held, that, if at the time when the judgment of the com^t was given for the recovery of the debt, or award- ing the damages, the debtor had lands, but afterwards sold them, the creditor might still, under the writ with which the statute had furnished him, take a moiety of the lands out of the hands of the purchaser {h). It thus became important for all purchasers of lands to ascertain, that those from whom they purchased had no judgments against them. For, if any such existed, (y) Co. Litt. 289 b ; Bac. Abr. {a) Stat. 1 & 2 Vict. c. 110. tit. Execution (C 2). {h) Sir John Be Moleyn's case, {£) Wright's Tenures, 170. Year Book, 30 Edw. III. 24 a. or AN ESTATE IN FEE SIMPLE. 89 one moiety of the lands would still remain liable to be taken out of the hands of the purchaser to satisfy the judgment debt or damages. It was also held that if the debtor purchased lands after the date of the judg- ment, and then sold them again, even these lands would be liable, in the hands of the purchaser, to satisfy the claims of the creditors under the writ of elegit (c) . In consequence of the construction thus put upon the statute, judgment debts became incumbrances upon the title to every estate in fee simple, which it was necessary to discover and remove previously to every purchase. To facilitate purchasers and others in their Dockets, search for judgments, an alphabetical docket or index of judgments was provided by an act of William and Mary(f/), to be kept in each of the courts, open to public inspection and search. But, by an enactment of the present reign [e) these dockets have now been closed, Now closed, and the ancient statute is, with respect to purchasers, virtually repealed. The rights of judgment creditors to follow the lands Stat, i & 2 of their debtors in the hands of purchasers, were re- modelled by an act of parliament of the present reign, passed for the purpose of extending the remedies of creditors against the property of their debtors (/). The old statute extended to only one half of the lands The whole of of the debtor ; but, by this act, the whole of the lands, could be and all other hereditaments of the debtor, could betaken taken. under the writ of elegit (g). The power of the judgment creditor to take lands out of the hands of purchasers was (c) Srace v. Duchess of Marl- (e) Stat. 2 & 3 Vict. c. 11, borough, 2 P. Wms. 492 ; Sugd. ss. 1, 2. Vend. & Pur. 418, 13th ed. ; 3 (/) Stat. 1 & 2 Vict. c. 110, Prest. Abst. 323, 331, 332. amended by stats. 2 & 3 Vict. {d) Stat. 4 & 5 Wm. & Mary, c. 11 ; 3 & 4 Vict. c. 82 ; 18 & 19 c. 20, made perpetual by Stat. 7 & Vict. c. 15 ; and 23 & 24 Vict. 8 WiU. III. c. 36. c. 38. (y) Sect. 11. OF CORPOREAL HEREDITAMENTS. no longer left to depend on a forced construction, such as that applied to the old statute ; for this act expressly extended the remedy of the judgment creditor to lands of which the debtor should have been seised or possessed at the time of entering up the judgment, or at any time aftencards. But, as we shall presently see, this ex- tensive power has since been much curtailed. The judgment creditor was also expressly provided with a remedy in equity, that is, in the Court of Chancery, as well as at law (/-'). 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 Chancellor in matters of lunacy, for the payment to any person of any money or costs (/). But before pur- chasers, mortgagees, or creditors could be affected under the provisions of this act, the name, abode and descrip- tion of the debtor, with the amount of the debt, damages, costs or money recovered against him, or ordered by him to be paid, together with the date of registration, and other particulars, were required to be registered in an index which the act directed to be kept for the warning of purchasers, at the office of the Court of Common Pleas [k) . This registration was required to be repeated every five years (/) ; but the purchaser was bound if the judgment, decree, order, or rule were regis- tered within five years before the execution of the con- veyance to him, although more than five years should [It) 1 & 2 Vict. c. 110, s. 13. c. 83. As to entering satisfaction (() Sect. 18. See Jones v. Wil- on judgments, see stat. 23 & 24 7;(7W(s,llAd.&Ell. 157; SMees.fe Vict. c. 115, s. 2. "\Vels.349; 2)oev.^?He?/,8Mees.& {k) Stats. 1 & 2 Vict. c. 110, Wels. 565; Wellsx. 6^tiis, 3 Beav. s. 19 ; 2 & 3 Vict. c. 11, s. 3 ; 18 399 ; Duke of Beaufort V. Phillips, & 19 Vict. c. 15, s. 10; Sugd. 1 De Gex & Smale, 321. As Vend. & Pur. 423 et seq., 13th ed. to the Lords Justices, see stats. (/) Stat. 2 & 3 Vict. c. 11, s. 4, lO&llVict. c. 102; 14 & 15 Vict. OF AN ESTATE IN FEE SIMPLE. 91 have elapsed since the last previous registration {m). If, Notice imme- however, the judgment, &c., were not so registered, or *^"'^^' re-registered, the purchaser was not affected thereby, even though he should have had express notice of its existence {n) ; but the judgment creditor did not, by omitting to re-register, necessarily lose his priority, if once obtained, over subsequent judgments, though duly registered (o) . And, by a further enactment, it was Protection to provided, in favour of purchasers without notice of any ^^[ifo^r^^ such judgments, decrees, orders or rules, that none of notice. such judgments, &c., should bind or affect any lands, tenements, or hereditaments, or any interest therein, as against such purchasers without notice, further or other- wise, or more extensively in any respect, although duly registered, than a judgment of one of the superior courts would have bound such purchasers before the last-mentioned act, when it had been duly docketed according to the law then in force (p). More recently Further act. it was provided (q), that no judgment to be entered up after the 23rd of July, 1860, should affect any land as to a bona fide purchaser for valuable consideration, or a mortgagee (whether such purchaser or mortgagee had notice or not of such judgment), unless a writ or other due process of execution of such judgment should have been issued and registered, as provided by the act, before the execution of the conveyance or mortgage to him, and the payment of the purchase or mortgage money by him. And no such judgment, nor any writ of execution or other process thereon, was to affect any land as to a bona fide purchaser or mortgagee, although execution or other process should have issued thereon and have been duly registered, unless such execution or (;«) Stat. 18 & 19 Vict. c. 15, (^j) Stat. 2 «& 3 Vict. c. 11, s. 6. s. 6 ; lane v. Jachson, 20 Beav. (w) Stats. 3 & 4 Vict. c. 82, s. 2 ; 535. 18 & 19 Vict. c. 15, ss. 4, 5. (?) Stat. 23 & 24 Vict. c. 38, (o) BeavanY. The Earl of Oxford, s. 1. 6 De a., M. & G. 492. 92 OF CORPOREAL HEREDITAMENTS. ' other process should be executed and put in force within three calendar months from the time when it was regis- tered. A registry of writs of execution was also pro- vided {)•) ; but as the entry was required to be made in alphabetical order by the names of the persons in whose behalf the judgments were registered, and not by the names of the debtors, it was still necessary to search for judgments in the registry above referred to (s). New act, lien In the year ISGi an act was passed which has entirely abolishe^!^^ deprived all subsequent judgments of their lien on real estates (t). This act, which was passed on the 29th of July, 1864, provides that no judgment to be entered up after that date shall affect any land, of whatever tenure, until such land shall have been actually delivered in execution by virtue of a writ of ekgif, or other lawful authority, in pursuance of such judgment {u). In the construction of the act, the term " judgment "is to be taken to include registered decrees, orders of courts of equity and bankruptcy, and other orders having the operation of a judgment {x). Every wait, by virtue whereof any land shall have been actually delivered in execution, must be registered in the manner provided by the last-mentioned act (jj), 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 necessary for any purpose (s). Every creditor (r) Stat. 23 & 24 Vict. c. 38, Cli. D. 275; Ex parte Evans, 13 s. 2. Ch. D. 252. Is) Ante, p. 90. {x) Stat. 27 & 28 Vict. c. 112, [t) Stat. 27 & 28 Vict. c. 112. s. 2. («) Sect. 1 ; Guest v. Coivbrldge {y) Stat. 23 & 24 Vict. c. 38. Mail. Co.,Y.-C. a., 17 W. Rep. {£) Stat. 27 & 28 Vict. c. 112, 7 ; L. E., 6 Eq. 619 ; Thornton s. 3. By the Rules of the V. Fineh, 4 Griff. 515; Hatton v. Supreme Coiu't, AprU, 1880, Rule Saywood,'L.'R,.,%Gh..22Q; Wells 48 (Order LXa, Rule 8), the V. Eilpin, L. R., 18 Eq. 298 ; registrar of judgments shall, on Anglo-Italian BanJc v. Davies, 9 a request in writing giving suf&- OF AN ESTATE IN FEE SIMPLE. 93 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 Chancery Division of the High Court, upon petition in a summary way, an order for the sale of his Order for 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 {h). 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 bound by every such order for sale, and by all the proceedings consequent thereon (c). This act extends not only to Statutes and judgments, but also to statutes and recognizances, zancir" Statutes merchant and statutes staple, which are here referred to, are modes of securing money that have long been obsolete. Eecognizances are entered into before a cornet of record or a magistrate ; and, like judgments, they were a charge on lands until the passing of this act {d) . An act has been recently passed to render judgments obtained in England, Scotland and Ireland effectual in any other part of the United Kingdom (•) of the Commissioners of the Treasury were empowered, upon such terms as they might think proper, to certify by writing imder their hands, that any lands of any crown debtor, or accountant to the crown, should be held by the purchaser or mortgagee thereof discharged from all further claims of her Majesty, her heirs or successors, in respect of any debt or liability of the debtor or accountant to whom such lands belonged (s). And a similar power was more recently given to any two of the commissioners, or other principal officers, of any public department with respect to any crown bond or other security concerning or incident to any such de- partment ; or if there were only one such commissioner or officer then the power was vested in him {t) . To obviate the dangerous liability of purchasers to crown debts, an index was opened at the Common Pleas of the names of crown debtors ; and lands could not be charged, in the hands of purchasers, with these lia- bilities, unless the name, abode and description of the debtor, with other particulars, were inserted in the proper index. And from the 31st of December, 1859, the provisions already mentioned for the re-registry of judgments every five years were applied to crown debts ; and notice of any crown debt not duly re-regis- {p) Stat. 13Eliz. c. 4; 25 Geo. purchaser unless he had notice III. c. 35 ; Co. Litt. 191 a, n. (1), of them, Kmg\. Smith, Wightw. tI. 9. See also stats. 1 & 2 Geo. 34 ; Casberd v. Attorney-Gcneyal, TV. c. 121, s. 10 ; 2 & 3 Vict. 6 Price, 474. 0. 11, ss. 9, 10, 11 ; Sugd. Vend. (r) Stat. 12 & 13 Vict. c. 89. & Pur. 436, 13th ed. («) Stat. 2 & 3 Vict. c. 11, {q) Stat. 33 Hen. VIII. c. 39, s. 10. ss. 50, 75. But simple contract {t) Stats. 16 & 17 Vict. c. 107, debts due to the crown by the ss. 195— 197; 23 & 24 Vict. c. 115, vendor were not binding on the n. 1. 96 OF CORPOREAL HEREDITAMENTS. New enact ments. tered was rendered of no avail against a purcliaser {u). But now no debts or liabilities to the crown incurred after tbe 1st of November, 1865 {x), sball affect any land as to a bona fide purchaser for valuable considera- tion or a mortgagee, whether such purchaser or mort- gagee have or have not notice thereof, unless a writ or process of execution has been issued and registered before the execution of the conveyance or mortgage to such purchaser or mortgagee and the payment by him Eegistration. of the purchase or mortgage money (y). The registra- tion is effected as follows : — A minute of the name of the person against whom the writ or process is issued and of the date of the issuing thereof, and of the amount for which it is issued, is left with the senior Master of the Common Pleas Division of the High Court, who forthwith enters the same in a book by the name, in alphabetical order, of the person against whom the writ or process is issued ; and no other registration of the writ or process or of the debt or liability is now necessary for any purpose [z). Lis pendens. Actions at law and suits in equity respecting the lands will also bind a purchaser as well as the heir or devisee ; that is, he must abide by the result, although he may be ignorant that any such proceedings are de- pending {a). A provision has accordingly been made for the registration of every lis pendens; and no lis pendens binds a purchaser or mortgagee without express notice thereof, unless and until it is duly registered ; and the registration to be binding must be repeated Registration every five years (b) . And the court before whom the (m) Stats.2&3Vict. c. 11, s.8; 22 & 23 Vict. c. 35, s. 22. Pur- cliasers were indebted for this protection to the late Lord St. Leonards. (.'■) Stat. 28 & 29 Vict. c. 104, 8. 4. (y) Sect. 48. {z) Sect. 49. {a) Co. Litt. 344 b; Anon., 1 Vem. 318 ; Sicm v. MiU, 13 Ves. 120 ; 3 Prest. Abst. 354 ; BeUamy V. Sabine, 1 De Gex & Jones, 5G6. ih) Stat. 2 &3Vict. c. 11, s. 7. OF AN ESTATE IN FEE SIMPLE. &7 property sought to be bound is in litigation is now maybe empowered, on the determination of the lis pendens, or ■^''^°^*^*^' during its pendency if satisfied that the litigation is not prosecuted bona fide, to order the registration to be vacated without the consent of the party by whom the Us pendens was registered ( parent is the person, who, if he survive the ancestor, must certainly he his heir, as the eldest son in the life- time of his father. The \i'&ix presumptive is the person, who, though not certain to be heir at all events, should 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 would at once be his heir ; but she is not certain of being heu- ; 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, wliether 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 will {(]). But an heir at law, immediately on the decease of his ancestor, be- comes presumptively possessed, or seised in law, of all his lands (r). No disclaimer that he may make will have any eifect, 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 it was 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 rules 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 {q) Nicloson V. Wordsivorth, 2 (r) Watkins on Descents, 25, Swanst. 365, 372. 26 (4th ed. 34). OF AN ESTATE IN FEE SIMPLE. 101 accuracy of the law lias arisen by degrees, by the sue- "Gradual pro- cessive determination of disputed points. Thus, we £'^of°***^*' have seen that, in the early feudal times, an estate to descents. 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; we only know that in the time of Henry II. the law was settled as follows: — In default of lineal descendants, the brothers and sisters came in ; and if they were dead, their children ; then the uncles and their children ; and then the aunts and their children ; males being always preferred to females (s) . Subsequently, about the time of Henry III. (t), 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 (u), gave place to the feudal law, 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 descend- ants in infinitum of any person, who would have been heir if living were allowed to inherit by right of repre- sentation. Thus, if the eldest son died in the lifetime of his father, and left issue, fhat issue, though a grandson or granddaughter only, was to be preferred in inheritance before any younger son (.r). The father, moreover, or any other lineal ancestor, was never al- lowed to succeed as heir to his son or other descendant ; neither were kindred of the half-blood admitted to (»■) 1 Eeeves's Hist. Eng. Law, («) Clements v. Sandaman, 1 43. P. Wms. 64 ; 2 Lord Eaymoud, {t) 1 Eeeves's Hist. 310 ; 2 1024 ; 1 Scriv. Cop. 53. Black. Com. 215 ; Co. Litt. 191 a, [x) 1 Eeeves's Hist. 310. note (1), vi. 4. 102 OF CORPOREAL HEREDITAMENTS. I inlierit (y) . The rules of descent, thus graduallj'' fixed, long remained unaltered. Lord Hale, in whose time they had continued the same for above 400 j'-ears, was the first to reduce them to a series of canons (s) ; which were afterwards admirably explained and illustrated by Blackstone, in his well-known Commentaries ; nor was any alteration made till the enactment of the act for the amendment of the law of inheritance (r/), 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 {b) ; relations of the half-blood are also admitted to succeed, though only on failure of relations in the same degree of the whole blood {c). 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. (//) 2 Black. Com. c. 14. c. 35, ss. 19, 20. (;) Hale's Hist. Com. Law, Gth {b) Stat. 3 & 4 Will. IV. c. 106, ed., p. 318 et seq. s. 6. (a) Stat. 3 & 4 Will. IV. c. 106, (f) Sect. 9. amended by stat. 22 & 23 Vict. ( 103 ) CHAPTER IV. • OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. We shall now proceed to consider the rules of the de- Rules of scent of an estate in fee simple, as altered by the act ^^°^^ ' for the amendment of the law of inheritance (r/) . 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), to "Watkins's Essay on the Law of Descents, ) and to the author's Lectures on Seisin, pp. 51 — 69. 1. The first rule of descent now is, that inheritances Rule i. shall lineally descend, in the first place, to the issue of \ the last purchaser in infinitum. The word inircJiase Purchase, has in law a meaning more extended than its ordinary sense : it is possession to which a man cometh not by vU 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 Descent for- of the old law, which was, that descent should be traced fjol/the^pei-- from the person who last had the feudal possession or son last pos- ^ sesseci. («) Stat. 3 & 4 Wm. IV. c. lOG, {c) 2 Black. Com. c. 14. amended by stat. 22 & 23 Vict. {d) Litt. s. 12. c. 35, ss. 19, 20. (i) Escheat, Partition and lu- [b) Sect. 11. closure, s. 1. 104 OF CORPOREAL HEREDITAMENTS. seiain, as it was called ; the maxim being scmna facit stij)ifem (/). 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 not this entry was sufficient, and it was adjudged that it was (g). These difficulties cannot arise under the new act; for now the heir to be sought for is not the heir of the person last possessed, but the heir of the kist jjcrson en- titled who did not inherit, whether he did or did not obtain the possession, or the receipt of the rents and Objection to profits of the land. The rule, as altered, is not indeed the alteration, altogether free from objection ; for it will be observed 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 icho 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 Real Property Commissioners, was not proposed by them. The Commissioners merely proposed that lands should pass to the heir of the person last entitled (h), 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 tlie person entitled the stock of descent, without his obtaining the feudal possession, as before requiix'd. Under the old law, descent was (/) 2 Black. Com. 209; Watk. ctl. 53). Descent, c. 1, s. 2. (/,) Thirteenth proposal as to (y) Watk. Descent, 45 (4th Descents. OF THE DESCENT OF AN ESTATE IN FEE SniPLE. 105 confined witliin the limits of the family of the lyur- ■ chaser; but now no person who can be shown to have inherited can be the stock of descent, except in the case of the total failure of the heirs of the purchaser (/) ; in every other case, descent must be traced from the last purchaser. The author is bound to state that the decision of the Courts of Exchequer and the Exchequer Chamber, in the recent case of Muggleton v. Barnctt (/r), is opposed to this view of the construction of the sta- tute. The reasons which have induced the author to think that decision erroneous will be found in Ap- pendix A. 2. The second rule is, that the male issue shall be Rule 2. admitted before the female {I) . 3. The third rule is, that where two or more of the Rule 3. male issue are in equal degree of consanguinity to the purchaser, the eldest only shall inherit ; but the females shall inherit all together [in). The last two rules are the same now as before the recent act ; accordingly, if a man has two sons, William and John, and two daugh- ters, Susannah and Catherine {n), William, the eldest son, is the heir at law, in exclusion of his younger brother John, according to the third rule, and of his sisters, Susannah and Catherine, according to rule 2, although such sisters should be his seniors in years. If, however, William should die without issue, then John will succeed, by the second rule, in exclusion of his sisters ; but if John also should die without issue, the two sisters will succeed in equal shares by the third rule as being together heir to their father. (0 Stat. 22 & 23 Vict. c. 35, [1) 2 Black. Com. 212. S8. 19, 20. (»0 2 Black. Com. 214. (/t) 1 H. & N. 282 ; 2 H. & N. («) See the Table of Descents G53. amiexcd. 106 OF CORPOREAL HEREDITAMENTS. Primo- geniture. Primogeniture, or the right of the eldest among the males to inherit, was a matter of far greater conse- quence in ancient times, before alienation by will was permitted, than it is at present. Its feudal origin is undisputed; but in this country it appears to have taken deeper root than elsewhere ; for a total exclusion of the younger sons appears to be peculiar to England : in other countries, some portion of the inheritance, or some charge upon it, is, in many cases at least, secured by law to the younger sons (o). From this ancient right has arisen the modern English custom of settling the family estates on the eldest son ; but the right and the custom are quite distinct : the right may be pre- vented by the owner making his will ; and a conformity to the custom is entirely at his option. Coparceners. "When two or moro persons together form an heir, they are called in law coparceners, or, more shortly, parceners {])). The term is derived, according to Littleton (q), from the circumstance that the law will constrain them to make partition; that is, any one may oblige all the others so to do. Whatever may be thought of this derivation, it will serve to remind the reader that coparceners are the only kind of joint owners, to whom the ancient common law granted the power of severing their estates without mutual consent : as the estate in coparcenary was cast on them by the act of the law, and not by their own agreement, it was thought right that the perverseness of one should not prevent the others from obtaining a more beneficial Partition. method of enjoying the property. This compulsory partition was formerly effected by a writ of partition (/•), a proceeding now abolished (s) . The modern method (o) Co. Litt. 191a, n. (I),vi.4. (p) Bac. Abr. tit. Coparceners. {'/) Sect. 241 : 2 Black. Com. 189. (/•) Litt. es. 247, 248. (.s) Stat. 3&4Will. IV. c. 27, s. 3G. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 107 is by a judge of the Chancery Division of the High Court in chambers, or more rarely by a commission issued for the pui^pose by that Court {t). Partition, however, is most frequently made by voluntary agree- ment between the parties, and for this purpose a deed has, by a modern act of parliament, been rendered essential in every case {ii). The inclosure commis- sioners for England and "Wales have also power to effect partitions, by virtue of modern enactments which will be found mentioned at the end of the chapter on Joint Tenants and Tenants in Common. When parti- tion has been effected, the lands allotted are said to be held in severaify ; and each owner is said to have the Severalty. entirety of her own parcel. After partition, the several Entirety, parcels of land descend in the same manner as the undivided shares, for which they have been substi- tuted (r) ; the coparceners, therefore, do not by partition become purchasers, but still continue to be entitled by descent. The term cojxirceners is not applied to any other joint owners, but only to those who have become entitled as coheirs [w). 4. The fourth rule is, that all the lineal descendants Eule 4. in infinitum of any person deceased shall represent their ancestor ; that is, shall stand in the same place as the person himseK 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 rex^resentation, in exclusion of his uncle John, and of his two aunts Susannah and Catherine ; or had William left a son and daughter, such daughter would, after the decease it) Co. Litt. 1G9, a, n. (2) ; 1 s. 3, to the same effect. Fonb. Eq. 18 ; Ccumhuj v. Van- (r) 2 Prest. Abst. 72 ; Doc d. ning, 2 Drewry, 434 ; stat. 36 k Crosthwaite v. Dixon, 5 Adol. & 37 Vict. 0. 66, 8. 34, subsect. (3). Ellis, 834. («) Stat. 8 & 9 Vict. c. 106, s. 3, {ic) Litt. s. 254. repealing stat. 7 & 8 Vict. c. 7G, (.?) 2 Black, Com. 216. lOS OV COUrv»KKAl. IIERKIMTAMKNI'^. ot" hor bivtUor without isssuo, Ih\ in liko lunmior, tho boil" of hor ^ruudfathor, iu oxolviisiou of hor iiwolo und aunts. iVwvutofuu Xho prooodiug rulois of doisoiMit npply n«» woll to tho dosoout of ivu oistato tu.il, if not duly bunvvl, nsi to thwt of an 0!?t{ito iu foo isiiuplo. Tho dossoout of »vu os»t«to tail i!< jvhvuys tnvood fi\nu tho puivhnsor, or douoo iu tail, that is, fivm tho porsou to Avhoui tlu> o!«trtto tail was at tlrst jfivou. This wa» tho oaso bofoiv tho not, us woll as uow (//) ; for. tho porsou who oluiuis uu outuilod os^tuto us hoir oluiius ouly uowrdiu^ to tiio oxpross toruis of tho gift, or, as it is said, per /orn tarn dcnL Tho jjift is nuulo to (ho ilonoo, or puivhusor, ami tho hoirs of his lunly ; all porsous, thorol\>ro. wh*> oau hooouu^ ou- titlod to tho ostuto by dosoout, uiust auswor tho dosorip- tiou of hoii'j? of tho pmvhasor's body ; iu othor woixls, must bo ft is liuoul hoii-si. Tho soooud aud third rulos also equally apply to ostatos tail, ui\loss tho rostriotiv'U of tho dopoout to hoii"!? niulo or fiMuulo shoidd ivudor uuuooossary tho soooud, aud oithor olau!?o of (ho (hiiil rulo. Tho foiu'th rulo oouiplotos tho oauou, so far us ostatos tail aro oouooruod ; for, whou tho issuo of tho donoo aro oxhau!*tod, suoh au ostato luust uooossarily dt^tinMuino. I'ul tho dosovailod Til.' t.lil iul<>. bcl'oro (ho passiuj^ of tho act. Tho f()nuor ruh> was, that, ou faihuo i>f liu«Mvl dosooudauts or issuo of (ho ]'orsou (j/) Dot a. Grri/vty v. WVmVA.Yc, 8 T. Rrp. I'll. vw i(|)Wii,rdii in il,i! • •uiii'Md (ii). Tlin inoddni o.\|»lii,nii,iion dorivoM llio ori|^iii id' colliiJnriil liHii'Mlii|iit, in ii.M-liii'.ion ol' linnid iincoiiioi-H, I'rniii (.'illii id' oitlidmi (id, I Im I iinn wlmii iiilii'ri(,ii,n(;cn woi'o diMii'Mtidililn iitily I" ii'iuiM III- linoid IioIi'm) iniulo, liy tito li'iniMid' llin|_Ml'l, III Jin (l(iH(^oildil)ln lo llio lii'irn of l.lio diiiirn. Ill llio luiiiio iniMinor lui iiii tuicii'iil. inliiiiliinco Would liiLVo di'iicondrd. TliiM wmi cidlrd ii, /.nil, id' ii, Fiinhini ... ■ I ■/ 1 I I I / /• / iiKriiiii III Jiiiililili iii'/iuii, or now iiilionlniiro, lo Imlil hi Jfiuliiiii „„^,,,„^,^,, (lii/ii/iniiii, w\ nil luirioid: ono. Now, iin ii.nrii'iil, inln'iil- luino, ono dnivod in ii, niiinio id' doiicnii rrom tioino I'oiiiolit linoid luitM^nior, would ol' counK^ lio drtin^iidililo lo idl llio iiiniio or liiicdl lioIrH ol' hucIi luuM'Hlor, inrliid- iii|-';, iillor llio lii|nio id' iniiiiy \oiirii, nuinoroiiM I'lunilioH, nil r(»//(//('/(^//// rolidod lo ono unollior : iin onlufo iiowly l-';ni.nlod, lo lio donrondililo iil I'i'ikIiiiii (in/ii/iiinii, would I lioiol'oro lio i'n|iidilo ol' doiiroiiiliii;r lo I lio collnlond ro- InlioniMd' llio ^'rllnlol^, in llio Hiitiio niiinnor iih a ronlly nncioiil inliorilniioo, di'iiroiidoil tu llilll, would liavo doiio. {t) '1 UliioL Com, 'i-lO. (o) UiMi'l. HI'. 'J, 0. -Jll; (.111. lall. II i». 110 OP CORPOREAL HEREDITAMENTS. But an ancient inheritance could never go to the father 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 this theory of an ancient lineal inheritance, which would have previously passed by very elder brother, as well as the father. The exjDlanation 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 imder the care of its head, is now perceived and acted on ; and the father is heir to each of his children, who may die intestate, and mthout issue, as is more clearly pointed out by the next rule. Rule 6. G. The sixth rule is, that the father and all the male 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 theu' descendants ; and the mother and all the male maternal ancestors, and her and their descendants, before any of the female Preference of maternal ancestors, or their heirs (c). This rule is a males. ° ^' development of the ancient canon, which requires that, 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 (/>) 2 Black. Com. 212, 221, (c) Stat. 3 & 4 WUl. IV. c. 106, 222; Wright's Tenures, 180. See s. 7, combined with the definition also Co. Litt. 11 a, n. (1). of "descendants," s. 1. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. Ill female. This strict and careful preference of the male [ to the female line was in fnll accordance with the 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 services could not expect to enjoy the benefits (f/). 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 Preference of has been left untouched by the recent act for the ™^|^g g°jjf " amendment of the law of descents ; and the father and continued, 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 {(I) 2 Black. Com. 214. {e) See post, the chapter on Husband and Wife. 112 OF CORPOREAL HEREDITAMENTS. ■ the fourth rule ; unless he be of the half blood to the purchaser, which case is provided for by the next rule, which is : — Rule 7. 7. That a kinsman of the half blood shall be capable 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 [rj). Ey the old law By the old law, a relative of the purchaser of the half could^ot ^^ blood, that is, a relative connected by one only, and inherit. Hot by both of the parents, or other ancestors, could not 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 w^ell 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 rule, than an additional independent regulation, as will appear hereafter. ^^^ S- 8. The eighth rule is, that in the admission of female paternal ancestors, the mother of the more remote male paternal ancestor, and her heirs, shall be preferred to (/) Stat. 3 & 4 Will. IV. c. lOG, (y) 2 Black. Com. 228. 8.9. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 113 the mother of a less remote male paternal ancestor, and 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 (h) . The eighth rule is a settlement of a point in distant heirships, which very seldom occurs, but which has been the subject of a vast deal of learned contro- versy. The opinion of Blackstone (/) and Watkins(y) is now declared to be the law. 9. A further rule of descent has now been introduced Rule 9. 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 will be a total failm-e 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. (A) Stat. 3 & 4 Will. IV. c. 106, {i) 2 Black. Com. 238. s. 8. See Greaves v. Greenwood, {J) Watkins on Descents, 130 24 W. R. 926 ; 45 L. J., Ex. Div. (146 et seq. 4th ed.). 795 ; affirmed by Court of Ap- (/.) Stat. 22 & 23 Vict. c. 35, peal, L. R., 2 Ex. Div. 289. kh. 19, 20. K.l'. 1 114 OF CORPOREAL HEREDITAMENTS. Explanation The rules of descent above given will be better ap- o t eta e. p^gi^ended 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 Descent to the is to be traced. On his death intestate, the lands will Ssuer^*^''"' accordingly descend first to his eldest son, by Ann Lee, 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, Greorge, by Mary Wood, his second wife. But the son George, though younger than his half sister Lucy, yet being a male, shall be prefeiTcd according to the second rule ; and he is therefore (3rdly) the next heii\ Had Isaac been the purchaser, the case would have been different ; for, his half brother Greorge 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 heii' 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 iuqun-e for the heir of Benjamin Brown the purchaser, whom we now find to be (othly) John Brown, his only son by his second wife. The land then descends fi'om John to (6thly) his eldest son Edmund, and from Edmund (Tthly) to his only son James. James dying without issue, we must once Isaac Finch . Otherlssuca IsaacFuich 'Frances^ rCatheri/ie To face Paijr U U r OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. ' 115 more seek the heir of the purchaser, whom we find among the yet living issue of John. John leaving a daughter by his first wife, and a son and a daughter by his second wife, the lands descend (8thly) to Henry his son by Frances "Wilson, as being of the male sex ; but he dying without issue, we again seek the heir of Ben- jamin, and find that John left two daughters, but by different wives; these daughters, 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. The issue of the sons of the purchaser is now extinct ; Descent to the and, as he left two daughters, Susannah and Catherine, fi^^^urcifa^er by different wives, we shall find, by the second and and their third rules, that they next inherit (lOthly) in equal shares as heu-s 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 (/). On further research, however, the author inclined to the opinion that the share of Catherine would, on her decease, descend entirely to her son (llthly) by right {I) 23LawMag. 279 ; 1 Hayes's wood's Conveyancing, by Sweet, Conv. 313; 1 Jarman & Bythe- 139. I 2 issue. 116 • OF cokporeal hereditaments. of representation ; and that, as respects his mother's share, he and he only is the right heir of the purchaser. The reasoning which led the author to this conclusion will be found in the Appendix {m). This point is now established by judicial decision {n). Descent to the If Susannah Brown and John Smith should die purchaser, ^ without issue, the descendants of the purchaser will and his issiie. then have become extinct; and Joseph Brown, the father of the purchaser, will then (12thl3'), 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 b}' the seventh rule. But next to Bridget is Timothy (14thly) by the same rule, Bridget being supposed to leave no issue. Descent to the On the decease of Timothy without issue, all the ancestors^oT descendants of the father will have failed, and the in- the piirchaser heritance will next pass to Philip Brown (15thly), the issue. 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 (ICthly), who accordingly is the next heir; and, on his decease without issue, Stephen Brown (ITthly), though of the half blood to the purchaser, will inherit, by the seventh ride, next after Thomas, a kins- man in the same degree of the whole blood. Stephen Brown dying mthout 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 {ill) See Appendix (B.) Lewin, C. P., 21 Nov. 1874, (w) Cooper v. France, V.-C. stated in the author's Lectures E., 14 Jur. 214 ; 19 Law Joum. on the Seisin of the Freehold, (X. S.) Chancery, 313 ; Lncin v. Lecture VI., p. 81. OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. 117 of the purchaser, who is (ISthly) Eobert Brown; and who is represented, on his decease, by (19thlj) Daniel Brown, his son. After Daniel and his issue follow, by the same rule, Edward (20thly) and his issue (21stly) Abraham. , . All the male paternal ancestors of the purchaser, and Descent to the their descendants, are now supposed to have failed; naTancSora' and by the sixth rule, the female paternal ancestors and their and their heirs are 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 ; s/ie 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 Brown has already been exhausted in seeking for his descendants ; but she might have had issue by another husband ; and such issue (23rdly) will accordingly next succeed. These Half blood to issue are evidently of the half blood to the purchaser, ^here the But thev are the riffht heirs of Barbara Finch; and common an- o cestor IS a they are accordingly entitled to succeed next after her, female, without the aid they might derive from the position expressly assigned to them by the seventh rule. 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 ancestors. 118 OF CORrOREAL HEREDITAMENTS. absolutely necessary (o) . In default of issue of Barbara Finch, the lands will descend to her father Isaac Finch (24thly), and then to his issue (25tlily), 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 heii"s, thus closing the list of female paternal ancestors. Descent to the Next to the female paternal ancestors and their heirs plidTaser Ind ^^^^^ ^^® mother of the purchaser, Elizabeth Webb, the maternal (2Sthly) (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 piu-- ehaser'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 Webb (30thly), whose issue (31stly) will be entitled to succeed him. Such issue failing, the Avhole line of male maternal ancestors and their descen- dants must be exhausted, by the sixth rule, before any of the female maternal ancestors, or then- 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 riile, 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 (o) See Jarman & Bj'thewood's Conveyancing-, by Sweet, vol. i, 146, note («). OF THE DESCENT OF AN ESTATE IN FEE SIMPLE. . 119 (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 heirs will be entitled next after her. On the failure of the heirs of the purchaser, the person last entitled is, as we have seen {p), 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- Rules of dc- • mentioned rules of descent apply exclusively to estates ^^'^^^ 'to pcr- in land, and to that kind of property which is denomi- sonal estate. 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 {q) . An exception to the law of descent was made by the On death of a Land Transfer Act, 1875 (r), which enacted (.s) that intestate tlu; upon the death of a bare trustee intestate as to any cor- hereditaments 1 . ,, ,. ;f>i'i 1J.A vested in his poreal or incorporeal hereditament oi which such trustee legal personal was seised in fee simple, such hereditament should vest, representa- like a chattel real, in the legal personal representative from time to time of such trustee ; but this enactment did not apply to lands registered under the Land Transfer Act. A bare trustee may, perhaps, be defined A^bare trus- as a person who has no beneficial interest in the pro- perty of which he is seised nor any active duty to per- form in respect of it {t). (p) Ante, p. 113. omitting the word "intestate." {q) Page 419, 11th ed. (s) Sect. 48. (r) Stat. 38 & 39 Vict. c. 87, {() See Christie v. Ovington, 1 which commenced 1st Januaiy, Ch. D. 279, and post, the chapter 1876, repealing stat. 37 & 38 Vict. on Uses and Trusts ; Morgan v. c. 78, 8. 5, passed 7th August, Swansea Urban Sanitary Authority, 1874, whichwas to the same efEect, 9 Ch. D. 582. tee. 120 OF CORPOREAL HEREDITAMENTS. Descent of real estate vested in- sole trustee or mortgagee. The above enactment was repealed as to cases of deathi occurring after the 31st December, 1881, by the Conveyancing and Law of Property Act, 1881 («). This Act provides a new rule for the descent of real estate vested in a sole trustee or mortgagee who may die after the above date. It enacts {.r) , that where an estate or interest of inheritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incorporeal, is vested on any trust, or by way of mortgage, in any person solely, the same shall on his death, notwithstanding any testamentary dis- position, devolve to and become vested in his personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in them or him. Real estate contracted to be sold. In connection with the new rule for the descent of real estate vested in a sole trustee, a further provision of the same Act, applying to intestacy in cases of death occurring after the 81st December, 1881 (//), may be here quoted. It runs as follows : — Where at the death of any person there is subsisting a contract enforceable against his heir or devisee, for the sale of the fee simple or other freehold interest descendible to his heirs general in any land, his personal representatives shall, by virtue of this Act, have power to convey the land for all the estate and interest vested in him at his death, in any manner proper for giving effect to the contract. But a conveyance made under this enactment is not to affect the beneficial rights of any person claiming under any testamentary disposition or as heir or next of kin of a testator or intestate (s). (m) Stat. 44 & 4.5 Vict. c. 41, 8. 30, sub-ss. 2, 3. (x) Sect. 30, sub-ss. 1, 3. (y) Sect. 4. (z) Sect. 4, sub-s. 2. ( 121 ) CHAPTEE y. 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 ; y®'^^^- 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 becomes tenant to the lessor {b), 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 bodij, the donee in tail, as he is called, and his issue, would be the tenants of the donor as long as the entail lasted ((?), and a freehold tenure would thus be created. But if a gift should be made to a man and his heirs, Fee simple, or for an estate in fee simple, it would not now be lawful (r/) Ante, p. 9. (f) Litt. s. 19; Kitchen on (i) Litt. s. 132; Gilb. Tenures, Courts, 410; Watk. Desc. p. 4, 90. n. ('>'); rr- H, l- (4tlied.). 122 OF CORPOREAL HEREDITAMENTS. 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 statute of Quia einptores (d), we have seen that it was Quiaemptores. 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 cmptores 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 ( '^• 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" (/). 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 (/.•), every one of which is of a date prior to the statute of Quia eiiijitorcs (/), except, perhaps, some which may have been created by the king's tenants in capite with licence from the crown {ni). The lands (ff) Bract, c. 19, fol. 48 b ; Brit- ties cited by the Court tend to the ton, c. G6. opposite conclusion. The reasons (A) Attorney- Generals. Parsons, for this opinion will be found in 2 Cro. & Jerv. 279, 308. Appendix C. (i) Perkins's Profitable Book, {k) See Scriv. Cop. 1 ; Watk. 8. 670. Cop. 6, 7 ; 2 Black. Com. 90. [j ) In the recent case of Lord After this was written, the Bunraven v. LlcivcUyn, 15 Q. B. author's views as to the origin 791, the Court of Exchequer of manors underwent some modi- Chamber held that there was no fication ; see Wniianis on Com- general common law right of mons. tenants of a manor to conunon on (/) 18 Edw. I. c. 1. the waste. But, in the humble [m) 1 Watk. Cop. 15; ante, opinion of the author, theauthori- p. 65. 124 OF CORPOREAL HEREDITAMENTS. Incidents of the tenure bv knights' ser- Homasre. Aids. Relief. Wardsliip. Livery. Marriaee. held hy the villeins were the origin of copyholds, of ■which more hereafter (>/). Those granted to the free- men were subject to various burdens, according to the nature of the tenure. In the tenure by knights' ser- vice, then the most universal and honourable species of tenui'e, the tenant of an estate of inheritance, that is, of an estate of fee simple or fee tail (o), was boimd to do homage to his lord, kneeling to him, professing to become his man, and receiving from him a kiss {p). The tenant was 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 reliefs on taking to his ancestor's estate [q). If the heir were under age, the lord had, under the name of tcardship, the custody of the body and lands of the heir, without account of the profits, till the age of twenty-one yeare in males, and sixteen in females : when the wards had a right to require possession, or sue out their lireryy 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 {maritagium), 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 ecjual to the value of the marriage : that is, what the suitor was ^NiUing to pay down to the lord as the price of marrving his ward ; and double the market value was to be forfeited, if the ward presimied to marry without the lord's consent (/•). The king's tenants (w) Post, chapters on Copy- holds. (o) Ijtt. s. 90. (p) See a description of ho- mage, litt. 88. 85, 86, 87 : 2 Bl. Com. .53. {q) Scriven on Copyholds, 738 et seq. (r) 2 Black. Com. 63 et seq. ; Sen ven on Copyholds, 729. "Ward- ship and marriage were no parts of the great feudal system, but OF THE TEMURE OF AN ESTATE IN FEE SIMPLE. 125 in capife were moreover subject to many burdens and restraints, from which the tenants of other lords were exempt («). 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 [t). 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 Fealty. an oath oi fealty or fidelity to his lord {u). At the present day, however, a much greater sim- Free and com- plicity and uniformity will be found in the incidents ° 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- man socage {x). The tenure of free and common socage is of great antiquity ; so much so, that the meaning of the word socage is the subject only of con- jecture (y). Comparatively few of the lands in this were introduced into this coun- oneof jurisdiction, and the French try, and perhaps invented, by word soc, which signifies a plough- the Normans. 2 Hall. Midd. share. In favour of the former is Ages, 415. urged the beneficial nature of the (s) As primer seisin, involun- tenure, and also the circumstance tary knighthood in certain cases, that socagers were, as now, bound and fines for alienation. to attend the court baron of the [t] Gilb. Ten. 431 et seq. ; lord, to whose soc or right of jus- Scriven on Copyholds, 719 et seq. tice they belonged. In favour of {u) Litt. ss. 91, 131, 132; Scriv. the latter derivation is urged the Cop. 732. nature of the employment, as well {x) 2 Black. Com. 101. as the most usual condition of [y) See Litt. s. 119 ; Wright's tenure of the lands of sockmen, Tenures, 143 ; 2 Black. Com. 80 ; who were principally engaged in Co. Litt. 86 a, n. (1) ; 2 Hallam's agriculture. The former appears Middle Ages, 481. The contro- to be the more probable deriva- versy lies between the Saxon tion. See Sir H. Ellis's Intro- word soc, which signifies a liberty, duction to Domesday, vol. i. privilege or franchise, especially p. 69. 126 OF COEPOREAL HEREDITAMENTS. country were in ancient times the subject of tHs tenure : the lands in wliich 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 (:;). 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 often 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, was 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 Superiority of daughter (/). 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 cscuage or money payment, assessed on the tenants by knights' service from time to time, first at the discre- tion of the crown, and afterwards by authority of par- liament {g) ; and this commutation appears to have Eent. Eelief, Fealty. Suit of court Aids. socage tenure. Escuage. {z) 2 Hallam's Middle Ages, 481. («) Ibid.; 2 Black. Com. 60, 61. (b) Co. Litt. 65 a, 67 b, n. (1). [c) Ibid. 86 a. {d) Litt. s. 126 ; 2 Black. Com. 87. See Fasswffham, app., Pitty, resp. 17 C. B. 299, 300. {() Litt. ss. 117, 118, 131, (/) Co. Litt. 91 a; 2 Black. Com. 86. {g) 2 Hallam's Middle Ages, OF THE TENURE OF AN ESTATE IN FEE SIMPLE. 127 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 (Ji). 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 (/). 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. was insisted on and obtained, by which all tenures by ' " ' knights' service, and the fruits and consequences of tenures in capite (/), 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 {k) . The right of wardship or guardianship) of infant Power for the tenants having thus been taken away from the lords, pointVgua^"- the opportunity was embraced of giving to the father j 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 (A) : when, by the statute of Charles II. (/), 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- jeant// 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 " (./) : 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 therefore still remains unaffected l)y 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 (A) Litt. s. 153. (0 12 Car. II. p. 127. c. 24 ; ante, 0') Litt. s. 159. (/.) Litt. .s. 160 ; 2 Black. Com. 81. OF THE TENURE OF AN ESTATE IN FEE SIMPLE. 133 styled (1), socage tenure, subject to the custom of gavel- \ kind, prevails chiefly in tlie county of Kent, in which county all estates of inheritance in land (m) are pre- sumed to be holden by this tenure until the contrary is shown (n). 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 (o), and so to brothers and other collateral rela- tions, on failure of nearer heirs ( p) . 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 (q), the ancient method of con- veyance to be hereafter explained. There was also no escheat of gavelkind lands upon a conviction of mur- der (r) ; and some other peculiarities of less importance belong to this tenure (.s). 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 {I) Thii-d Report of Real Pro- Vict. c. 106, s. 3. perty Commissioners, p. 7. {>•) Rob. Gav. 226 (228, 3rd ()h) Including estates tail, Litt. ed.). 8. 265 ; Robinson on Gavelkind, (s) The husband is tenant by 51, 9i (64, 119, 3rd ed.). courtesy of a moiety only of his (w) Robinson on Gavelkind, 4'! deceased wife's land, until he (54, 3rd ed. ) . man-ies again, Avh ether there were (o) Every son is as great a issue bom alive or not; the widow gentleman as the eldest son is; also is do wable of a moiety instead Litt. s. 210. of a third, and during widowhood (p) Rob. Gav. 92; 3rd Rep. of and chastity only ; estates in fee Real Property Commissioners, p. simple were devisable by wiU, 9 ; Crump d. Woollcij v. Norwood, before the statute was passed 7 Taunt. 362; Eook v. Hook, 1 empowering the devise of such Hemming & MiUer, 43 ; in oppo- estates; and some other ancient sition to Bac. Abr. tit. Descent privileges, now obsolete, were (D), citing Co. Litt. 140 a. attached to this tenure. See {q) Rob. Gav. 193 (248, 3rd Robinson on Gavelkind, passim; ed.), 217 (277, 3rd cd.) ; 2 Black. 3rd Report of Real Property Com. 84 ; Sandys' Consuetudines Commissioners, p. 9. Kanciie, p. 165. See stat. 8 & 9 134 OF CORPOREAL HEREDITAMENTS. 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 {t), and other have been disgavelled, or freed from the custom, by various acts of parliament («<), any attempt entirely to extinguish the peculiarities of this tenure has uniformly been resisted (r). 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 accompanjdng peculiarities, is to be found elsewhere than in the county of Kent {>/). Thorough - Euglish. 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 [l>). 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 Terrce (t) Rob. Gav. 46 (57, 3rd ed.). {u) See Rob. Gav. 75 (94, 3rd ed.). (v) Aji 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. (r) Kitchen on Courts, 200; Co. Litt. UO a. {//) See Bac. Abr. tit. Gavel- kind (B) 3. (--) Litt. s. 165 ; 2 Black. Com. 83. (a) Comyns' Digest, tit. Bo- rough-English ; Watk. Descents, 89 (94, 4th ed.). See Jiider v. TFood, 1 Kay & Johns. 644. {'>) Rob. Gav. 94 (120, 3rd od.). OF THE TENURE OF AN ESTATE IN FEE SIMIM.E. 135 Regis EdivarcU^ or Teme Meg is (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 recoveries, these proceedings, being judicial in their nature, could only take, place, as to lauds in ancient demesne, in the lord's court ; but, as the nature of the tenure was not always known, much inconvenience frequently 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 w^ould 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 assur- ances, 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- Frankal- tioned (/), 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 {g), the prayers and other divine services of the tenants are better for the (c) 2 Scriv. Cop. 687. 3rd Rep. of Real Property Com- (<;?) The account given by Black- missioners, p. 13; 2 Scriv. Cop. stone of this tenure as altogether 691. copyhold (2 Black. Com. 100) (e) Stat. 3 & 4 Will. IV. c. 74, appears to be erroneous, though ss. 4, 5, 6. no doubt there are copyholds of (/') Ante, p. 41. «onic of the lauds of suchmuuors. {y) Litt. s. 135; Co. Litt. 07 b. moign. 136 OF CORrOREAL HEREDITAMENTS. lords than any doing of fealty. As tlie cliTirch 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. ( 1'37 ) CHAPTER VI. OF JOINT TENANTS AND TENANTS IN COMMON. A GIFT of lands 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 The four uni- distinguished by unity of possession, unity of in forest, teimncy°^'^ unity of fitic, and unity of the time of the commence- ment of such title (a). Any estate may be held in joint Joint tenants fenancy ; thus, if lands be given simply to A. and B. ^'^^l^*®- 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 Joint tenants 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. tit. Estates (K. 1) ; .see ante, [/>) Litt. s. 283 : Com. Dig-. p. 'JO. 138 OF CORPOREAL HEREDITAMENTS. bodies (c) : so long as they botli live, they will 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. While they both live their rights will be equal ; and, on the death of either, the survivor will take the whole, so long as he may live. But, as they cannot intermarry, it is not possible that any one person should be heir of both their 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 J 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- divided half, and no further right of smwivorship will remain (c/). Joint tenants An estate in fee simple may also be given to two or m tec. more persons as joint tenants. The unity of this kind of tenure is remarkably shown by the words which are , (f) Co. Litt, 20 b, '20 b ; Bac. {d) Litt. s. 283. See FiC Tivcr- Abr. tit. Joint Tenants (G). hn 31arlui Act, 20 Beav. 374. OF JOINT TENANTS AND TENANTS IN COMMON. 139 made use of to create a joint tenancy in fee simple. The lands intended to be given to joint tenants in fee simple are limited to them and their heirs, or to them, their heirs and assigns (e), although the heirs of one of them onh' will succeed to the inheritance, provided the joint tenancy he allowed to continue : thus, if lauds be given to A., 13. and C. and their heirs, A., B. and C. will together be regarded as one person ; and, when they are all dead, but not before, the lands will descend to the heirs of the artificial person (so to speak) named in the gift. The survivor of the three, who together compose the tenant, will, after the decease of his com- panions, become entitled to the whole lands (/). While ' they all lived each had the whole ; when any die, the survivors or survivor can have no more. The heir of the survivor is, therefore, the person who alone will be entitled to inherit, to the entire exclusion of the heirs of those who may have previously died (r/). A joint Trustees are tenancy in fee simple is far more usual than a joint L^t^tenants tenancy for life or in tail. Its principal use in practice is for the purpose of vesting estates in trustees {h), who are invariably made joint tenants. On the decease of one of them, the whole estate then vests at once in the survivors or survivor of them, without devolving on the heii' at law of the deceased trustee, and without being affected by any disposition which he may have made by his will ; for joint tenants are incapable of devising their respective shares by will (/) : they are not regarded as having any separate interests, except as between or amongst themselves, whilst two or more of them are living. Trustees, therefore, whose only interest is that of the persons for whom they hold in trust, are properly made joint tenants; and so long as any one of them is {e) Bac. Abr. tit. Joint Tenants (//) See post, the chapter on (A) ; Co. Litt. 184 a. Uses and Tru.sts. (./■) Litt. s. 280. (i) Litt. s. 287; Tcrk. a. 500. (y) Litt. nbi sup. 140 OF CORPOREAL HEREDITAMENTS. living, so long will every other person be excluded from the legal possession of the lands to which the trust extends. But on the decease of the surviving trustee, previously to the 1st January, 1882, the lands devolved on the devisee under his will, or on his heir-at-law. In the case of the death of the surviving trustee after the 31st Decemher, 1881, the lands, notwithstanding any [ testamentary disposition, devolve to and become vested , in his personal representative (J). And his devisee or heir formerly remained, and his personal representative now remains trustee until a conveyance is made of the , lands to some other trustee duly appointed. _^ — 1^ As joint tenants together compose but one owner, it follows, as we have already observed, that the estate of each- must arise at the same time (/.) ; so that if A. and B. are to be joint tenants of lands, A. cannot take his Exception to share first, and then B. come in after him. To this unity of time. ■, , j.- i i i • ^ i> rule, however, an exception nas been made m favour or conveyances taking effect by virtue of the Statute of Uses, to be hereafter explained ; for it has been held that joint tenants under this statute may take their shares at different times (/); and the exception appears also to extend to estates created by will (ni). A further consequence of the unity of joint tenants is seen in the fact, that if one of them should wish to dispose of his interest in favour of any of his companions, he may not make use of any mode of disposition operating merely as a conveyance of lands from one stranger to another. The legal possession or seisin of the whole of the lands ij) Stat. 44 & 45 Vict. c. 41, {m) 2 Jiinnan on Wills, 254, s. 30. 255, 4tli ed. ; Gates d. Hattcrlcy v. [Ic) Co. Litt. 188a; 2 Black. /«cZ-so;?, 2 Strange, 1172; Fearne, Com. 181. Cont. Rem. 313; Bridge \. Tales, (/) 13 Eep. 56; Pollexf. 373; 12 Sim. G45; Zi-Htiw^/jy v. Ward, Bac. Abr. tit. Joint Tenants (D) ; 11 Hare, 19G; M'Grecjor v. Gilb. Uses and Trusts, 71 (135, M'Grerjor, 1 De Gex, F. & J. 73. n. 10, 3rdod.). OF JOINT TENANTS AND TENANTS IN COMMON. 141 belongs to each one of the joint tenants of an estate of freehold ; no delivery can, therefore, be made to him of that which he already has. The proper form of assur- , A release is ance between joint tenants is, accordingly, a release by form of as- deed (y^j and this release operates rather as an extin- surance be- •1 (>'ii CI 11 tween joint guishment oi right than as a conveyance ; for the whole tenants, estate is already supposed to be vested in each joint tenant, as well as his own proportion. And in the Norman French, with which our law abounds, two persons holding land in joint tenancy are said to be seised ^^>" mie et i)er tout (o). '. The incidents of a joint tenancy, above referred to, A joint last only so long as the joint tenancy exists. It is in be severed. ^ the power of any one of the joint tenants to sever the tenancy ; for each joint tenant possesses an absolute power to dispose, in his lifetime, of his own share of the lands, by which means he destroys the joint ., tenancy {p). Thus, if there be three joint tenants of lands in fee simple, any one of them may, by any of the ' usual modes of alienation, dispose during his lifetime, though not by will, of an equal undivided third part . of the whole inheritance. But should he die without ! having made such disposition, each one of the remain- ing two will have a similar right in his lifetime to dis- pose of an undivided moiety of the whole. From the moment of severance, the unity of interest and title is destroyed, and nothing is left but the unity of posses- sion ; the share which has been disposed of is at once discharged from the rights and incidents of joint tenancy, and becomes the subject of a tenancy in com- mon. Thus, if there be three joint tenants, and any (w) Co. Litt. 169 a ; Bac. Abr. 96 a. tit. Joint Tenants (I) 3, 2 ; 2 (o) Litt. s. 288. Prest. Abst. 61. But a grant {p) Co. Litt. 186 a; Caldwell v. would operate as a release ; dies- FcUuircs, L. R., 9 Eq. 410; Baillie ter V. Willan, 2 Wms. Saund. v. T/rArt/w, 17 Ch. D. 388. 142 OF CORPOREAL HEREDITAMENTS, one of them sliould exercise his power of disposition in favour of a stranger, such stranger will then hold one undivided third part of the lands, as tenant in common with the remaining two. common. Tenants in Tenants in common are such as have a unity of pos- session, but a distinct and several title to their shares {q) . The shares in which tenants in common hold are by no means necessarily equal. Thus, one tenant in common may be entitled to one-third, or one-fifth, or any other proportion of the profits of the land, and the other tenant or tenants in common to the residue. So, one tenant in common may have but a life or other limited interest in his share, another may be seised in fee of his, and the owners of another undivided share may be joint tenants as between themselves, whilst as to the others they are tenants in common. Between a joint tenancy and tenancy in common, the only similarity that exists is therefore the unity of possession. A tenant in common is, as to his own undivided share, precisely in the position of the owner of an entire and separate estate. "When the rights of parties are distinct, that is, for instance, when they are not all trustees for one and the same purpose, both a joint tenancy and a tenancy in common are inconvenient methods for the enjoyment of property. Of the two a tenancy in common is no doubt preferable ; inasmuch as a certain possession of a given share is preferable to a similar chance of getting or losing the whole, according as the tenant may or may not survive his companions. But the enjoyment of lands in severaUi/ (r) is far more beneficial than either of the above modes. Accordingly it is in the power of any joint tenant or tenant in common to compel his {q) Litt. s. 292; 2 Black. Com. (r) Ante, p. 107. mi. OF JOINT TENANTS AND TENANTS IN COMMON. 143 companions to effect a partition between themselves, according to the value of their shares. This partition Partition by _ was formerly enforced by a writ of partition, granted by . virtue of statutes passed in the reign of Henry YIII. (s) . Before this reign, as joint tenants and tenants in com- 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 {t) that co-parceners, who become entitled by act of law, could always compel partition. In modern times, the Court Partition by of Chancery was found to be the most convenient ch^'' - (/ instrument for compelling the partition of estates {u) ; and by a modern statute {x), the old writ of partition, which had already become obsolete, was abolished. The Supreme Court of Judicature Act, 1873 (y), has By High transferred this jurisdiction to the High Court of Jus- ^j°g^ ° ^^^" tice thereby established. Whether the partition be effected through the agency of the Court, or by the mere private agreement of the parties, mutual convey- ances of their respective undivided shares must be made, in order to carry the partition into complete effect {z). With respect to joint tenants, these con- veyances ought, as we 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 {a). If any of the parties entitled should be infants under age, lunatic, or of unsound mind, and consequently unable {s) 31 Hen. VIII. c. 1 ; 32 c. 83, tlie commencement of this Hen. VIII. c. 32. act was postponed to the 1st of {t) Ante, p. 106. November, 1875. («) See Manners v. Charlesivorth, {z) Attorney -General v. JFamil- 1 Mylne & Keen, 330. ton, 1 Madd. 214. {x) Stat. 3 & 4 Will. IV. c. 27, («) Stat. 8 & 9 Vict. c. 106, s. 36. s. 3, repealing stat. 7 & 8 Vict. ( >/) Stat. 36 & 37 Vict. c. 66, c. 76, s. 3, to the same effect. SB. 16, 17. Bv Stat. 37 & 38 Vict. 144 OF CORPOREAL HEREDITAMEjSTS. Partition by inclosure com- missioners. to execute a convejauce, the Court has power to cany out its own decree for a partition by making an order, which will vest their shares in such persons as the Court shall direct (b) . Another very convenient mode of effecting a partition is, by application to the inclo- sure commissioners for England and Wales, who are empowered by recent acts of parliament to make orders under theii' hands and seal for the partition and ex- change of lands and other hereditaments, which orders are effectual without any further conveyance or re- lease (c) . Act to amend the law of partition. An act has now passed to amend the law relating to partition {d). By this act the Court of Chancery was empowered to direct a sale of the property instead of a partition, whenever a sale and distribution of the pro- ceeds appeared to the Court to be more beneficial to the parties interested {c). The jurisdiction of the Court of Chancery in all these matters is now transferred to the High Court of Justice (/) as from the first of November, 1875 (g). If the parties interested to the extent of a moiety or upwards request a sale, the Court shall, unless it sees good reason to the contrary, direct a sale of the property accordingly {//). 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 requesting a sale, {b) Stat. 13 & 11 Vict. c. CO, ss. 3, 7, 30. (c) Stats. 8 & 9 Vict. c. 118, ss. 147, 150 ; 9 & 10 Vict. c. 70, ss. 9, 10, 11 ; 10 & 11 Vict. c. Ill, ss. 4, 6; 11 & 12 Vict. 0.99, s. 13; 12 & 13 Vict. 0. 83, ss. 7, 11 ; 15 & 16 Vict. 0. 79, ss. 31, 32 ; 17 & 18 Vict. 0. 97, s. 5 ; 20 & 21 Vict. c. 31, ss. 1—11 ; 2] k 22 Vict. c 53 ; 22 & 23 Vict. c. 43, ss. 10, 11 ; 39 & 40 Vict. c. oG, s. 33. {d) Stat. 31 & 32 Vict. c. 40, amended by stat. 39 & 40 Vict, c. 17. (e) Sect. 3. (/) Stat. 3G & 37 Vict. c. 66, s. 16. {(/) Stat. 37 & 38 Vict. c. 83. {/i) Sect. 4 ; Wilkinson v. Jo- hcrn^, L. R., 16 Eq. 14; rorter v. Lop^-s, L. R., 7 Ch. D. 358. OF JOINT TENANTS AND TENANTS IN COMMON. 145 direct a sale of the property (/). This alteration of the law, which was some time since suggested by the author (/.), has effected a substantial improvement. (j) Sect. 5 ; see IFilliams v. {k) Essay on Real Assets, p. Games, L. R., 10 Ch. 204 ; Fitt v. 129. Jones y 5 Ajjp. Cas. G51. R.P. 146 OF CORPOREAL HEREDITAMENTS. CHAPTEE VII. OF A FEOFFMENT. Having 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 he 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 was 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 property law, these means of conveyance and their prin- ciples must yet continue objects of the early attention Feoffment of every student : of these means the most ancient is a -wath hvery ot f(,Qjf)ji(,jff ^[-{f/i Jireryof sei>•) Sect. 25, subsect. (11). (i) 2 Black. Com. 345. (t) Principles of Conveyancing, Introduction. OF USES AND TllUSTS. 167 feoffee himself, in which case he takes by the common law (»), no subsequent use will bo cxecuted^^fmd the feoffee will take the fee simple ; thus, under a feoffment 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 in A. to whom the use is first declared (*>). Here then Chancery iu- was at 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- prived of the estate, which was intended solely for his benefit ; the Court of Chancery, therefore, interposed on his behalf, and constrained the party, to whom the law had given the estate, to hold in trust for him to whom the use was last declared. Thus arose the modern doctrine of uses and trusts. And hence it is, / that by the modern method of vesting a freehold estate in one person as trustee for another, the conveyance is made unto the trustee, or some other person (it is imma- terial which), and his heirs, to the use of the trustee and his heirs, in trust for the party intended to be benefited (called cestui que trust) and his heirs. In a deed exe- cuted after the 31st December, 1881, the limitation may be unto and to the use of the trustee in fee simple, in ' 9(jLcjw. trust for the cestui que trust in fee simple without the use ' of the word heirs {w) . An estate in fee simple is thus vested in the trustee, by force of the Statute of Uses, and the entire beneficial interest is given over to the cestui que trust by the doctrines of the Court of Chan- cery. The estate in fee simple, which is vested in the Legal estate. trustee, is called the ler/al estate, being an estate, to which the trustee was entitled, only in the contemplation of a court of law, as distinguished from equity. The (?«) Doe d. Lloyd v. Fassingham, {v) Boe d. Lloyd v. Fassiiigliam, 6 Bam. & Ores. 305, 317; Orme^s ubi supra. case, L. R., 8 C. P. 281. (;<•) Stat. 44 & 45 Vict. c. 41, u. 51 ; ante, p. 150. r.) n 168 OF CORPOREAL HEREDITAMENTS. Equitable estate. interest of tlie cestui que trust is called an cqiiitahle estate, being an estate to which he was entitled only in the contemplation of the Court of Chancery, which admi- nistered equity. The Supreme Court of Judicature Act, 1873, 'has assigned to the Chancery Division of the High Court the execution of trusts, charitable and private {x) ; but the doctrine of trusts remains the same. In the present instance the cestui que trust has an equitable estate in fee simple. He is the beneficial owner of the property. The trustee, by virtue of his legal estate, has the right and power to receive the rents and profits ; but the cestui que trust is able, by virtue of his estate in equity, at any time to oblige his trustee to come to an account, and hand over the whole of the proceeds. Estates in cqiiity. Jlodern Chan- cery different to ancient. "We have now arrived at a very prevalent and im- portant kind of interest in landed property, namely, an estate in equity merely, and not at law. The owner of such an estate had no title at all in any court of law, but was obliged to have recourse exclusively to the Court of Chancery, where he found himself considered as owner, according to the equitable estate he might have had. Chancery in modern times, though , in principle the same as the ancient com-t which first gave effect to uses, was yet widely different in the application of many of its rules. Thus we have seen (y) that a con- sideration, however trifling, given by a feoffee, was sufficient to entitle him to the use of the lands of which he was enfeoffed. But the absence of such a consi- deration caused the use to remain with, or more tech- nically to result to, the feoffor, according to the rules of Chancery in ancient times. And this doctrine has now a practical bearing on the transfer of legal estates ; the ancient doctrines of Chancery having, by the {x) Stat. 30 & 37 Vict. c. 8. 34. 6G, (y) Ante, p. 163. OF USES AM) TllUSTS. J 00 Statute of Uses, become tlie means of determiuing the owner of the legal estate, whenever uses are mentioned. ( But the modern Court of Chancery took a wider scope, and would not withhold or grant its aid, according to the mere payment or non-payment of five shillings : thus, circumstances of fraud, mistake, or the like, may induce the Chancery Division of the High Court, which now stands in the place of the Court of Chancery, to require a grantee under a voluntary conveyance to hold merely as a trustee for the grantor ; but the mere want of a valuable consideration would not now be con- sidered a sufficient cause for its interference (~). By the act to confer on the County Courts a limited County juiisdiction in equity, it was enacted, amongst other °!^ ^* things, that these courts should have and exercise all ^ the power and authority of the High Court of Chan- cery in all suits for the execution of trusts in which the trust estate or fund should not exceed in amount or value the sum of five hundred pounds (a). This act came into operation on the first of October, 1865 {b). In the construction and regulation of trusts, equity Equity foi- led to foUow the law, that is, the Court of Chancery ^°^^^ ^^"^ ^'''^• generally adopted the rules of law applicable to legal estates (r) ; thus, a trust for A. for his life, or for him Equitable es- and the heirs of his body, or for him and his heirs, or and ki Tail ° for him in tail or in fee simple in a deed executed after the 31st December, 1881 [d), will, give him an equit- able estate for life, in tail, or in fee simple, as the case may be. An equitable estate tail may also be barred, in the same manner as an estate tail at law, and cannot be (z) 1 Sand. Uses, 334 (365, 5th {b) Sect. 23. ed.). {c) 1 Sand. Uses, 269 (280, 5th (ff) Stat. 28 & 29 Vict. c. 99, ed.). s. 1, amended by stat. 30 & 31 (d) Stat. 44 & 45 Vict. c. 41, Vict. c. 142. s. 51. Z?^ 170 OF CORPOREAL HEREDITAMENTS. Equitable estate tail in lands to be purchased. disposed of by any other means. But the decisions of equity, though given by rule, and not at random, do not follow the law in all its ancient technicalities, but proceed on a liberal system, correspondent with the more modern origin of its power. Thus, equitable es- tates in tail, or in fee simple, may be conferred without the use of the words heirs of the hodij, or heirs, or other words necessary to limit a legal estate of inheritance, if the intention be clear : for, equity pre-eminently re- gards the intentions and agreements of parties ; accord- ingly, words which at law would confer an estate tail, are sometimes construed in equity, in order to further the intention of the parties, as giving merely an estate for life, followed by separate and independent estates tail to the children of the donee. This construction is frequently adopted by equity in the case of marriage articles, where an intention to provide for the children might otherwise be defeated by vesting an estate tail in one of the parents, who could at once bar the entail, and thus deprive the children of all benefit [e). So if lands be directed to be sold, and the money to arise from the sale be directed to be laid out in the purchase of other land to be settled on certain persons for life or in tail, or in any other manner, such persons will be re- garded in equity as already in possession of the estates I they are intended to have : for, whatever is fully agreed • to be done, equity considers as actually accompKshed. And in the same manner if money, from whatever som'ce arising, be du-ected to be laid out in the pur- chase of land to be settled in any manner, equity will regard the persons on whom the lands are to be settled as already in the possession of theu* estates (/). ■ And in both the above cases the estates tail directed to be settled may be barred, before they are actually given, {e) 1 Sand. Uses, 311 (337, 5th ed.); Watkins on Descents, 168 i''2H, 4th ed.). ed. (/) 1 Sand. Uses, 300 (324, 5th OF USES AKD TRUSTS. 171 by a disposition, duly enrolled, of the lands which are to be sold in the one case, or of the money to be laid out in the other (r/). Again, an equitable estate in fee Equitable simple immediately belongs to every purchaser of free- shnpLI^ ^° hold property the moment he has signed a contract for purchase, provided the vendor has a good title (/*) ; and it is understood that the whole estate of the vendor is contracted for, unless a smaller estate is expressly men- tioned, the employment of the word heirs, or of other technical words, not being essential {i). 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, until the passing of a recent Act which enacts the contrary (/), have had a right (to be en- forced in equity) to have the estate paid for out of the money and other personal estate of his deceased ances- tor ; and the vendor would be a trustee for the heir, until he should have made a conveyance of the legal estate, to which the heir would be entitled. Many other examples of equitable or trust estates in fee simple might be furnished. An equitable estate in fee will not escheat to the lord No escheat of upon failure of heirs of the cestui que trust {k), for a at™st estate. ^ust 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 {fj) Stat. 3 & 4 Will. IV. 0. 74, (J) Bower v. Cooper, 2 Hare, ss. 70, 71, repealing stat. 7 Geo. 408. IV. c. 45, which repealed stat. {j) Stat. 40 & 41 Vict. c. 34. 39 & 40 Geo. III. c. 56. {k) 1 Sand. Uses, 288 (302, 5th ill) Sugd. Vend. & Piir. 1G2, ed.). 13th ed. 172 OF COUrOllKU. IIEREUITAMEXTS. Trust for alien. ' Naturalisa- tion Act, 1870. Treason. Failure of heirs of trustee. Descent of estate of trustee. own(/). But previously to the Naturalization Act, 1870 (iji), it was held that if lands were purchased by a natural-born subject in trust for an alien (>?), the crown might claim the benefit of the purchase (o) ; although if lands were directed to be sold, and the produce given to an alien, the crown had then no claim (p). But as we have seen (q), 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 resj)ects 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 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 (s). But, as we have seen (t), all forfeitures for treason are now abolished {u). By a statute of the present reign (v), both the lord's right of escheat, and the crown's right of forfeiture, had already been taken away in the case of the failui'e of heirs or corruption of blood of the trustee, except so far as he himself might have any beneficial interest in the lands of which he was seised (x). Trustees, as we have seen (y), are invariably made , (/) Burgess v. Wheate, 1 Wm. Black. 123; 1 Eden, 177; Taylor V. Raijgarth, l-l Sim. 8; Lavall v. New River Cumpanij, 3 De Gex & Smale, 394 ; Beale v. tSijinonds, IG Beav. 406. (w) Stat. 33 Vict. c. 14. («) See ante, p. 67. (o) Barrow v. Wadkin, 24 Beav. 1; Sharj} v. St. Sauveur, L. K., 7 Ch. Ap. 343 ; overruling liitt- son y. Stordij, 3 Sm. & Giff. 230. {p) I)u Uourmel'ui v. Sheldon, 1 Beav. 79 ; 4 My. & Cr. 525. {q) Ante, p. 69. (;•) Stat. 33 Vict. c. 14, s. 2. («) 1 Hale, P. C. 249. {t) Ante, p. 60. («) Stat. 33 & 34 Vict. c. 23. [v) Stat. 13 & 14 Vict. c. 60, repealing stat. 4 & 5 "Will. IV. c. 23, to the same effect. {x) Stat. 13 & 14 Vict. c. 60, s. 47. (y) Ante, p. 139. OF USES AND TRUSTS. 173 joint tenants. So that, if there are more trustees than one, upon the death of one of them the estate in any land subject to the trust vests at once in the surviving trustees or trustee. _J[Jpon the death of a sole or sole surviving trustee of lands previously to the 1st January, 1882, the legal estate therein passed to his devisee or heir at law, according as he had or had not devised the same by his will, in each case subject to the trust. The devolution of trust estates upon the death of a sole or sole surviving trustee after the 31st December, 1881, is different. For by the Conveyancing and Law of Pro- perty Act, 1881 (2), where an estate or interest of in- heritance, or limited to the heir as special occupant, in any tenements or hereditaments, corporeal or incorpo- real, is vested on any trust, in any person solely, the same shall, on his death, notwithstancUnci any testamen- tary disposition, devolve to and become vested in his personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in them or him ; and accordingly all the like powers for one only of several joint personal represen- tatives, as well as for a single personal representative, and for all the personal representatives together, to dis- pose of and otherwise deal with the same, shall belong to the deceased's personal representatives or representa- tive from time to time, with all the like incidents, but subject to all the like rights, equities, and obligations, as if the same were a chattel real vesting in them or him ; and for the purposes of this enactment, the per- sonal representatives, for the time being, of the deceased are to be deemed in law his heirs and assigns, within the meaning of all trusts and powers. Ike descent of an equitable estate on intestacy follows Descent of an the rules of the descent of legal estates ; and, therefore, estate. {£) Stat. 44 & 45 Vict. c. 41, s. 30. 174 OF CORPOREAL HEREDITAMENTS. in tlie case of gavelkind and borougli-Englisli lands, trusts affecting them will descend according to the descendible quality of the tenure {a) . Creation and transfer of trust estates. Statute of Frauds. 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 {b). But, by the Statute of Frauds {c), it is enacted (d), 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 {c), 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 trusts, or by his last will in writing; and further (/), 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- ing from any conveyance of lands or tenements, by implication or construction of law, and trusts trans- ferred or extinguished by an act or operation of law, are exempted from this statute {[/). In the transfer of equitable estates it is usual, in practice, to adopt con- veyances applicable to the legal estate ; but this is never necessary (//). If writing is used, and duly (ft) 1 Sand. Uses, 270 (282, Stli ed.). (i) 1 Sand. Uses, .315, 316 (343, 344, 5th ed.). (c) 29 Car. II. c. 3. {d) Sect. 4 ; Sug. V. & P. c. 4, pp. 96 et seq., 13th ed. (fi) Sect. 7 ; Ticmeij v. Wood, 19 Beav. 330. (/) Sect. 9. \(j) 29 Car. II. c. 3, s. 8. {h) 1 Sand. Uses, 342 (377, 6th ed.). OF USES AND TRUSTS. 175 signed, in order to satisfy tlie Statute of Frauds, and the intention to transfer is clear, any words will answer the purpose (i). The sale of real estate by auction is now regulated Sale of land by an act which renders invalid every such sale where a 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 (/.•) . This act also very Opemng of properly abolishes a practice which had long prevailed abolished. in Courts of Chancery of opening the biddings after a sale by auction of land under their authority, if a price considerably higher were 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(/). (i) Agreements, the matter initials of his firm, together with whereof is of the value of five the true date of his so writing, pounds or upwards, now bear a Stat. 33 & 34 Vict. c. 97, s. 24. stamp duty of sixpence, which Declarations of trust of any pro- may be denoted by an adhesive perty made by any writing not stamp, which is to be cancelled by being a deed or will, or an instru- the person by whom the agreement ment chargeable with ad valorem is first executed. Stat. 33 & 34 duty, bear the same duty as ordi- Vict. c. 97, s. 36. The stamp is nary deeds. Stat. 33 & 34 Vict, cancelled by writing on or across c. 97, schedule ; ante, p. 156. the stamp the name or initials of (/i) Stat. 30 & 31 Vict. c. 48, the person required by law to ss. 4, 5, 6. cancel the same, or the name or [1) Sect. 7. 176 OF CORPOREAL HEREDITAMENTS. Where time not of essence in Equity, not to be of es- sence in any courts. Courts of Equity, looking to the substance of con- tracts rather than to the letter, have been in the habit of enforcing theii' performance, in some cases where the time fixed has gone by, and the contract has therefore, according to the letter of the law, come to an end. The Supreme Court of Judicature Act, 1873 {m), which transfers to the Court thereby established the jurisdic- tion of the superior courts both of law and equity, accordingly provides (//), that stipulations in contracts, as to time or otherwise, which would not, before the com- mencement of that act, have ' been deemed to be, or to have become, of the essence of such contracts in a Court of Equity, shall receive in all courts the same construc- tion and effect as they would have theretofore received in equity. County Courts agreements for sale or lease. '- The County Courts have now jurisdiction in equity in all suits for specific performance of, or for reforming, delivering up or cancelling of, any agreement for the sale, purchase or lease of any property, where, in the case 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 (o) . Trust estates liable to debts. The Statute of Frauds. 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 was 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 (m) Stat. 36 & 37 Vict. c. 66. c. 77, s. 10. («) Sect. 25, subsect. (7), (o) Stat. 30 & 31 Vict. c. 142, amended by stat. OS & 39 Vict. s. 9. OB^ USES AND TRUSTS. 177 law had descended to him in possession in like manner as the trust descended (p). And tlie subsequent statutes, Subsequent 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 every kind, apply as well to equitable or trust estates as to estates at law ( q) . The same Statute of Frauds also gave a remedy to "Judgment the creditor who had obtained a judgment against his *^ ^' debtor, by providing (r) , that it should be lawful for of 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. (.s), 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 {t), {p) Stat. 29 Car. II. c. 3, s. 10. {q) Stat. 3 Wm. & Mary, c. 14, Before this provision the Court of s. 2; 47 Geo. III. c. 74 ; 11 Chancery had refused to give the Geo. IV. & 1 "Will. IV. c. 47; bond creditor any relief. Beimct 3 & 4 "Will. IV. c. 104 ; 32 & 33 V. Box, I Cha. Ca. 12 ; Frat v. Vict. c. 4G ; 38 & 39 Vict. c. 77, Colt, ib. 128. These decisions, in s. 10 ; ante, pp. 84 — 87. all probability, gave rise to the (;•) Stat. 29 Car. II. c. 3, s. 10. above enactment. See 1 Wm. (s) Stat. 19 Hen. VII. c. 15. Black. 159 ; 1 Sand. Uses, 276 {/) Stat. 27 Hen. VIII. c. 10. (289, 5th ed.). R.P. N 178 OF CORPOREAL HEREDITAMENTS. turned into estates at law. The construction placed upon this enactment of the Statute of Frauds was more favoui-able to purchasers than that placed on the statute of Edward I. {u), by which fee simple estates at law were first rendered liable to judgment debts. For it was held that although the trustee mi^ht have been seised in trust 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 words of the statute, seised in trust for the debtor at the time of execution sued (r). The act for extending the remedies of creditors against the property of debtors (?f), however, deprived purchasers of this advantage, in con- sideration perhaps of the greater facilities which it afforded in the search for judgments; for it provided (a?), that execution might be delivered, under the writ of elegit, of all such lands and hereditaments as the person against whom execution was 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 afteru-ards ; and a remedy in equity was also given to the judgment creditor against all lands and heredita- ments 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 in- New enact- terest whatever at law or in equity (//). But the still more recent enactments (~), to which we have before referred («), have greatly diminished the effect of these provisions. (m) Stat. 13 Edw. I. c. 18; ante, (.r) Sect. 11. p. 88. (y) Sect. 13. {v) Sunt V. Coles, Com. 226; (z) Stats. 2 & 3 Vict. c. 11, s. 5; Ifarris V. PuffJi, 4t Bing. Z3d ; 12 23 & 24 Vict, c, 38, ss. 1, 2; J. B. Moore, 577. 27 & 28 Vict. c. 112. (w) Stat. 1 & 2 Vict. c. 110; («) Ante, pp. 91—93. ante, p. 89. ment8. OF USES AND TRUSTS. 170 Trust estates are subject to debts due to tlie crown Crown debts, in the same manner and to the same extent as estates at law {b). They are also equally liable to involuntary Bankruptcy, alienation on the bankruptcy of the ccsfid que truHt. But, on the bankruptcy of the trustee, the legal estate in the premises of which he is trustee remains vested in him and does not pass to the trustee for his creditors (c) ; and the same rule formerly applied to cases of insol- vency (rf). The circumstance of property being vested in trus- The Trustee tees sometimes occasions inconvenience. A trustee ^^^^ ^^^''^• may become lunatic, or may leave the country, or may refuse to convey, when required, the lands of which he is trustee. In order to remedy the inconvenience , thus occasioned to the persons beneficially entitled, it is \ provided by acts of parliament of the present reign [e) that, in the case of a lunatic trustee, the Lord Chan- cellor, or the judges entrusted by the Queen's sign manual with the care of the persons and estates of lunatics, and the Chancery Division of the High Court 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 expedient to New trustees, appoint a new trustee, and it is inexpedient, difficult, or impracticable to do so without the assistance of the Court, the 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 (/), or [b) King v. Smith, Sug. Vend. and 15 & 16 Vict. c. 55, repealing &Pur., Appendix, No. 15, p. 1098, and consolidating stats. 11 Geo. nth ed. IV. & 1 WiU. IV. c. CO, 4 & 5 [c) Stat. 32 & 33 Vict. c. 71, Will. IV. c. 23, and 1 & 2 Vict. s. 15, par. (1). c. 69. See also stats. 36 & 37 {cl) Sims y. Thomas, 12 Ad. & Vict. c. 66, and 38 & 39 Vict. El. 536. c. 77, s. 7. («) Stats. 13 & 14 Vict. c. 60, (/") Stat. 13 &14Vict.c. 60,8.32. n2 180 OF CORPOREAL HEREDITAMENTS. whether there be any existing trustee or not {(j). The Court is also empowered to appoint a new trustee in the place of any trustee who shall have been convicted of felony [h) . 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 effect as if the person or persons who before such order were the trustee or trustees (if any) had duly executed all proper con- veyances of such lands (/), Every trustee appointed by the Court has, as well before as after the trust property becomes vested in him, the same powers, authorities and discretions, and may in all respects act, as if he had been originally appointed a trustee by the instru- ment, if any, creating the trust (/i). 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 (/). But every such order is now chargeable with a stamp duty of 10s. (m). All the power and authority of the Court, in any of the above-mentioned matters, is now vested in the County Courts, in all proceedings in which the trust estate or fund to which the proceeding relates shall not exceed in amount or value the sum of five hundred pounds (/?). Property held By another act of parliament (o) provision is made for S^'eduSnal Vesting the property of congregations or societies for purposes. purposes of religious worship or edvication in new (r/) Stat. 15 & 10 Vict. c. 55, c. 124, s. 15; 23 & 24 Vict. c. 136; 8. 9. 25 & 26 Vict. c. 112; 32 & 33 (A) Sect. 8. Vict. c. 110. («) Stat. 13 & 14 Vict. c. 60, (m) Stat. 33 & 34 Vict. c. 97, 8. 34. 8. 78. (k) Stat. 44 & 45 Vict. c. 41, {«) Stat. 28 & 29 Vict. c. 99, 8. 33. 8. 1. (/) Sect. 45. Stats. 16 & 17 (o) Stat. 13 & 14 Vict. c. 28. Vict. c. 137, s. 48; 18 & 19 Vict. Charity pro perty. County Court.s. OF USES AND TRUSTS. 181 trustees from time to time without any conveyance. The provisions of this act have recently been extended Literary and T • T a • -rt T • • / \ 111. Hcientinc in- to Literary and scientific Institutions ( p) ; and also to stitutiona. burial grounds (q). The act to facilitate the incorpora- Burial / . /, tion of trustees of charities for religious, educational, ^^^"'^ literary, scientific and public charitable purposes has already been referred to (r). In the year 1860 an act, commonly called " Lord statutory Cranworth's Act," was passed, which contained general appoint new- provisions for the appointment of new trustees, similar trustees. to the powers for that purpose before ordinarily inserted in well-drawn trust deeds (6). These provisions ex- tended only to instruments executed, or wills con- firmed or revived by codicil executed after the 28th of August, 1860, the date of the act (^). They were'' repealed from after the 31st of December, 1881, by the Conveyancing and Law of Property Act, 1881 (?^), which has substituted provisions for the appointment of new trustees applicable to trusts created cither before i/ or after its commencement {,v). These enactments, however, only apply if and as far as a contrary in- tention is not expressed in the instrument, if any, creating the trust ; and they have effect subject to the terms of that instrument and to any provisions contained therein (y). By the 31st section of the act (s), where a trustee is dead, or remains out of the united kingdom for more than twelve months, or desires to be dis- charged from the trusts or powers reposed in or conferred on him, or refuses or is unfit to act therein, or is in- capable of acting therein, then the person or persons {p) Stat. 17 & 18 Vict. c. 112, {t) Sect. 34. 6. 12. («) Stat. 44 & 45 Vict. c. 41, {q) Stat. 32 & 33 Vict. c. 36. s. 71. (r) Stat. 35 & 36 Vict. c. 24; (.,) Sect. 31, sub-s. (8). ante, p. 81. [y) Sect. 31, sub-s. (7). [s) Stat. 23 & 24 Vict. c. 145, {£) Sect. 31, sub-s. (1). BS. 27, 28. 18:^ OF CORPOKEAL HEREDITAMENTS. nominated for this purpose by the instrument, if any, creating the trust, or if there is no such person, or no such person able and willing to act, then the siu-viving or continuing trustees or trustee {a) for the time being, or the personal representatives of the last surviving or continuing trustee, may, by writing, appoint a new trustee or new trustees. Every new trustee so appointed has, as well before as after all the trust property becomes by law, or by assurance, or otherwise, vested in him, the same powers, authorities and discretions, and may in all respects act, as if he had been originally appointed a trustee by the instrument, if any, creating the trust (b). On an appointment of a new trustee, the number of trustees may be increased (c) . It is not obligatory to appoint more than one new trustee, where only one trustee was originally appointed, or to fill up the original number of trustees, where more than two trustees were originally appointed ; but, except where only one trustee was originally appointed, a trustee will not be discharged under the 31st section of the act from his trust unless there will be at least two trustees to perform the trust (d). Under this section a new trustee may be appointed in the place of a person nominated trustee in a will who Retirement dies before the testator {c) . By the 32nd section of the same act, where there are more t/ian t/co trustees, a trustee may retire and be discharged from the trust, without any new trustee being appointed in his place, upon his declaring by deed his desire to be discharged, and his co-trustees, and such other person, if any, as may be empowered to appoint trustees, consenting by deed to his discharge. It was not the practice of con- (rt) The provisions of this sec- 45 Vict. c. 41, s. 31, sub-s. 6. tion relative to a continuing {b) Sect. 31, sub-s. (5). trustee include a refusing or re- {c) Sect. 31, sub-s. (2). tiring trustee, if willing to act in (d) Sect. 31, sub-s. (3). the execution of the same ; 44 tS; [cj Sect. 31, sub-s. (6). of trustee. OF USES AND TKUSTS. 183 veyancers, previously to this enactment, to insert any ' provision of a similar nature into trust deeds. This section, however, applies to trusts created either before or after the commencement of the act (_/'), but only if and as far as a contrary intention is not expressed in the instrument, if any, creating the trust : and it has effect subject to the terms of that instrument, and to any provisions contained therein ( g) . When a new trustee was appointed, it was formerly Conveyance necessary for the persons who were trustees when the of tj;ustees' appointment was made, to execute a conveyance of their estate in any land subject to the trust to the new ^ ^ t trustee and the continuing trustees (/) . The conveyance ' was made sometimes by the same deed by which the new trustee was appointed, sometimes by a separate deed. In deeds of appointment of a new trustee and May be now of discharge of a retiring trustee executed after the ™y ^Ve^jfra". 81st of December, 1881 (A-), the estate in any land tion. subject to the trust may be vested in the future trustees simply by a declaration to that effect made by the proper persons without any conveyance. For, by the Conveyancing and Law of Property Act, 1881 {V), where a deed by which a new trustee is appointed contains a declaration hy the appointor to the effect that any estate or interest in any land subject to the trust shall vest in the persons who by virtue of the deed become and are the trustees for performing the trust, that declaration shall, without any conveyance, operate to vest that estate or interest in those persons as joint tenants and for the purposes of the trust. And where a deed, by which a retiring trustee is discharged under the same act, contains a similar declaration hij the (/) Sect. 32, sub-s. (4). the Court; see ante, p. 179. \g) Sect. 32, sub-s. (3). (A) Stat. 44 & 45 Vict. c. 41, (J) Except in cases where the s. 34, sub-s. (5). estate could be vested by order of (/) Sect. 34, sub-s. (1). 18i OF CORPOREAL HEREDITAMENTS. retininy and continuiiuj trustees, and by the other person, if any, empoicered to appoint trustees, tliat declaration shall, without any conveyance, operate to vest in the continuing trustees alone as joint tenants, and for the pui'poses of the trust, the estate and interest to which the declaration relates {ni). 51 -^Stamps on It is now provided that a conveyance or transfer of'newtrur- ^^^^^ foi' effectuating the appointment of a new trus- tees. tee, is not to be charged with any higher duty than lO.s. (n). Law and equity were distinct systems. The concurrent existence of two distinct systems of jurisprudence was a peculiar feature of English Law. On one side of Westminster Hall a man might have succeeded in his suit under circumstances in which he would undoubtedl}^ have been defeated on the other side ; for he might have had 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 have succeeded in a chancery suit, he never would have thought of bringing an action at law ; in the latter case, he would have succeeded in an action at law ; but equity would have taken care that the fruits should be reaped only by the person beneficially entitled. The equitable title was, therefore, the beneficial one, but if barely equitable, it might have occasioned the expense and delay of a chancery suit to maintain it. Common Law { A step was taken towards the amalgamation of Act 1854. l^-"^^ ^^^ equity by the Common Law Procedure Act, (;h) Stat. 44 & 4o Vict. c. 41, s. 34, snb-s. 2. The 34tli section does not extend to any legal estate or interest in copyhold or cus- tomary land, or to land conveyed by way of mortgage for securing money subject to the trust. («) Stat. 33 & 34 Vict. c. 97, s. 78. n OF USES AND TRUSTS. 1854 (o), wliicli conferred ou the Courts of Common Law an extensive equitable jurisdiction. The plaintiff in any action, except replevin and ejectment, was allowed to claim a writ of mandamus commanding the defendant to fulfil any duty in the fulfilment of which the plaintiff was personally interested (/>), and by the non-performance of which he might have sustained damage (r). In all cases of breach of contract or other injury, where the party injured was entitled to maintain and had brought an action, he was allowed to claim a writ of injunction against the repetition or continuance of such breach or injury (.s). If the defendant would have been entitled to relief against the judgment on equitable grounds, he was allowed to plead, by way of defence to the action, the facts which entitled him to such relief (/) ; and the plaintiff might have replied, in answer to any plea of the defendant's, facts which avoided such plea on equitable grounds {u). But the facts pleaded were required to be such as would entitle the person pleading them to absolute and unconditional relief in the Court of Chancery, otherwise the plea would not have been allowed (.r-) . The change effected was not therefore so great as might, at first sight, have been supposed. Another act of parliament conferred a common law jurisdiction upon the Court of Chancery: — (o) Stat. 17 & 18 Vict. c. 125. s. 83. {p) Sect. 68. («) Sect. 85. (r) Sect. 69. {x) Mines Royal Societies v. (s) Sect. 79. By the Rules of Magnaij, lOExch. 489; Wodehouse tlie Supreme Court, April, 1880, v. Farebrother, 5 E. & B. 277; Rule 32 (Order LII., Rule 8), no Wood v. Coi^per Miners' Company, ■writ of injunction shall be issued. 17 C. B. 561; Flight v. Gray, 3 An injunction shaU be by a judg- C. B., N. S. 320 ; Gee v. Smart, 8 ment or order, and any such E. & B. 313; Jeffs v. Bay, Law judgment or order shall have the Rep., 1 Q. B. 372 ; Murphy v. effect which a writ of injunction Glass, Law Rep., 2 P. C. 408 ; previously had. Alien v. JTalker, Law Rep., 5 (0 Stat. 17 & 18 Vict. c. 12'), Exch. 187. 185 186 OF CORPOREAL HEREDITAMENTS. The Chanceiy the Chancery Amendment Act, 1858 (//), empowered Act 1858. ^^® Court of Chancery to award damages like a Court of Law in all cases of injunction and specific per- ■ formance (~) ; and the amount of such damages might have been assessed, or any question of fact tried, by a jury before the Court itself («), or by the Court itself without a jury {h). Supreme Court of Judicature Act, 1873. Plaintiffs equitable relief. Defendant's equitable relief. The Supreme Court of Judicature Act, 1873 (c), to which we have already referred [d), has now amalga- mated all the superior courts of law and equity. It provides {e) that if any plaintiff claims to be entitled to any equitable estate or right, or to relief upon any equitable ground, against any deed, instrument or con- tract, or against any right, title or claim whatsoever asserted by the defendant, or to any relief founded upon a legal right which theretofore could only have been given by a court of equity, the Courts respectively, and every judge thereof, shall give to such plaintiff the same relief as ought to have been given by the Court of Chancery in a suit or other proceeding for the same or the like purpose properly instituted before the pass- ing of the act. It also provides (/), that if any defen- dant claims to be entitled to any equitable estate or right, or to relief upon any equitable ground, against ^ny deed, instrument or contract, or against any right, title or claim asserted by the plaintiff, or alleges any ground of equitable defence to any claim of the plaintiff, the said Courts respectively, and every judge thereof, shall give to every equitable estate, right or ground of relief so claimed, and to every equitable defence so alleged, the same effect, by way of defence against the \y) Stat. 21 & 22 Vict. c. 27. Sect. 2. 'a) Sects. 3, 4. [b) Sect. 5. Stat. 36 & 37 Vict. c. 66, amended by stats. 38 & 39 Vict. c. 77, and 39 & 40 Vict. c. 59. [d) Ante, p. 166. ie) Stat. 36 & 37 Vict. c. 66, s. 24, sub-s. (1). (/) Sect. 24, sub-s. (2). OF USES AND TRUSTS. 187 claim of the plaintiff, as the Court of Chancery ought I to have given, if the same or the like matters had been | relied on by way of defence in any suit or proceeding, | instituted in that Court for the same or the like pur- pose before the passing of the act. Provision is made Countev- — ^ clLiiius, for counter-claims by the defendant {g) . Incidental ^ -^ +• 1 equities are also to be recognized by the Courts respec- equities, tively and every iudjife thereof (A). And no cause or No cause to T , '^ \. ,. . ,, TT- 1 r. 1 I. be stayed by proceediug at any time pending m the High Court or iujunctiou. Justice, or before the Court of Appeal, is to be restrained , by prohibition or injunction ; but every matter of equity, ; on which an injunction against the prosecution of any I such cause or proceeding might have- been obtained, if f the act had not passed, either unconditionally or on any terms or conditions, may be relied on by way of defence thereto. Proceedings, however, may be stayed as therein provided (/) . Subject to these provisions all legal rights are to Legal rights be recognized as before (/.•). And, as far as possible, to^'^^iecog- all matters in controversy between the parties are to Multiplicity be settled in the same action, and all multiiilicity of of suits c:i »-* . avoided, legal proceedings concermug any oi such matters is to be avoided (/}. The act further provides (/;?), that Mandamus, q, mandamus or an injunction may be granted by an interlocutory order of the Court, in all cases in which it shall appear to the Court to be just or con- venient that such order should be made ; and any such order may be made either unconditionally or upon such terms and conditions as the Court shall think just. Trusts, however, are not abolished ; and, as we have Trusts not seen, the execution of trusts, charitable and private, is fit)olished. {(/) Sect. 24, sub-8. (3). • {k) Sect. 24, sub-s. (6). [h) Sect. 24, sub-s. (4). (/) Sect. 24, sub-s. (7). (0 Sect. 24, sub-s. (5). (m) Sect. 25, sub-s. (8). 188 OF CORPOREAL HEREDITAMENTS. assigned to the Chancery Division of the Court (n). The beneficial title is still called the equitable title ; the terms legal and equitable estate are still in use ; Legal estate, and the legal estate may still be vested in some other person than the beneficial owner. Every purchaser of landed property has, therefore, a right to a good title both at law and in ecj^uity ; and if the legal estate should be vested in a trustee, or any person other than the vendor, the concurrence 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 interference (o). We shall now take leave of equity and equitable estates, and proceed, in the next chapter, to explain a modern conveyance. («) Stat. 36 & 37 Vict. c. 06, (o) See Bnjdges v. Brydges, 3 s. 34, sub-s. (3), ante, p. 168. Ves. 127. ( 189 CHAPTER IX. • OF A MODERN CONVEYANCE. In modern times, down to the year 1841, the kind of Lease and T ■, T 1 p release. conveyance employed, on every ordinary purcliase oi 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 was a release merely, or, more Release, accurately, a release made in pursuance of the act of parliament (a) intituled " An Act for rendering a Release as eifectual 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 unnecessary. A further alteration was then made, by the act to Act to sim- simplify the transfer of property {b), which enacted (c), transfe/of that, after the 31st day of December, 1844, every property, 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 should take effect, as if it had been made by lease and re- lease ; provided always, that every such deed should be chargeable with the same stamp duty as would have been chargeable if such conveyance had been made by lease and release. (a) Stat. 4 & 5 Vict. c. 21. (J) Stat. 7 & 8 Vict. c. 76. (c) Sects. 2, 13. 190 OF CORPOREAL HEREDITAMENTS. Act to amend the law of I'eal property. This act, however, had not been in operation more than nine months when it was repealed by the act to 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 (c) . 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. A lease for years. Entry neces- sary . The tenant's position altered by entry. From the little that has already been said concerning a lease for years ( /), the reader will have gathered, that the lessee is put into possession of the premises leased ^or a definite time, although his possession Has nothing feudal in his nature, for the law still recognizes the landlord as retaining the seisin or feudal possession. Entry by the tenant was, however, in ancient times, absolutely necessary to make a complete lease {g) ; 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 has thus gained a footing on the premises, under an express contract with his landlord, [d) Stat. 8 & 9 Vict. c. lOG, s. 2. (e) By the second section of the act, the stamp duty on this single deed was the same as was charge- able on the lease and release, ex- cept the progressive duty on the lease. But the duty on the lease for a year was repealed by stat. 13 & 14 Vict. c. 97, s. 6, so far as related to any deed or insti-viment bearing date after the 10th of Oc- tober, 1850. This act with many others is now repealed by stat. 33 & 34 Vict. c. 99 ; and the stamp duties on deeds are now governed by the Stamp Act, 1870, stat. 33 & 34 Vict. c. 97. (/) Ante, pp. 9, 121. iff) Litt. 8. 459; Co. Litt. 270 a. OF A MODERN CONVEYANCE. 191 he became, with respect to the feudal possession, in a different position from a mere stranger; for, he was ; then capable of acquiring such 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 would have been to a mere stranger. In his case, indeed, livery of seisin would have been improper, for he was already in possession under his lease {//) ; and, as a delivery of the possession of the lands could not, there- fore, be made to him, it was necessary that the land- lord's interest should be conveyed in some other manner. Now 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 (/). But in former times, as we have seen (/»•), 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- cj^uired 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 a release, of this kind, it is obvious that the same objection applies as to a feoffment : the inconvenience of actually going inconvenience on the premises is not obviated; for, the tenant must of lease with enter before he can receive the release. In the very , early periods of om" history, this kind of circuitous conveyance was, however, occasionally used. A lease was made for one, two, or thre^ years, completed by the ■ (/() Litt. s. 460; Gilb. Uses and ante, p. 12. Trusts, 104 (223, 3rd ed.). {k) Ante, pp. 153, 154. (i) Co. Litt. 9 a; Doe d. Were (I) Shep. Touch. 320. V. Cole, 7 Bam. & Cress. 243, 248 ; 192 OF CORPOREAL HEREDITAMENTS. actual entry of tlie 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 (w?). 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. Bargain and sale. The Statute of Uses {») was the means of accom- plishing 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 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 (o), consi- dered that the estate ought in conscience immediately to belong to the person who paid tlie money, and, there- fore, held the bargainor or vendor to be immediately seised of the lands in question to the use of the pur- chaser (;;). This proper and equitable doctrine of the Court of Chancery had rather a curious effect when the Statute of Uses came into operation ; for, as by means [m) 2 Sand. Use-s 61 (74, .5th ed.). (w) 27 Hen. VIII. c. 10. (o) Ante, p. 171. (;;) 2 Sand. Uses, 43 (.53, 5th ed.); Gilb. Uses and Trusts, 49 (94, 3rd ed.). OF A MODERN CO^^VEYANCE. 193 of a contract of this kind the purchaser became enti- tled to the iise 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 fact was not (q) . It, consequently, came to pass that the seisin was thus transferred 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 (>■) ; 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 /wirs, which before was necessary to mark out the estate of the purchaser ; for, jtjwas 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 ((7) Thus, he could not maintain 678. See, however, ^ww?., Cro. an action of trespass without being Eliz. 46; Com. Dig. tit. Uses (I) ; actually in possession, for this ac- HccUs y. Blain, 18 C. B., N. S. tion is founded on the distui-bance 90; HadfieWs case, L. R., 8 C. P. of the actual possession, which is 306. evidently more than the Statute (r) Dyer, 229 a; Comyn's Di- of Uses, or any other statute, can gest, tit. Bargain and Sale (B. 1, give. Gilb. Uses, 81 (185, 3rd 4) ; Gilb. on Uses and Trusts, 87, ed.) ; 2ronb. onEquity, 12; Ear- 271 (197, 475, 3rd ed.). Hson V. BlacUurn, 17 C B., N. S. (s) Gilb. Uses, 62 (116, 3rd ed.). R.P. O 194 OF CORPOREAL HEREDITAMENTS. Bargains and sales required to be by deed enrolled. A loophole discovered in the statute. Bargain and sale for a year, vertal bargain and money payment, or bargain and sale, as it was termed. Shortly after the passing of the Statute of Uses, it was accordingly required by another act of parliament (t), passed in the same year, that every bargain and sale of any estate of inheritance or freehold should be made by deed indented and enrolled, Vidthin six months (which means lunar months) from the date, in one of the courts of record at Westminster, 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, before a loophole was discovered in this latter statute, 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 of 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 year only, was not therefore affected by the act [n), 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 (r), was supplied by the Statute of Uses ; which, by its own force, placed him in legal intendment in possession for the same estate as he had in the use, that is, for the term bargained and (r; 27 Hen. VIII. c. 16. Deeds of bargain and sale may now be enrolled in the Enrolment De- partment of the Central Office of the High Court of Justice ; Rules of the Suj^reme Court, April, 1880, Rule 46 (Ord. LXa, rule 6) ; see Rule 48 (Order LXa, rule 8). (w) Gilb. Uses, 98, 296 (214, 502, 3rd ed.) ; 2 Sand. Uses, 63 (75, 5th ed.). (r) Ante, p. 190. release. OF A MODERN CONVEYANCE. 19' sold to him {ir). And as any pecuniary payment, how- ever small, was considered sufficient to raise a use (x), it followed that if A., a person seised in fee simple, bargained and sold his lands to B. for one year in con- sideration 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 convey- ance 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 pre- mises, and B. became at once seised of the lands for an estate in fee simple. This bargain and sale for a Lease and 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 Norris, in order that some of his relations might not know what conveyance or settle- ment he should make of his estate [ij] ; and although the efficiency of this method was at first doubted {z), 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 qiiite independent of that statute, having existed long before, and being as ancient as the common law itself {a). 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 (!(•) Gilb. Uses, 104 (223, Srd (;) Sugd. note to Gilb. Uses, ed.). P- 328 ; 2 Prest. Conv. 231 ; 2 {x) 2 Sand. Uses, 47 (57, 5th Fonb. Eq. 12. ed.). {fi) Siigd. note to Gilb. Uses, (v) 2 Prest. Conv. 219. 229. o2 196 OF CORPOREAL HEREDITAMENTS. liim to receive the release. When this estate for one year was obtained by the lease, the Statute of Uses had jierformed 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 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 {h), it became necessary that every Bargain and bargain and sale of lands for a year should be put into sale for a year ... . . i ii must be in Writing, as no pecuniary rent was ever reserved, tne writing. consideration being usually five shillings, the receipt of 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 (c). Act abolish- This cumbrous contrivance of two deeds to every for a year. ' purchase continued in constant use do^vn to the year 1841, when the act was passed to which we have before referred {d), intituled "An Act for rendering a Release [, J 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 (A) Stat. 29 Car. II. c. 3 ; ante, form of deedn of lease and release, p. loS. (d) Stat. 4 >!c Vict. c. 21 ; (c) See Appendix (D.) for the ante, p. 189. OF A MODERN CONVKYANCE. l'J7 such deed or instrument of bargain and sale, or lease ■ for a year, shall be executed. Aiid now by the act to Act to amend J i.1 1 e ^ L "7~\ 1 J i! J. • tliG law of real amend the law or real proj)erty {c) , a deed oi grant is property, alone sufficient for the conveyance of all corporeal hereditaments. The legal seisin being thus capable of being trans- The estate lUSt out. ferred by a deed of grant, there is the same necessity .^^'^^?- "f^^^ ^® J G ^ J marked now as there was when a feoffment was employed, that the estate which the purchaser is to take should be marked out (/). If he has purchased an estate in fee simple, the conveyance must be expressed to be made to him and his heirs or to him in fee simple {(j) ; for the construction of all conveyances, 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 (A). In this case also, as well as in a feoff- ment, it is the better opinion that, in order to give permaneirE validity to the conveyance, it is necessary either that a consideration should be expressed in the conveyance, or that it should be made to the use of the purchaser as well as u)ifo him (i) : for a lease and release was formerly, and a deed of grant is now, as much an established conveyance 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 to the use of the party conveying. In order, therefore, to avoid any Conveyance ^ . TO c made unto awcZ such construction, and so to prevent the Statute of to the use of the purchaser. {e) Stat. 8 & 9 Vict. c. 106; December, 1881, s. 51, sub-s. 2, ante, p. 190. s. 1, sub-s. 2. See ante, p. 150. (/) Shep. Touch. 327 ; see ante, (A) Shep. Touch. 327. p. 149. [i) 2 Sand. Uses, 64—69 (77— [g) Stat. 44 & 45 Vict. c. 41, 84, 5th ed.) ; Sugd. note to Gilb. s. 51. This is sufficient only in Uses, 233 ; see ante, pp. 153, 163, deeds executed after the 31st 164. 198 OF CORPOREAL HEREDITAMENTS, 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 tiae of himself and his heirs. A conveyance A conveyance might also have been made by lease to uses. and release, as well as by a feoffment, to one person and 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 T7ses, merely a conduit- pipe for conveying the estate to him {j). 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 has been found particularly advantageous as a means A man cannot for avoiding a rule of law, that a man cannot make any MmleU alone, conveyance to himself ; thus if it were wished to make 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. would have passed the whole estate solely to B. (A-). 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 circumstances, 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 him- self jointly with another (/) ; but tliis act does not [j) See ante, p. 164. SlCcovltA,, Faulkner y. Loice, 2 Ex. {k) Perkins, s. 203. So a man Rep. 595. cannot covenant to pay money to (/) Stat. 22 & 23 Vict. c. 35, himself and another on a joint s. 21. OF A MODERN CONVEYANCE. 199 extend to freeholds. If the estate were freehold, pre- ', viously to the 1st January, 1882, A. must have conveyed to B. and his heirs, to the use of A. and B. and their heii's; and a joint estate in fee simple would have immediately vested in them both. In conveyances made after the 31st December, 1881 {)ji), the like result may be obtained without the aid of the Statute of Uses. For by the Conveyancing and Law of Pro- • perty Act, 1881 {n), freehold land may now be conveyed But a man by a person to Iiimse/f Joint/// icith (oiother person by the yey^freeholds like means by whichitmiffhtbeconveyedby him toanother to himself -r, , . J J jointly with person. But this enactment does not appear to enable another; a man to make any conveyance to himself otherwise thunjointli/ tcith another person. Suppose, then, a person should wish to 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 deed (o) . But, by means of the statute, he may make a conveyance of the property to and may the other and his heirs, to the use of himself (the con- another to his veying party) for his life, and from and immediately own use. after his decease, to the use of the other and his heirs and assigns, or in fee simple (p). 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. The reader may now turn his attention to the form Form of a of a deed of conveyance by grant. Since the com- conveyance, mencement of the Conveyancing and Law of Property Act, 1881, that is, after the 31st December, 1881 {q), deeds of conveyance may be drawn in shorter form (m) Stat. 44 & 45 Vict. c. 41, {p) Stat. 44 & 45 Vict. c. 41, s. 50, sub-s. 2, s. 1, sub-s. 2. s. 51 ; only sufficient in deeds («) Stat. 44 & 45 Vict. c. 41, executed after the 31st Decem- s. 50. ber, 1881, s. 51, sub-s. 2, s. 1, (o) Perk. ss. 704, 705 ; Youle sub-s. 2. V. Jones, 13 Mce. & Wels. 534. (-?) Stat. 44 & 45 Vict. c. 41 , s. 1, sub-s. 2. 200 OF CORPOREAL HEREDITAMENTS. An ordiuary purchase deed, Date. Partie.-*. Recital of the conveyance to the vendor. Recital of the contract for Bale. Testatum. Considera- tion. Receipt. tliau that previously in use, if the provisions of that act be relied on. But, before the student can comprehend, much less avail himself of the changes in the practice of conveyancing rendered possible by that act, it is necessary that he should understand the form of and clauses usual in an ordinary purchase deed of the kind in use previously to the commencement of the act. He is accordingly presented with a specimen of such a deed, of the simplest order : — " THIS INDENTURE {q) 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 (>•) 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 (s) " 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 mitnesseth 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 ** said C. D. upon or before the execution of these *' presents (the receipt of which said sum of one thou- " sand pounds in full for the absolute purchase of the *' inheritance in fee simple in possession of and in (v) Ante, p. 15G. (r) Ante, p. 195. (.v) Ante, pp. 63 et seq. OF A MODERN CONVEYANCE. 201 " the messuage lands and hereditaments hereinbefore j " referred to and hereinafter described with the ap- " purtenanees he the said A. B. doth hereby acknow- I " 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 {f) Operative *' unto the said C. D. and his heirs all that messuage ^"^ " or tenement \_/tcre describe the ^jremises^ Together Parcels. " with all outhouses ways watercourses trees com- General " monable rights easements and appurtenances to the " said messuage lands hereditaments and premises {u) " hereby granted or any of them belonging or there- " with used or enjoyed And all the estate [x) and Estate clause. " right of the said A. B. in and to the same To have Habendum. *' and to hold the said messuage lands hereditaments " and premises intended to be hereby granted with the " appurtenances unto and to the use of {>/) the said " C. D. his heirs and assigns for ever (s)." \_Then follow covenants by the vendor icith 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 hereunto 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 {a) ; and, on the back is endorsed an attestation by the witnesses, of whom Two witnesses it is very desirable that there should be two, though the deed would not be void even without any {b) . It has been the practice also to indorse on the back {t) Ante, pp. 190, 197. (;) Ante, pp. 151, 197. (?<) Ante, p. 15. («) Ante, pp. 158, 159. \x) Ante, p. 18. {b) 2 Black. Com. 307, 378. \y) Ante, p. 197. desirable. 202 OF CORFOREAL HEREDITAMENTS. of the deed a further receij)t for the purchase-money (c) ; but this is unnecessary with deeds executed after the /' 31st December, 1881, for a receipt in the body of such deeds is a sufficient discharge ((/). On the face of the Stamps. deed will be observed the proper stamps, without which • it could not formerly have been admitted as evidence (e). But the Common Law Procedure Act, 1854 (/), pro- vided that, upon payment to the proper officer of the court of the stamp duty, and certain penalties, any deed or other document should be admissible in evi- dence, saving all just exceptions on other grounds. And a similar provision is contained in the Stamp Act, 1870 (■) IFiUisv. Broiv/i, 10 Sim. 127. 206 OF CORPOREAL HEREDITAMENTS. Habendum. Parties. Recitals. Operative words. Parcels. Habendum. Uses and trusts. Covenants. No stops. is resumed, and the deed proceeds, " Now ttis Inden- ture witnesseth." The receipt for the purchase-money is 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 words of the deed, or the words which affect 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 beholden : then, the uses and trusts, if any; and, lastly, such 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 independent 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 discovered. OF A MODERN CONVEYANCE. 207 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 WITNESSETH," " To HAVE AND TO HOLD," &0. 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 mis- take, 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 (.s), which is now repealed, the other for leases (/). These acts, however, as might have been expected, have been 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 con- sequently 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 requi- site to give to such learning and skill its proper remune- ration. The principles of the Solicitors' Eemuneration Professional Act, 1881, of which an account will be given further on, seem to promise to solicitors a reasonable method of obtaining in future remuneration for conveyancing and similar business proportionate to the labour actually in- curred. The manner, however, in which the remunera- («) Stat. 8 & 9 Vict. c. 119, c. 41, s. 71. repealed by stat. 44 & 45 Vict. {t) Stat. 8 &• 9 Vict. c. 124. remuneration. 208 OF CORPOREAL HEREDITAMENTS. tion afforded to the profession of the law has hitherto been hestowed, calls for some remark. In a country like England, where every employment is subject to the keenest competition, there can be little doubt but that, whatever method may be taken for the remuneration of professional services, the 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, unfortu- nately, 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 may be 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 {u) • (u) By statute 6 & 7 Vict. c. 73, taxable, unless part of the bill s. 37, the charges of a solicitor for was for busiaess transacted in business relating entirely to con- some 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 di-awn 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 not of the law. OF A MODERN CONVEYANCE. 209 and, more tlian 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 caj)able. The payment to a solicitor for drawing a deed 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 con- sequence 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, have been current among lawyers as common forms, and, by Common the aid of these, ideas have been diluted to the proper remunerating strength ; not that lawyers have actually inserted nonsense simply for the sake of increasing their fees ; but words, sometimes unnecessary in any case, sometimes only in the particular case in which they were engaged, have been suffered to remain, sanctioned by the authority of time and usage. The proper amount of verbiage to a common form became well established and understood ; and whilst any attempt to exceed it has been looked on as disgraceful, it has not been materially diminished during the time in wliich the scale of payment has remained unchanged. The case of the medical profession has been exactly parallel ; for, so long as the public thought that the medicine supplied was the only thing worth paying for, so long were cures accompanied with the customary abundance of little bottles. In both cases, the system has been bad ; but the fault has not been with the profession, who bear the blame, but with the public, who fixed the scale of pajTnent, and who, by a little more direct liberality, might have saved themselves a considerable amount of indirect expense. If physicians' prescriptions were paid for by their length, does any one suppose that their present conciseness would long continue ? — unless indeed R.P. p 210 OF CORPOREAL HEREDITAMENTS. the rate of payment were fixed so liigli as to leave the average remuneration tlie same as at present. The acts relating to conveyances and leases above mentioned contained a provision that, in taxing any bill for pre- paring and executing any deed under the acts, the taxing officer should consider, not the length of such deed, but only the skill and labour employed and responsibility incurred in the preparation thereof {x). The Attor- This, SO far, was an effort in the right direction. And SoUciW ^^ ^^® y®^^ 1870, an act was passed to amend the law Act, 1870. relating to the remuneration of attorneys and solici- tors {//), by which such remuneration was authorized, under certain restrictions, to be fixed by agreement (~) ; and which provided {a), that, upon any taxation of costs, the taxing officer might, in determining the re- muneration, if any, to be allowed to the attorney or solicitor for his services, have regard, subject to any general rules or orders thereafter to be made, to the skill, labour and responsibility involved. Solicitors' Re- The remuneration of solicitors for conveyancing and muneration other nou-conteutious business, and the taxation of Act, 1881. ' their bills of costs, are now to be regulated by general orders to be made under the powers of the Solicitors' Eemuneration Act, 1881 {b). This act provides for Newprin- the introduction of new methods and principles of muneration. remuneration. For it enacts (c), that any general Mode of re- Order under the act may, as regards the mode of re- muneration, prescribe that it shall be according to a scale of rates of commission or per-centage, varying or not in different classes of business, or by a gross sum, or by a fixed sum for each document prepared or {x) Stat. 8 «& 9 Vict. c. 119, (a) Sect. 18. s. 4 ; 8 & 9 Vict. c. 124, s. 3. (4) Stat. 44 & 4o Vict. c. 44, (y) Stat. 33 & 34 Vict. c. 28, ss. 1—7. passed 14th July, 1870. {<■) Sect. 4. (r) Sects. 4—15. muneration. OF A MODERN CONVEYANCE. 211 perused, without regard to lengtli, or in any other I mode, or partly in one mode and partly in another, or others; and may, as regards the amount of the Amount of re - remuneration, regulate the same with reference to all or any of the following, among other considerations (namely) : The position of the party for whom the solicitor is concerned in any business, that is, whether as vendor or as purchaser, lessor or lessee, mortgagor or mortgagee, and the like : The place, district and circumstances at, or in which, the business, or part thereof, is transacted : The amount of the capital money, or of the rent, to which the business relates : The skill, labour and responsibility involved therein on the part of the solicitor : The number and importance of the documents prepared or perused, without regard to length : The average or ordinary remuneration obtained by • solicitors in like business at the passing of the act. No general order has yet been made under this act. Agreement as Under the 8th section of the same act, it is competent and mode of for a solicitor and his client to enter into an agree- I'emuneration. ment for the remuneration of the solicitor, to such amount and in such manner as they may think fit, fori any business to which the act relates. It remains to be seen what effect the principles of remuneration introduced by the above act, when they are brought into practice, will have upon legal instru- ments and common forms ; and also to what extent the shorter forms of deeds, which it was the object of the Conveyancing and Law of Property Act, 1881 (r/), to introduce, will be adopted by the profession. Long rooted customs are hard to eradicate. The student had (r/) Stat. 44 & 45 Vict. c. 41. p 2 212 OF CORPOHEAL HEREDITAMENTS. better for the present make up his mind still 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 necessary 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 arrangements of its parts. A simi- lar conveyance, by lease and release, in the old esta- blished common forms, as they existed in their palmiest days, will be found in the Appendix [e). Latterly, however, these forms were often much curtailed. The Convey- ancing- and Law of Pro- perty Act, 1881. Changes in the form of conveyances now possible. General words, estate clause and covenants for , title may now be omitted. It has been mentioned (/) that since the 31st Decem- ber, 1881, deeds of conveyance may be drawn in shorter form than that previously in use, if the provisions of the Conveyancing and Law of Property Act, 1881 (g), be relied on. The nature of those provisions, and the principal changes which may be effected in the form of a conveyance by relying thereon, may be shortly stated as follows : — Those rights and obligations of the parties to a conveyance, which were before determined by the insertion therein of general ironic, of an e>itate clause, and of covenants for title, may now be ascertained from certain sections of the Act (//). The operation of these sections, however, may be excluded or varied by the terms of the conveyance (/.•) . In drawing a deed of conveyance, therefore, in which it is intended to rely on the act, the general nvrds, estate clause and covenants for title are omitted. But, in order to incorporate the proper statutory covenants for title in a con- (c) See Appendix (D). (/) Ante, p. 199. iff) Stat. 44 & 45 Vict. c. 41. {h) Sects. 6, 03 and 7 respec- tively. (/.•) Stat. 44 & 45 Vict. c. 41, ss. G, sub-s. 4 ; 7, sub-ss. 4, 7 ; 63, sub-s. 2. OF A MODERN CONVEYANCE. 213 veyance, it is necessary to express therein that the Certain words person, who is to be bound by the covenants, conveys i|^corporatG° in one of the characters mentioned in the act (/). For statutory example, suppose that the simple transaction, to which ^^^i^^ ' the purchase-deed given above relates, is to be carried out at the present time, and that it is wished to rely upon the statutory covenants for title, it would then be necessary to express in the deed that A. B., the vendor, conveyed f^s beneficial owne)' [m). It has already Different been mentioned that the estates to be taken by deeds ?r°^;^^ °* '^ _ _ limitation. executed after the 31st December, 1881, may be limited or marked out by certain technical words different from those previously necessary («) ; and that if a receipt for consideration money be inserted in the body of such a deed, no further receipt need now be endorsed thereon (o). If the student will turn to the last chapter in this book [p], he will find two forms of a deed of convey- ance, one such as would have been used in a simple transaction previously to the act, the other such as may now be used when it is intended to rely upon the act. These will enable him to see how the changes, introduced by the act, are carried out in practice. Their employment is optional, and deeds of con- veyance may still be drawn in the old form. The student is not yet in a position to understand the advantages or disadvantages of relying on the pro- visions of the act. He is ignorant of any reasons for the use of general words {q), and an estate clause, and knows nothing about covenants for title (r) , At present, even if he have the cmiosity to consult Appendix (D.) and the last chapter for the forms of all those clauses, they will probably be to him unmeaning jargon. How- [l) See Stat. 44 & 45 Vict. c. 41, (;;) Post, Part VI. s. 7, sub-ss. 1, 4. {q) See post, Part II., Ch. IV. (m) Sect. 7, sub-s. 1, (A.). s. 2. (w) Sect. 50, ante, p. 150. (r) See post, Part V., Chapter (o) Sect. 54, ante, p. 202. on Title. 214 OF CORPOREAL HEREDITAMENTS. ever, until ihej have become something more to him than " words, words, words," he cannot expect to understand the sections of the Conveyancing and Law of Property Act, 1881, by reliance on which the clauses in question may be omitted from a conveyance (s) . He is there- fore recommended, after looking at the forms of deeds above mentioned, to adjourn the further consideration of this subject, until he shall have arrived at the last chapter in a due course of straightforward reading. Lease and release an innocent con- veyance. So a grant. Word grant. To return : — A lease and release was said to be an innocent conveyance ; for when, by means of the lease 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 it), but simply passes that which may lawfully and rightly be conveyed [u) . The same rule is applicable to a deed of grant (.r) . 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 technical term to be employed in a deed of grant (//), but its employment is not absolutely necessary ; for it has been held that other words indicating an intention to grant will answer the purpose (s). And by the Conveyancing and Law of Property Act, 1881 («), it is declared that the use of the word grant is not necessary in order to convey tene- ments or hereditaments, corporeal or incorporeal. [s) Stat. 44 & 45 Vict. c. 41, ss. 6, 7, 63. [t) Ante, p. 152. {it) Litt. s. 600. . (.r) Litt. ss. 616, 617. {y) Shep. Touch. 229. (;) Shove v. Pinche, 5 T. Hep. 124 ; Saggerston v. Hanburg, 5 Bam. & Cress. 101. [a) Stat. 44 & 45 Vict. c. 41, fl. 49, which applies to convey- ances made before or after the commencement of the act. OF A MODERN CONVEYANCE. 215 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 aud duly inrolled pursuant to the statute 27 lien. VIII. c. 16, already mentioned (/>*) . The chief advantage of a bargain and sale is, that by a statute of Anne (c) an office coj)y 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 (•) Ante, p. 150. 219 ; 2 Jarm. WiUs, 412, 4th ed. \y) Stat. 44 & 45 Vict. c. 41, {b) Ante, p. 150. 8.51. \() Co. Litt. 27 a; 2 Black. (r) Co. Litt. 9 b; 2 Black. Cona. Com. 115. .115. {(J) 2 Jarm. Wills, 324, 4th ed. (") Martin v. SwnnncU, 2 Bear. OF A WILL OF LANDS. 231 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 (/). The doctrine of uses and trusts applies as well to a Uses aud 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 (r/). But, if any trust or duty should be imposed upon A., it will then become j a question, on the construction of the will, whether or not A. takes any legal estate ; and, if any, to what ex- tent. 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 ofRce as a person to whom a feoffment or conveyance has been made to the use of another [li). From a want of acquaintance on the part of testators with the Statute of Uses (/), 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 having frequently been found inconvenient, provision has been made in the Wills Act (/o), that, under certain circumstances, not always to be easily explained, the , («) Co. Litfc. 9 b ; 2 Black. Evans, 5 El. & Bl. 367, 380. Com. 108. (/() 2 Jarm. Wills, 290, 291, (/) 2 Jarm. Wills, 274 et seq., 4tli ed. ; see ante, p. 161. 4tli ed. (i) 27 Hen. VIII. c. 10 ; ante, ((/) Niclosoii V. Wordsworth, 2 p. 103. Swanst. 365 ; Urch v. TFalker, 3 {k) Stat. 7 Will. IV. & 1 Vict. Mylne & Craig, 702 ; Sit/i/ers v. c. 26, ss. 30, 31. 233 OF CORPOREAL HEREDITAMENTS. I fee simple shall pass to the trustees, instead of an estate I determinable when the purposes of the trust shall he satisfied. Danger of The above examples may serve as specimens of the le^al^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 improve- ment ; 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 If the tcstator 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 (;;?), will, therefore, become the stock of descent ; and in case of his decease intestate, the lands will descend to /its heir, and not to the heii' of the tes- tator, 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 different from that in which^it would have descended to the heir {»). {I) Stat. 3 & 4 Will. IV. c. 106, (ni) Ante, p. 103. 8. 3; sec Strickland v. StricJdaml, {ii) Watk. Descents, 174, 176 10 Sim. 374. (229, 231, 4th ed.). OF A AVILL OF LANDS. 233 It is usually the practice, as is well known, for every testator to appoint an executor or executors of his ^Yill ; 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, ^^^^^'^ ^f ^'^^^' ■'■ ^ _ _ ' pendent ot unless the testator should either expressly or by impli- executors' ,•1 • 1 • , L L • assent. cation have given nis executors any estate m or power over the same. In modern times, however, the doctrine Charge of has been broached, that if a t'estator charges his real ^^"*'^- 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 has 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 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 (s), that where, by any will that shall come where trus- into operation after the passing of the act, the testator *®^® ^^^ ^^^^ J- . . . ^^ mortgage shall have charged his real estate or any specific portion to pay testa- thereof with the payment of his debts or of any legacy, legacies ^ ^^ 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, (o) Principles of the Law of () Stat. 22 & 23 Vict. c. 35. Real Assets, c. G. (*■) Sect. 14. 234 OF CORPOREAL HEREDITAMENTS. "WTiere execu- tors may sell or mortgage to pay debts or legacies. Devise in fee or in tail charged with debts. Charges of legacies only, 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 siu-vivorship, 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, now represented by the Chancery Division of the High Court {t). But if any testator, who shall have created such a charge, shall not have devised the hereditaments 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 before vested in the trustees ; and such power shall from tiaie to time devolve to the person or persons (if any) in whom the executorship shall for the time being be vested (u). 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 (.r). 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 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 legacies only are charged thereon, the purchaser or mortgagee is bound to see his money duly applied in {t) Stat. 22 & 23 Vict. c. 3.5, 8. 15. {!() Sect. 16. (.'■) Sect. 17. OF A WILL OF LANDS. 235 their 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 payment 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 (s). In cases of death occurring after the 31st December, Executors 1881, the executors of a will may, in certain instances, interest in take an interest in, or a power over, real estate vested ^'^^^ estate— in their testator. For, by the Conveyancing and Law of Property Act, 1881 (a), real estate vested in any vested in a , , J J 1 f 1 sole trustee or person solely upon any trust, or by way oi mortgage, on mortgagee ; his death devolves to and becomes vested in his personal representatives or representative from time to time, in Like manner as if the same were a chattel real vesting in them or him. And, by the same act (6), where, and a power at the death of any person, there is subsisting a contract estate con-^^^ enforceable against his heir or devisee, for the sale t^acted to be of the fee simple or other freehold interest descendible to his heirs general in any land, his personal repre- sentatives shall, by virtue of the act, have power to convey the land for all the estate and interest vested in him at his death, in any manner proper for giving ] effect to the contract; but a conveyance made under this enactment is not to affect the beneficial rights of any person claiming under any testamentary disposition, or as heir, or next of kin, of a testator or an intestate. It is provided by the Registry Acts for Middlesex (c) Wills in Mid- and Yorkshire and the town and county of Kingston- Yorkshire to be registered. {y) Horn v. mm, 2 Sim. & 7 H. of L., E. & I. 731. Stu. 4i8; Essay on Real Assets, (a) Stat. 44 & 45 Vict. c. 41, p. 63. 8. 30. (s) Essay on Real Assets, pp. (J) Sect. 4. G2, 63; CorserY.Cartwrhjht, L. R., ('•) Stat. 7 Anne, c. 20, s. 8. 236 OF CORPOREAL HEREDITAMENTS. upon-Hiill (d), that a memorial of all wills of lands in those counties shall be registered within six months after the death of every testator dying within the king- dom of Grreat Britain, or within three years after the death of every testator dying upon the seas or in parts beyond the seas ; othermse every such devise by will shall be adjudged fraudulent and void against any sub- sequent purchaser or mortgagee for valuable considera- New enact- tion (e). But the Vendor and Purchaser Act, 1874 (/), to purchasers ^ow provides ( g) , that where the will of a testator de- and mort- vising^ lauds in Middlesex or Yorkshire has not been gagees. ... registered within the period allowed by law in that behalf, an assurance of such land to a purchaser or mortgagee by the devisee, or by some one deriving title under him, shall, if registered before, take precedence of and prevail over, any assurance from the testator's heir at law. {d) stats. 2 & 3 Anne, c. 4, s. 20 ; 6 Anne, c. 35 ; 8 Geo. II. c. 6, s. 15. (e) ChadivicJi x. Turner, 34 Beav. 631 ; affirmed L. R., 1 Ch. 310 ; Dart's Vendors and Purchasers, C82, oth ed. (/) Stat. 37 & 38 Vict. c. 78. (y) Sect. 8. ( 237 ) CHAPTER XI. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. The next subject of our attention will 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. 1. First, then, as to the rights of the husband in The rights of respect of the lands of his wife. By the act of mar- S^e^^pferof riage, the husband and wife become in law one person, the lands of 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 (/>) ; and, in like manner, all the goods and personal chattels of the wife, the property in which passes by mere delivery of possession, belong solely to her husband (c). For by the ancient com- mon law, it was impossible that the wife should have any power of disposition over property for her separate benefit, independently of her husband. In modern Trusts for times, however, a more liberal doctrine has been esta- no^vv^^sta^^^ blished by the Court of Chancer}^, now represented by hlished. the Chancery Division of the High Com-t of Justice ; for this court now permits property of every kind to be (a) Litt. s. 168; 1 Black. Com. Eobertson v. Norris, 11 Q. B. 442; Gilb. Ten. 108; 1 Eoper's 916. Husband and Wife, 1 . [c] 1 Rop. Husb. and Wife, [h) 1 Rop. Husb. and Wife, 3 ; 169. 238 OF CORPOREAL HEREDITAMENTS. vested in trustees, in trust to apply tlie income for the sole and separate use of a woman during any coverture, present or future. Trusts of this nature are continually enforced by tlie 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 disposition over it as if she were sole or unmarried. And, if the income of pro- perty should be given directly to a woman, for her separate use, without the intervention 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 mar- riage 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 embar- Separate pro- rassments, or of his extravagant expenditure. In order / rendered 111- more Completely to protect the wife, the court allows alienable. property thus settled for the separate use of a woman to be so tied down for her own personal benefit, that she shall have no power, during her coverture, to antici- pate or assign her income ; for it is evident that, to place the wife's property beyond the power of her husband, is not a complete protection for her, — it must also be placed beyond the reach of his persuasion. In this particular instance, therefore, an exception has been allowed to the general rule, which forbids any restraint to be imposed on alienation. When the trust, under which property is held for the separate use of a woman during any coverture, declares that she shall not dispose of the same or of the income thereof in any mode of anticipation, (d) 2 Eop. Husb. and Wife, 152, 182; Major v. Lansley, 2 Russ. & Mylne, 355. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 239 every attempted disposition by her during such cover- ture will Le deemed absolutely void (f). But the f interest of a married woman in any property may, with her consent, be bound by judgment or order of the court made after the 31st December, 1881, when it appears to the court to be for her benefit, notwithstanding that she be restrained from anticipation (/). Not only the income, but also the corpus of any As to the property, whether real or personal, may be limited to ^'^''^^"*- the separate use of a married woman. Recent de- cisions liave established that a simple gift of real Real estate, estate, either with or without the intervention of trus- tees (//), 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 (//). The same rule has long been established with respect to personal estate (/). 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 Property Act, 1870 {J), now The Married provides that where any freehold, copyhold or customary- Property Act 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, (<;) Brandon v. Bohinson, 18 Ves. 434; 2Rop.Husb. andWife,230; Tidlctt V. Armstrong, 1 Beav. 1 ; 4 Mylne & Cr. 390 ; Scarhorough V. Borman, 1 Beav. 34 ; 4 M. & Cr. 377 ; Baggett v. Meux, 1 Col- lyer, 138; affirmed, 1 Ph. 627; ante, p. 98. (/) Stat. 44 & 45 Vict. c. 41, s. 39. See ss. 1, 2. [g) nail V. IFatcrhome, V.-O. S., 13 W. R. 633. {h) Taylor v. ILcads, L. C, 13 W. R. 394; 11 Jut., N. S. 166; 4 De Gex, Jones & Smith, 597. ((■) See Priuciplea of the Law of Personal Property, 447, 11th od. U) Stat. 33 & 34 Vict. c. 93, passed 9th August, 1870. 240 OF CORPOREAL HEREDITAMENTS. subject and without prejudice to tlie trusts of any settle- ment affecting the same, belong to such woman for her separate use, and her receipts alone shall be a good discharge for the same (/.•). Husband and wife still con- sidered as one person. Oift to hus- band and Avife and a third person. Gift to hus- band and wife and their heirs. They take by- entireties. Whilst provisions for the separate benefit of a mar- ried woman have thus arisen in equity, the rule of law by which husband and wife are considered as one person still continues in operation, and is occasionally productive of rather curious consequences. Thus, if lands be given to A. and B. (husband and wife), and C, a third person, and their heirs — here, had A. and B. been distinct persons, each of the three joint tenants would, as we have seen (/), 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 will 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, the third person, will take the other half, as joint tenant with them. Again, if lands be given to A. and B. (husband and wife) and their heirs — here, had they 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, by entireties ; and, whilst the husband may do what he pleases with the rents and profits during the coverture, he cannot dispose of any part of the inhe- ritance, without his wife's concurrence. Unless they both agree in making a disposition, each one of them {k) Stat. 33 & 31 Vict. c. 93, s. 8. See Re Voss, 13 Ch. D. 504. (0 Ante, pp. 137, 141. [m) Litt. s. 291 ; Gordon v. Whiehlon, 11 Beav. 170 ; Ee JTijIde, 2 De Gex, M. & G. 724. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 241 must rim the risk of gaining the whole by survivor- shij), or losing it by dying first (;/). Another conse- Husband and quenee of the unity of husband and wife was the ina- ^q^. convey to bility of either of them to convey to the other. As a ench other. man could not convey to himself, so he could not convey to his v,iie, who was regarded as part of himself (o) . But by means of the Statute of Uses the effect of a convej^ance by a man to his wife could be produced ( 7)) ; for a man might and still may convey to another person to the use of his wife in the same manner as, under the statute, we have seen, a man may convey to the use of himself (q). Now, by the Conveyancing and Law of Property Act, 1881, in conveyances made after the 31st December, 1881, freehold land may be conveyed by a husband to his wife, and by a wife to her husband, alone or jointly with another person (r). 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 (-s). If the wife should siu-vive 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 mar- riage, 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 his own interest. If, however, he should survive his Curtesy. wife, he will, in case he has had issue by her born alive, that may by possibility inherit the estate as her («) Doe d. Freestone v. I'armtt, {q) Ante, p. 199. 5 T. Rep. 652. (r) Stat. 44 & 45 Vict. c. 41, (o) Litt. 8. 168. s. 50, 1. ip) 1 Rop. Husb. and Wife, 53. (*) Litt. s. 168. R.P. R 242 OF CORPOREAL HEREDITAMENTS. .7j ^ ■■' Curtesy of eqmtable [^ estate. , i 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 possession (-s) . The husband, while in the enjoyment of this estate, js called a tenant by the curtesy of England, or, more shortly, tenant by the cm^tesy. If the wife's estate should be equitable only, that is, if the lands should be C ' t L^ ' ^j^ vested in trustees for her and her heirs, her husband Y '"^ \ 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 (f) ; for equity in this respect follows the law. But, whether legal or equitable, the estate must be a several one, or else held under a tenancy in common, 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 possession ; for there can be no curtesy of an estate in reversion expectant on a life interest or other estate of freehold {x) . The husband must also have had, by his wife, i ssue born alive ; except in the case of gavelkind lands, where the husband has a right to 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 hus- Issue must be band marries again (//) . The issue must also be capable SheritiiTo- as °^ inheriting as heir to the wife {z) . Thus, if the wife heir to the l3e seised of lands in tail male, the birth of a daughter ■wife. Estate must not be joint. Estate must be in posses- sion. Issue must have been bom alive except as to gavelkind lands. (s) Litt. ss. 35, 52; 2 Black. Com. 126; 1 Eop. Husb. and Wife, 5 ; Barlrr v. Barlccr, 2 Sim. 249. {t) 1 Eop. Husb. and Wife, 18. When the lands belong to the wife for her separate use, there are conflicting decisions as to the husband's right to curtesy. See Moore v. Webster, V.-C. S., L. R., 3 Eq. 267; Applcton v. lioirJoj, V.-C. M., L. E., R Eq. 139; Cooper v. Macdonald, 7 Ch. D. 288. See also the author's Lectxu'es on Settlements, pp. 105 —108. («) Co. Litt. 183 a; 1 Eoper's Husb. and Wife, 12. (.r) 2 Black. Com. 127 ; Watk. Desc. Ill (121, 4th ed.). (y) Co. Litt. 30 a, n. (1) ; Bac. Abr. title Gavelkind (A.); Eob. Gavel, book ii. c. 1. (;) Litt. s. 52 ; 8 Rep. 34 b. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 243 only will not entitle her husband to be tenant by cur- ' tesy; for the daughter cannot by possibility inherit such an estate from her mother. And it is necessary The wifo that the wife should have acquu'ed an actual seisin of jj^e^^actuallv all estates, of which it was possible that an actual seisin seised. could be obtained ; for the husband has it in his own power to obtain for his wife an actual seisin ; and it is his own fault if he has not done so (a) . A tenancy by the curtes}^ is not now of very frequent occurrence ; the rights of husbands in the lands of their wives are, at the present day, generally ascertained by proper settlements made previously to marriage. By a statute of the reign of Henry VIII. (b) power Power for was given for all persons of full age, having an estate of ^^fe to lea^e inheritance in fee simple or in fee tail, in right of their t^e wife^ , wives, or jointly with their wives, to make leases, with //^ ^^ ^^ the concurrence of their wives (c), of such of the lands as had been most commonly let to farm for twenty years before, for any term not exceeding twenty-one years or three lives, under the same restrictions as tenants in tail were by the same act empowered to lease. This statute, so far as it respects tenants in tail, has already been referred to (d) . It was repealed by the act to facilitate New enaet- leases and sales of settled estates (e) ; but this act has been itself repealed by the Settled Estates Act, 1877. This act now empowers every person entitled to the possession or the receipt of the rents and profits of any unsettled estate, as tenant by the curtesy, or in right of ment. (a) 2 Black. Com. 131 ; Farker V. Carter, 4 Hare, 416. In the first editiou of this work a doubt was thrown out whether, under the new law of inheritance, a husband can ever become tenant by the curtesy to any estate which his wife has inherited. The reasons which aftorwards induced the author to incline to the contrary opinion will be found in A^Dpendix (E). See Earjer v. FurnivaU, 17 Ch. D. 115. {h) Stat. 32 Hen. VIII. c. 28. [i) Sect. 3. \(l) Ante, pp. 58, 59. (c) Stat. 19 & 20 Vict. c. 120, s. 35. R 244 OF CORPOREAL HEREDITAMENTS. Husband holding over ia a tres- passer. Fine. / a wife who is seised in fee, to demise tlie same (except the principal mansion-house and the demesnes thereof, and other lands usually occupied therewith), for any term not exceeding twenty- one years in England or thirty-five years in Ireland, subject to the same re- strictions as before mentioned in the case of a tenant for life (,/'). And any such demise will be valid against the wife of the person granting the same, and any person claiming through or under her{g). By a statute of Anne (h) , every husband seised in right of his wife only, who, after the determination of his estate or interest, without the express consent of the persons next im- mediately entitled after the determination of such estate or interest shall hold over and continue in possession of any hereditaments, shall be adjudged to be a trespasser ; and the full value of the profits received during such wrongful possession may be recovered in damages against him or his executors or administrators. Hitherto we have seen the extent of the husband's interest, and power of disposition, apart from his wife. If land should be settled in trust for the separate use of the wife, with a clause restraining alienation, we have seen that neither husband nor wife can make any dis- position. But, in all other cases, the husband and wife may together make any such dispositions of the wife's interest in real estate as she could do if unmarried. The mode in which such dispositions were formerly effected was, by a fiie duly levied in the Court of Common Pleas. We have already had occasion to advert to fines, in respect to their former operation on estates tail(/). They Avere, as we have seen, fictitious suits commenced and then compromised by leave of the Court, whereby the lands in question were acknowledged (/) Stat. 40 & 41 Vict. c. 18, s. 46. See ante, p. 27. if/) Stat. 40 & 41 Vict. c. 18, s. 47. {h) Stat. G Anne, c. 18, s. (/) Ante, p. 50. OF THE MUTUAL RIGHTS OF liUSUAND AND WIP^E. 215 to Lo tlie right of one of the parties. Whenever a married woman was party to a fine, it was necessary that she should be examined apart from her husband, to ascertain whether she joined in the fine of her own free- will, or was compelled to it by the threats and menaces j of her husband {j ) . Having this protection, a fine by husband and wife was an effectual conveyance, as well of the wife's as of the husband's interest of every kind, in the land comprised 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 hus- band; although, by means of the Statute of Uses (/.•), 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 Present pro- occasioned their abolition, provision has now been made ^^^°^ ^^^ ' J- conveyance by the act for the abolition of Fines and Recoveries (m), by married 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 produced and acknoicledged by the wife as her own act The wife and deed, before a judge of one of the superior courts led^e^hT*^^" at Westminster, or of any county court, or a master in tleed. (,/) Cruise on Fines, 108, 109. [m) Stat. 3 & 4 Will. IV. c. 74; \k) 27 Hen. VIII. c. 10, ante, ante, p. 52. p. 163. {)>) Sect. 77 ; stat. 8 & 9 Vict. {I) See post, the chapter on c. 106, s. 7. Executory Interests. 246 OF CORPOREAL HEREDITAMENTS. A mamed Tvoman bare trustee may convey as a feme sole. 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 voluntarily consents thereto {p). A recent statute {q) removes doubts which might arise, in consequence of any person taking the acknowledgment being an interested party. The Vendor and Purchaser Act, 1874 (r), now pro- vides (s), that when any hereditament shall be vested in a married woman as a bare trustee (t), she may convey the same as if she were a feme sole. Eights of the wife in the lands of her husband. Dower. 2. As to the rights of the wife in the lands of her husband. We have seen that, during the coverture, all the power is possessed by the husband, even when the lands belong to the wife, except in cases which fall within the Married "Women's Property Act, 1870 ; and of course this is the case wlien they are the husband's own. After the decease of her husband, the wife how- ever becomes, in some cases, entitled to a life interest in part of her deceased husband's lands. This interest is termed the doicer of the wife. And by the act of parliament for the amendment of the law relating to dower (»), the dower of women married after the 1st of January, 1834, is placed on a different footing from that of women who were married previously. But as the old law of dower still regulates the riffhts of all (o) Stats. 3 & 4 AYiU. IV. c. 74, s. 7&; 19 & 20 Vict. c. 108, s. 73. {2J) Stat. 3 & 4 Will. IV. c. 74, s. 80. By the Eules of the Su- preme Coiirt, April, 1880, Rule 48 (Order LX., rule 8), the registrar of certificates of acknowledgment of deeds by manied women shall, on a request in -wi-iting giving sufficient particulars, and on payment of the prescribed fee, cause a search to be made in the registers or indexes under liis custody, and issue a certificate of the result of the search. {fj) Stat. 17 & 18 Vict. c. 75. See as to Ireland, stat. 41 Vict. c. 23. (;•) Stat. 37 & 38 Vict. c. 78, passed 7th Aug. 1874. («) Sect. 6. (0 See ante, p. 119. I'l) Stat. 3 i: 4 Will. IV. c. 105. OF THE MUTUAL RIGHTS OF HUSHAND AND WIFE. 247 women who were married on or before that day, it will be necessary, in the first place, to give some account of the old law before proceeding to the new. Dower, as it existed previously to the operation of the Dower prc- Dower Act, was of very ancient origin, and retained an ^p?^'-^ ^'^ *^° inconvenient property which accrued to it in the simple times when alienation of lands was far less frequent than at present. If at any time during the coverture the husband became solely seised of any estate of inheritance, that is fee simple or fee tail, in lands to which any issue, which the wife might have had, might by possibility have been heir (x), she from that time became entitled, on his decease, to have one equal third part of the same lands allotted to her, to be enjoyed by her in severalty during the remainder of her life {//) . This right having once attached to the lands, adhered to them, notwithstanding any sale or devise which the husband might make. It consequently became necessary for the husband, when- ever he wished to make a valid conveyance of his lands, to obtain the concurrence of his wife, for the purpose of releasing her right to dower. This release could be Dower could effected only by means of a fine, in which the wife was i^Jed by^'fiue. separately examined. And when, as often happened, the wife's concurrence was not obtained on account of the expense involved in levying a fine, a defect in the title obviously existed so long as the wife lived. As Dower inde- the right to dower was paramount to the alienation husband's of the husband, so it was quite independent of his debts, debts, — even of those owing to the crown (~). It was A legal seisin necessary, however, that the husband should be seised ^^^^^ of an estate of inheritance at law ; for the Court of Chancery, whilst it allowed to husbands ciu-tesy of their (.(•) Litt. ss. 3G, 53 ; 2 Black. (y) See Dlckin v. Ilamcr, 1 Com. 131 ; 1 Roper's Husband Drew. & Smale, 284. and Wife, 332. (r) Co. Litt. 31 a; 1 Roper's Husband and Wife, 411. 248 OF CORPOREAL HEREDITAMENTS. Estate must not be joint. Dower of gavelkind lands. wives' equitable estates, withlield from wives a like privilege of dower out of the equitable estates of their husbands {a) . The estate, moreover, must have been held in severalty or in common, and not in joint tenancy : for the unity of interest which characterizes a joint tenancy forbids the intrusion into such a tenancy of the husband or wife of any deceased joint tenant ; on the decease of any joint tenant, his surviving com- panions are already entitled, under the original gift, to the whole subject of the tenancy [b). The estate was also required to be an estate of inheritance in posses- sion ; although a seisin in law, obtained by the husband, was sufficient to cause his wife's right of dower to attach (c) . In no case, also, was any issue 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, and still consists, like the husband's curtesy, of a moiety, and continues only so long as she remains unmarried and chaste (d). Old method of barring dower. 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 concuiTcnce, various devices were resorted to in the framing of pm-chase-deeds. The old-fashioned 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 inherit- (ff) 1 Roper's Husband and Wife, 354. (b) Ibid. 36G; ante, p. 139 et seq. (r) Co. Litt. 31 a. {d) Bac. Abr. tit. Gavelkind (A) ; Rob. Gav. book 2, c. 2. OF THE MUTUAL RIGHTS OF HUS15AM) AND WIFE. 249 ance belonged to the purchaser. If, therefore, the pur- chaser 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 hus- band'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 long as he lived. This plan, therefore, gave way to another method of framing purchase-deeds, which will be here- after explained (r), 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. The right of dower might have been barred alto- Jointure, gether by a joiitture, 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 (/), which, by turning uses into legal estates, of course render them liable to dower. Under the provisions of this statute, dower may be barred by the wife's accept- ance 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 (<■) See post, the chapter on (/) 27 Hen. VIII. c. 10. Executory Interests. 250 OF CORPOREAL HEREDITAMENTS. Equitable jointiu'e. after the death of the husband for the life of the wife at least {g). If the jointure be made after marriage, the wife may elect between her dower and her jointure [h). 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 (/). And if the wife should have accepted an equitable jointure, the Chancery Division of the High Court 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. Do'wer under the act. With regard to women married since tlie 1st of January, 1834, the doctrine of jointures is of very little moment. For, by the act for the amendment of the law relating to dower (A-), 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 abso- lutely disposed of by her husband in his lifetime or by his -will (/) . And all partial estates and interests, and all charges created by any disposition or will of the {(j) Co. Litt. 3G b ; 2 Black. Com. 137; 1 Roper's Husband and Wife, 462. (A) 1 Roper's Hiisband and Wife, 468. (j) Ibid. 488 ; Dyke v. Rendall, 2 De G., M. & G. 209. (/.) 3 & 4 Will. IV. c. lOo. Gavelkind lands are within the act, Farley v. Bonliam, 2 John. & H. 177. (0 3 & 4 Will. IV. c. 105, s. 4. In the recent case of Rowland v. Cathhertson, M. E., Law Hep., 8 Eq. 466, the late Lord Eomilly expressed an opinion that a mere general devise of lands was in- sufficient to bar the dower of the testator's widow in any of his lands included in such devise. But the contrary has since been decided, Laccy v. llill, M. R., Law Rep., 19 Eq. 346; 23 W. R. 285. OF TliE MUTUAL KIGHTS OF IIUSISAXI) AND WIFE. 251 husband, and all debts, incumbrances, contracts and engagements to which, his lands may be liable, shall be effectual as against the right of his widow to dower (ni). 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 (;;). 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 (o) ; dower is also ex- tended to equitable as well as legal estates of inherit- ance in possession, excepting of course estates in joint tenancy (p). 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 'dower, form, into many piux-hase-dceds. 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 (q) . 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, {m) Sect. 5 ; Jo)ies v. Jones, 4 {p) Sect. 2 ; Fri/ v. Xobk; 20 Kay & J. 361. Beav. 598; Clarke v. Franklin, 4 («) Sects. G, 7, 8. See Fry y. Kay & J. 2G6. Noble, 20 Beav. 598 ; 7 De Gex, (7) Sugd. Vend. & Tur. 545, M. &G. 687. llthed. io) Sect. 3. 252 OF CORPOREAL HEREDITAMENTS. in case her lord shall not think proper to dispose of them. Leases by tenant in dower. The Settled Estates Act, 1877, now empowers 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 as to estates in England and thirty-five years as to estates in Ireland, in the same manner as a tenant by the eurtes}^, or a tenant for life under a settlement made after, the first of November, 1856 (r). Action for dower. BiUin equity, An action for dower, like other real actions, was formerl}^ commenced in the Court of Common Pleas ; and when real actions were abolished in the year 1833 (.S-) writs for the recovery of dower were excepted. By an act of 1860 these writs were abolished (^), and the action was 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 ; and the proceedings were the same as in ordinary actions com- menced by writ of summons (ii). A widow's dower might also have been recovered by bill in equity (x). And now by the Judicature Act, 1873 (v/), the jurisdic- tion of the Courts of Common Pleas and Chancery has been transferred respectively to the Common Pleas and Chancery Divisions of the High Court of Justice. {>■) Stat. 40 & 41 Vict. c. 18, s. 46. See ante, pp. 27, 244. (*) By Stat. 3 & 4 Will. IV. c. 27, s. 36. {t) Stat. 23 & 24 Vict. c. 126, 8. 26. («) Sect. 27. {x) See Anderson v. Piynct, L. E,., 11 Eq. 329, reversed on appeal, L.R., 8 Ch. 180; 21W.R. 150, and the cases there cited. (i/) Stat. 36 & 37 Vict. c. 66. ( 253 ) PART 11. OF INCORPOREAL HEREDITAMENTS. Our attention has hitherto been directed to real pro- perty of a corjooreal kind. We have considered the nsual estates which may he 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, whether 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 which, not being of a visible and tangible nature, is P^op^'^^y- denominated iiicorpoi'eal. This kind of property, though it may accompany that which is corporeal, yet does not in itself admit of actual delivery. When, there- fore, it was required to be transferred as a separate subject of property, it was always conveyed, in ancient times, by writing, that is by deed ; for we have seen (i^), 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. liver jj {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 liver//, as we have seen (e), is the technical name for that delivery which was made of the seisin, or feudal posses- («) Ante, p. 11. (d) Shep. Touch. 228, (4) Ante, p. 154. {<■) Ante, p. 148. (c) Co. Litt. 9 a. ment. 254 OF INCORPOREAL HEREDITAMENTS. slon, on every feoffment of lands and liouses, or corporeal liereditaments. In this difference in tlie ancient mode of transfer accordingly lay the chief distinction between these two classes of property. But as we have seen (/), New enact- the act to amend the law of real property now provides that all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery [g) . There is, accordingly, now no practical difference in this respect between the two classes ; and the lease for a year stamp, to which a grant of corporeal hereditaments had been previously subject, was abolished by the Stamp Act of 1850 {h). (/) Ante, p. 190. (//) Stat. 13 & 14 Vict. c. 97. {(j) Stat. 8 & 9 Vict. c. 106, h. 2. ( 255 ) CHAPTER I. OF A REVERSION AND A VESTED REMAINDER. The first kind of incorporeal hereditament wliicli 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, particularly in its always permitting, and generally requiring, a deed of grant for its transfer, — it is here classed with such here- ditaments. It is called, according to the mode of its creation, a reversion or a vested remainder. 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 case, his grantee has a less estate than himself. Accord- ingly, 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 possession. The smaller estate which he has so granted is called, during its continuance, the jxirticular estate, being only Particular a part, or particuJa, of the estate in fee {a). And, during ^s***^- the continuance of such particular estate, the interest of {a) 2 Black. Com. 1G5. 256 or INCORPOREAL HEREDITAMENTS. Reversion. the tenant in fee simple, which still remains undisposed of — that is, his present estate, in virtue of which he is to have again the possession at some future time — is called his reversion [b). Remainder. A remainder arises from express 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 (r/). A reversion on a lease for years may be con- veyed by feoffment, or by deed of sn-ant. 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 lights 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 made by a feoffment with livery of seisin, made with the consent of the tenant for years (/). But, if this mode of («) Co. Litt. 22 b, 142 b. (V) Litt. ss. 215, 217. (d) 2 Black. Com. 163. {(^ Watk. Descents, 108 4th ed.). (/) Co. Litt, 48 b, n. (8). [113, OF A REVERSION AND A VESTED REMAINDER. 257 transfer should not be thought eligible, a grant 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 with the seisin or feudal possession, may be conveyed by deed of grant {g). But, if the tenant in A reversion p •11111 1 1 s ^•e t ,ona lease for * tee Simple should have made a lease tor lite lie must jifg - have parted with his seisin to the tenant for life ; for, an estate for life is an estate of freehold, and such tenant for life will, therefore, during his life, continue to be the freeholder, or holder of the feudal seisin (//). No feoffment can consequently be made by the tenant in fee simple ; for he has no seisin of which to make livery. His reversion is but a fragment of his old estate, and remains purely incorporeal, until, by the dropping of the life of the grantee, it shall again become an estate in possession. Till then, that is, so long as it remains a reversion expectant on an estate of freehold, it can only be conveyed, like all other incorporeal here- must be con- . ditaments when apart from what is corporeal, by a deed of ^rant^ ^^ of grant (/). We have before mentioned (/»■), 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 re)if. The oath of fealty is now never exacted ; but the rent, which may be reserved, is of practical importance. This rent is called in law rent serviee {m) Rent service. in order to distinguish it from other kinds of rent, to {(j) Perkins, s. 221 ; Doe d. [i) Shep. Touch. 230. Were V. Cole, 7 Barn. & Cresa. (/.) Ante, p. 121. 243, 248; ante, p. 190. (/) Ante, pp. 128, 129. {h) Watk. Descents, 109 (114, \m) Co. Litt. 142 a. 4tli ed.); ante, p. 147. R.P. s •^ 258 OF INCORPOREAL HEREDITAMENTS. ^( A deed for- merly un- necessary to the reserva- tion of a rent. Act to amend the law of real property. Rent issues out of every part of the lands. Distress. be spoken of hereafter, whicli Have notliing to do witli tlie services anciently rendered by a tenant to his lord. It consists, usually, but not necessarily, of money ; for, it may be rendered in corn, or in anything else. Thus, an annual rent of one peppercorn is sometimes reserved to be paid, when demanded, in cases where it is wished that lands should be holden rent free, and yet that the landlord should be able at any time to obtain from his tenant an acknowledgment of his tenancy. To the reservation of a rent service, a deed was formerly not absolutely necessary (y/). For, although the rent is an incorporeal hereditament, yet the law considered that the same ceremony, by which the nature and duration of the estate were fixed and evidenced, was sufficient also to ascertain the rent to be paid for it. But, by the act to amend the law of real property (o), it is provided, that a lease, required by law to be in writing, of any tenements or hereditaments shall be void at law, unless made by deed. In every case, therefore, where the Statute of Frauds (p) has required leases to . be in writing, they must now be made by deed. But, ac- cording to the exception in that statute (q), where the lease does not exceed three years from the making, a rent of two-thirds of the full improved value, or more, may still be reserved by parol merely. Eent service, when created, is considered to be issuing out of every part of the land in respect of which it is paid (r) : one part of the land is as much subject to it as another. For the recovery of rent service, the well known remedy is by distress and sale of the goods of the tenant, or any other 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 agree- («) Litt. s. 214; Co. Litt. 143a. (o) Stat. 8 & 9 Viet. c. 106, s. 3, repealing stat. 7 & 8 Vict. c. 76, .s. 4, to the same effect. (p) Stat. 29 Car. II. c. 3, ante, p. 158. (q) Sect. 2. (/•) Co. Litt. 47 a, 142 a. OF A REVERSrON AND A VESTED REMAINDER. 259 ment (s). In modern times it has been extended and facilitated by various acts of parliament (f) . , In addition to the remedy by distress, there is usually Condition of contained in leases a condition of re-entry, empowering ^^'^^ ^^' 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- ^uj^r^. 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(?0- But Modem pro - . . - ceedin^s. now, if half a year's rent is due, and no sufficient ° ' distress is found on the premises, the landlord may recover the premises, at the expiration of the period limited by the proviso for re-entry (,r), by action of ejectment, without any formal demand or entry (y) ; but all proceedings are to cease on payment by the tenant of all arrears and costs, at any time before the trial (::). Formerly also the tenant might, at an inde- (.v) Litt. ss. 213, 214. It must stat. 35 & 36 Vict. c. 50, for the be made between sunrise and' sun- protection of railway rolling stock. set, Ttitton v. Barke, 5 H. & N 647. (/) Stat. 2 Wm, & Mary, c. 5 8 Anne, c. 14 ; 4 Geo. II. c. 28 and 11 Geo. II. c. 19 ; Co. Litt 47 b, n. (7) ; stat. 3 & 4 Will. IV c. 42, ss. 37, 38 ; 14 & 15 Vict («) 1 Wms. Saund. 287, n. (16) ; Acocks V. Phillips, 5 H. & N. 183. (.r) Doe d. Dixon t. Roe, 7 C. B. 134. (y) Stat. 15 & 16 Vict. c. 76, s. 210, re-enacting stat. 4 Geo. II. c. 28, s. 2. c. 25, s. 2 ; see also stat. 34 & 35 (z) Stat. 15 & 16 Vict. c. 76, Vict. 0. 79, passed for the protec- s. 212, re-enacting stat. 4 Geo. II. tion of the goods of lodgers, and c 28, s. 4. An under-tenant has s2 260 OF INCORPOREAL HEREDITAMENTS. finite time after he was ejected, have filed his bill in the Court of Chancery, and he 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 by a statute of the present reign, the right of the tenant to apply for relief in equity was restricted to six calen- dar months next after the execution of the judgment on the ejectment {a) ; and by a more recent statute, the same relief was allowed to be given by the Courts of The benefit of Law {h) . In ancient times, also, the benefit of a con- re-entiy dition of re-entry could belong only to the landlord and formerly j^ig heirs ; for the law would not allow of the transfer luahenable. -,• ■ ^ • ^ , ijji 01 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 ; which right in ancient times was not assignable. This doctrine sometunes occasioned considerable incon- venience ; 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 advantage of the conditions of re-entry, which the monks had in- serted in the leases of their tenants. A parliamen- tary remedy was, therefore, applied for the benefit of the favourites of the crown ; and the oj)portunity was taken for making the same provision for the public at large. A statute was accordingly passed (c/), which enacts, that as well the grantees of the crown as all other persons being grantees {c) or assignees, their heirs, executors, successors, and assigns, shall have the like advantages against the lessees, by entry for non-pay- Kemedy by statute. the same privilege, Doe d. Wi/ait V. £i/ro)i, 1 G. B. 623. (a) Stat. 15 & 16 Vict. e. 76, s. 210, re-enacting stat. 4 Geo. II. c. 28, s. 2 ; Boioser v. Colby, 1 Hare, 109. (i) Stat. 23 & 24 Vict. c. 126, 8. 1. [c] Litt. ss. 347, 348; Co. Litt. 265 a, n. (1). {d) Stat. 32 Hen. VIII. c. 34 ; Co. Litt. 215 a; Ishencood v. Old- htoic, 3 Man. & Sel-vr. 382, 394. (r) A les.see of the reversion is within the act, Wright v. Bur- roughes, 3 C. B. 685. OF A REVERSION AND A VESTED REMAINDER, 2G1 ment of rent, or for doing of waste, or other forfeiture, I as the lessors or grantors themselves, or their heirs or successors, might at any time have had or enjoyed; and this statute is still in force. It is also enacted by the Conveyancing and Law of Property Act, 1881, with regard only to leases made after the 81st December, 1881 (/), that rent reserved by a lease, and the benefit of every covenant or provision therein contained, having reference to the subject-matter thereof, and on the lessee's part to be observed or performed, and every condition of re-entry and other condition therein con- tained, shall be annexed and incident to and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may requu-e, of the land leased. There exist also further means for Actions at 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 SranTo/the any express mention of the rent [g). Formerly no reversion, grant could be made of any reversion without the con- sent of the tenant, expressed by what was called his attornment to his new landlord (/?). It was thought Attornment, reasonable that a tenant should not have a new land- lord imposed upon him without his consent ; for, in early times, the relation of lord and tenant was of a much more personal nature than it is at present. The (/) Stat. 44 & 45 Vict. c. 41, Perk. s. 113. s. 10, 1. See s. 2. {h) Litt. ss. 551, 567, 568, 569; {g) Litt. ss. 228, 229, 572; Co. Litt. 309 a, n. (1). 262 OF INCORPOREAL HEREUlTAiSiENTS. ■ tenant, therefore, was able to prevent his lord from making a conveyance to anj persoij whom he did not choose to accept as a landlord ; for he could refuse to attorn tenant to the purchaser, and mthout attornment ■ the grant was invalid. The landlord, however, had it always in his power to convey his reversion by the Fine. expensive process of a fine duly levied in the Court of Common Pleas ; for this method of conveyance, being judicial in its natm-e, was carried into effect without the tenant's concurrence ; and the attornment of the tenant, which for many purposes was desirable, could in such case be compelled {i). It can easily be imagined, that a doctrine such as this was found incon- venient when the rent paid by the tenant became the only service of any benefit rendered to the landlord. Attornment The necessity of attornment to the validity of the grant of a reversion was accordingly abolished by a statute passed in the reign of Queen Anne {j). But the statute very properly provides (/.•), that no tenant shall be pre- judiced or damaged by payment of his rent to the grantor, or by breach of any condition for nonpayment of rent, before notice of the grant shall be given to him by the grantee. And by a further statute (/), any at- tornment which may be made by tenants without their landlord's consent, to strangers claiming title to the estate of their landlords, is rendered null and void. Nothing, therefore, is now necessary for the valid con- veyance of any rent service, but a grant by deed of the reversion, to which such rent is incident. When the conveyance is made to the tenant himself, it is called a release (ni). abolished. Rent for- The doctrine, that rent service, being incident to the merly lost by destruction of the reversion. merly lost by . , n ■,-, ■, • r i destruction of levcrsion, aiways follows such reversion, formerly gave (i) Shep. Touch. 254. (/.) Sect. 10. (./) Stat. 4 & Aune, c. IG, (/) Stat. 11 Geo. II. c. 19, s. 11. s. 9. (/;/) Ante, p. 191. OF A REVKRSION AND A VESTED REMAINDER. 263 rise to the curious and unpleasant consequence of the rent being sometimes lost when the reversion was de- stroyed. For it is possible, under certain circumstances, that an estate may be destroyed and cease to exist. For instance, suppose A. to have been a tenant of lands for a term of years, and B. to have been his undertenant for a less term of years at a certain rent ; this rent was an incident of A.'s reversion, that is, of the term of years belonging to A. If, then, A.'s term should by any means have been destroyed, the rent paid to him by B. would, as an incident of such term, have been destroyed also. Now, by the rules of law, a convey- ance of the immediate fee simple to A. would at once have destroyed his term, — it not being possible that the term of years and the estate in fee simple should subsist together. In legal language the term of years would have been merged in the larger estate in fee simple ; and Merger, the term being merged and gone, it followed as a neces- i sary consequence, that all its incidents, of which B.'s \ rent was one, ceased also (/;). This unpleasant result Leases sur- , • • • 1 1 (• 1 ^ ' • ^ 'l^ rendered in was some time smce provided lor and obviated with order to be respect to leases surrendered in order to be renewed, — renewed. the owners of the new leases being invested with the same right to the rent of undertenants, and the same remedy for recovery thereof, as if the original leases had been kept on foot(o). But in all other cases the inconvenience continued, until a remedy was provided Jri,A/\ by the act to simplify the transfer of property {p). '" ' This act, however, was shortly afterwards repealed by Act to amend the act to amend the law of real property [q], which *g®^ p^opertv provides, in a more efficient though somewhat crabbed clause (r), that, when the reversion expectant on a lease, («) Webb V. Russell, 3 T. E. 8 & 9 Vict. c. 99, s. 7. 393. (p) Stat. 7 & 8 Vict. c. 76, (o) Stat. 4 Geo. II. c. 28, s. 6 ; s. 12. 3 Prest. Couv. 138; Cousins v. {q) Sta*. 8 & 9 Vict. c. 106. I'll mips, 3 Hurlst. & Colt. 892; (V) Sect. 9. extended to cro\\ni lands bv stat. 264 OF INCORrOREAL HEREDITAMENTS. made either before or after tlie passing of tlie act, of any tenements or hereditaments of any tenure, shall after the 1st of October, 1845, be surrendered or merge, the estate, which shall for the time being confer, as against the tenant under the same lease, the next vested right to the same tenements or hereditaments, shall, to the extent and for the purpose of preserving such incidents to and obligations on the same reversion as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease. No tenure be tween parti- cular tenant and remain- derman. A remainder. 2. A remainder chiefly differs from a reversion in this, — that between the owner of the particular estate and the owner of the remainder (called the remainder- man) no tenure exists. They both derive their estates from the same source, the grant of the owner in fee simple ; and one of them has no more right to be lord than the other. But as all estates must be holden of some person, — in the case of a grant of a particular estate with a remainder in fee simple, — the particular tenant and the remainderman both hold their estates of the same chief lord as their grantor held before («). It consequently follows, that no rent service is incident to a remainder, as it usually is to a reversion ; for rent service is an incident of tenure, and in this case no tenure exists. The other point of difference between a reversion and a remainder we have already noticed {t), namely, that a reversion arises necessarily from the grant of the particular estate, being simply that part of the estate of the grantor which remains undisposed of, but a remainder is always itself created by an ex- press grant. No rent ser- vice. Powers of alienation We have seen that the powers of alienation possessed by a tenant in fee simple enable him to make a lease for a term of years, or for life, or a gift in tail, as well as {s) Litt. s. 215. (0 Ante, p. 25G. OF A REVERSION AND A VESTED REMAINDER. 265 to grant an estate in fee simple. But these powers are may be exer- not simply in the alternative, for lie may exercise all jently '^^''^" these powers of alienation at one and the same moment ; provided, of course, that his grantees come in one at a time, in some prescribed order, the one waiting for liberty to enter until the estate of the other is deter- mined. In such a case the ordinary mode of convey- ance is alone made use of ; and until the passing of the act to amend the law of real property {u), if a feoff- ment should have been employed, there would have been no occasion for a deed to limit or mark out the estates of those who could not have immediate posses- sion (r). The seisin would have been delivered to the first person who was to have possession (.r) ; and if such person was to have been only a tenant for a term of years, such seisin would have immediately vested in the prescribed owner of the first ^state of freehold, whose bailiff the tenant for years is accounted to be. From such first freeholder, on the determination of his estate, the seisin, by whatever means vested in him, will devolve on the other grantees of freehold estates in the order in which their estates are limited to come into possession. So long as a regular order is thus laid down, in which the possession of the lands may devolve, it matters not how many kinds of estates are granted, or on how many persons the same estate is bestowed. Thus a grant may Example, be made at once to fifty different people separately for their lives. In such case the grantee for life who is first to have the possession is the particular tenant to whom, on a feoffment, seisin would be delivered, and all the rest are remaindermen ; whilst the reversion in fee simple, expectant on the decease of them all, remains with the grantor. The second grantee for life has a remainder expectant on the decease of the first, and will («) Stat. 8 & 9 Vict. c. 106, (r) Litt. s. 60; Co. Litt. 143 a. B. 3 ; ante, p. 168. (x) Litt. s. 60 ; 2 Elack. Com. 167. 266 OF INCORPOREAL HEREDITAMENTS. "Words used to confer a Tested re- maiuder after a life interest. A vested re- mainder may- be conveyed by deed of sjrant. be entitled to possession on the determination of the estate of the first, either by his decease, or in case of his forfeiture, or otherwise. The third grantee must wait till the estate both of the first and second shall have determined ; and so of the rest. The mode in which such a set of estates would be marked out is as follows : ■ — To A. for his life, and after his decease to B. for his life, and after his decease to C. for his life, and so on. This method of limitation is quite sufficient for the purpose, although it by no means expresses all that is meant. The estates of B. and C. and the rest are in- tended to be as immediately and effectually vested in them, as the estate of A. ; so that if A. were to forfeit his estate, B. w^ould 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 ordi- nary deed. The words "and after his decease " are, therefore, considered a sufficient expression of an inten- tion 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, immediately vested in him ; and each of these remainders is capable of being transferred, both at law and in equity, by a deed of grant, 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 necessarily come last ; for his estate, if not OF A KE\ERSlOX AI■). 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 forfeitm-e, 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 B.'s 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 deter- mination 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 immediate possession whenever the prior estates may determine, whether by A.'s death, or by B.'s forfeiture, supposing him to have got possession (.s). 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. (;•) Feamo, Cont. Rem. pp. 7n, 325. {x) See ante, pp. 2G6, 267. OF A CONTINGENT REMAINDER. 283 The rules wliicli are required for the creation of a Two rules for contingent remainder may be reduced to two ; of which g^ contingent" the first and principal is well established ; but the latter remainder. has occasioned a good deal of controversy. The first Ride i. of these rules is, that the seisin, or feudal possession, 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 f^^ of'the^'^"'^" the transfer of which ought to be notorious; and it feudal posscs- accordingly 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 ^°^™6^t to to-day to A., to hold from to-morrow, would be abso- hold from to- 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 {ii). 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 could not be again parted with by him, without a fresh conveyance of the freehold. Accordingly, suppose a feoffment to be made To A. for life, to A. for his life, and after his decease and one day, decease'^and'^ to B. and his heirs. Here, the moment that A.'s estate ^^^ to E- determines by his death, the feudal possession, which is not to belong to B. till one day afterwards, reverts (0 2 Bl. Com. 171. («) 2 Bl. Com. 1G6. 234 OF INCORPOREAL HEREDITAMENTS. his eldest son iu tail to tlie feoffor, and cannot be taken out of him with- out a new feoffment. The consequence is, that the gift of the future estate, intended to he 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 would 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 life, and after ,,,1 ^ in j-i/p i. i his decease to take the case we have beiore reierred to, oi an estate, to A., a bachelor, for his life, and after his decease to 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 reign of William III. an act of parliament (r) was passed to enable posthumous children to take estates, as if born in their father's lifetime. And the law now considers every child en roitre sa mere as actually born, for the purpose of taking any benefit to which, if born, it would be entitled (.r). Posthumous children may take estates as if bom. A contingent remainder must vest during the particular estate, or eo instanti that it determines. As a corollary to the rule above laid down, arises another proposition, frequently itself laid down as a distinct rule, namely, that every contingent remainder must vest, or become an actual estate, during the con- (r) Stat. 10 & 11 Will. III. c. 16. (.r) Doc V. Clarke, 2 H. Bl. 399 ; Blaclihurn v~ S/abhs, 2 Ves. & Beames, 367 ; Mor/i/ v. Mogg, 1 Meriv. 654 ; Troicer v. Butts, 1 Sim. & Stu. 181. OF A CONTINGEXT REMAINDER. 285 tinuance of the particular estate wliich supports it, or eo hiatanti that such particular estate determines ; other- wise such contingent remainder will fail altogether, and can never become an actual estate at all. Thus, sup- Example, pose lands to be given to A. for his life, 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 (y) ; 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. In this case the con- tingent 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 alto- gether (z). For the feudal possession will then, imme- diately 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 convey- ance. An exception to this rule has now been made Exception, by the act to amend the law as to contingent re- Cases in which mainders {a) . This act provides that every contingent remainders remainder created by any instrument executed after capable of ^ '' taking eftcct. (y) 2 Prest. Abst. 148. W. R. 636 ; Rhodes v. Whitc- (r) Fcsting v. Allin, 12 Mees. head, 2 Drew, & Sm. 532 ; Frice &Wels. 279; 5 Hare, 573. See v. Hall, L. R., 5 Eq. 399 ; Fer- however as to this case, Riley v. ceval v. Perceval, L. R., 9 Eq. 386 ; Garnett, 3 De Gex & S. 629; Re EddeVs Trust,Y .-i^.^. ,12.11., Browne v. Browne, 3 Sma. & Griff. 11 Eq. 559 ; Braclcnhury v. Gih- 568, qy? Re Mid Kent Railiray bons, 2 Ch. Div. 417; Cunlife y. Act, 1856, Ex parte Styan, John. Branlccr, 3 Ch. Div. 393. 387; Holmes v. Frescott, V.-C. {a) Stat. 40 & 41 Vict. c. 33, W., 10 Jur., N. S. 507; 12 iiasscd 2nd August, 1877. 286 OF INCORPOREAL HEREDITAMENTS. tlie passing of the act, or by any will or codicil revived or republished by any will or codicil executed after that date, in tenements or hereditaments of any tenure, which would have been valid as a springing or shifting use or executory devise or other limitation, had it not had a sufficient estate to support it as a contingent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the con- tingent remainder had originally been created as a springing or shifting use or executory devise or other executory limitation. It will be found in the next chapter, which treats of an executory interest, that there are some future limitations, which are valid by way of springing or shifting use in a deed or executory devise in a will, without being preceded by any par- ticular estate of freehold. This subject will accordingly be resumed in the next chapter. Events on A contingent remainder cannot be made to vest on tL^ent\e-^" any event which is iRegal, or contra ho)ws mores. Ac- mainder may cordingly, uo such remainder can be given to a child who may be hereafter born out of wedlock. But this can scarcely be said to be a rule for the creation of con- tingent 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 Possibility on a possibility on a possibility, which the law will not allow (b). 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," a possibility. {!>) 2 Rep. r,l a ; 10 Rep. r,Ob. OF A CONTINGENT REMAINDER. - 287 or " double possibility," occur. It appears to owe its origin to the mischievous scholastic logic which was then Scholastic 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 ((;) . The doctrine is indeed expressly introduced on the authority of logic : — "as the logician saith, ' jJotentia est dujilex, remota et propinqua' " {d). This logic, so soon afterwards de- molished by Lord Bacon, appears to have left behind it many traces of its existence in our law ; and perhaps it would be found that some of those artificial and technical rules which have most annoyed the judges of modern times (e) owe their origin to this antiquated system of endless distinctions without solid differences. To show how little of practical benefit could ever be derived from the distinction between a common and a double possi- bility, let us take one of Lord Coke's examples of each. He tells us that the chance that a man and a woman. Examples of both married to different persons, shall themselves marry double possi- one another, is but a common possibility (_/'). But the tilities. chance that a married man shall have a son named Greoifrey is stated to be a double or remote possibility ( ^). 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 Greoifrey, as in the case put, there can be very little doubt but that Greoifrey would be the name given to the first son who might be born (/?) . Eespect to the memory of Lord Coke has long kept on foot in our law books (/) {c) Preface to Co. Litt. p. 37. 45), to which Lord Coke refers, {d) 2 Rep. 51 a. was no doubt, as suggested by {e) Such as the rule in Bum- Mr. Preston, 1 Prest. Abst. 128, por''s case, 4 Rep. 119. that the gift was made to Geoffrey (/) 10 Rep. 50 b ; Year Book, the son, as though he were living, 15 Hen. VII. 10 b, pi. 16. when in fact there was then no ((/) 2 Rep. 51 b. such person. {h) The true ground of the de- (i) 2 Black. Com. 170; Feame, cisionin theoldcaseflO Edw.TII. Cont. Rem, 252. 288 or INCORPOREAL HEREDITAMENTS. the rule that a possibility on a possibility is not allowed by law in the creation of contingent remainders. But the authority of this rule has long been declining [j), and a very learned judge, now deceased (/.■), declared plainly that it was 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 Rule 2. beyond the reach of alienation. This rule is the second Gift to an im- rule, to which we have referred (/), and is as follows : — with renuiin- ^^^^ ^^^ estate canuot be given to an unborn p)erson for dertohis YHq foUoiced hii (uiu estate to any child of such unborn child, there- ' n • ^ ,i , i' • mainder void, pcrsou [ni) ; lor in such a case the estate given to the child of the unborn person is void. This rule is ap- parently derived from the old doctrine which prohi- bited 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 {j) SeeTMi-d Report of Real 215; Feame,Cont. Rem. 502,565, Property Commissioners, p. 29; Butl. note; 2 Prest. Abst. 114; 1 1 Prest. Abst. 128, 129. Sugd. Pow. 470; 393, 8th ed. ; 1 (A) Lord St. Leonards, in Cole Jarm. Wills, 251, 252, 4th ed. ; V. Sewell, 1 Conn. & Laws. 344 ; Cole v. Seivell, 2 H. of L. Cases, S. C. 4 Dru. & War. 1, 32. The 186 ; Ilotiypenntj v. Bering, 2 De decision in this case has been Gex, M. & G. 145, 170; Sugden affirmed in the House of Lords, on Property, 1 20 ; Sugden on the 2 H. of L. Cases, 186. Real Property Statutes, p. 285, [l) Ante, p. 283. n. («), 1st ed. ; 274, u. {a), 2nd ed. (m) 2 Cases and Opinions, 432 See, however, per Wood, V.-C, — 441; Hay v. Earl of Coventry, in Cattlin\. Brown, 11 Hare, 375, 3 T. Rep. 86 ; Brudenell v. Elwes, qy? 1 East, 452 ; Fearne's Posthuma, OF A CONTINGENT REMAINDER. 289 attempt has been made, with much ability, to explain away this rule as merely an instance of the rule by which, as we shall hereafter see, executory interests are restrained {ii). 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 rule 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). The opinion which so generally prevails, that every Gift by a will man may make what disposition he pleases of his own ^^ unbom^ ° estate, — an opinion countenanced by the loose de- person, after ... .. . ,, „ ,,.a life estate to scnption sometimes given by lawyers or an estate m such i^erson. fee simple (^;), — has not unfrequently given rise to attempts made by testators to settle their projDcrty on future generations beyond the bounds allowed by law ; 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 limi- tation 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 nearli/ as can 2)ossibli/ 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 {>i) See Lewis on Perpetuities, counsel for the respondent, nor p. 408 et seq. The case of Challis mentioned in the judgment of the V. Loed. Evers, 18 Q. B. 231, must Court. This case has since been be admitted to accord with this reversed in the House of Lords, opinion ; but the point, though 7 H. of L. Cas. 531. adverted to by the counsel for the {o) See Appendix (F) . appellant, was not taken by the {p) 2 Black. Com. 104. K.r. u 290 OF INCORPOREAL HEREDITAMENTS. Cij prh doc- trine. object of a gift. This, in French Law, is called the cy prh doctrine () Ante, pp. 164, 198. R.P. X 306 OF INCORPOREAL HEREDITAMENTS. Another instance. Name and anns. the estate wliicli precedes it, namely, that of A., is an estate in fee simple, after which no remainder can he limited. The use 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 ■UTested from him by the use to D., instead of D.'s estate waiting till A.'s possession is over, as it must have done 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 j)erson who shall become entitled under the settlement should take the 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, within a definite time, to assume the name and bear the arms, the lands will shift away from him, and vest in the person nest entitled in remainder. From the above examples, an idea may be formed of the shifts and devices which 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 act or device can prevent such estates from being what they are, contingent remainders. The only thing that could formerly be done, was. to take care for their OF AN EXECUTORY INTEREST. 307 preservation, by means of trustees for tliat purpose. For, tlie law, having been acquainted with remainders No limitation long before uses were introduced into it, will never con- ^f?jl*^"*^'^ ^^ ^ ... .... suit ting use strue any limitation to be a springing or shifting use, which can bo I'll ' • L i. i.' 1 11 regarded as a which, by any lair interpretation, can be regarded as a remainder. remainder, whether vested or contingent (/). The establishment of shifting and contingent uses occasioned great difficulties to the early lawyers, in con- sequence 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- pening 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 juris. in B. But this doctrine, though strenuously main- 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, by 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). [1) Feame, Cont. Rem. 386— Prest. Abst. 130. See Re Lech- 395, 526; Doed.. Harris v. Tloicell, mere and Lloijd, 18 Ch. D. 524. 10 Barn. & Cress. 191, 197; 1 [m) Sugd. Pow. 19, Sth ed. x2 308 OF INCORPOREAL HEREDITAMENTS. The doctiine now abol- ished. And a final blow to tlie doctrine has now been given by an act of pariiament («), 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 immediate 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 relation 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 bo deemed to be suspended, or to remain or to subsist in him or elsewhere. Powers. Example. One of the most convenient and useful applications of springing uses occurs in the case of jjowers, which are methods of causing a use, with its accompanying estate, to spring up at the will of any given per- son (o) : — 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 heii's, 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 pou-er of aj^pointment. 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 his 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 ; (ii) Stat. 2.S .^- 21 Vict. c. 38, (o) See Co Litt. 271 b, n. (1), YII., 1. OF AN EXKCUTORY INTEREST. oOO and it is accordingly provided by the Bankruptcy Act, Bankruptcy, 1860, 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 {p). If, however, in the case above mentioned, B. should 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. secm'ed 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 ^ '"' 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, i 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. ' {p) Stat. 32 & 33 Vict. c. 71, c. 83. ss. 15, par. (4), 25, par. (5). The (//) Stat. 1 & 2 Vict. c. 110, former acts gave a similar power ss. 11, 13. to the assignees of the bankrupt, (>•) Ante, pp. 89, 90. stat. 6 Geo. IV. c. 16, s. 77, and («•) Stat. 27 & 28 Vict. c. 112, 12 & 13 Vict. c. 106, s. 147, now ante, p. 92. repealed by stat. 32 & 33 Vict. 310 OF INCORPOREAL HEREDITAMENTS, Exercise of Suppose, liowever, that B. should exercise his power, povrer by ^^^ appoint the lands by deed, to the use of D. and his heirs. In this case, the execution by B. of the instru- ment required by the power, is the event on which the use is to spring up, and to destroy the estate already existing. The moment, therefore, that B. has duly executed his power of appointment over the use, in favour of D. and his heirs, D. has an estate in fee simple in possession vested in him, by virtue of the Statute of Uses, in respect of the use so appointed in his favour ; and the previously existing estate of C. is The power is thenceforth completely at an end. The power of dis- used °^^^ ^ position exercised by B. extends, it will be observed, only to the use of the lands ; and the fee simple is vested in the appointee, solely by virtue of the opera- tion of the Statute of Uses, which always instantly annexes the legal estate to the us,e{t). If, therefore, B. were to make an appointment of the lands, in pur- suance of his power, to D. and his heirs, to ihe use of E. and his heirs, D. would still have the use, which is all that B. has to dispose of ; and the use to E. would be a use upon a use, which, as we have seen [u), is not executed, or made into a legal estate, by the Statute of Uses. E., therefore, would obtain no estate at law : although the Court would, in accordance with the ex- pressed intention, consider him beneficially entitled, and would treat him as the owner of an equitable estate in fee simple, obliging D. to hold his legal estate merely as a trustee for E. and his heii-s. The terms and formalities of the power must be com- plied with. In the exercise of a power it is absolutely necessary that the terms of the power, and all the formalities re- quired by it, should be strictly complied with. If the power should require a deed only, a will will not do ; or, if a icill only, then it cannot be exercised by a {t) See ante, pp. IGi, 16o. [h] Ante, p. 1G6. OF AN EXECUTORY INTEREST. 311 deed (r), or by any other act, to take effect in the life- time of the person exercising the power (.?), So, if the power is to be exercised by a deed attested by two witnesses, then a deed attested by one witness only will be insufficient (//). This strict compliance with the terms of the power was carried to a great length by the courts of law ; so much so that where a power was Power to be required to be exercised by a writing under hand and writin^c^undur seal attested by witnesses, the exercise of the power hand and seal, was held to be invalid if the witnesses did not sign witnesses. a written attestation of the signature of the deed, as well as of the sealing (2). The decision of this point was rather a surprise upon the profession, who had been accustomed to attest deeds by an indorsement, in the words " sealed and delivered by the within-named B. in the presence of," instead of wording the attesta- tion, as in such a case this decision required, " Signed sealed and delivered," &c. In order, therefore, to render valid the many deeds which by this decision were rendered nugatory, an act of parliament (a) was stat. 54 Geo. passed by which the defect thus arising was cured, as ^" ^^^' to all deeds and instruments, intended to exercise powers which were executed prior to the 30th of July, 1814, the day of the passing of the act. But as the act had no prospective operation, the words " signed, sealed and delivered " were still necessary to be used in the attestation, in all cases where the power was to be exercised by writing under hand and seal, attested hij witnesses {h). It is, however, now provided that (f) Majoribanlcn v. Hovendoi, 1 Mau. & Selw. 576 ; Wright v. Drury, 11. Barlow, 3 Mau. & Selw. 512. (.r) Sugd. Pow. 210, Sth ed. ; (a) 54 Geo. III. c. 168. 1 Chance on Powers, ch. 9, pp. {b) See, however, Vincent v. 273 et seq. Bishop of Soclor and Man, 5 Ex. [y] Sugd. Pow. 207 et seq., 8th Eep. 682, 693, in. which case the ed. ; 1 Chance on Powers, 331. Coui't of Exchequer intimated (2) irrif/htv.JFaIc('ford,4:Ta.\int. that they considered the case of 213; Doe d. Mansfield y. Peach, 2 Wrighty.Wakcfordno'w owgvyvIg^ 312 OF INCORPOREAL HEREDITAMENTS. New enact- ment. a deed executed after tlie 13tli of August, 1859, in the presence of and attested hj two or more witnesses in the manner in which deeds are ordinarily executed and attested, shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by deed or by any instrument in writing not testamentary ; notwithstanding it shall have been expressly required that a deed or instrument in writing made in exercise of such power should be executed or attested with some additional or other form of execu- tion or attestation, or solemnity. Provided always, that this provision shall not operate to defeat any direc- tion in the instrument creating the power that the consent of any particular person shall be necessary to a valid execution, or that any act shall be performed, in order to give validity to any appointment having no relation to the mode of executing and attesting the instrument ; and nothing contained in the act is to pre- vent the donee of a power from executing it conformably to the j)Ower by writing, or otherwise than by an instru- ment executed and attested as an ordinary deed ; and to any such execution of a power this provision is not to extend (c) . Equitable re- lief on the defective execution of powers. This strict construction adopted by the com-ts of law, in the case of instruments exercising powers, is in some degree counterbalanced by the practice which pre- vailed in the Court of Chancery to give relief in certain cases, when a power had been defectively exercised, — a relief still afforded by the High Court of Justice, now that the Court of Chancery has been abolished. If the courts of law have gone to the very limit of strictness, by the case of Biirdctt v. Doe d. iSpihbunj, 10 qiark & Fin. 340 ; 6 Man. & Gran. 386. See also Ite liickcWx Trusts, 1 John. & H. 70, 72, affinned in H. of L. as Newton v. Ricketts, 9 H. of L. Cas. 262. [r) Stat. 22 & 23 Vict. c. 35, s. 12. OF AN EXECUTOKY INTEREST. 313 for the benefit of the persons entitled in default of i appointment, the Court of Chancery, on the other hand, appears to have overstepped the proper boundaries of its jurisdiction in favour of the appointee {d). For, if the intended appointee be a purchaser from the person intending to exercise the power, or a creditor of such person, or his wife, or his child, or if the appointment be for a charitable purpose, — in any of these cases, equity will aid the defective execution of the power ie) ; in other words, the court will compel the person in possession of the estate, and who was to hold it until the power was duly exercised, to give it up on an undue execution of such power. It is certainly hard that, for want of a little caution, a purchaser should lose his purchase or a creditor his security, or that a wife or child should be unprovided for ; but it may well be doubted whether it be truly equitable, for their sakes, to deprive the person in possession ; for the lands were originally given to him to hold until the happening of an event (the execution of the power), which, if the power be not duly executed, has in fact never taken place. The above remarks equally ap])ly to the exercise of a Exercise of power by will. Formerly, every execution of a power po'^'erby-nall. to appoint by will was obliged to be effected by a will conformed, in the number of its witnesses and other circumstances of its execution, to the requisitions of the power. But the act for the amendment of the laws with respect to wills (/) requires that all wills should be executed and attested in the same uniform way ( y) ; and it accordingly enacts (/(), that no appointment Wills Act. made by will in exercise of any power shall be valid, unless the same be executed in the manner required by {d) See 7 Ves. 506 ; Sugd. Pow. 5 Beav. 249. 532 et seq., 8th ed. (/) 7 Will. IV. & 1 Vict. c. 26. («) Sugd. Pow. 534, 535, 8th (,-/) See ante, p. 218. ed. ; 2 Chance on Powers, c. 23, [h] Sect. 10. p. 488 et seq. ; Luccna v. Luccna, 314 OF INCORPOREAL HEREDITAMENTS. the act : and that every will executed in the manner thereby required shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity. Powers of These powers of appointment, viewed in regard to alienation i.i • t • i i r, x • xt_ unconnected ^^^ individuals who are to exercise them, are a species with owner- of dominion over property, quite distinct from that free from aliena- right of alienation which has now become inseparably tion m respect annexed to every estate, except an estate tail, to which 01 ownership. '' ' ^ •■■ ' _ a modified right of alienation only belongs. As aliena- tion by means of powers of appointment is of a less ancient date than the right of alienation annexed to ownership, so it is free from some of the incumbrances Appointments by which that right is still clogged. Thus a man may band^and ^^' ©sercise a power of appointment in favour of himself or wife. of his wife (/) ; although, as we have seen (/r), a man cannot, by virtue of his ownership, directly convey to himself, and could not, previously to the 1st January, 1882, so convey to his wife. So we have seen (/) that a married woman could not formerly convey her estates without afne, levied by her husband and herself, in which she was separately examined ; and now, no conveyance of her estates can be made without a deed, in which her husband must concur, and which must be separately acknowledged by her to be her own act and deed. Married But a power of appointment either by deed or will exOTdso"^'*^ may be given to any woman ; and, whether given powers. -to her when married or when single, she may exercise such a power without the consent of any husband to whom she may then or thereafter be married {>n) ; and (i) Sugd. Pow. 471, 8th ed. {m) Doc d. Blomfcld v. Eyre, 3 \k) Ante, pp. 198, 241. C. B. o77; 5 C. B. 713. (/) Ante, pp. 244, 25.3. OF AN EXECUTORY INTEREST. 315 tlie power may be exercised in favour of her liusband, or of any one else (»). The act of parliament to which Infants' mar- we have before referred (o) , for enabling infants to make ^^^^^H^ ^' 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 Ig-noranco of T • ,^ 1 iiTiii! xi the nature of any ownership, though establisJied lor some three cen- po-«.ers has turies, is at the present day frequently unknown to caused dis- those to whom such a power may belong. This igno- of intention. ranee has often given rise to difficulties and the disap- pointment of intention in consequence of the execution of powers by instruments of an informal nature, par- ticularly by wills, too often drawn by the parties them- selves. A testator would, 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 ownership, his intention, till lately, was defeated. For such a general devise was no execution of his power of appointment, 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 dis- pose. The act for the amendment of the laws with respect to wills (>■) has now provided a remedy for such («) Siigd. Pow. 471, 8th ed. 7 Ch. D. 728. (o) Ante, p. 69. {q) Sect. 2. (jj) Stat. 18 & 19 Vict. c. 43, (r) Stat. 7 Will. IV. & 1 Vict, s. 1. Sec lie Cardross^s Settlement, c. 26. 316 OF INCORrOKEAL HEREDITAMENTS. A general cases, by enacting (s) that a general devise of the real appointmeBt estate of a testator shall be construed to include any now executed real estate which he may have power to appoint in any by a general , ,1 • i / ,\ i i n , devise. manner he may thmk proper (r), 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 be extin- guished or suspended by a conveyance of the estate. A power of appointment may sometimes belong to a person concurrently with the ordinary power of alien- ation 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 appointment to the use of A. and his heu's {ii). And in such a case A. may dispose of the lands either by exercise of his power (;r), or by conveyance of his estate (^). If he exercises his power the estate limited to him in default of appointment is thenceforth defeated and destroyed; and, on the other hand, if he conveys his estate, his power is thenceforward extinguisJied, and cannot be ex- ercised b}^ him in derogation of his own conveyance. So if, instead of conveying his 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 instrument employed is in- tended to operate. Under such circumstances it is very usual first to exercise the power, and afterwards (s) Stat. 7 WiU. IV. & 1 Vict. c. 26, s. 27. [t) Cloven V. Aicdrtj, 12 Beav. 604. (m) Sir JEdicard Clere^s case, 6 Hep. 17 b; Maundrell v. Mauii- drell, 10 Vcs. 246. [x) Roach V. IVadham, 6 East, 289. (y) Cox V. Chamberhiin, 4 Ves. 631 ; Wynne v. Griffith, 3 Bing. 179; 10 J. B. Moore, 592; 5 B. & Cress. 923 ; 1 Russ. 283. OF AN EXECirrOllY INTEREST. 317 to convey the estate by icaij of fioi/icr assurance onh/ ; in which case, if the power is valid and subsisting, the subsequent convej'ance is of course inoperative [z) ; but if the power should by any means have been suspended or extinguished, then the conveyance 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 barring dower, has also been pointed out {h). The Modern modern method of effecting this object, and at the same barrino- time of conferring on the purchaser full power of dis- dower, position over the land, without the concurrence of any ' other person, is as follows : A general power of ap- pointment 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 deter- mination of his life interest by any means in his life- time, a remainder (which, as we have seen (c), is vested) is limited to a trustee and his heii's during the pur- chaser's life. This remainder is then followed by an ultimate remainder to the heirs and assigns of the pur- chaser for ever, or, which is the same thing, to the (:;) Ray v. Pung, 5 Mad. 310; («) Ante, p. 246. 5 B. & Aid. 5G1 ; Doe d. IVigan [b) Ante, pp. 248, 249. V. JoiicK, 10 B. /) Sect. 32. (fl) Bucldcy v. ILoiccU, 29 Bear. {z) Lord St. Leonards, Sugd. oi6. Pow. 877, 8th ed. (i) Stat. 25 & '20, Vict. c. 108. (r) Sect. 1, v 2 324 OF INCORPOREAL HEREDITAMENTS. ' minerals without the land, unless forbidden so to do by the instrument creating the trust or power {d). When the Other kinds of special powers occur where tlie per- limited. SOUS who are to take estates under the powers are limited to a certain class. Powers to jointure a wife, and to appoint estates amongst children, are the most The estates usual powers of this nature. When powers are thus under the , . . ^ • ^ power take given m favour 01 particular objects, the estates which the'' had been ^^'^^® from the excrcise of the power take effect pre- insertedinthe cisely as if such estates had been inserted in the settle - settlement. , ^ t • i ,^ • ^-^^ ii ment by which the power was given, iiiaeli estate, as 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). The Succes- It is provided, by the Succession Duty Act, 1853, Act 1853. that 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 succes- sion derived from the donor of the power ; and where any person shall have a limited power of appointment, 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 pre- decessor (/). But where the donee of a general power (r/) Stat. 25 & 26 Vict. c. 108, N. S. 1061 ; Attorneij- General v. fi_ 2. Floijer, H. of Lords, 9 Jiir., N. S. {(■) Co.Litt.271b,n. (1),VII.,2. 1 ; 9 H. of L. Cas. 477; Charlton (/) Stat. 16 & 17 Vict. c. 51, ■^- Attornen- General, 4 App. Cas. s. 4. See Re Barker, Exch., 7 Jur., 42: OF AM EXECUTORY INTEREST. 325 of appointment sliall 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 {rj). Powers may, generally speaking, be destroyed or ex- Powers may tin^ished by deed of release made by the donee or ^ee-^ti^- ° ^ \ guished by owner of the power to any person having any estate release, 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 theu* mutual consent be dissolved again" {Jt), And it is now expressly I enacted that a person to whom any power, whether coupled with an interest or not, is given may by deed re- lease or contract not to exercise the power (/). The excep- Exceptions. 'tions to this rule appear to be all reducible to the simple principle, that if the duty of the donee of the power may require him to exercise it at any future time, then he cannot extinguish it by release {j). By the act for the Release of abolition of fines and recoveries (/t), it is provided (/), j^^anTed that every married woman may, with the concurrence of women, her husband, by deed to be acknowledged by her as her act and deed according to the provisions of the act [in), release or extiuguish 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 invested in the purchase of lands («), or in regard to any estate in any lands of any tenure, or in any sucli money as aforesaid, as fully and effectually as she could do if she were a (.(/) Sect. 33. to this enactment, see Sugd. Pow. (//) Alba iifs vase, 1 Rep. 110 b, 49 et seq., Sth ed. 113 a; Smith v. Death, 5 Mad. {J) See 2 Chance on Powers, 584. 371 ; Burner v. Sicavn, Turn. & {k) Stat. 3 & 4 \Vi\\. TV. c. 74. Russ. 430. (/) Sect. 77. (0 Stat. 44 & 1.3 Vict. c. 41, (/;/) See ante, p. 254. p. 52. As to the law previously (;/) See ante, p. 170. 326 OF IXCORroilEAL HEREDITAMENTS. u^ Creation of executory- interests by will. Directions that executors should sell lands devis- able by cus- tom. feme sole. Our notice of powers must here conclude. On a subject so vast, much must necessarily remain unsaid. The masterly treatise of Sir Edward Sugden (afterwards 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 will. Before the passing of the Statute of Uses (o), 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 (^;). In giving effect to these customary devises, the courts, in very early times, showed great indulgence to testators {q) ; and perhaps the first instance of the creation of an executory interest occurred in directions given by tes- tators, that their executors should sell their tenements. Such directions were allowed by law in customary de- vises {}') ; and in such cases it is evident that the sale by the executors operated as the execution of a power to dispose of that in which they themselves had no kind of ownership. For executors, as such, have nothing to do with freeholds. Here, therefore, was a future estate or executory interest created ; the fee simple was shifted away from the heir of the testator, to whom it had (o) 27 Hen. VIII. c. 10. (jy) Ante, p. 217. {q) 30 Ass. 183 a; Litt. sec. 586. (;•) Year Book, 9 Hen. VI. 24 b, Babington : — " La nature de devis ou terres sont devisables est, que on pent deviser que la terre sera vendu par executors, et ceo est bon, come est dit adevant, et est marvellous ley de raison: mes ceo est le nature d'un devis, et devise ad este use tout temps en tiel forme ; et issint on aura loy- ;ilinent franktcn( incnt dc ccstv qui n'avoit rien, et en meme le maniere come on aura Jire from Jlint, et uncore nul Jire est deins lejtint: et ceo est pour performer le darrien volonte de le devisor." Paston. — ' ' Une devis est marveil- ous en lui meme quand il pent prendre effect ; car si on devise en Londres que ses executors ven- dront ses terres, et devie seisi ; son heu" est eins par descent, et encore par le vend des executors il sera ouste." Sec also Litt. s. 169. .use. OF AN EXECUTORY INTEREST. 327 descended, and became vested in the purchaser, on the . event of the sale of the tenement to him. The Court | of Chancery also, in permitting the devise of the use of such lands as were not themselves devisable, allowed of the creation of executory interests by will, as well as in • , , , transactions between living persons (.s) . And in par- Directions ticular directions .given by persons having others seised g^ouM seU*°^^ of lands to their use, that such lands should be sold by lands of their executors, were not only permitted by the Court ^^pg seised to of Chancery, but were also recognized by the legislature. ^^^ testator's For, by a statute of the reign of Henry VIII. (t), of a' date previous to the Statute of Uses, it is provided, that in such cases, where part of the executors refuse to take the administration of the will, and the residue accept the charge of the same will, then all bargains and sales of the lands so willed to be sold by the executors, made by him or them only of the said executors that so doth accept the charge of the will, shall be as effectual as if all the residue of the executors so refusing, had joined with him or them in the making of the bargain and sale. But, as we have seen (u), the passing of the Statute The Statute of of Uses abolished for a time all wills of uses, until the Statute of Wills {x) restored them. When wills were restored, the uses, of which they had been accustomed to dispose, had been all turned into estates at law ; and such estates then generally came, for the first time, within the operation of testamentary instruments. Under these circumstances, the courts of law, in in- terpreting wills, adopted the same lenient construction which had formerly been employed by themselves in the interpretation of customary devises, and also by the Court of Chancery in the construction of devises of the ancient use. The statute which, in the case of («) Perk. ss. 507, 528. («) Ante, p. 217. (f) Stat. 21 Hen. VIII. c. 4. (r) 32 Hen. VIII. c. 1. Uses. 328 OF INCORPOREAL HEREDITAMENTS. Executory devises. Example. wills of mes^ had given validity to sales made by the executors accepting the charge of the will, was ex- tended, in its construction, to directions (now autho- rized to he made) for the sale by the executors of the legal estate, and also to cases where the legal estate was devised to the executors to be sold ( //) . Future estates at law were also allowed to be created by will, and were invested with the same important attribute of indestructibility which belongs to all executory interests. These future estates were called executory devises, and in some respects they appear to have been more favourably interpreted than shifting uses con- tained in deeds (z), though, generally speaking, their attributes are the same. To take a common instance : a man may, by his will, devise lands to his son A., an infant, and his heirs ; but in case A. should die under the age of twentj'-ono j^ears, then to B. and his heirs. In this case A. has an estate in fee simple in possession, subject to an executor}^ interest in favour of B. If A. should not die under age, his estate in fee simple will continue with him unimpaired. But if he should die under that age, nothing can prevent the estate of B. from immediately arising, and coming into possession, and displacing for ever the estate of A. and his heirs. Precisely the same effect might have been produced by a conveyance to uses. A conveyance to C. and his (y) Bonifant v. Greoiftdd, Cro. Eliz. 80; Co. Litt. 113 a; see Mackintosh Y.Barber, 1 Bing. 50. [z) In the cases of Adams v. Savage (2 Lord Raym. 85.5 ; 2 Salk. 679), and Raiilcij v. Holland (22 Vin. Abr. 189, pi. 11), limi- tations wbicli -would have been valid in a will by way of executory devise were held to be void in a deed by way of shifting or spring- ing use. But these cases have been doubted by Mr. Serjeant Hill and Mr. Sanders (1 Sand. Uses, 142,143; 118, 5th ed.), and denied to be law by Mr. Butler (note {y) to Fearne, Cont. Rem. p. 41). Mr. Preston also lays down a doc- trine opposed to the above cases (1 Brest. Abst. 114, 130, 131). Sir Edward Sugden, however, supports these cases, and seems sufficiently to answer Mr. Butler's objection (Sugd. Gilb. Uses and Trusts, 35, note). OF AX EXECUTORY INTEREST. 329 heirs, to the use of A. and his heirs, but in case A. should die under age, then to the use of B. and his ! heirs, would have effected the same result. Not so, however, a direct conveyance independently of the Statute of Uses. A conveyance directly to A. and his heirs would vest in him an estate in fee simple, I after which no limitation could follow. In such a case, therefore, a direction that, if A. should die under age, the land should belong to B. and his heirs, would fail to operate on the legal seisin ; and the estate in fee simple of A. would, in case of his decease under age, still descend, without any interruption, to his heir at law. A good illustration of the difference between a con- Difference tingent remainder and an executory devise occurs in Jonriut^nt the case of a devise of lands by will to A. for life, with remainder tincl tin GXG" remainder in fee to such son of B. as shall first attain cutory devise the age of twenty-one years. In this case the limita- tion to the son of B. is either a contingent remainder or an executory devise, according as A., the tenant for life, may or may not survive the testator. If A. should survive the testator, there will be an estate of freehold subsisting in the premises, for the determination of which the limitation to the son of B. must wait, before it can take effect in possession. This limitation is, therefore, a remainder ; and, as it depends on the con- tingency of B. having a son who may attain twenty- one, it is a contingent remainder. But if A. should die in the lifetime of the testator, the will would start, on the testator's death, with a simple limitation to such son of B. as shall first attain the age of twenty-one years. This limitation has not to wait for the deter- mination of any prior estate of freehold ; but it arises of itself on the event of a son of B. attaining the age of twenty- one years ; and it displaces, when it takes effect, the estate in fee simple, which, not being other- 330 OF 1>;C0RP0REAL HEREDITAMENTS. wise disposed of, descends, immediately on the death of the testator, to his heir-at-law. It is, therefore, in this ■, case, not a contingent remainder, but an executory devise. Under the law as it stood before the passing of the act to amend the law as to contingent remainders (a), if A. survived the testator, but died before any son of B. attained twenty-one, the limitation failed for want of an estate of freehold to support it : whereas if A. died in the lifetime of the testator, it was not liable to any failure. It was to remedy the hardship occasioned by the failure of such a limitation as this, when it occurred in the shape of a contingent remainder, that the act above mentioned was framed. And, as we have seen (h), the act provides that such a remainder as this shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in all respects as if the contingent re- mainder had originally been created as a springing or shifting use or executory devise, or other executory limitation. The force of the words " or other executory limitation" is not very apparent. Alienation of executory interests. Example. The alienation of an executory interest, before its becoming an actually vested estate, was formerly sub- ject to the same rules as governed the alienation of con- tingent remainders {(■). But by the act to amend the law of real property, all executory interests may now be disposed of by deed {d). Accordingly, to take our previous example, if a man should leave lands, by his will, to A. and his heu-s, but in case A. should die under ago, then to B. and his heirs, — B. may by deed, during A.'s minority, dispose of his expectancy to another })erson, who, should A. die under age, will at (a) Stat. 40 d: 41 Vict, c, ante, p. 28'). (b) Ante, p. 285. {r) Ante, p. 201. 33, {d) Stat. 8 & 9 Vict. c. lOG, h. 6, rejiealing stat. 7 & 8 Vict. 0. 76, s. 5. OF A^ EXECUTORY INTEREST. 331 ouce stand in the place of B. and obtain the fee simple, i But before the act, this could not have been done ; ; B. might indeed have sold his expectancy ; but after the event (the decease of A. under age), B. must have executed a conveyance of the legal estate to the purchaser ; for, until the event, B. had no estate to convey (, defeazance of, or immediately preceded by, an estate ^ded^i^an tail, then, as the estate tail and all subsequent estates estate tail. may be barred by the tenant in tail, the remoteness of the event on which the executory limitation is to arise will not affect its validity (o). It will be observed that the act to amend the law as to Cases to which contingent remainders (^j) applies only to a contingent ^dthe remainder which would have been valid as a springing law as to oF shifting use or executory devise or other limitation, remainders had it not had a sufficient estate to support it as a •1°*'^ ^°* apply, contingent remainder. A gift to the first son of B. who shall attain the age of twenty-one years is valid as a springing or shifting use or executory devise, when not preceded by an estate of freehold to turn it into a contingent remainder. But according to the rule above laid down, a gift to the first son of B. who shall attain («) Xeii'inan Y. Xeicmaii, 10 Sim. petuities, C69. See ante, p. 303, 51 ; 1 Jarm. WiUs, 263, 204, 4th n. (i) ; Heasman v. Pcarse, L. R., ed. ; Grijiih \. Blunt, 4 Beav. 248. 7 Ch. 275. (o) Butler's note (/() to Feame, {p) Stat. 40 & 41 Vict. c. 33, Cent. Rem. 562 ; Lewis on Per- ante, pp. 285, 318. 334 OF IXCOHPOREAL HEREDITAMENTS. the age of twenty-four years is void for remoteness, when not preceded by a particular estate of freehold. When so preceded it is, as we have seen {q) , a good contingent remainder ; but if the preceding estate which supports it should determine naturally before any son of B. should attain twenty-four, then this remainder will still fail, and can derive no support from the recent act. Contingent Contingent remainders of trust estates (r) are void if trast'eftates^* they are limited, so that they, may exceed the limit prescribed by law to the creation of executory in- terests (s). Thus, if land be conveyed unto and to the use of trustees and their heirs, upon trust for A. for life, and after his decease for such son of A. as shall first attain the age of twenty-four years, the limita- tion to the son of A. is void for remoteness {t). The reason for this distinction between legal and equitable estates (ii) is, that, in the case of the latter, the feudal possession is with the trustees, and the rule of law, that a contingent remainder would fail if it did not vest before or at the moment of the determination of the particular estate, cannot apply (.r). And equity, in giving effect to contingent remainders of trust estates, has held them to be subject to the rules as to remoteness. Restriction on In addition to the limit already mentioned, a further accumvilation. i-i-ii • ■, i i , c t restriction has been imposed by a modern act oi parlia- ment (//), on attempts to accumulate the income of pro- perty for the benefit of some future owner. This act was occasioned by the extraordinary will of the late Mr. Thellus- Mr. Thellusson, who directed the income of his property to be accumulated during the lives of all his children, (-7) Ante, p. 285. («) See ante, p. 285. (>•) Ante, p. 299. (.r) Ante, pp. 283—286, 299. (,s) AhhissY. Burney, 17Ch. D. (y) Stat. 39 & 40 Geo. III. 211,229,233. c. 98 ; Feame, Cont. Eem. 538, (/) Ante, p. 332. n. {x). son's will. OF AN EXECUTORY INTEREST. 335 Geo. III. c. grandcliildreu and great grandchildren u-Jio were Hvliig . (d the time of //is death, for tho l)enefit of some future I descendants to be living at the decease of the sur- vivor (~) ; thus keeping strictly within the rule which allowed any number of existing lives to be taken as the period for an executory interest. To prevent the > "n\^4t^\ repetition of such a cruel absurdity, the act forbids tho Stat. 39 & 40 accumulation of income for any longer term than the life of the grantor or settlor, or twenty-one years from \ the death of any such grantor, settlor, devisor or testa- tor, or during the minority of any person living, or in ventre sa mere at the death of the grantor, devisor or testator, or during the minority only of any person who, under the settlement or will, would for the time being, if of full age, be entitled to the income so directed to be accumulated {a) . But the act does not extend {b) to / any provision for payment of debts, or for raising por- tions for children (c) , or to any direction touching the produce of timber or wood. Any direction to accumu- late income, which may exceed the period thus allowed, is valid to the extent of the time allowed by the act, but void so far as this time may be exceeded {d) . And if the direction to accumulate sliould exceed the limits allowed by law for the creation of executory interests, it will be void altogether, independently of the above act (e). (-) 4 Ves. 227; Fearne, Cont. Rem. 436, note. («) Wilson V. Wilson, 1 Sim., N. S. 288. (i) Sect. 3. (c) See Ilalford v. Stains,- 16 Sim. 488, 496 ; Bacon v. Procter, Turn. & Russ. 31 ; Bateman v. Iloclfjldn, 10 Bcav. 420 ; Barrfncj- fon V. liddcll, 2 Do Gex, M. & G. 480 ; Edwards v. Ti(ck, 3 De Gex, M. & G. 40. (d) I Jarm. Wills, 306, 4th ed. See Jic Lady Rosslyn's Trust, 16 Sim. 391 ; Ral^jh v. Carrick, 5 Ch. D. 984, 997, 998. (c) Lord Southampton Y. Marquis of Hertford, 2 Ves. & Bea. 54 ; I{cr V. Lord Dunt/annon, 1 Dr. & War. 509 ; Curtis v. Lukin, 5 Beav. 147; Broughton v. James, 1 Coll. 26; Scarisbrick v. Skelmcrsdale, 17 Sim. 187; Turvin v. Xewcome, 3 Kay & J. 16. 336 OF INCORPOREAL HEREDITAIS] EMS CHAPTER IV. OF HEREDITAMENTS PURELY INCORPOREAL. AVe now come to the consideration of incorporeal here- ditaments, usually so called, which, unlike a reversion, a remainder, or an executory interest, are ever of an incorporeal nature, and never assume a corporeal shape. Three kiuds of Of these purely incorporeal hereditaments there are poreal here- three kinds, namely, first, such as are appendant to ditaments. corporeal hereditaments ; secondly, such as are appur- tenant ; both of which kinds of incorporeal heredita- ' ments are transferred simply by the conveyance, by whatever means, of the corporeal hereditaments to which they may belong ; and, thirdly, such as are in gross, or exist as separate and independent subjects of property, and which are accordingly said to lie in grant, and have always required a deed for their transfer (r/). But almost all purely incorporeal hereditaments may exist in both the above modes, being at one time appen- dant or appurtenant to corporeal property, and at another time separate and distinct from it. 1. Of incorporeal hereditaments which are appendant to such as are corporeal, the first we shall consider is a A seignory. scignory or lordship. In a previous part of our work {b) we have noticed the origin of manors. Of such of the lands belonging to a manor as the lord granted out in fee simple to his free tenants, rtothing remained to him but his seignory or lordship. By the grant of an estate {a) Ante, p. 253. {b) Ante, p. 123. OF HEREDITAMENTS PURELY INCORPOREAL. 337 in fee simple, lie necessarily parted witli the feudal pes- . session. Thenceforth his interest, accordingly, became incorporeal in its nature. But he had no reversion ; for no reversion can remain, as we have already seen {e), after an estate in fee simple. The grantee, however, became his tenant, did to him fealty, and paid to him his rent-service, if any were agreed for. This simply having a free tenant in fee simple was called a seignory. To this seignory the rent and fealty were incident, and the seignory itself was attached or apj)endant to the manor of the lord, who had made the grant ; whilst the land granted out was said to be holden of the manor. Very many grants were thus made, until the passing of the statute of Quia cmptorcs id) put an end to these creations of tenancies in fee simple, by directing that on every such conveyance the feoffee should hold of the , same chief lord as his feoffor held before (e). But such tenancies in fee simple as were then already subsisting were left untouched, and they still remain in all cases in which freehold lands are holden of any manor. The incidents of such a tenancy, so far as respects the tenant, have been explained in the chapter on the tenure of an estate in fee simple. The correlative rights belonging to the lord form the incidents of his seignory. The seignory, with all its incidents, is an appendage to the manor of the lord, and a conveyance of the manor mnply, without mentioning its appendant seignories, will accordingly comprise the seignories, together with all rents incident to them (/). In ancient times it Attornment. was necessary that the tenants should attorn to the feoffee of the manor, before the rents and services could effectually pass to him ( g) . For, in this respect, the owner of a seignory was in the same position as (c) Ante, pp. 266, 267. (/) Perk. s. 116. (d) 18 Edw. I. c. 1. Iff) Co. Litt. 310 b. {e) Ante, pp. 65, 122. R.P. Z 338 OF INCORPOREAL HEREDITAMENTS. the owner of a reversion (//). But the same statute («') which abohshed attornment in the one case abolished it also in the other. No attornment, therefore, is now required. Rights of common. Common of pasture. Commons. Other kinds of appendant incorporeal hereditaments are rights of common, such as common of turhanj, or a right of cutting turf in another person's land ; common of piscanj, or a right of fishing in another's water ; and common of pasture, which is the most usual, being a right of depasturing cattle on the land of another. The rights of common now usually met with are of two kinds ; one where the tenants of a manor possess rights of common over the wastes of the manor, which belong to the lord of the manor, subject to such rights (A-) ; and the other, where the several owners of strips of land, composing together a common field, have at certain seasons a right to put in cattle to range over the whole. The inclosiu-e of commons, so frequent of late years, has rendered much less usual than formerly the right of common possessed by tenants of manors over the lord's wastes. These inclosures were formerly effected by private acts of parliament, obtained for the purpose of each particular inclosure, subject to the provisions of the general inclosure act (/), which con- tained general regulations applicable to all. But by an act of parliament of the present reign {m) commis- (A) Ante, p. 261. (i) Stat. 4 & 5 Anne, c. IG, 8. 9 ; ante, p. 262. {k) Ante, p. 123. See Stnith v. Earl Broivnlou; L. R., 9 Eq. 241 ; TFarrick v. Queen'' s College, L. R., 10 Eq. 105, affirmed L. R., 6 Ch. Ap. 716; Belts y. Thompson, L.R., 6 Ch. Ap. 732 ; Hall v. Bijron, 4 Ch. Div. 667. (0 41 Geo. III. 0. 109; see also stats. 3 & 4 Will. IV. c. 87; 3 & 4 Vict. c. 31. (wa) Stat. 8 & 9 Vict. c. 118, amended and- extended by stats. 9 & 10 Vict. c. 70; 10 & 11 Vict, c. Ill; 11 & 12 Vict. c. 99; 12 & 13Vict. c. 83; 15 & 16 Vict. c. 79; 17 & 18 Vict. c. 97; 20 & 21 Vict. c. 31; 22 & 23 Vict. c. 43; 31 & 32 Vict. c. 89; and 36 Vict. c. 19 ; and continued by stats. 14 & 15 Vict. c. 53; 21 & 22 Vict. c. 53; 23 & 24 Vict. c. 81 ; 25 & 26 Vict. OP HEREDITAMENTS rURELY INCORPOREAL. 339 sioners were appointed, stj^led the Inclosure Commis- sioners for England and Wales, under whose sanction inclosures were more readily effected, several local inclosures being comprised in one act. The same com- missioners were also invested with powers for facilitating the drainage of lands {u). But by a recent act provision has been made for the improvement, protection and management of commons near the metropolis, by means of schemes for the purpose, to be certified by the In- closure Commissioners and confirmed by act of parlia- ment (o) . And an important act has now been passed for facilitating the regulation and improvement of commons, and for amending the acts relating to the inclosure of commons (7;). The short title of this act The Commons Act, 1876." This act contains Inclosure Commis- sioners. Drainage. Metropolitan commons. IS provisions, not only for the inclosure of commons, but also for their regulation and improvement when un- inclosed. And if any common is situate within six miles of any town having a population of not less than five thousand inhabitants, it is called a suburban common, and as such is subjected to special regulations for the benefit of the inhabitants of such town (q). Improved provisions have also been made for the allot- Commons Act, 1876. Suburban commons. c. 73, and ultimately by stat. 4-1 & 45 Vict. c. 70. The stat. 8 & 9 Vict. c. 118, contains (sect. 147) a remarkably useful provision, authorizing exchanges of lands ■whether inclosed or not. And this provision has since been ex- tended to partition between owners of undivided shares (stat. 11 & 12 Vict. c. 99, s. 13, ante, p. 144), and to other hereditaments, rights and easements (stat. 12 & 13 Vict. 0. 83, 8. 7), and in other respects (see stats. 15 & 16 Vict. c. 79, Bs. 31, 32 ; 17 & 18 Vict. c. 97, ss. 2, 6; 20 & 21 Vict. c. 31, ss. 4 —11 ; 22 & 23 Vict. c. 43, ss. 10, 11). Socage lands may be ex- changed for gavelkind ; Minef v. Leman, 20 Beav. 269 ; 7 De Gex, M. & Gr. 340. And freeholds may be exchanged for copyholds ; stat. 9 & 10 Vict. c. 70, s. 9. (w) Stats; 10 & 11 Vict. c. 38, and 24 & 25 Vict. c. 133; see also the statutes mentioned ante, pp. 31, 32. (o) Stat. 29 & 30 Vict. c. 122, amended by stats. 32 & 33 Vict. 0. 107, and 41 & 42 Vict. c. 71. {p) Stat. 39 & 40 Vict. c. 56, amended by stat. 41 & 42 Vict. 0. 56. {q) Sect. 8. /, 340 OF INCORPOREAL HEREDITAMENTS. Commou fields. Advowsou appendant. ment of field gardens for the poor, and of recreation grounds (r). The rights of common possessed by owners of land in common fields, however useful in ancient time, are now found greatly to interfere with the modern practice of husbandry; and acts have ac- cordingly been passed to facilitate the exchange (-s') and separate inclosure (f) of lands in such common fields. Under the provisions of these acts, each owner may now obtain a separate parcel of land, discharged from all rights of commou belonging to any other person. The rights of common above spoken of, being appendant to the lands in respect of which they are exercised, belong to the lands of common right (u), by force of the common 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 (.r). Another kind of appendant incorporeal here- ditament is an advowson appendant to a manor. But 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 unaiDpended to any thing corporeal. Strips of waste by the side of roads. In connection with the subject of commons, it may be mentioned that strips of waste land between an in- closure 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 {)■) Stat. 39 & 40 Vict. c. 56, Part II., amended by stat. 42 & 43 Vict. c. 37. (.v) Stat. 4 & 5 WiU. IV. c. 30. it) Stat. 6 & 7 Will. IV. c. 115, extended by stat. 3 & 4 Vict. c. 31. See also stats. 8 & 9 Vict. c. 118; 9 & 10 Vict. c. 70 ; 10 & 11 Vict. c. Ill; 11 & 12 Vict. c. 99; 12 & ISVict. c. 83; 15 & 16 Vict. c. 79; 17 & 18 Vict. c. 97; 20 & 21 Vict. c. 31. (m) Co. Litt. 122 a; Bac. Abr. tit. Extinguishment (C). See, however, Lord Bunraven v. Lieu-- elhjn, 15 Q. B. 791 ; ante, p. 123, {x) Litt. s. 183; Co. Litt. 121b. (y) Doe d. Pring v. L'earsetj, 7 B. & C. 304 ; Scoones v. Morrcll, 1 Boav. 251. OF HEREDITAMENTS PURELY INCORPOREAL. 341 inclosure (z), even by reference to a plan which does not comprise the highway (a), 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 {h). Where a public way is foundrous, as such ways 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 (c) . 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 cidti- vation. Hence such strips are presumed to belong to the owners of the lands adjoining (c/). Where lands Soil of river, 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 (iyton\. Gimson, Q.B., 316—319, 323. ■ 6 Jur., N. S. 1053; 2 EUis & (r) Stat. 44 & 45 Vict. c. 41; Ellis, 618; Baird v. Fortune, H. seess. 1, 2, 6. See post, Part VI. L., 10 W. R. 2 ; 7 Jur., N. S. (.s) Sect. 6, subs. 4. 926; Wardle v. Brochkhurst, 1 344 OF INCORPOREAL HEREDITAMENTS. A seignory in gross. Of tliese the first we may mention is a seignory ^°^^' in gross, which, is a seignory that has been severed from the demesne lands of the manor, to which it was anciently appendant {f). It has now become quite un- connected with anything corporeal, and, existing as a separate subject of transfer, it must be conveyed by deed of grant. Eent seek. | ^pj^e ^g^t kind of Separate incorporeal hereditament is a rent seek, [redditm siccus,) a dry or barren rent, so called, because no distress could formerly be made ■ for it {k) . This kind of rent forms a good example of the antipathy of the ancient law to any inroad on the then prevailing system of tenures. If a landlord granted his seignory, or his reversion, the rent service, which was incident to it, passed at the same time. But if he should have attempted to convey his rent, independently of the seignory or reversion to which it was incident, the grant would have been effectual to deprive himself of the rent, but not to enable his grantee to distrain for it (r). It would have been a rent seek. Eent seek also occasionally arose from grants being made of rent charges, to be hereafter explained, with- out any clause of distress (/r). But now, by an act of Greo. II. (,r), a remedy by distress is given for rent seek, in the same manner as for rent reserved upon lease. A rent Another important kind of separate incorporeal here- cnarge, ditament is a rent charge, which arises on a grant by 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 {t) 1 Scriv. Cop. 0. 572. (m) Litt. 8. 218. {w) Litt. ss. 217, 218. \v) Litt. ss. 225, 22G, 227, 228, [x) Stat. 4 Geo. II. c. 28, s. 5. OF HEREDITAMENTS PURELY INCORTOREAL. 345 may make a grant of a rent charge for any estate lie pleases, giving to the grantee a rent charge for a term of years, or for his life, or in tail, or in fee simple (y). For this purpose a deed is absolutely necessary ; for a A deed re- rent charge, being a separate incorporeal hereditament, cannot, according to the general rule, be created or transferred in any other way {z), unless indeed it be given by will. The creation of a rent charge or an- nuity, 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 circum- stances, to be attended with the inrolment, in the Court Inrolment of p ^i^ p • ^ ? L • l- ^ memorial of ot (Jhancery, or a memorial oi certain particulars, annuities for These annuities were frequently ^ranted by needy per- ^''^^ granted , T 1 . • 1 ^- t a -^ -^ for pecuniary sons to money lenders, m consideration oi the payment consideration. of a sum of money, for which the annuity or rent charge served the purpose of an exorbitant rate of interest. In order, therefore, to check these proceed- ings by giving them publicity, it was provided that, as to all such annuities, granted for pecuniary considera- tion or money's worth {a), (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 re- ceived, the pecuniary consideration for granting the same, and the annual sum to be paid, should, within thirty days after the execution of the deed, be inrolled in the Court of Chancery ; otherwise the same should be null and void to all intents and purposes {h) . But Now unneces- sary. (f/) Litt. 88. 217, 218. Jioiisc, 8 Ad. & Ell. 789; S. C. 1 (z) Litt. ubi sup. Per. & Dav. 34 ; Doe d. Church [a) Tctley v. Tetleij, 4 Bing. v. Tontifex, 9 C. B. 229. 214; Mcstaijcr v. Biggs, 1 Cro. {h) Stat. 53 Geo. III. c. 141, Mee. & Eosc. 110 ; 7'V«- v. Bark- explained and amended by stats. 346 OF INCORrOREAL HEREDITAMENTS. \ of aanuities now rei as these annuities were only granted for the sake of evading the Usury Laws, the same statute which has repealed those laws {c) has also repealed the statutes by which memorials of such annuities were required to Registration be inroUed. A subsequent statute, however, provides, ii^uired ^^^^ ^^7 annuity or rent charge granted after the 26th of April, 1855, the date of the passing of the act, other- wise than by marriage settlement or will, for a life or lives, or for any estate determinable on a life or lives, shall not affect any lands, tenements or hereditaments, as to purchasers, mortgagees, or creditors, until the particulars mentioned in the act are registered in the Court of Common Pleas, now the Common Pleas Division of the High Court, where they are entered in alphabetical order by the name of the person whose estate is intended to be affected (d). A search for an- nuities is accordingly made in this registry on every purchase of lands, in addition to the searches for judg- ments, crown debts, executions and lis pendens (e) . Creation of rent charges under the Statute of Uses. In settlements where rent charges are often given by way of pin-money and jointure, they are usually created under a provision for the purpose contained in the Statute of Uses (/). The statute directs that, where any persons shall stand seised of any lands, tenements, or hereditaments, in fee simple or otherwise, to the nse and intent that some other person or persons shall have yearly to them and their heirs, or to them and their assigns, for term of life or years or some other special time, any annual rent, in every such case the same persons, their heirs and assigns, that have such use to 3 Geo. IV. c. 92, and 7 Geo. IV. c. 75, which rendered sufficient a memorial of the names of the wit- nesses as they appeared signed to their attestations. (c) Stat. 17 & 18 Vict. c. 90. [d) Stat. 18 & 19 Vict. c. 1.5, ss. 12, 14. See Greaves v. Tojkld, 14 Ch. D. 563. [c) Ante, pp. 92, 95, 97. (/) Stat. 27 Hen. VIII. c. 10, ss. 4, 5. OF HEREDTTATklENTS PURELY INCORPOREAL. 347 have any such 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 j for non-payment of the rent in their own names, From this enactment it follows, that if a conveyance of lands be now made to A. and his heirs, — to the nne 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 [g), 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 [h). 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 iise that B. and his heirs may receive a rent charge, in trust for 0. and his heirs, will now be laid hold of under the equitable doctrines of 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 no legal estate, because the trust for him would be a use upon a use (/). But C. has the entire beneficial interest; and he is possessed of the rent charge for an equitable estate in fee simple. In ancient times it was necessary, on every grant of Clause of a rent charge, to give an express power to the grantee to distrain on the premises out of which the rent charge was to issue (/i). If this power were omitted, the rent was merely a rent seek. Eent service, being an inci- dent of tenm'e, might be distrained for by common {ff) Ante, p. 163. (0 Ante, p. 166. (//) Ante, p. 165. (/>■) Litt. 8. 218. distress. 84.S OF IXCORPOREAL HEREDITAMENTS. Power of entry. right ; but rent charges were matters the enforcement of which was left to depend solely on the agreement of the parties. But since a power of distress has been attached by parliament (;;?) to rents seek, as well as to rents service, an express power of distress is not neces- sary for the security of a rent charge (»). Such a power, however, is usually granted in express terms. In addition to the clause of distress, it is also usual, as a further security, to give to the grantee a power to enter on the premises after default has been made in payment for a certain number of days, and to receive the rents and profits until all the arrears of the rent charge, together with all expenses, have been duly paid. Statutory powers of distress, entry, &c. The following remedies are now given by the 44th section of the Conveyancing and Law of Property Act, 1881 (o), to any person entitled to a rent-charge or any other annual sum, payable half-yearly or otherwise, not being rent incident to a reversion, charged upon any land {])), or the income thereof, by virtue of any instru- ment coming into operation after the Slst December, 1881 : — (1) a power of distress, if the annual sum or any part thereof is unpaid for tiventy-one days next after the time appointed for any payment in respect thereof; (2) a power, if the annual sum or any part thereof is unpaid for forty days next after the time appointed for any payment in respect thereof, to enter into possession of and hold the land charged or any part thereof, without impeachment of waste, and to take the income thereof, until all arrears due at the time of entry or afterwards becoming due and all [),)) Stat. 4 Geo. 11. c. 28, 8.5. See Johnson v. Faulhwr, 2 Q. B. 925, 935 ; Miller v. Green, 8 Bing. 92 ; 2 Cro. & Jerv. 142 ; 2 Tyr. 1. {//) Scmard v. Amtey, 2 Bing. 519 ; Butlery v. Rohinmn, 3 Bing. 392 ; JJodds v. Thompson, L. Rep., 1 C. P. 133. (o) Stat. 44 & 45 Vict. c. 41. {p) See sect. 2. OF HEREDITAMENTS PURELY INCORPOREAL. Ji49 expenses have been fully paid ; (3) a power, in the like case, whether possession be taken or not, to demise by deed the land, charged or any part thereof to a trustee for a term of years, upon trust to raise and pay all arrears due or to become due and all expenses. These statutory remedies are conferred, subject and without prejudice to all estates, interests and rights having priority to the annual sum, and only as far as they might have been conferred by the instrument under which the annual sum arises (q) . The above section applies only if and as far as a contrary intention is not expressed in that instrument, and has effect subject to ■ the terms thereof (r). Incorporeal hereditaments are the subjects of estates Estate for life analogous to those which may be holden in corporeal char^e!^ hereditaments. If therefore a rent charge should be granted for the life of the grantee, he will possess an estate^^orTife in the rent charge. Supposing that he should alienate this life estate to another party, with- out mentioning in the deed of grant the heirs of such party, the law formerly held that, in the event of the decease of the second grantee in the lifetime of the former, the rent charge became extinct for the benefit of the owner of the lands out of which it issued (s). The former grantee was not entitled because he had parted with his estate ; the second grantee was dead, and his heirs were not entitled because they were not named in the grant. Under similar circumstances, we have seen {t) that, in the case of a grant of corporeal hereditaments, the first person that might happen to enter upon the premises after the decease of the second grantee had formerly a right to hold possession during the remainder of the life of the former. But rents and {q) Sect. 44, sub-s. (1). («) Bac. Abr. tit. Estate for (*•) Sect. 44, sub-s. (o). Life and Occupancy (B). (t) Ante, p. 21. 350 OF INCORPOREAL HEREDITAMENTS. The Wills Act, as to estates pur autre vie. other incorporeal liereditaments are not in their nature the subjects of occupancy (s) ; they do not lie exposed to be taken possession of by the first passer-by. It was accordingly thought that the statutes, which provided a remedy in the case of lands and other corporeal here- ditaments, were not applicable to the case of a rent charge, but that it became extinct as before men- tioned {(I). By a modem decision, however, the con- struction of these statutes was extended to this case also [IS) ; and now the act for the amendment of the laws with respect to wills (r), by which these statutes have been repealed (r/), permits every person to dispose by will of estates imr autre vie, whether there shall or shall not be any special occupant thereof, and whether the same shall be a corporeal or an incorporeal here- ditament [e) ; and in case there shall be no sj^ecial occu- j)ant, the estate, whether corporeal or incorporeal, shall go to the executor or administrator of the party ; and coming to him, either by reason of a sj^ecial occupancy, or by virtue of the act, it shall be applied and distri- buted in the same manner as the personal estate of the testator or intestate (/). Estate in fee simple iu a rent charge. A grant of an estate tail in a rent charge scarcely ever occurs in practice. But grants of rent charges for estates in fee simple are not uncommon, especially in the toAvns 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 by way of ground rent, to be granted out of the premises to the original owner. These transactions are accomplished by a conveyance (s) Co. Litt. 41b, 388 a. {a) 2 Black. Com. 260. [b) Bearpark v. Ilutchinson, 7 Bing. 178. ((■) 7 Will. IV. & 1 Vict. c. 2G. {d) Sect. 2. \e) Sect. 3. (/) Sect. 6; Eei/noldsy. fVrlght, 25 Beav. 100. OF HEREDITAMENTS PURELY INCORPOREAL. 351 from tlie 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; and subject to the rent charge, and to the powers and remedies for securing payment thereof, to the use of the purchaser, his heirs and assigns for ever. The purchaser thus acquires an estate in fee simple in the lands, subject to a perpetual rent charge payable to the vendor, his heirs and assigns ( liability to they are granted, in order to exonerate the executors pay rent or administrators of such a purchaser from perpetual ^^^^'S'^^- liability under this covenant, it is now provided («) 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 convey- (p) Stat. 17 & 18 Vict. c. 97, a/id Moore, 14 Ch. D. 287. The ss. 10—14. former act, 12 & 13 Vict. c. 106, (?•) Stat. 32 & 33 Vict. c. 71, s. 145, the provisions of which ss. 23, 24. As to the effect of a were veiy imperfect, was repealed disclaimer by a trustee iu bank- by stat. 32 & 33 Vict. c. 83. ruptcy of freehold land subject to (s) Stat. 22 & 23 Vict. c. 35, a rent charge and burdened with s. 28. onerous covenants, see Ite Mercer R.P. A A 354 OF INCORPOREAL HEREDITAMENTS. \ ance, granted to or made witli 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 con- veyance 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- the same rules as cor- poreal hcredi taments. Incorporeal subiect^arfar poi'^al hereditaments of the like nature are no favourites a« possible, to with the law, yet, whenever it meets with them, it applies to them, as far as possible, the same rules to which corporeal hereditaments are subject. Thus, we have seen that the estates which may be 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 vnW, to one person or to several as joint tenants or tenants in common {f), and, on his intestacy, will descend to the same heir at law. But in one respect the analogy fails. Land is essentially the subject of tciture ; it may belong to a lord, but be holden by his tenant, by whom again it may be sub -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 Tenure an exception. (/) 7?;/;.v V. ir<'f>ion, r, m. i- ^v. 2.);'). OF HEREDITAMENTS PUREIA' INCORPOREAL. 355 accessory, its principal, the estate to wliicli 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 (u). So, if the owner of an estate in fee simple in a rent charge should die intestate, 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 (x). {j gl"OSS. Another kind of separate incorporeal hereditament Common in 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 ownership of any lands of his own, but as an independent subject of property (//). Such a right of common has there- fore always required a deed for its transfer. Another important kind of separate incorporeal here- Advowsons. ditament is an advowson in gross. An advowson is {») 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. 47a, that the Queen may reserve a rent note (1) ; Bac. Abr. tit. Rent (B). out of an incorporeal heredita- (.i) Co. Litt. 298 a, n. (2). ment, for which, hy her preroga- (>/) 2 Black. Com. 3."?, 34. A a2 356 OF IXCORPOREAI. TIEREDITA"MKXTS. Presentation. Institution. Induction. Collation. Donatives. Agreements for resigna- tion. 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 presoifafion to the bishop of some duly qualified clerk or clergyman, whom the bishop is accordingly bound to iihsfittife to the benefice, and to cause him to be indnetcd into it {a). When the advowson belongs to the bishop, the forms of presentation and institution are supplied by an act called colJaiion {V). In some rare cases of advowsons donative, the patron's deed of donation is alone suffi- cient (c). And by the Stamp Act, 1870 (r/), 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, was subject to an ad valorem duty, which is now repealed [e] . Where the patron is entitled to the advowson as his private pro- perty, he is empowered by an act of parliament of the reign of George IV. (/) to present any clerk under a previous agreement with him for his resignation in favour of any one person named, or in favour of one of two {g) persons, each of them being by blood or mar- riage an uncle, son, grandson, brother, nejjhew, or grand-nephew of the patron, or one of the patrons beneficially entitled. One part of the instrument by which the engagement is made must be deposited within two calendar months in the office of the registrar of the diocese (/^), and the resignation must refer to the (a) 1 Black. Com. 190, 191. \b) 2 Black. Com. 22. ((■) 2 Black. Com. 23. (d) Stat. :j3 & 34 Vict. c. 97. («-) By Stat. 40 Vict. c. 13, s. 13. (/) Stat. 9 Geo. IV. c. 94. [y) The act reads one or two, but this is clearly an error. (/() Stat. 9 Goo. IV. c. 94, s. 4. OF IIEHKUITAMKNTS I'UKEIA" INCOUroREAL. 307 eugagement, and state the name of the person for whoso IJ benefit it is made (/). i Advowsons are principally of two kinds, — advowsons History of of rectories, and advowsons of vicarages. The history rectories!^^ " 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 resj)ect 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 we have seen that his tenants enjoyed rights of common as appendant to their estates (Z). The incorporeal part of the property, both of the lord and his tenants, was thus strictly appendant or incident to that part which was corporeal ; and any conveyance of the corj^oreal part naturally and necessarily carried with it that part which was incorporeal, unless it were expressly excepted. But, as~^ociety advanced, this simple state of things became subject to many innovations, and in various cases the incorporeal portions of property became severed from ^e corporeal parts, to which they had previously be- 'tenged. Thus we have seen (7) that the seignory of lands was occasionally severed from the corporeal part of the manor, becoming a seignory in gross. So rent was sometmies 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 scc/i. Or a rent might have been granted to some other person than the lord, under the name of a rent cJiar-). Such arrears cannot be recovered by bringing an action for the amount due against any person; for no one is personally liable to the payment of a tithe rent charge (s) . Titles of honour. There are other species of incorporeal hereditaments which are scarcely worth particular notice in a work so elementary as the present, especially considering the short notice that has necessarily here been taken of the more important kinds of such property. Thus, titles of (m) Chapman v. Gatcomhe, 2 New Cases, 516. («) Stats. 6 & 7 Will. IV. c. 71 ; 7 Will. IV. & 1 Vict. c. 69 ; 1 & 2 Vict. c. ei ; 2 & 3 Vict. c. 62 ; 3 & 4 Vict. c. 15 ; 5 Vict. c. 7 ; 5 & 6 Vict. c. 54 ; 9 & 10 Vict, c. 73; 10 & 11 Vict. c. 104; 14 6 15 Vict. c. 53; 16 & 17 Vict, c. 124; 21 & 22 Vict. c. 53; 23 & 24 Vict. c. 93 ; 36 & 37 Vict, c. 42, and 41 & 42 Vict. c. 42. [q] Stats. 6 & 7 Will. IV. c. 71, s. 71; 1 & 2 Vict. c. 64 ; 2 & 3 Vict. c. G2, s. 1 ; 9 & 10 Vict. c. 73, s. 19. (r) See stat. 6 & 7 Will. IV. c. 71, ss. 67, 81—85. is) Sect. 67. OF HEREDITAMENTS PURELY INCORPOREAL, 363 /loiioiir, iu themselves an important kind of incorporeal hereditament, are yet, on account of their inalienable nature, of but little interest to the conveyancer. The Offices, same remark also applies to offices or places of business and profit. No outline can embrace every feature. Many subjects, which have here occupied but a single paragraph, are of themselves sufficient to fill a volume. Reference to the different works on the separate subjects here treated of must necessarily be made by those who are desirous of full and particular information. j ( -G4 ) PART III. OF COPYHOLDS. Definition of copyholds Our present subject is one peculiarly connected with those olden times of English history to which we have had occasion to make so frequent reference. Every- thing relating to copyholds reminds us of the baron of old, with his little territory, in which he was king. Estates in copyhold are, however, essentially distinct, both in their origin and in their nature, fi^om those freehold estates which have hitherto occupied our attention. Copyhold lands are lands holden by copn of court rolF; that is, the muniments of the title to such lands are copiea of the roll or book in which an account is kept of the proceedings in the Court of the manor to which the lands belong. ^j3r all copj'hold landsjbelong to, and are parcel of, some manor. An estate in copyhold is not a freehold : but, in construc- tion of law, merely an estate at the xcill of the lord of the manor, at whose will copyhold estates are expressed to be holden. Copyholds are also said to be holden accordiju/ to the custom of the manor to which they belong, for custom is the life of copyholds {a) . Origin of copyholds. In former days a baron or great lord, becoming pos- sessed of a tract of land, granted part of it to freemen for estates in fee simple, giving rise to the tenure of such estates as we have seen in the chapter on Tenure {b). Part of the land he reserved to himself, (a) Co. Cop. s. 32, Tr. p. 58. (o) Ante, p. 123. OF COPYHOT-DS, 365 forming the demesnes of the manor, properly so called {(') : 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 ; but 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 the villeins another, since called a Customary Court (./'). Customary In the former Court the suitors were the judges ; in °"''*" the latter the lord only, or his steward {g). In some manors the villeins were allowed life interests ; but the grants were not extended so as to admit any of their issue in a mode similar to that in which the heirs of freemen became entitled on their ancestors' decease. Hence arose copyholds for lives. In other manors a Copyholds for greater degree of liberality was shown by the lords ; and, on the decease of a tenant, the lord permitted his eldest son, or sometimes all the sons, or sometimes the youngest, and afterwards other relations, to succeed him by way of heirship ; for which privilege, however, the payment of a fine was usually required on the ad- mittance of the heir to the tenancy. Frequently the course of descent of estates of freehold was chosen as the model for such inheritances ; but, in many cases, dispositions the most capricious were adopted by the {r) Co. Cop. s. 14, Tr. 11; At- (/) 2 Watkins ou Copyholds, forney-Gcneral V. Parsons, 2 Cro. 4, 5 ; 1 Sci'iven on Copyholds, & Jerv. 279, 308. 5, 6. id) 2 Black. Com. 90. {g) Co. Litt. 58 a. [e] Ante, p. 12.5. lives. 366 OF COPYHOLDS. "^ Copyholds of inheritance. Surrender and admittance. The -will of the lord gradually controlled by the custom. Rise of copy- holders to certainty of tenure. lord, and in time became tlie custom of the manor. Thus arose copyholds of inheritance. Again, if a villein wished to part with his own parcel of land to some other of his fellows, the lord would allow him to surrendev or j-ield 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, now prevalent, of conveying copyholds by surrender 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 which at first was a pure favour gradually grew up into a right. The will of the lord, which had originated the custom, came at last to be controlled by it (//). The rise of the copyholder from a state of uncertainty to certainty of tenure appears to have been very gradual. Britton, who wrote in the reign of Edward I. (/), thus describes this tenure under the name of villeinage : "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" {k). In the reign of Edward III., however, a case occurred in which the entry of a lord on his copyholder was adjudged lawful, because he did not do his services, by which he broke the custom of the manor (/), which seems to show that the lord could not, at the time, have ejected his tenant without cause (m). And in {Ji) 2 Black. Com. 93 et seq., 147 ; "Wright's Tenures, 215 et seq. ; 1 Scriv. Cop. 46 ; Gcniand V. Jehjll, 2 Bing. 292. (i) 2 Reeves's History of Eng. Law, 280. {k) Britton, 165. (/) Year Book, 43 Edw. III. 25 a. {m) 4 Rep. 21 1). Mr. Hallani 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 (^?). "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 w'ind ; 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, accordingly, ^ow as good a title as a freeholder ; in some respects a better ; for all the transactions relating to the convey- ance 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 do-vra 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 -wdth a pointing I was not at liberty to divest him which sj^oils the sense. j of his estate. 3 Hallam's Middle («) Co. Litt. 61 a. Equity had I Ages, 261. ' Mr. Hallam was, also a concurrent jurisdiction. 1 perhaps, misled in his supposition Andrews v. Hulsc, 4 Kay & J. by a quotation from Britton made 392. Jby Lord Coke (Co. Litt. 61 a), [o) Co. Cop. s. 9, Tr. p. 6. 867 3G3 OF COPYHOLDS. CHAPTER I. OF ESTATES IN COPYHOI,DS. Estates in copyhold. An estate at will. The lord is actually seised of all the copyhold lands of his manor. With regard to the estates which may be holden in copyholds, in strict legal intendment a copyholder can have but one estate ; and that is an estate at will, the smallest estate known to the law, being determinable at the will of either party. For though custom has now rendered copyholders independent of the will of their lords, yet 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 (/>). Now 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 lands 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 lands in the possession of his copyhold tenants [c). He has not a mere incorporeal seignory over these as he has over his freehold tenants, or those who hold of {a) 1 Watk. Cop. 44, 4.3 ; 1 (c) Watk. Scriv. Cop. GO.}. 4th cd.). [b) Ante, pp. 23, 147. Descents, 51 (59, OF ESTATES IN COPYHOLDS. 369 copyholds. him lands, once part of the manor, hut which were anciently granted to freemen and their heirs (he 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 denominated customary freeholds. This tenure has been the subject of a great deal of learned discus- sion (;y?) ; 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) . If a conjecture may be hazarded on so doubtful a subject, it would seem that these customary freeholds were origiually held at the ^vill of the lords, as well as those proper copyholds in which the will is still expressed as the condition of tenure (o) ; but that these tenants early acquired, by their lord's indul- gence, a right to hold their lands on performance of (A) 1 Watk. Cop. 331 ; 1 Scriv. Cop. 526. See Doe d. Gruhb v. Earl of Burlington, 5 Bam. & Adol. 507. (0 Britt. 164 b, 165 a. See ante, p. 134. (»t) 2 Scriv. Cop. 665. {n) Stcjyhenson v. Hill, 3 Biut. 1273 ; Doe d. Eeay v. Huntington, 4 East, 271 ; Doe d. Cook v. Ban- vfrs, 7 East, 299 ; Biirrell v. Dodd, 3 Bos. k Pul. 378 ; Thompson v. Hardinge, 1 C. B. 940. (o) See Bract, lib. 4, fol. 208 b, 209 a ; Co. Cop. s. 32, Tr. p. 57. In Stephenson v. Hill, 3 Burr. 1278, Lord Mansfield says, that copyholders had acquired a per- manent estate in their lands be- fore these persons had done so. But he does not state where he obtained liis information. OF ESTATES IN COPYHOLDS. 371 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 freeholds, 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 other copyholds (/;). 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 /icid of him, like the estates of the freeholders (r). In law, there- fore, the estates of these tenants cannot, in respect of their lords, be regarded as any other than estates at will, though this is not now actually expressed. If Freehold in 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 (s). But a recurrence to first principles seems to (7;) Doe d. Eeay v. Himtington, p. 58 ; Sir Matthew Hale, Co. 4 East, 271, 273; Stephenson v. Litt. 59 b, n. (1) ; Sir "W. Black- H'lU, 3 Burr. 1277, arguendo ; stone, Considerations on the Duke of Portland v. Hill, V.-C. Question, &c. ; Sir John Leach, W., Law Rep., 2 Eq. 765. Bingham v. Woodgate, 1 Russ. & (5) Doe V. IJaKt-ers, 7 East, 299, Mylne, 32; 1 Tamlyn, 138. 301, 314. Tenements within the limits of (r) Burrell v. Bodd, 3 Bos. & the ancient borough of Kii-by- Pul. 378, 381 ; Doe v. Banvers, 7 in - Kendal, in Westmoreland, East,. 320, 321. appear to be an instance ; i?«s/(fr, (4) Sir Edward Coke, Co. Litt. app., Thompson, resp., 4 C. B. 48. 59 b ; Co. Cop. sec. 32, Tracts, The freehold is in the tenants, B b2 372 OF COPYHOLDS. \ show tliat tlie 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 ascer- taining 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. Copyliolders, •when ad- mitted, iu a similar posi- tion to free- holders having the Fines. Customary estates analo- gous to free- hold. It appears then, that with regard to the lord, a copyholder is only a tenant at will. But a" copyholder, who has been admitted tenant on the court rolls of a manor, stands, with respect to other copyholders, in a similar position to a freeholder who has the seisin. The legal estate in the co23yholds 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 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 (if). Occasionally a fine is due on the change of the lord ; but, in this case, the change must be by the act of God and not by any act of the party (?<). The tenants on the rolls, when once admitted, hold custo- mary estates analogous to the estates which may be holden in freeholds. These estates of copyholders are and the customary mode of con- veyance has always been by deed of grant, or bargain and sale without livery of seisin, lease for a year, or inrolment. Some of the judges, however, seemed to doubt the validity of such a custom. See also Ferryman'' s case, 5 Rep. 84; Passingham, a,])^., Titty, resp., 17 C. B. 299. {t) 1 Scriv. Cop. 384. [u) 1 Watk. Cop. 28.5. or ESTATES IN COPYHOLDS. 373 1 only quasi freeholds; but as nearly as the rights of the lord and the custom of each manor will allow such estates jiossess the same incidents as the freehold : estates of which we have already spoken. Thus there Estate for 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, will confer only a customary estate for his ^' life (?'). But as the customs of manors, having fre- j 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). The 51st section of the Conveyancing and Law of Property Act, 1881 (.r), by which estates of inheritance may be properly limited in deeds executed after the 31st December, 1881, by the words in foe simp/e, in tail, in fail male, and in tail fomale, appears to apply to copy- holds as well as freeholds. It will be remembered that, anciently, if a grant had 'Eata.ie pur 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 during the residue of the life of A. [y). And this general 1 occupancy was abolished by the Statute of Frauds. But copyhold lands were never subject to any such ' law (s) . For the seisin or feudal possession of all such lands belongs, as we have seen {a), to the lord of the (r) Co. Cop. s. 49, Tr. p. 114. (?/) Ante, p. 21. See ante, pp. 20, 150. (--) Doe d. Foster v. Scott, 4 Bam. (m) 1 Watk. Cop. 109. & Cress. 70G; 7 Dow. & Ryl. 190. (.r) Stat. 44 & 45 Vict. c. 41, {") Ante, p. 368. ante, p. 150. 374 OF COPYHOLDS. 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 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 {cl) ; 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 (tf), is extended also to customary and copyhold estates (/'). The grant of an estate ^j?^;* autre vie, in copyholds, may, however, be extended, by express words, to the heirs of the grantee ( g) . 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 rie, subject to the debts of his ancestor the grantee {//). Estate tail in An estate tail in copyholds stands upon a peculiar copy o s. footing, and has a history of its own, which we shall now endeavour to give (/). This estate, it will be re- membered, is an estate given to a man and the heirs of his body. With regard to freeholds, we 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, (i) 1 Scriv. Cop. 63, 108 ; 1 (/) The attempt here made to Watk. Cop. 302. explain the subject is grounded (r) Stat. 7 Will. IV. & 1 Vict. on the authorities and reasoning c. 26. of Mr. Serj. Scriven. (1 Scriv. (d) Sect. 3. Cop. 67 et seq.) Mr. Watkins {e) Ante, p. 22. sets out -with right principles, but (/) Sect. 6. seems strangely to stumble on the (ff) 1 Scriv. Cop. 64 ; 1 "Watk. wrong conclusion. (I Watk. Cop. Cop. 303. chap. 4.) (A) Stat. 7 Will. IV. & 1 Vict. (/!) Ante, p. 38 ct seq. c. 26. 8. 0. OF ESTATES IX COPYHOLDS. 375 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- 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 (l) ; till at length it was so well established as to require an act of parliament for its abolition. The statute I)e donis [m) The statute 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 which 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 emptorcs (n). But during all this period copyholders were in a very Copyholders different state from the freemen, who were the objects ^ery°different of the above statutes (o) . Copyholders were most of state from 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 heir (j^;), with which right, as we have seen {q), the power to alienate free- {/) Auto, p. i4. d•) 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 iff) 2Watk. Cop. 129. {/<) 1 Watk. Cop. 272, 277. (i) Jope V. Morshcad, 6 Beav. 213. [j) Stat. 4 & 5 Vict. c. 35, s. 85. See also stat. 13 & U Vict. c. 60, s. 30. (A) 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 Vict. c. 53, ex- tended by stat. 15 & 16 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. 0. 73, and 30 & 31 Vict. c. 143 ; amended by stat. 31 & 32 Vict. c. 89; and last continued by stat. 44 & 45 Vict. c. 70. 384 OF COPYHOLDS. Enfrancluse- ment. 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 small fixed fine on death or alienation, in no case ex- iceeding the sum of five shillings (/), By the same act facilities were also afforded for the enfranchisement of 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 {ni). Provision was also made for charging the money, paid for enfranchisement, on the lands enfran- chised, by way of mortgage {ii). The principal object of these enactments was to provide for the case of the lands being in settlement, or vested in parties not otherwise capable of at once entering into a complete arrangement ; but no provision was made for compul- The Copyhold sory enfranchisement. More recently, however, acts have been passed to make the enfranchisement of copy- holds compulsory at the instance either of the tenant or of the lord (o). If the enfranchisement be made at the instance of the tenant, the compensation is to be a gross sum of money, to be paid at the time of the completion of the enfranchisement, or to be charged on the land Acts, 1852 and 1858. CompuLsoiy enfranchise- ment. (/) Stats. 4 & 6 Vict. c. 35, s. 14; 15 & 16 Vict. c. 51, s. 41. (m) Stats. 4 & 5 Vict. c. 35, 88. 56, 59, 73, 74, 75 ; 6 & 7 Vict, c. 23 ; 7 & 8 Vict. c. 55, s. 5. (h) Stats. 4 & 5 Vict. c. 35, ss. 70, 71, 72 ; 7 & 8 Vict. c. 55, .s. 4. (o) Stat. 15 & 16 Vict. c. 51, amended b}' stat. 21 & 22 Vict, c. 94. OF ESTATES IN COPYHOLDS, '385 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 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 {>•). By the Copyhold Act, 1858, an award of enfranchisement, confirmed by j 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 Heriots. due by custom from tenants of freeholds and customary freeholds (/). But the curtesy, dower or freebench of Saving of persons married before the enfranchisement shall have a.ower^and been completed, is expressly saved (n) : and all the freebench, commonable rights of the tenant continue attached to and of com- his lands, notwithstanding the same shall have become ™°^tg ^ freehold {x). And no enfranchisement under these acts {p) Stats. 15 & 16 Vict. c. 51, (s) Stat. 21 & 22 Vict. c. 94, 8. 7; 21 & 22 Vict. c. 94, 8. 21. s. 10. See Lingwood v. Gyde, L. R., 2 {t) Stat. 21 & 22 Vict. c. 94, C. P. 72; Arden v. Wilson, L. R., s. 7, repealing stat. 15 & IC Vict. 7 C. P. 535. c. 51, 8. 27. {q) Stat. 15 & 16 Vict. c. 51, {u) Stats. 4 & 5 Vict. c. 35, s. 41. See also etat. 21 & 22 s. 79; 15 & 16 Vict. c. 51, s. 34. Vict. 0. 94, 8. 11. {x) Stats. 4 & 5 -Vict. c. 35, (r) Eerrv. Fawson,'Ro\\s,i3\xT:., s. 81; 15 & 16 Vict. c. 51, 8. 45. N. S. 425 ; .S'. C. 35 Beav. 394. R.P. C C 386 or COPYHOLDS. Mines and mLaerals. Redemption of certain rents, rent charges, &c. is to affect tlie 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 (y). And nothing therein contained is to interfere with any enfranchise- ment which may be made irrespective of the acts, where the parties competent to do so shall agree on such enfranchisement (~). Where all parties are sui 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 («). The Conveyancing and Law of Property Act, 1881, contains a provision {b) for the redemption of quit rents, chief rents, rent charges, or other annual sums issuing out of land of any tenure (c), and payable or created after the 31st December, 1881, which are not tithe rent charges, rents reserved on sales or leases, rents made payable under a grant or licence for building purposes, or sums or payments not being perpetual. This pro- vision can only be made use of if the person entitled to the rent is absolutely entitled thereto in fee simple in possession, or is empowered to dispose thereof abso- lutely, or to give an absolute discharge for the capital value thereof. In any of those cases, the rent may be redeemed by the owner of the land, or any person interested therein, upon payment or tender after due notice to the person entitled to the rent of an amount of consideration-money duly certified by the Copyhold Commissioners. On proof of such payment of tender the Copyhold Commissioners are to certify that the rent has been redeemed under the act. This certificate is to be final and conclusive, and the land is to be thereby absolutely freed and discharged from the rent. {>/) Stat. 15 & 16 Vict. c. 51, 8. 48. See also stat. 21 & 22 Vict. c. 94, 8. 14. (r) Stat. 15 & 10 Vict. c. 51, («) 1 Watk. Cop. 362 ; 1 Scriv. Cop. 653. (i) Stat. 44 & 45 Vict. c. 41, s. 45. ((•) See sect. 2 (ii). ( 387 ) CHAPTER II. OF THE ALIENATION OF COPYHOLDS. The mode in whicli 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 Customary 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 he 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- Homage. form to their lord {a). In order to form a Court, it was formerly necessary that two copyholders at least should he present {h) . But, in modern times, the Courts may holding of courts having degenerated into little more Golden witli- than an inconvenient formality, it has been provided out the pre- by an act of the present reign, that Customary Coiu-ts copyholder. 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 {a) Ante, p. 124. [c) Stat. 4 & 5 Vict. c. 35, s. 86. [b) 1 Scriv. Cop. 289. C(:2 388 OF COPYHOLDS. Court rolls. Steward. 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 manor. The person who makes the entries is the steward; and the court rolls are kept by him, but subject to the right of the tenants to inspect them (/). This officer also usually presides at the Court of the manor. Grants. Before adverting to alienation by surrender and 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 (^). These grants may be made by the lord for the time being, whatever be the extent of his interest (A), 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 {cf) Stat. 4 & 5 Vict, s. 91. {e) 1 Scriv. Cop. 6. (/) Ibid. 587, 588. 3.3, (ff) 1 Watk. Cop. 23 ; 1 Scriv. Cop. 111. (h) Doe d. Rayer v. Strickland, ' 2 Q. B. 792. {/) 1 "Watk. Cop. 37. OF THE ALIENATION OF COPYHOLDS. 389 servant he is (J) . It was f ormerl j doubtful whether the steward or his deputy could make grants of copy- holds when out of the manor (/«•). But by the act {I), Grants may , ■> • ^ 1 If 11 • , (••i' now be made to which we nave beiore had occasion to reier, it is ^^t ^f t^e provided that the lord of any manor, or tlie steward, "^anor. 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 em- powered to grant the same. When a copyholder is desirous of disposing of his Alienation by- 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 In Court on the court rolls, together with the other proceedings ; and a copy of so much of the roll as relates to such surrender 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 {m) . If the sur- Out of Court, 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 (n). (./) 1 Watk. Cop. 29. court roll will bo found in Ap- [k) Ibid. 30. pendix (G). (0 Stat. 4 & 5 Vict. c. 35, . («) By the Stamp Act, 1870, B. 87. the stamp duty on a memorandum («() A form of such a copy of of a surrender if made out of 390 OF COPYHOLDS. now uimeces- saiy. Presentment, In Order to give effect to a surrender made out of 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 act above men- tioned, it is 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 acquires by the surrender merely an inchoate right, to be perfected by admittance {q) . This right was formerly inalienable at law, even by will, until rendered devisable by the new statute for the amendment of the laws with respect to wills (r) ; but, like a possibility in the case of freeholds, it may always be released, by deed, to the tenant of the lands (s). Nature of surrenderee's right until admittance. Surrender to the use of a wife. A surrender of copyholds may be made by a man to the use of his wife, for such a surrender is not a direct conveyance, but operates only through the instrumen- Court, or on the copy of coiu't roll, if made in Coui't, is the same as on the sale or mortgage of a free- hold estate ; but if not made on a sale or mortgage, the duty is 10s. Stat. 33 & 34 Vict. c. 97, sched. tit. Copyhold and Cus- tomary Estates. (o) 1 Watk. Cop. 79 ; 1 Scriv. Cop. 277. (p) Stat. 4 & 5 Vict. c. 35, s. 89. (q) Doe d. Tojield v. Tofield, 11 East, 246 ; Jiex v. Dame Jam St. John Mildmay, 5 B. & Ad. 254 ; Doe d. Winder v. Lawes, 7 Ad. & E. 195. (;•) 7 Will. IV. & 1 Vict. c. 26, s. 3. (s) ICitc (i)id Qi(cinton''s case, 4 Ecp. 25 a ; Co. Litt. 60 a. OF THE ALIENATION OF COPYHOLDS. 391 tality of the lord (f). And a valid surrender may at Surrender of any time be made of the lands of a married woman, by ^^^^ o t e her husband and herself : she being on such surrender i separately examined, as to her free consent, by the I steward or his dej)uty {ii). The Vendor and Purchaser Act, 1874 («■), now provides (y) that where any copy- hold hereditament shall be vested in a married woman, 'Married as a bare trustee (;:), she may surrender the same as if ^™ee ^^° she were a feme sole. When the surrender has been made, the surrenderee Admittance, 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 (a) ; 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 disj)lace his estate {b) . Formerly a steward was unable to admit Admittance tenants out of a manor (c) ; but, by the act for the im- ^ff/J^iTof ° provement of copyhold tenure, the lord, his steward, or the manor, deputy, may admit at any time, and at any place, either within 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 {d). The alienation of copyholds by will was formerly Alienation by wilL (t) Co. Cop. 8. 35 ; Tracts, p. 79. (c) Doe d. Leach v. Whittaker, (w) 1 Watk. Cop. 63. 5 B. & Ad. 409, 435 ; Doe d. (x) Stat. 37 & 38 Vict. c. 78. Gutteridge v. Sowerbij, 7 C. B., (y) Sect. 6. N. S. 599. {z) See ante, pp. 119,246. {d) Stat. 4 & 5 Vict. c. 35, (rt) See Appendix {G). 88. 88, 90. (b) 1 Watk. Cop. 103. 392 OF COPYHOLDS. effected in a similar manner to alienation infer 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 necessary. The devisee, on the decease of his testator, was, until admittance, in the same position as a sur- renderee {e). By a statute of Geo. III. (/), a devise of copyholds, without any surrender to the use of the will, was rendered as valid as if a surrender had been made {g). 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 (//) . 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 (/) . Formerly, the devisee under a will was accustomed, at the next Customary Coui't held after the decease of his testator, to bring the will into Court ; Presentment and a presentment was then made of the decease 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 now tmneces- steward, of a copy of the will is sufficient to authorize ^^^' its entry on the court rolls, without the necessity of any presentment ; and the lord, or his steward, or deputy steward, may admit the devisee at once, without holding any Court for the purpose (/r) . (e) Wainewright v. Elwell, 1 (/;) Stat. 7 Will. IV. & 1 Vict. Mad. 627; Fhillips v. rhillips, c. 26, ss. 2, 3, 4, 5, 9; see ante, 1 My. & K. 649, 664. p. 218 ; Garland v. Mead, 6 L. (/) 55 Geo. III. c. 192, 12tli Rep., Q. B. 441. July, 1815. (J) Sect. 3. [g) Boe d. Nethercote v. Bartlc, (k) Stat. 4 & 5 Vict. c. 35, 5 B. & Aid. 492. ss. 88, 89, 90. OF THE ALIENATION OF COrVHOLDS. 393 Sometimes, on the decease of a tenant, no person If no person came in to be admitted as his heir or devisee. In this ^^nce 'the case the lord, after making due proclamation at three lord may ° . seize quomque. consecutive Courts ot the manor tor any person having right to the premises to claim the same and he admitted thereto, is entitled to seize the lands into his own hands quoKsqtie, as it is called, that is, until some person claims admittance (/) ; and by the special custom of some manors, he is entitled to seize tlie lands absolutely. /i / ^*- ^<-* But as this right of the lord might be very prejudicial Provision in to infants, married women, and lunatics or idiots entitled fanti^^married to admittance to any copyhold lands in consequence women, luna- of their inability to appear, special provision has been idiots. made by act of parliament in their behalf (m) . Such persons are accordingly authorized to appear, either in person or by their guardian, attorney or committee, as the case may be {>i) ; 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 (o). If the fine be not paid, the lord may enter and receive the rents till it be satisfied out of them (p) ; 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 (q). But no absolute 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 (0 1 Watk. Cop. 234; 1 Scriv. (o) Stats. 11 Geo. IV. & 1 Cop. 355; Doe d. Bover v. True- Will. IV. c. 65, s. 5 ; 16 & 17 man, 1 Barn. & Adol. 730. Vict. c. 70, ss. 108, 109. (/n) Stats. 11 Geo. IV. & 1 (p) Stats. 11 Geo. IV. & 1 Will. IV. c. 65; and 16 & 17 WiU. IV. c. 65, ss. 6, 7; 16 & 17 Vict. c. 70, 8. 108 et seq. Vict. c. 70, s. 110. («) Stats. 11 Geo. IV. & 1 (?) Stats. 1 1 Geo. IV. & 1 Will. Will. rV. c. 65, 88. 3, 4 ; 16 & 17 IV. c. 65, s. 8 ; 16 & 17 Vict. Vict. c. 70, 8. 108. c. 70, 8. 111. 394 OF COPYHOLDS. omission, denial or refusal to pay the fine imposed on their admittance (;•) . Statute of Uses does not apply to copyholds. Trusts. Settlements. Although mention has been made of surrenders to the use of the surrenderee, it must not, therefore, be supposed that the Statute of Uses («) has any application to copy- hold lauds. This statute relates exclusively to freeholds. The seisin or feudal possession of all copyhold land ever remains, as we have seen (/), vested in the lord of the manor. Notwithstanding that custom has given to the copyholder the enjoyment of the lands, they still remain, in contemplation of law, the lord's freehold. The copy- holder 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 surrenderee (u). But if a surrender should be made by one person to the use of another, upon trust for a thu-d, the Chancery Division of the High Court would exercise the same jurisdiction over the sur- renderee, in compelling him to perform the trust, as it would in the case of freeholds vested in a trustee. And when copyhold lands form the subject of settlement, the (/•) Stats. 11 Geo. IV. & 1 Wm. IV. c. 65, s. 9; 16 & 17 Vict. c. 70, 8. 112. See Doe d. Twining v. 3Iuscott, 12 Mee. & Wels. 832, 842 ; Dimes v. Grand Jioirtion Canal CoiDpany, 9 Q. B. 469, 510. (s) Stat. 27 Hen. VIII. c. 10; ante, p. 163. (0 Ante, p. 368. (m) 1 Watk. Cop. 74. OF THE ALIENATION OF COPYHOLDS. 395 usual plau is to surrender them to the use of trustees, as joint tenants of a 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 pro- fits to the persons beneficially 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 (.r) ; and a trust for the separate use of a Separate use. married woman may be created as well out of copyhold as out of freehold lands (y) . An equitable estate tail in copy- Equitable holds may be barred by deed, in the same manner in every may be respect as if the lands had been of freehold tenure (c). barred by But the deed, instead of being inrolled in the Chancery Division of the High Court (a), must be entered on the court rolls of the manor (b). 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 (c) . As the owner of an equitable estate has, from the Equitable nature of his estate, no legal rights to the lands, he is not ^e surren-^" "^ himself a copyholder. He is not a tenant to the lord : this dered. position is filled by his trustee. The trustee, therefore, is admitted, and may surrender ; but the cestui que trust cannot adopt these means of disposing of his equitable interest (d). To this general rule, however, there have Exceptions. (x) Ante, p. 168 et seq. be made within six calendar (y) See ante, pp. 237, 238. months. Hoiieyivood v. Forster, (z) See ante, pp. 50, 54 et seq. M. R., 9 "W. R. 855 ; 30 Beav. 1 ; («) Stat. 3 & 4 WiU. IV. c. 74, Gibbons v. Siiape, 32 Beav. 130. 8. 54. (c) Stat. 3 & 4 Will. IV. c. 74, (b) Sect. 53. It has been de- s. 53. cided, contrary to the prevalent {d) 1 Scriv. Cop. 262. impression, that the entry must 396 OF COPYHOLDS. Tenant of equitable es- tate tail may- bar entail by surrender. -^ Husband and ■wife may surrender ■wife's equit- able estate. been admitted, for convenience sake, two exceptions. The first is that of a tenant in tail whose estate is merely equitable : by the act for the abolition of fines and recoveries {("), the tenant of a merely equitable estate tail is empowered to bar the entail, either by deed in the manner above described, or by surrender in the same manner as if his estate were legal (/). The second exception relates to married women, it being provided by the same act (g) that, whenever a husband and wife shall surrender any copyhold lands in which she alone, or she and her husband in her right, may have any equitable estate or interest, the wife shall be separately examined in the same manner as she would have been, had her estate or interest been at law instead of in equity merely (A) ; 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 separately 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 contemplation of equity only, and has no existence anywhere else. As, therefore, an equitable estate tail in copyholds may pro- perly be barred by a deed entered on the court rolls of the manor, so an equitable estate or interest in copyholds belonging to a married woman is more properly conveyed by a deed, executed with her husband's concurrence, and achwivlcdged by her in the same manner as if the lands •were freehold (?). And the act for the abolition of fines (p) Stat. 3 & 4 Will. IV. c. 74, 8. 50. (/) See ante, p. 378. {g) Stat. 3 & 4 Will. IV. c. 74, 8. 90. (A) See ante, p. 391. (/) Stat. 3 & 4 Will. IV. c. 8. 77. See ante, p. 245. 74, OF THE AI-IENATION OF COrYIIOLDS. 397 and recoveries, by wliicli this mode of conveyance is authorized, does not require that such a deed should be entered on the court rolls. Copyhold estates admit of remainders analogous to Remainders. those which may be created in estates of freehold (/). 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 (/.•) . A vested estate in remainder is capable of alienation by the usual mode of surrender and admittance. Contingent Contingent remainders of copyholds have always had this advantage, ^^^^^'^ ^'^^• that they have 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 I time when the particular estate would regularly have expired (/). In this respect they resemble contingent remainders of equitable or trust estates of freeholds, as to which we have seen, that the legal seisin, vested in the trustees, preserves the remainders from destruction (m) ; 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 altogether (n) . To this rule, however, an exception has now been made by the act to amend the Act to law as to contingent remainders (o), which extends to ^°^^^'^- 0) See ante, pp. 264, 276. (l) Feame, Cont. Rem. 319 ; (k) 1 Watk. Cop. 276; Doe d. 1 Watk. Cop. 196; 1 Scriv. Cop. Winder v. Lawes, 7 Ad. & E. 477 ; Fkkersgill v. Grey, 30 Beav. 195; Smith v. Glasscock, 4 C. B., 352. N. S. 357 ; EandfieU v. Randfield, [m) Ante, p. 299. 1 Drew. & S. 310. See, how- («) Gilb. Ten. 266; Feame, ever, as to the reversioner, Reg. v. Cont. Rem. 320. Lady of the Manor of Dallingham, [o) Stat. 40 & 41 Vict. c. 33, 8 Ad. & E. 858. ante, pp. 285, 286, 330, 333. 398 OF COPYHOLDS. hereditaments of any tenure ; althougli it afPects only such a contingent remainder as would have been valid as a springing or shifting use, or executory devise or other limitation, had it not had a sufficient estate to support it as a contingent remainder. Executory Executory devises of copyholds, similar in all respects to executory devises of freeholds, have long been per- mitted (;;). And directions to executors to sell the copyhold lands of their testator (which directions, we have seen (q), 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 (r), 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 surrender. 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 could make a good title without being admitted, even although the lord had in the mean- time seized the land quonsquc for want of a tenant (s). {p) 1 Watk. Cop. 210. {s) Glassy. Richardson, 9 Hare, {q) Ante, p. 327. Thestat. 21 698; 2 De Gex, M. & G. G58 ; Hen. VIII. c. 4, applies to copy- and see The Queen v. Corhett, 1 E. holds ; Tcppercorn v. Wayman, 5 & B. 836 ; The Queen v. Wilson, 3 De Gex & S. 230 ; ante, p. 327. Best & Smith, 201. (;•) Sec ante, p. 393. OF THE ALIENATION OF COPYHOLDS. 399 But it has recently been decided that the lord of a Lord not manor is not bound to accept a surrender of copyholds accept a^sur- inter vivos, to such uses as the surrenderee shall appoint, render into- and, in default of appointment, to the use of the sur- ing uses. renderee, his heirs and assigns (t). This decision is in accordance with the old rule, which construed surrenders of copyholds in the same manner as a conveyance of freeholds infer vivos at common law {ti). If, however, the lord should accept such a surrender, he will be bound by it, and must admit the appointee under the power of appointment, in case such power should be exercised (.r). With regard to the interest possessed by husband Husband and and wife in each other's copyhold lands, the Married ^^ ^' . Married Women's Property Act, 1870 (?/), provides (s), as we Women's have seen (rt), that when any copyhold or customary ^'g "P^'^*^ -'^'^*' 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 settlement affecting the same, belong to such woman for her separate use. But in cases not affected by this statute, the husband has the whole income of his wife's land during the coverture ; although a special custom appears to be necessary to entitle him to be tenant by curtesy (b). A special custom also is required to entitle Curtesy. the wife to any interest in the lands of her husband after his decease. Where such custom exists, the wife's {t) Flack V. The Master, Fel- C. 776; 9 Dow. & By. 626; 1 lows and Scholars of Downing Col- Scriv. Cop. 226, 229 ; Eddleston lege, C. P., 17 Jur. 697; 13 C. B. v. Collins, 3 De Gex, M. & G. 1. 945. (y) Stat. 33 & 34 Vict. c. 93, (?/) 1 Watk. Cop. 108, 110; 1 passed 9tli Aug. 1870. Scriv. Cop. 178. (::) Sect. 8. (a-) The King v. The Lord of the (a) Ante, p. 239. Manor of Oiindle, 1 Ad. & E. 283; {b) 2 Watk. Cop. 71. See aa Boddington v. Ahernethy, 5 B. & to freeholds, ante, p. 241. 400 OF COPYHOLDS. Freebench. interest is termed her freehench ; and it generally con- sists of a life interest in one divided third part of the lands, or sometimes of a life interest in the entirety (c) ; and, like dower under the old law, freehench is para- mount to the husband's debts (c/). Freehench, however, usually differs from the ancient right of dower in this important particular, that whereas the widow was entitled to dower of all freehold lands of which her husband was solely seised at any time during the cover- ture (f), the right to freehench does not usually attach until the actual decease of the husband (/), and it may be defeated by a devise of the lands by the will of the husband {g) . Freehench, therefore, is in general no impediment to the free alienation by the husband of his cojDyhold lands, without his wife's concurrence. To this rule the important manor of Cheltenham forms an exception ; for, by the custom of this manor, as settled by act of parliament, the freehench of widows attaches, like the ancient right of dower out of freeholds, on all the copyhold lands of inheritance of which their hus- bands were tenants at any time during the coverture {h). Dower Act. The act for the amendment of the law relating to dower (?') does not extend to freehench (A-). Manor of Chelteiiham is an excep- tion. (c) 1 Scriv. Cop. 89. [d) Spyer v. Hyatt, 20 Beav. G21. {e) Ante, p. 247. (/) 2 Watk. Cop. 73. [g) Lacey v. HiU, M. R., L. R., 19 Eq. 346. {h) Doe d. Riddell v. Gwinnell, 1 Q. B. 682. (0 Stat. 3&4 Will. IV. c. 105; ante, p. 250. {k) Smith. V. Adams, 18 Bear. 499; SDeGex, M. & G. 712. ( -toi ) PART IV. OF PERSONAL INTERESTS IN REAL ESTATE. The subjects which have hitherto occupied our atten- tion derive a great interest from the antiquity of their origin. We have seen that the difference between free- hold and copyhold tenure has arisen from the distinction which prevailed, in ancient times, between the two classes of freemen and villeins {a) ; and that estates of freehold in lands and tenements owe their origin to the ancient feudal system (^). 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 Avhen 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 their present value and importance are unquestionably great. The principal interests of a personal nature derived from landed property, are a term of years and a mortgage debt. The origin and reason of the personal Term of nature of a term of years in land have been already 5"^^^^- attempted to be explained (c) ; and at the present day, leasehold interests in land, in which amongst other things all building leases are included, forni a subject sufiiciently important to require a separate considera- tion. The personal nature of a mortgage debt was not Mortgage clearly established till long after a term of years was {n) Ante, p. .3G4. (/>) Ante, p. IS. {<■) Ante, p. 9. K.T. D D 402 OF PERSONAL IJ^TERESTS IN REAL ESTATE. considered as a cliattel (r/) . But it is now settled that every mortgage, whether with or mthout a bond or covenant for the repayment of the money, forms part of the personal estate of the lender or mortgagee (c). 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) Thornlorough v. Baker, 1 Swanst. G3G. Cha. Ca. 283 ; 3 Swanst. 628, (e) Co. Litt. 208 a, n. (1). anno 1675 ; Tahor v. Tahor, 3 ( 403 ) CHAPTEE I. OF A TERM OF YEARS. terms 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 be considered as of two kinds ; first, those which are Two kinds of created by ordinary leases, which 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. The consideration of terms of the former kind, or A tenancy at 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 D D 2 404 OF PERSONAL INTERESTS IN REAL ESTATE. created by parol (//), or by deed ; it arises wben 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 j 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 Emblements, is legally expressed, to take the emblements {d) ; and if he should be within the provisions of the Agricultural Holdings (England) Act, 1875 (p), he will be entitled to compensation for improvements, according to the provisions of the act. But 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 without expressly stating it to be at will (/), and without limiting any certain period, is not a lease at will, but a lease from year to year {(/), of which we shall presently speak. When property is vested in trustees, the cestui que trust is, as we have seen (//), absolutely entitled to such property in equity. But as the courts of law did not recognize trusts, they considered the, cestui que trust, when in possession, to be merely the tenant at will of his trustees (i) ; and as the distinction between law and equity has not been abolished by the Judicature Acts, a cestui que trust, whilst in possession, is still a tenant at will at law, although absolutely entitled in equity. Cestui que trust tenant at will. (a) Stat. 29 Car. II. c. 3, s. 1. {b) Litt. 8. 68 ; 2 Black. Com. 145. (c) Harnett v. Maitland, 15Mee. & Wels. 257. {d) Litt. s. 68 ; see Graves v. Jreld, 5 B. & Adol. 105. (c) Stat. 38 & 39 Vict. c. 92 ; amended by stat. 30 & 40 Vict, c. 74, post, p. 405. (/) Doed. Bastow v. Cox, 11 Q. B. 122 ; Boc d. Dixie v. Davies, 7 Exch. Rep. 89. [ff) RifjJit d. Flower v. Darby, 1 T. Eep. 159, 163. {h) Ante, p. 167. (i) Earl of Fomfret v. Loi'd Windsor, 2 Ves. sen. 472, 481. See MrUing v. Leak, 16 C. B. 652. OF A lEHM OF YEAUS. 405 A tenancy by sufferance is when a person, who has Tenancy by originally come into possession by a lawful title, holds '^^ erance. 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 ^°^^ ^ ^^'^^' advantageous to both landlord and tenant than a lease' 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 must be given at least half a year before the expiration of the current year of the tenancy (./) ; 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. But where the tenancy is within the Agricultural Agricultural Holdings (England) Act, 1875, a year's ||°Jfj^f^) notice, expiring with a year of tenancy, is substituted Act, 1875. for the half year's notice formerly required ; but this is not to extend to a case where the tenant is adjudged bankrupt, or has filed a jDetition for a composition or arrangement with his creditors (k). And the landlord's notice may, with a view to certain improvements to be stated in the notice, relate to part only of the holding ; the tenant having the option, by counter notice in writing within twenty-eight days, to accept the same as notice to quit the entire holding (/). This act does not apply to any holding which is not either wholly agricultural or wholly pastoral, or in part agricultural and as to {J) Right d. Flower v. Bayhij, {k) Stat. 38 & 39 Vict. c. 92, 1 T. Rep. 159, 163 ; and see Doe s. 51. d. Lord Bradford v. JFatkins, 7 [1) Sect. 52. East, 551. tenancies. 406 OF PERSONAL INTERESTS IN REAL ESTATE. the residue pastoral, or that is of less extent than two acres (;«). But the act applies to every such contract of tenancy beginning after the 14th of February, 1876, the time of the commencement of the act {)i), unless in any case the landlord and tenant agree in writing, in the contract of tenancy or otherwise, that the act or any part or provision of the act shall not apply to the con- tract ; and in that case the act, or the part or provision thereof to which that agreement refers (as the case may be)^ shall not apply to the contract (o). And nothing in the act is to prevent a landlord and tenant, or intending landlord and tenant, from entering into and carrying into effect any such agreement as they think fit, or shall Current interfere with the operation thereof (j;). The act does not apply to any contract of tenancy cm-rent at the commencement of the act, except in the case of a tenancy from year to year or at will ; nor does it apply to such a tenancy in case, within two months after the commencement of the act, the landlord or the tenant gave notice in writing to the other to the effect that he (the person giving the notice) desu-ed that the existing contract of tenancy between them should remain un- affected by the act (q) . A lease from year to year can be made by parol or word of mouth (r), if the rent reserved amount to two-thirds at least of the full im- proved 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 (s). A lease from year to year, reserving a less amount of rent, must be made by deed {f). The best way to create this kind of tenancy is to let the lands to hold " from year to year " simply, (m) Stat. 38 & 39 Vict. c. 92, {>■) Lcgg v. Saclcett, Bac. Abr. B. 58. tit. Leases (L. 3) ; S. C. nom. («) Sect. 2. Legg v. Strudivick, 2 Salk. 414. (o) Sect. 56. (s) 29 Car. II. c. 3, ss. 1, 2. Ip) Sect. 54. (0 Stat. 8 & 9 Vict, c. 106, {q) Sect. 57. s. 3. OF A TERM OF YEARS. 407 for much litigation has arisen from the use of more circuitous methods of saying the same thing (u). 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 the fuU improved value of the land(aj). Leases for a longer term of years, or at a lower rent, were requii'ed, by the Statute of Frauds {//), 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 (:;) . And the act to amend the law of real property now provides that a lease, required by law to be in writing, of any tene- ments or hereditaments shall be void at laic, unless made by deed(«). 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 caleat quain pereat [b). It does not require any formal words to make a lease for years. The words commonly employed are " demise, lease, and to farm let ; " but any words indicating an intention to give possession of the lands for a determinate time will be sufficient (c) . Loaso for a number of years. Leases in writing now reqviired to be by deed. No formal words re- quired to make a lease. («) See Bac. Abr. tit. Leases and TeiTns for Years (L. 3) ; Boe d. Clarke v. Smarldge, 7 Q. B. 957. {x) 29 Car. II. c. 3, s. 2 ; Lord Bolton T. Tomlin, 5 A. & E. 8.56. {y) 29 Car. II. c. 3, s. 1. (s) Bird V. Higginson, 2 Adol. & EU. 693 ; 6 Adol. & EU. 824 ; S. C. 4 Nev. & Man. 505. See ante, p. 253. {a) Stat. 8 & 9 Vict. c. 106, s. 3, repealing stat. 7 & 8 Vict, c. 76, s. 4, to the same effect. {b) Parl-er v. Tasivell, V.-C. S., 4 Jur., N. S. 183, affirmed 2 De Gex & Jones, 559 ; Bond v. EoS' ling, Q. B., 8 Jiu-., N. S. 78 ; 1 Best & Smith, 371 ; Tidy y. Mol- IM, 16 C. B., N. S. 298 ; liollason Y. Leon, Exch., 17 Jur., N. S. 608 ; 7 H. & N. 73, overruling the case of Stratton v. Pcttitt, 16 C. B. 420. {c) Bac. Abr. tit. Leases and Terms for Years (K) ; Curling y. Mills, Man. & Gran. 173. 4U8 OF PERSONAL INTERESTS IN REAL ESTATE. 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 memorandum was in law an actual lease, or merely an agreement to make one. Thus, a mere memorandum in writing that A. agreed to let, and B. agreed to take, a 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 {d). By such a memorandum 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 (e) . {d) Foole V. Bcntlcy, 12 East, Scott, 259 ; Warman w. Faithfull, 168; Doe d. IVcdker v. Groves, 15 5 Barn. & Adol. 1042 ; Pearce v. East, 244; Doe d. Pearson v. Mies, Cheshjn, 4 Adol. & EUis, 225. 8 Bing. 178; S. C. 1 Moo. & ((') By the Stamp Act, 1870, leases, wdtli some exceptions, are subject to an ad valorem duty on the rent reserved as follows : Where the yearly rent shall not ex- ceed £5 Shall exceed £5 and not exceed £10 10 „ 15 15 „ 20 20 „ 25 ,, 25 ,, 50 50 „ 75 ,, 75 ,, 100 And where the same shall exceed £100, then for every £50, and also for any fractional part of £50 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 If the term does not exceed 35 Years or is indeflnite. If the term beinpr definite exceeds 35 Years, but does not exceed 100 Years. If the term being definite exceeds 100 Years. s. d. £ s. d. £ s. d. 6 a G 1 C 12 1 6 9 18 2 12 1 4 2 6 15 1 10 5 1 10 3 7 6 2 5 4 10 10 3 6 5 1 10 3 OF A TERM Of YEARS. 4U9 There is no limit to the number of years for which A lease may a lease may be granted ; a lease may bo made for 09, ^ny number 100, 1,000, or any other number of years; the only of years, requisite on this point is, that there be a definite period There must of time fixed in the lease, at which the term granted fixed for the must end (/) ; and it is this fixed period of ending «nding. which distinguishes a toin 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 learn. 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 (r/). Thus, a lease may be made for 100 years from next A term may Christmas. For, as leases anciently were contracts commence^t between the landlords and their husbandmen, and had ^ future time, nothing to do with the freehold or feudal possession (/?), there was no objection to the tenant's right of occupation being deferred to a future time. 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 executed by the lessor, it does not require any stamp denoting that the proper duty has been paid on the original. Agi-eements 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 25^., 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 10?. 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 or additions to the property do not subject it to any additional diity. Stat. 33 & 3'1 Vict. c. 44 ; 33 & 34 Vict. c. 97 8. 98. {/) Co. Litt. 45 b ; 2 Black. (y) 2 Black. Com. 143. Com. 143. \li) See ante, p. 10. 410 OF PERSONAL INTERESTS IN REAL ESTATE, Entry. Iiiiercsse ter- mini. Bargain and sale. When the lease is made, the lessee does not become complete tenant by lease to the lessor until he has entered on the lands let (/). Before entry, he has no estate, but only a right to have the lands for the term by force of the lease (/»•), called in law an inter esse 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 vi^ill, as we have seen (/), have the whole term vested in him at once, in the same manner as if he had actually entered. Lease for years by estoppel. Exception, where the lessor 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 wiU 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 {ui) . 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 {)i). Thus, if A., a lessee (0 Litt. s. 58 ; Co. Litt. 46 b ; Miller v. Green, 8 Bingh. 02; ante, p. 190. {k) Litt. s. 459 ; Bac. Abr. tit. Leases and Terms for Years (M) . (1) Ante, p. 194. (/«) Co. Litt. 47 b; Bac. Abr. tit. Leases and Terms for Tears (0) ; 2 Brest. Abst. 211 ; JFebb v. Austin, 7 Man. & Gran. 701. («) Co. Litt. 47 b; Jlill v. Saio/ders, 4 Bara. & Cress. 629 ; Duo d. Strode v. Seaton, 2 Cro. Mec. & Rose. 728, 730. covenants. OF A TERM OF YEARS. 411 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 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 (o). The first kind of leases for years to which we have \ adverted, namely, those taken for the purpose of occu- 1 pation, are usually made subject to the payment of a yearly rent (7;), and to the observance and performance Rent and of 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 "^^■hole 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 (q). 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 (r), provided that such co- venants 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 ((jhI /tin assigns to do the act(s). But a cove- (0) 2Prest. Abst. 217. (r) WiUlams v. Bosanquct, 1 [p) See ante, p. 257 et seq. Brod. & Bing. 238 ; 3 J. B. Moore, {q) Sugd. Vend. & Pur. 37, 500. llth ed. (v) Spencer'' s case, 5 Eep. 16 a; 412 OF PERSONAL INTERESTS IN REAL ESTATE. Covenants which run with the land. nant to do any act upon premises not comprised in the lease cannot be made to bind the assignee {i). Cove- nants wMcli are binding on the assignee are said to run icith the land, the burden 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 (»). 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, apn'cifi/ 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 (x). This mutual right is also confirmed by an express clause of the statute before referred to (y), by which assignees of the reversion were enabled to take advantage of conditions of re-entry contained in leases {z). By the same statute also, the assignee of the reversion is enabled to take advantage of the covenants entered into by the lessee with the lessor, under whom such assignee claims («), — an advan- tage, however, which, in some cases, he is said to have previously possessed {h). Leases made after the 31st December, 1881. The rights and obligations of the successors in estate of a lessor and a lessee with respect to the rent reserved by and the covenants and conditions contained in leases Hemingxcaij v. Fernaiidcs, 13 Sim. 228. See Minshull v. Oakcs, 2 H. & N. 793, 809. {t) Keppel V. Bailey, 2 My. & Keen, 517. (m) Taylor v. Shum, 1 Bos. & Pul. 31 ; Eoivley v. Adams, 4 M. & Cr. 534. (x) Sugd. Vend. & Pur. 478, note, 3rd ed. {y) Stat. 32 Hen. VIII. c. 34, 8. 2. (;) Ante, p. 2G0. (a) 1 Wms. Saund. 240, n. (3) ; Martyn v. Williams, 1 H. & N. 817. {/)) Vyvyan v. Arthur, 1 Bam. & Cress. 410, 414. 413 OF A TERM OF YEARS, made after ihc ^Ist December, 1881, are regulated by two important sections of the Conveyancing and Law of Property Act, 1881 (e). They are as follows : — (Sect. 10, subs. 1.) Rent reserved by a lease, and the benefit of every covenant or provision therein contained, having reference to the subject-matter thereof, and on the lessees part to be observed or performed, and every condition of re-entry and other condition therein con- tained, shall be annexed and incident to and shall go with the reversionary estate in the land, or in any part thereof, immediately expectant on the term granted by the lease, notwithstanding severance of that reversionary estate, and shall be capable of being recovered, received, enforced, and taken advantage of by the person from time to time entitled, subject to the term, to the income of the whole or any part, as the case may require, of the land leased. (Sect. 11, subs. 1.) The obligation of a covenant entered into by a lessor with reference to the subject- matter of the lease shall, if and as far as the lessor has power to bind the reversionary estate immediately expectant on the term granted by the lease, be annexed and incident to and shall go with that reversionary estate, or the several parts thereof, notwithstanding severance of that reversionary estate, and may be taken advantage of and enforced by the person in whom the term is from time to time vested by conveyance, devolu- tion in law, or otherwise ; and, if and as far as the lessor has power to bind the person from time to time entitled to that reversionary estate, the obligation afore- said may be taken advantage of and enforced against any person so entitled. The payment of the rent, and the observance and [ Proviso for performance of the covenants are usually further secured, ^^"^^*^y- {c) Stat. 44 & 45 Vict. c. 41 ; see ss. 1, 2 (ii, iii, ix), 10 (subs. 2), 11 (subs. 2). 414 OF PERSONAL INTERESTS IN REAL ESTATE. by a proviso or condition for re-entry. The proviso for re-entry, so far as it relates to the non-payment of rent, has been already adverted to [d) ; it enables the land- lord or his heirs (and the statutes above mentioned (/) enable his assigns), on non-payment of the rent, to re- enter on the premises let, and re-possess them as if no lease had been made. The landlord, his heirs or assigns could formerly, under the proviso for re-entry on breach of covenants, at once re-enter in the same way upon non-observance or non-performance of the covenants. But a lessor and his successors in estate cannot now enforce a right of re-entry on breach of covenants until the conditions imposed by the Conveyancing and Law of Property Act, 1881 (r/), have been complied with. These are mentioned further on. Effect of licence for breach of covenant. The proviso for re-entry on breach of covenants was until recently the subject of a curious doctrine ; that if an express licence were once given by the landlord for the breach of any covenant, or if the covenant were, not to do a 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 {i) . The ground of this doctrine was, that every condition of re-entry was 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 was certainly intelligible ; but its application to a licence to perform an act, which was only prohibited when done u-ithout licence, was not very apparent (/.•). This rule, which was well established, was frequently the occasion [d) Ante, p. 250. (/) Stats. 32 Hen. VIII. c. 34 ; 44 & 45 Vict. c. 41, s. 10; sec 8. 14, subs. 8. ((/) Stat. 44 & 45 Vict. c. 41, 8. 14. ((■) Dn»i2)or''s case, 4 Hep. 119; Briimmell v. Macpherson, 14 Ves. 173. (/■) 4 Jarman's Conveyancing, by Sweet, 377, n. (<■). OF A TERM OF YEARS. 415 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 (/) . By an act of the present reign the inconvenient doctrine above mentioned ceased to extend to licences granted to the tenants of crown lands (;;^). And by a subse- Nowenact- quent statute («) it has been provided, that every such Restriction licence shall, unless otherwise expressed, extend only to S'? ^^^^^ °^ / . . licence. 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 Licence to one also been made (o) that a licence to one of several seer oTas To" lessees, or with respect to part only of the property let, part only. {I) 2 Prest. Conv. 199. {i>) Stat. 22 & 23Vict.c.3o,s. 1. {m) Stat. 8 &- 9 Vift. c. 99, s. .5. (o) Soct. 2. 416 OF PERSONAL INTERESTS IN REAL ESTATE, shall not destroy the right of re-entry as to the other lessees, or as to the remainder of the property. Waiver of a breach of covenant. Implied waiver. Continiiinr breach. Actual waiver. The above enactments, however, failed to provide for the case of an actual waiver of a breach of covenant. 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 (q) ; but if the breach was of a continuing kind, this implied waiver did not extend to the breach which continued after the receipt (r). An implied waiver of this kind did not destroy the condition of re-entry (s) ; but an actual w^aiver had this effect. Few landlords therefore were disposed to give an actual waiver. The incon- venience which thus arose is now met by a subsequent act {f), which provides that, where 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 (u), in any one par- ticular 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. Severance of reversion. Formerly a grantee of the reversion of part of the property comprised in a lease could not take advantage of a condition of re-entry or other condition contained in the lease ; as if a lease had been made of three acres, (ry) Co. Litt. 211 b; Pnce v. Worwbod, 4 H. & N. 512. ()■) Boc d. Micston v. Gladtcbi, 6 Q. B. 953 ; Doe d. Baler v. Joves, 5 Ex. Rep. 498. (^ Doe d. Floivcr \. Peck, 1 B. & Adol. 428. (0 Stat. 23 & 24 Vict. c. 38, s. fi. («) 23rd July, 18G0. OF A TERM OF YEARS. 417 reserving a rent upon condition, 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 " (.r). The law on this point was altered by the statute commonly called " Lord St. Leonards' Act," which enacts {//), 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 con- ditions 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. It will be observed that this enactment applies only to conditions of re-entry on non-payment of rent, and does not affect conditions of re-entry on breach of covenants ; also, that it can only take effect, if the rent be legally apportioned. Rent can only be legally apportioned by the consent of the tenant to the apportionment, or by the verdict of a jury {a). With regard to leases made Leases made after the 31st December, 1881, further alterations have Dec. 188I. been made in the law on this point by the Conveyancing and Law of Property Act, 1881 (b). For besides the provisions contained in the 1 0th and 11th sections already stated (c), it is enacted by the 12th section that notwithstanding the severance by conveyance, sur- render, or otherwise, of the reversionary estate in any land comprised in a lease, and notwithstanding the avoidance or cesser in any other manner of the term (j-) Co. Litfc. 215 a. See as to («) Bliss v. Collins, 5 B. & A. coparceners, Doc d. De Riitzcn v. 876. Lewis, 5 A. & E. 277. {b) Stat. 44 & 45 Vict, c 41, {y) Stat. 22 & 23 Vict. c. 35, ss. 1, 12, sub-s. 2. s. 3. (t) Ante, p. 413. R.P. E E eurance. 418 OF PERSONAL INTERESTS IN REAL ESTATE. granted by a lease as to part only of tlie land comprised therein, crcry condition or right of re-entry, and every other condition, contained in the lease, shall be appor- tioned, and shall remain annexed to the several parts of the reversionary estate as severed, and shall be in force with respect to the term whereon each several part is reversionary, or the term in any land which has not been surrendered, or as to which the term has not been avoided or has not otherwise ceased, in like manner as if the land comprised in each several part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the lease. It will be seen that the effect of above enactments is not restricted to conditions of re-entry on non-payment of rent. As to fire in- A condition of re-entry was, evidently, a very serious instrument of oppression in the hands of the landlord, when the property comprised in the lease was valuable and the tenant by mere inadvertence might have com- mitted some breach of covenant. To forget to pay the annual premium on the insurance of the premises against fire might thus have occasioned the loss of the whole property ; although, on the other hand, the landlord might well have considered such forgetfulness inex- cusable, since it might have ended in the loss of the premises by fire whilst uninsured. By Lord St. Leonards' Act {d), power was given to the court, under certain conditions, to relieve against a forfeiture for breach of a covenant or condition to insure against fire. But these provisions are now repealed (/) : and the law, with regard to re-entry and forfeiture, under a proviso in a lease, on breach of covenants, is placed on an entirely new footing by the 14th section of the (rf) Stat. 22 & 23 Vict. c. 35, (/) Stat. 44 & 45 Vict. c. 41, Bs. 4 — G. See also rs. 7. 8. s. 14, subs. 7. OF A TERM OF YEARS. 419 Conveyancing and Law of Property Act, 1881 (. s. 23; General Rules in Bank- loo; Loiorey v. Barker, ib. 170; ruptcy, 1871, rule 28. See Smijth Snialleij v. Harding, 7 Q. B. D. V. North, 20 W. E,. 683 ; L. R., 521; Ex parte Ladbimj, 17 Ch. D. 7 Ex. 242; Ex parte Glegij, 19 532; Ex parte JVaUon, ib. 746. Ch. D. 7. As to the rights and (/) Sect. 24. 424 OF PERSONAL INTERESTS IN REAL ESTATE. Underlease. Underlease for the whole term. No distress can be made. 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 whole term is in effect an underlease {g) . On the other 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 some cases, where a tenant for years, having less than three 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 (/), rather than as an attempted assignment which would be void, formerly for want of a writing (/>•), and now for want of a deed (/). It is, however, held that no distress can be made for the rent thus reserved (;«) . But if a tenure be created, the lord, if he have no estate, must at least have a seignory (;?), to which the rent would by law be incident ; and being thus rent service, it must by the common law be enforceable by distress (^;). 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 {q). If, however, the disposition be by deed, and be executed by [g) See Sugd. Concise Vendors, 482 : Cottee v. Richardson, 7 Ex. Rep. 143. (A) Palmer v. Eduards, 1 Doug. 187, n. ; Parmenter v. Webber, 8 Taunt. 593; 2 Prest. Conv. 124; Thorn v. Woollcombe, 3 B. & Adol. 58G; Langford v. Sclmcs, 3 K. & J. 220, 227 ; Bcamnont v. Marquis of Salisbtiry, 19 Beav. 198, 210; Bcardman v. Wilson, L. E,., 4C. P. 57. (i) Poultncyv. Holmes, \^irairi.gc, 405 ; Prcece v. Corrie, 5 Bing. 27; Pollock V. Siacg, 9 Q. B. 1033. (/.•) Stat. 29 Car. II. c. 3, s. 3; ante, p. 421. (l) Stat. 8 & 9 Vict. c. 106, s. 3; ante, p. 421. {m) Bac. Abr. tit. Distress (A) ; V. Cooper, 2 Wilson, 375 ; Precce v. Corrie, 5 Bing. 24 ; Pascoe V. Pascoe, 3 Bing. N. C. 898. (m) Ante, p. 344. {p) Litt. sect. 213. {q) Barrett v. Rolph, 14 M. & W. 348, 352. OF A TERM OF YEARS. 425 the alienee, it has been decided that the reservation of rent may operate to create a rent-charge (r), for which tlie owner may sue (s), and whicli he may assign, so as to entitle the assignee to sue in his own name (f) . And if this he so, there seems no good reason why, under these circumstances, the statutory power of distress given to the owner of a rent seek {u), should not apply to the rent thus created (.r). But on this point also opinions differ (//). It is conceived that, if such a rent be i created by an instrument coming into operation after the 31st December, 1881, it may be recovered by means of the remedies conferred by the 44th section of the Conveyancing and Law of Property Act, 1881 (a). Every underlessee becomes tenant to the lessee who No privity be- grants the underlease, and not tenant to the original g^^and the*^^" lessor. Between him and the underlessee, no jjrivit// is underlessee. 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 {b) . His remedy is only against the lessee, or any assignee from him of the whole term. The derivative term, which is Derivative i.j-j.1 11 • J. J. L • J.-1 ' j_ J term is not an vested m the underlessee, is not an estate m the interest estate in ori- originally granted to the lessee : it is a new and distinct S^'^^^ *^^™- 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 (>•) Ante, p. 344. (y) See v. Cooper, 2 Wils. (s) leaker v. GostUng, 1 Bing. 375; Langford \. Selmes, 3 K. & N. C. 19. J. 220 ; Smith v. Watts, 4 Drew. {t) JFilliams Y. Hagtvard, Q.B., 338; IFills v. CattUng, Q. B., 7 5 Jiir., N. S. 1417; 1 ElUs & W. R. 448; Burton's Compen- EUis, 1040. dium, pi. 1111. (?<) Stat. 4 Geo. II. c. 28, s. 5 ; («) Stat. 44 & 45 Viet. c. 41 ; ante, p. 348. ante, p. 348. {x) Fascoe v. Pascoe, 3 Bing. (b) Holford v. Hatch, 1 Dougl. N. C. 905. 183. 426 OF PERSONAL INTERESTS IN REAL ESTATE. the same way as a portion of any moveable piece of goods becomes, wben cut out of it, a separate chattel personal (c) . Husband's rights in his ■wife's term. If a married women should be possessed of a term of years, her husband may dispose of it at any time during the coverture, either absolutely or by way of mortgage (d) ; and in case he should survive her, he will be entitled to it by his marital right (/). 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 (g). And now, by the Married Women's Property Act, 1870, where any woman married after the 9th of August, 1870, the date of the act, shall, during her mar- riage, 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 and without prejudice to the trusts of any settle- ment affecting the same, belong to the woman for her separate use {h). Renewable leases. In many cases landlords, particularly corporations, are in the habit of granting to their tenants fresh 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 ; and this covenant may be so worded as to confer on the lessee a perpetual right of renewal from time to time (c) As to the rights and obli- gations of an iinderlessee upon the bankruptcy of the lessee, see the cases cited in note {d) to p. 423, ante. (d) Hill V. FAlmonds, 5 De Gex & S. 603, 607. (/) Co. Litt. 46 b, 351 a. (y) 2 Black. Com. 434 ; 1 Eop. Husb. & Wife, 173, 177; Doe d. Shaw V. Steicard, 1 Ad. & Ell. 300 ; as to trust term, Donne v. Hart, 2 Euss. & Mylne, 360 ; see also Hanson v. Keating, 4 Hare, 1 ; Biibcrhj V. Bay, Eolls, 16 Jurist, 581 ; S. C. 16 Beav. 33. [h) Stat. 33 & 34 Vict. c. 93, OF A TERM OF YEARS, 427 as each successive lease expires (/). In all these cases Surrender in the acceptance bj the tenant of the new lease operatesj 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 dm-ing 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 (/»). It appears to be now settled, 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 old term (/). 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 will be regarded in equity as a trustee for the persons bene- ficially interested in the old one {m). So the costs of renewal are apportioned between the tenant for life and remaindermen according to their respective periods of actual enjoyment of the new lease {n). Special (i) Iffffulden y. Mat/, 9 Yea. 325; M'Boniiellv. Fope, 9 Hare, 705; 7 East, 237; Hare v. Surges, 4 K. Davison v. Gent, 1 H. & N. 744. & J. 45. (;h) Eaive v. Chichester, Ambl. {k) Ive's case, 5 Rep. 11 b; Roe 715; Giddinr/sy. Giddings, 3 Russ. cl. Earl of Berkeley y. Archbishop 241 ; 'Tanner v. Elworthy, 4 Beav. of York, 6 East, 86 ; Doe d. Earl 487; Clegg v. Fishxcick, 1 Mac. & of Egremonty. Courtenay, 11 Q. B. Gord. 294. 702 ; Doe d. Biddulph v. I'oolc, 11 («) White v. White, 5 Ves. 554 Q. B. 713. 9 Ves. 560 ; Allan v. Backhouse (/) See Lyon v. Eccd, 13 Mee. 2 Ves. & Bea. 65; Jacob, 631 (feWels. 285, 306; Creaghy. Blood, Greenwood v. Evans, 4 Beav. 44 3 Jones & Lat. 133, 160; Nickells Jones v. Jones, 5 Hare, 440 V. Atherstonr, 10 Q. B. 944 ; Hadleston v. Whdjydalc, 9 Hare, law. 428 ~ , OF PERSONAL INTERESTS IN REAL ESTATE. provisions have been made by parliament for facili- tating the procuring and granting of renewals of leases when any of ihe parties are infants, idiots or lunatics (p). 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 (q). More recently provisions have been made by parliament enabling trustees of renewable leaseholds to renew their leases (r), and to raise money by mortgage for that purpose (.s). Provisions have also 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 (;r) ; 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 whole {>/) . Compensation The Agricultural Holdings (England) Act, 1875 (a), thciHm]5ro\-e- Contains provisions for the compensation of tenants, ments. whose tenancies are within the act, for improvements made by them. The improvements are divided into three classes {h), which are to be considered as exhausted, as to the first class at the end of twenty years, as to the second class at the end of seven years, and as to the third class at the end of two years {c). A landlord, on 775; Aiiisliev. ITarcourt, 2SBea,v. apply only to instruments exe- 313; Bradford V. Brou-njohn, L. cuted after tlie passing of the act R., 3 Ch. 711. (sect. 34). The act passed 28th [p) Stats. 1 1 Geo. IV. & 1 Will. August, 1860. rV. c. 65, ss. 12, 14—18, 20, 21 ; (x) Stat. 23 & 24 Vict. c. 124, 16 & 17 Vict. c. 70, 88. 113—115, ss. 35—38. 133—135. (y) Sect. 39. {q) Stat. 4 Geo. II. c. 28, s. 6; [a) Stat. 38 & 39 Vict. c. 92 ; ante, p. 263. amended by stat. 39 & 40 Vict. (>■) Stat. 23 & 24 Vict. c. 145, c. 74 ; ante, p. 405. 8. 8. [b) Sect. 5. («) Sect. 9. These provisions {c) Sect. 6. OF A TERM OF YEARS. 429 paying to the tenant the amount of compensation due Tower to to him under the act, may obtain an order from the hoidfn"- with County Court charging the holding with the repayment repayment, of the amount paid, or any part thereof, with such in- terest and by such instalments, and with such directions for giving effect to the charge, as the Court thinks fit. But where the landlord is not absolute owner, no instal- ment or interest is to be made payable after the time when the improvement, in respect whereof compensation is made, will for the purposes of the act be taken to be exhausted {d). There is also a provision for the removal Tenants' of tenant's fixtures, subject to the landlord's option to purchase the same (e). We now come to consider those long terms of years Long terms of of which frequent use is made in conveyancing, gene- y^^^^- 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 ownership of the land, subject to the jDayment 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 propert3^ 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 {d) Stat. 38 & 39 Vict. c. 92, s. 42. • {e) Sect. 53. 430 OF PERSONAL INTERESTS IN REAL ESTATE. The parties have ample security. The owner- ship of the land, subject to the pay- ment, remains as before. tliis means tlie parties to be paid have ample security for the pajajient of their money. Not only have their trustees the right to receive on their behalf (if they think fit) the whole accruing income of the property, 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 owmer, 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. 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. Tlie 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 (/). This (/) hJeo fSugd. Vend. & Pur. G21, Hth ed. OF A TERM OF YEARS. 431 proviso for cesser, as it is called, makes the term endure Proviso for so long only as the purposes of the trust require ; and, , 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 are most frequently created by marriage settlements, and iQo- por^tions^" are the means almost invariably used for securing 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 {g), 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 simj)le, or an Any estate of estate tail, or for life only, each of these estates is, as lar^'-er estate we have seen, an estate of freehold {/i), and, as such, is than a term 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 Merger of the of freehold (/). Thus, let A. and B. be tenants for a *^™'^ [g) Ante, p. 52. (i) 3 Prcst. Conv. 219. See (A) Ante, pp. 23, 38, ()9. ante, pp. 263, 29o. 432 OF PERSONAL INTERESTS IN REAL ESTATE. Surrender. Surrenders now to be by deed. Accidental mers-er. term of 1,000 years, and subject to that term let C. be tenant for his life ; if now A. and B. should assign their term to C. (which assignment under such circumstances 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 we have mentioned, a surrender by them of their term to the legal owner of the laud, will bring back the ownership to the same state as before. The act to amend the law of real property {k) 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. The merger of a term of years is sometimes occa- 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 [1). {k) Stat. 8&9Vict. c. lOG, 8. 3, (/) Sir Bali^h Bovei/s case, 1 repealing stat. 7 & 8 Vict. c. 7C, Ventr. 193, 195; Co. Litt. 186 a; s. 1, to the same effect. Burton's Conipeudiuin, jjl. 900. in autre droit. OF A TERM OF YEARS. 4'3-J Merger being a kf/alincideni of estates, formerly occurred quite irrespectively of the trusts ou which they wore held ; but equity did its utmost to prevent any injury being sustained by a cestui que trust, the estate of whose trustee might accidentally have merged (m) . The Supreme Court of Judicature Act, 1873 {)i), however, provides (o) that there shall not, after the commencement of that act, which took place on the 1st of November, ]875(;;), be any merger by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity. The law, though it did not recognize the trusts of equity, yet took notice in some few cases of property being held by one person in right of another, or in autre droit, as it is Estates held called ; and in these cases the general rule was, that the union of the term with the immediate freehold would not cause any merger, if such union were occasioned by the act of law, and not by the act of the party. Thus, if a term were held by a person, to whose wife the immediate freehold afterwards came by descent or devise, such freehold, coming to the husband in right of his wife, would not have caused a merger of the term (q) . So, if the owner of a term made the freeholder his executor, the term would not have merged (r) ; 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 still merge (s). And if an executor, whether legatee or not, holding a term as executor, should H See SPrest. Conv. 320, 321; 5 H. & N. 766; 7 H. & N. 507. Chambers v. Kmgham, 10 Ch. D. (/) Co. Litt. 338 b. 743. (.v) 3 Prest. Conv. 310, 311. («) Stat. 30 & 37 Vict. c. 66. See Law v. Urlwin, 16 Sim. 377, (o) Sect. 25, sub-sect. (4). and Lord St. Leonards' comments {p) Stat. 37 & 38 Vict. c. 83. on this case, Sugd. V. & P. 507, \q) Doe d. Blight v. Fett, 11 13th ed. Adol. & Ellis, 842 ; Jones v. Davies, R.P. F P 434 OF PERSONAL INTERESTS IN REAL ESTATE. purchase the immediate freehold, the "better opinion is, that this being his owti act, will occasion the merger of the term, except so far as respects the rights of the creditors of the testator {t). The term might have been kept on foot. Assignment in trust to attend the in- heritance. Case of a rent- charge. There was until recently another method of disposing of a term when the purposes for which it was created 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. Suj^pose, 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 now he should have procured the {t) Sugd. Vend. & Pnr. 50-5, 13th ed. OF A TERM OF YEARS. 435 term to be surrendered to himself, the unknown rent- Consequence charge, not being any estate in the land, would not °f SieTerm^^^ 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, but also on the possession of the lands, and was said to be accelerated by the merger of the term(^f). The preferable method, therefore, always was to avoid any merger of the term ; but, on the contrary, to obtain an The tei-m assignment of it to a trustee in trust for the purchaser, f^'^^^^ I'.^'^e , ° . , . -^ , ' been assigned 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 si)ie 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, cr 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 {ii) 3 Prest. Conv. 400. F F 2 436 OF PERSONAL INTERESTS IN REAL ESTATE. 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 pur- If the pm-chaser, at the time of his purchase, should notice of the have had notice of the rent-charge, and should yet have ^f'^^l™^^'^^"^^ procured an assignment of the term to a trustee for his his piirchase, own benefit, the Court of Chancery would, on the first useThe te^-m. principles of equity, have prevented his trustee from I making any us6 of the term to the detriment of the grantee of the rent-charge (.r). Such a proceeding would evidently be a direct fraud, and not the pro- tection of an innocent purchaser against an unknown An exception, inciunbrance. 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 Dower, barred marriage, an assignment of this term to a trustee for B. on^e^*^^^* 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 {y). 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 was ended. We have already seen (s), that, as to all women married after the first of January, 1834, {x) Willoujhbtj V. Willoughby, {y) Sugd. Vend. & Pur. 610, 1 T. Rep. 703. 13th ed. ; Co. Litt. 208 a, n. (1). (z) Ante, p. 250. OF A TERM OF YEARS. 437 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. . When a term had been assigned to attend the in- The owner of heritance, the owner of such inheritance was not re- ance subject garded, in consequence of the trust of the term in his to an attond- „ , . . , i P 1 , a^* term had lavour, as navmg any mterest oi a personal nature, a real estate. 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 (a). If the Tei-m attend- term were neither surrendered nor assigned to a trustee ^^^ ^J '^°"; o ^ struction oi to attend the inheritance, it still was considered atten- law. dant 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" [h). This ment^^o/satis- act provides (c), that every satisfied term of years ^^'ite^'^s 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 ahwhdchj cease and detennine 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 thereby made to cease and determine, shall afford to every person the same protection against every incumbrance, {a) Sugd. Vend. & Piu-. 790, {b) Stat. 8 & 9 Vict. c. 112. 11th ed. (f) Sect. 1. 438 OF PERSONAL INTERESTS IN REAL ESTATE. charge, estate, right, action, suit, claim, and demand, as it would have afforded to him if it had continued to subsist, but had not been assigned or dealt with, after the said thii"ty-first day of December, 1845, and shall, for the purpose of such protection, he considered in every Court of law and of equity to he a suhsisting term. The act further provides {d) that every term of years then subsisting, or thereafter to be created, becoming satisfied after the thirty-first of December, 1845, and which, either by express declaration or by construction of law, shall after that day become attendant upon the inheritance or reversion of any land, shall, immediately upon the same becoming so attendant, absolutely cease and determine as to the land upon the inheritance or reversion whereof such term shall become attendant as aforesaid (e). In the two first editions of this work, some remarks on this act were inserted by way of Appendix. These remarks are now omitted, not be- cause the author changed his opinion on the wording of the act, but because the remarks, being of a contro- versial nature, seemed to him to be scarcely fitted to be continued in every edition of a work intended for the use of students, and also because the act has, upon the whole, conferred a great benefit on the community. Experience has in fact shown that the cases in which purchasers enjoy their property without any molesta- tion are infinitely more numerous than those in which they are compelled to rely on attendant terms for pro- tection ; so that the saving of expense to the generality of purchasers seems greatly to counterbalance the incon- venience to which the very small minority may be put, who have occasion to set up attendant terms as a defence {d) Stat. 8 & 9 Vict. c. 112, in trust for securing a mortgage s. 2; Anderson v. I'ipiet, L. C. & debt, and subject thereto to attend LL.J., 21 "W. R. 150; L. R., 8 tlie inheritcance, is not an atten- Ch. 180. dant term within this act. Shaw {(■) It has been decided that a \. Johnson, 1 Drew. &Sraalc, 412. tciTU of years assigned to a trustee OF A TERM OF YEARS. 439 against adverse proceedings. And it is very possible that some of the questions to which this act gives rise may never be actually litigated in a Court of justice. An important innovation has been made in the law Eolargemout relating to long terms of years by the Conveyancing ^^^f^ °^°^ and Law of Property Act, 1881 (/). The 65th section simple. of this Act provides for the enlargement into estates in fee simple of long terms of years which fulfil certain conditions : it runs as follows : — (Sub-sect. 1.) Where a residue unexpired of not less Conditions— than two hundred years of a term which, as originally jjave 200 years created, was for not less than three hundred years, is sub- ^^ ^^^^^ *" sisting in land, whether being the whole land originally r, -^^^^^ ^^^.^ comprised in the term, or part only thereof, without any been on- trust or right of redemption affecting the term in favour 300 years at of the freeholder, or other person entitled in reversion 1®^^*- expectant on the term, and without any rent, or with any trust ^or merely a peppercorn rent or other rent having no money or right of value, incident to the reversion, or having had a rent, by freeholder, not being merely a peppercorn rent or other rent having ^^• no money value, originally so incident, which subse- anyrent*^^c quently has been released, or has become barred by lapse of time, or has in any other way ceased to be payable, then the term may be enlarged into a fee simple in the manner, and subject to the restrictions, in this section provided. (Sub-sect. 2.) Each of the following persons (namely) : Who may so (i.) Any person beneficially entitled in right of the ' ° term, whether subject to any incumbrance or not, to possession of any land comprised in the term ; but, in case of a married woman with the concurrence of her husband, unless she is entitled for her separate use, whether with restraint on anticipation or not, and then without his concurrence ; (/) Stat. 44 & 45 Vict. c. 41. 440 OF PERSONAL INTERESTS IN REAL ESTATE. (ii.) Any person being in receipt of income as trustee, in riglit of the term, or having the term vested in him in trust for sale, whether subject to any incumbrance or not ; (iii.) Any person in whom, as personal repre- sentative of any deceased person, the term is vested, whether subject to any incumbrance or not ; shall, as far as regards the land to which he is entitled, or in which he is interested, in right of the term, in any such character as aforesaid, have power by deed to Enlargement declare to the effect that, from and after the execution declaration by of the deed, the term shall be enlarged into a fee simple. ^^^^- (Sub-sect. 3.) Thereupon, by virtue of the deed and of this act, the term shall become and be enlarged accordingly, and the person in whom the term was previously vested shall acquire and have in the land a fee simple instead of the term. Fee simple so (Sub-sect. 4.) The estate in fee simple so acquired by subiectto enlargement shall be subject to all the same trusts, same trusts, powers, executory limitations over, rights, and equities, and to all the same covenants and provisions relating to user and enjoyment, and to all the same obligations of every kind, as the term would have been subject to if it had not been so enlarged. If tei-m settled (Sub-sect. 5.) But where any land so held for the re- tJfree'liolds^ sidue of a term has been settled in trust by reference to fee simple so other land, being freehold land, so as to go along with settled in that other land as far as the law permits, and, at the time same way as q£ enlargement, the ultimate beneficial interest in the such free- . holds. term, whether subject to any subsisting particular es- tate or not, has not become absolutely and indefeasibly vested in any person, then the estate in fee simple ac- quired as aforesaid shall, without prejudice to any con- veyance for value previously made by a person having a contingent or defeasible interest in the term, be Hable to be, and shall be, conveyed and settled in like manner OF A TERM OF YEARS. 441 as the other land, being freehold land, aforesaid, and until so conveyed and settled shall devolve beneficially as if it had been so conveyed and settled. (Sub-sect. 6.) The estate in fee simple so acquired shall. Fee simple so whether the term was originally created without im- J^Xde*minc8 peachment of waste or not, include the fee simple in all &c. mines and minerals which at the time of enlargement have not been severed in right or in fact, or have not been severed or reserved by an inclosure act or award. (Sub-sect. 7.) This section applies to every such term as aforesaid subsisting at or after the commencement of this act {g). {g) See also the interpretation clause, stat. 44 & 45 Vict. c. 41, s. 2. 442 OF PERSONAL INTERESTS IN REAL ESTATE. CHAPTER II. OF A MORTGAGE DEBT. Our next subject for consideration is a mortgage debt. The term mortgage debt is here employed for want of one which can more -precisely express the kind of interest intended to be spoken of. Every person who borrows money, whether upon mortgage or not, incurs a debt or personal obligation to repay out of whatever means he may possess ; and this obligation is usually expressed in a mortgage deed in the shape of a covenant by the borrower to repay the lender the money lent, with interest at the rate agreed on. If, however, the borrower should personally be unable to repay the money lent to him, or if, as occasionally happens, it is expressly stipu- lated that the borrower shall not be personally liable to repay, then the lender must depend solely upon the property mortgaged ; and the nature of his interest in such property, here called his mortgage debt, is now A mortgage attempted to be explained. In this point of view, a sonaUnterest ^loi'tgage debt may be defined to be an interest in land in land in of a personal nature, which was recognized as such only by the Court of Chancery, in its office of administering equity. We have seen in the chapter on Uses and Trusts, that the Court of Chancery is now abolished, although the doctrines of equity remain the same. In equity, a mortgage debt is a sum of money, the payment whereof is secured, with interest, on certain lands ; and being money, it is personal property, subject to all the incidents which appertain to such property. The Courts of law, on the other hand, did not regard a mortgage in OF A MORTGAGE DEBT. 443 the light of a mere security for the repayment of money with interest. A mortgage in law was an absolute con- veyance, subject to an agreement for a reconveyance on a certain given event. Thus, let us suppose freehold lands to be conveyed 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 (a) The following duties arc imposed by the Stamp Act, 1870, stat. 33 & 34 Vict. c. 97:— Mortgage, bond, debenture, covenant, waiTant of attorney to confess and enter up judgment, and foreign security of any kind : (1) Being the only or principal or primary seciuity for — The payment or repayment of money not ex- ceeding 2ol. Exceeding 2bl. and not exceeding 50/. 50/. 100/. 150/. 200/. 250/. 300/. 100/. 150/. 200/. 250/. 300/. £ s. d. 8 1 3 2 6 3 9 5 6 3 7 G For every 100/. and also for any fractional part of 100/. 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 100/. 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 insti-ument, or by any war- 2 C 6 444 OF PERSONAL INTERESTS IN REAL ESTATE. the 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 (6) ; on which day, if the money be duly paid, B. has agreed to reconvey the estate to A. If, when the day comes, A. should repay the money with interest, B. of course must reconvey 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 was placed by the Courts of law and by the Courts of equity, a construction which well illustrates the difference between the two. Construction The Courts of law, adhering, according to their ancient in ^^^^^°^^^ custom, to the strict literal meaning of the terms, held, that if A. did not pay or tender the money punctually rant of attorney to enter up judgment, or by any £ s. d. judgment : For every 100/. and also for any fractional part of 100/. of the amount transferred, assigned or disponed .. .. .. .. ..006 / A J 1 1, j; i-T- • ( Tie same duty as a I And also where any lurther money is I principal security added to the money already secured ) ^"i" ^"'^^i further ^ ^ money. (4) Reconveyance, release, discharge, surrender, re- siuTcnder, warrant to vacate, or renunciation of any such 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 . . ..006 [b) See as to this. Doe d. Roy lance v. Lightfoot, 8 Mee. & W. 553 ; Doe d. Farsley v. Bay, 2 Q. B. 147; Eogers v. Grazebrook, 8 Q. B. 895. See also Davidson's Precedents in Conveyancing, Vol. II., Part II., 4th cd., p. 43. OF A MORTGAGE DEBT. 445 on the day named, he should lose the land for ever ; and this, according to Littleton (r), is the origin of the term mortyage or mortiium vadium^ " for that it is doubtful Origin of the whether the feoffor will pay at the day limited such ^^^^ sum or not ; and if he doth not pay, then the land which is put in pledge, upon condition for the payment of the money, is taken from him for ever, and is dead to him upon condition, &c. And if he doth pay the money, then the pledge is dead as to the tenant, &c." Correct, however, as is Littleton's statement of the law, the accuracy of his derivation may be questioned ; as the word mortgage appears to have been applied, in more early times, to a feoffment to the creditor and his heirs, to be held by him until his debtor paid him a given sum ; until which time he received the rents without account, so that the estate was unprofitable or dead to the debtor in the meantime {d) ; the rents being taken in lieu of interest, which, under the name of usury, was anciently regarded as an unchristian abomination [e). This species of mortgage has, how- ever, long been disused, and the form above given is now constantly employed. From the date of the mort- The legal gage deed, the legal estate in fee simple belongs, not to ^^ ^-^^ morT-^^ the mortgagor, but to the mortgagee. The mortgagor, gagee. consequently, with the exceptions next hereafter men- tioned, is thenceforward unable to create any legal estate or interest in the premises; previously to the 1st January, The mort- 1882, he could not even make a valid lease for a term of ^^p"" ^°^^^ not even years (/), — a point of law too frequently neglected by make a valid those whose necessities obliged them to mortgage their {c) Sect. 332. 2 Cro. & Jerv. 235 ; Whitton v. {d) Glanville, lib. 10, cap. 6; Peacock, 2 Bing. N. C. 411; Green Coote on Mortgages, book 1, ch. 2. v. James, 6 Mee. & Wels. 656; (<■) Interest was first allowed Doe d. Zo7-d Downe v. Thompson, by law by stat. 37 Hen. VIII. 9 Q. B. 1037 ; Cuthbertson v. 0. 9, by which also interest above Irving, 4 H. & N. 724 ; 6 H. & ten per cent, was forbidden. N. 135 ; Saunders v. Merry weather, (/) See Doe A. Barnetj V.Adams, 3 H. & Colt. 902. lease. 446 OF PERSONAL INTERESTS IN REAL ESTATE. Except under estates. In some cases, however, hj agreement between power'or^ the parties, a power for the mortgagor to grant leases, leasing. operating in the same manner as a power of leasing given to the tenant for life by a settlement (g), was in- serted in the mortgage deed. An important change has been made in the law on this point by the 18th section of the Conveyancing and Law of Property Act, 1881 {h). Mortgagor For if the mortgage be made after the 31st December, can now grant tooi ^-l ^ i -i • • i, v valid leases on l^^lj the mortgagor while in possession has power by certain con- virtue of that act to make an aOTicultural or occupation ditions. . ° ^ lease for any term not exceeding twenty-one years, or a building lease for any term not exceeding ninety-nine years, upon the conditions defined in the 18th section of the act (/) . Any such lease made in compliance -^dth those conditions will be valid as against the mortgagee or any Unless re- other incumbrancer. This statutory right of the mort- express stipu- g^go^ ^^^J ^6 excluded by agreement between the lation. parties ; for the 18th section applies only if and as far as a contrary intention is not expressed by the mort- gagor and mortgagee in the mortgage deed or otherwise in tcriting, and has effect subject to the terms of the mort- gage deed or of any such writing and to the provisions therein contained (^•) . A stipulation that the 18th section of the act shall not apply, will, in practice, pro- bably be inserted in a large proportion of future mort- gage deeds. It is important for the mortgagee clearly to negative the above right, if he wishes to do so, for a contract to make or accept a lease, under the 18th sec- tion, may be enforced by or against every person on whom the lease, if granted, would be binding (/). And tlie provisions of the ISth section are to be construed to extend and apply, as fai* as circumstances admit, to any letting, and to an agreement, whether in writiag or not, (^) Ante, p. 319. [i) Sect. 18. See sub-sects. 1, \h) Stat. 44 k 45 Vict. c. 41. 3—11. See the interpretation clause, (A) Sect. 18, sub-sect. 13. sect. 2. (/) Sect. 18, sub-sect. 12. OF A MORTGAGE DEBT. 447 for leasing or letting (m) . Exactly similar powers of Power of leasing, which may be excluded or varied by express posse'ssion to stipulation in the same way, are given by the same l<^a^- section to a mortgagee of land while in possession ; and leases duly made by him under those powers are valid as against all prior mortgagees and incumbrancers, and as against the mortgagor (/<). But, if desired, express Express powers of leasing may still be given by the mortgage feTshi^^ may deed as before ; for nothing in the act is to prevent the ^till be given, mortgage deed from reserving to or conferring on the mortgagor or the mortgagee, or both, any further or other powers of leasing or having reference to leasing ; and any powers so given are to be exerciseable, as far as may be, as if they were conferred by the act, and with all the like incidents, effects and consequences, unless a contrary intention be expressed in the mortgage deed (o). Any of the provisions of the 18th section of the act may, ■ Mortgages by agreement in writing made after the commencement the year 1882. of the act (that is, after the 31st December, 1881) be- tween mortgagor and mortgagee, be applied to a mort- gage made before the commencement of the act, so, nevertheless, that any such agreement shall not pre- judicially affect any right or interest of any mortgagee not joining in or adopting the agreement (p). Formerly, when the day named for pajTuent had When the day passed, the mortgagee, if not repaid his money, might had^i^s^^ at anytime have brought an action of ejectment against themort- the mortgagor without any notice, and thus have tm-ned have ejected him out of possession (q) ; so that, if the debtor had now *^^ mort- '■ ^•'' ' . gagor ■without no greater mercy shown to him than the Courts of law notice, allowed, the smallest want of punctuality in his pay- (;«) Sect. 18, sub-sect. 17. (q) Ecech v. Eall, Doug. 21 ; (w) Sect. 18, sub-sect. 2. Boe d. Roby v. Maisey, 8 Bar. & (o) Sect. 18, sub-sect. l-t. Cres. 7G7; Boe d. Fisher v. Giles, (j9) Sect. 18, sub-sect, 16. 5 Biiig. 421; Coote on Mortgages, book 3, ch. 3. 448 OF PERSONAL INTERESTS IN REAL ESTATE. Stat. 7 Geo. II. c. 20. New enact- ment. Mortgagor may in some cases sue in his own name. ment would cause liim for ever to lose the estate he had pledged. In modern times, a provision was certainly made bj act of parliament for staying the proceedings in any action of ejectment brought by the mortgagee, on payment by the mortgagor, being the defendant in the action (r), of all ^Jrincipal, interest and costs (-s). But at the time of this enactment, the jurisdiction of equity over mortgages had become fully established ; and the act may consequently be regarded as ancillary only to that full relief, which, as we shall see, the Couii of Chancery was accustomed to afford to the mortgagor in all such cases. The Supreme Court of Judicature Act, 1873 {t), now provides (?() that a mortgagor entitled for the time being to the possession or receipt of the rents and profits of any land, as to which no notice of his in- tention to take possession, or to enter into the receipt of the rents and profits thereof shall have been given by the mortgagee, may sue for such possession, or for the recovery of such rents or profits, or to prevent or recover damages in respect of any trespass or other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person. Interposition of the Court of Chancery. The relative rights of mortgagor and mortgagee appear to have long remained on the footing of the strict construction of their bargain, adopted by the courts of law. It was not till the reign of James I. that the Court of Chancery took upon itself to interfere between the parties {x). But at length, having deter- mined to interpose, it went so far as boldly to lay down as one of its rules, that no agreement of the parties, (r) Doe d. Hunt v. Clifton, 4 Adol. &EU. 814. (*) Stats. 7 Geo. II. c. 20, s. 1 ; L5 & IG Vict. c. 76, ss. 219, 220. (0 Stat. 36 & 37 Vict. c. 66. («) Sect. 25, sub-sect. (5). {r) Coote on Mortgages, book 1, ch. 3. OF A MORTGAGE UEMT, 449" for the exclusion of its interference, should have any effect ( y) . This rule, no less benevolent than bold, is a striking instance of that determination to enforce fair dealing between man and man, which raised the Court of Chancery, notwithstanding the many defects in its system of administration, to tlie power and dignity which it enjoyed. The Court of Chancery accordingly held, that after the day fixed for the payment of the money had passed, the mortgagor had still a right to redeem his estate, on payment to the mortgagee of all principal, interest and costs due upon the mortgage to the time of actual payment. This right still remains, and is called the mortgagor's equity of redemption ; and Equity of no agreement with the creditor, expressed in any terms, ^^ ®™^ ^*^°' however stringent, can deprive the debtor of his equitable right, on payment within a reasonable time. The Judi- cature Act, 1873 (z), has expressly assigned to the Chancery Division of the High Court of Justice all causes and matters for, amongst other things, the redemption or foreclosure of mortgages. If, therefore, after the day fixed in the deed for payment, the mort- gagee should enter into possession of the property mortgaged, the Chancery Division of the High Court will nevertheless compel him to keep a strict account of the rents and profits ; and, when he has received so much as will sufiice to repay him the principal money lent, together with interest and costs, he will be com- pelled to re-convey the estate to his former debtor. In equity the mortgagee is properly considered as having no right to the estate, further than is necessary to secure to himself the due repayment of the money he has ad- vanced, together with interest for the loan ; the equity of redemption, which belongs to the mortgagor, renders the interest of the mortgagee merely of a personal nature, namely, a security for so much money. At {y) 2 Cha. Ca. 148 ; 7 Ves. 273. (z) Stat. 36 & 37 Vict. c. 66, a. 34. R.P. G G 450 OF PERSONAL INTERESTS IN REAL ESTATE. Estate of mortgagee formerly vested on his death in his devisee or heir, but now vests in his per- sonal repre- sentative. law, the mortgagee is absolutely entitled; and, pre- viously to the 1st January, 1882, the estate mortgaged might have been devised by his will {a) , or, if he should have died intestate, would have descended to his heir at law ; but in equity he had a security only for the payment of money, the right to which, in common with his other personal estate, devolved on his exe- cutors or administrators, for whom his devisee or heir was a trustee ; and, when they were paid, such devisee or heir was obliged by the Court, without receiving a sixpence for himself, to re-convey the estate to the mortgagor. The law on this point is now dif- ferent : for, as we have seen {b), by the Conveyancing and Law of Property Act, 1881 (c), on the death, nffcr the ^Ist December, 1881, of a sole mortgagee of any real estate of inheritance, his estate, notuifhstanding any testamentary disposition, devolves to and becomes vested in his personal representatives or representative from time to time, in like manner as if the same were a chattel real vesting in them or him. The executor or administrator of the mortgagee has the same security for and right to the payment of the money as he had previously : so that all the rights and obligations, legal as well as equitable, of a sole mortgagee of real estate now pass upon his death to his personal represen- tative. Indulgent, however, as the Court has shown itself to the debtor, it will not allow him for ever to deprive the mortgagee, his creditor, of the money which is his due ; and if the mortgagor will not repay him within a reasonable time, equity will allow the mortgagee for ever to retain the estate to which he is already entitled at law. For this purpose it will be necessary for the [a) See 1 Jarm. Wills, 689, 4th ed. [b) Ante, pp. 120, 235. {c) Stat. 44 & 45 Vict. c. 41, s. 30. OF A MORTGAGE DEBT. 451 mortgagee to bring an action of foreclosure against the Foreclosure, mortgagor in the Chancery Division of the High Coui't, claiming that an account may be taken of the principal and interest clue to him, and that the mortgagor may be directed to pay the same, with costs, by a day to be appointed by the Court, and that in default thereof he may be foreclosed his equity of redemption. A day is then fixed by the Court for payment ; which day, however, may, on the application of the mortgagor, good reason being shown (r/), be postponed for a time. Or, if the mortgagor should be ready to make repay- ment, before the cause is brought to a hearing, he may do so at any time previously, on making proper appli- cation to the Court, admitting the title of the mortgagee to the money and interest (./ ) . If, however, on the day ultimately fixed by the Com-t, the mone}^ should not be forthcoming, the debtor will then be absolutely deprived of all right to any further assistance from the Court; in other words, his equity of redemption will be fore- closed, and the mortgagee will be allowed to keep, without further hindrance, the estate which was con- veyed to him when the mortgage was first made {g). By the act to amend the practice and course of pro- ceeding in the Court of Chancery, the Court was em- powered, in any suit for foreclosure, to direct a sale of Sale, the property at the request of either party instead of a foreclosure (//) . But this enactment was repealed by the Conveyancing and Law of Property Act, 1881 (?'). By the 25th section of the same act, which applies to actions brought either before or after the commence- ment of the act (A-), in any action, whether for fore- Sale in any action. id) Nanny v. Edwards, 4 Euss. {h) Stat. 15 Sc IG Vict. c. 86, 124; Eyre v. Hanson, 2 Beav. s. 48; Hurst v. Hurst, 16 Beav. 478. 374 ; Neivman v. Selfe, 33 Beav. (/) Stat. 7 Geo. II. c. 20, s. 2. 522. (V) See Heath v. Fugh, 6 Q. B. (0 Stat. 44 & 45 Vict. c. 41, D. 345. 8. 25, sub-sect. 6. (/•) Sect. 25, sub-sect. 5. G G 2 452 OF PERSONA!, INTERESTS IN REAL ESTATE. Action for sale. County- Courts. closure, or for redemption, or for sale, or for the raising and payment in any manner of mortgage money, the Court, on the request of the mortgagee, or of any person interested either in the mortgage money or in the right of redemption (/), may, if it thinks fit, direct a sale of the mortgaged property, on such terms as it thinks fit. An action for redemption is the action brought by a mortgagor, or any person standing in his place, to enforce his equity of redemption. And by the same section of the act {m), any person entitled to redeem mortgaged property may have a judgment or order for sale instead of for redemption in an action brought by him either for redemption alone, or for sale alone, or for sale or redemption in the alternative. But, in an action brought by a person interested in the right of redemption and seeking a sale, the Court may dii'ect the plaintiff to give security for costs (n). The equitable jurisdiction of the Court is now extended to the County Courts with respect to all sums not exceeding five hundred pounds {p). In addition to the remedy by foreclosure, which, it will be perceived, involves the necessity of an action in the Chancery Division of the High Court, a more simple and less expensive remedy is now usually provided in Power of sale, 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 (I) See the interpretation clause, («) Sect. 25, sub-sect. 3. sect. 2. (p) Stat. 28 & 29 Vict. c. 99, (m) Sect. 25, sub-sect. 1 ; see amended by stat. 30 & 31 Vict, sect. 2. c. 142. OF A MORTGAGE DEBT. 4-33 gagor s con- currence can- "were necessary, it has been decided that his concurrence The mort cannot be required by the purchaser (q). The mort gagee, therefore, is at any time able to sell ; but, having not be re- sold, he has no fm-ther 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. By the act New enact- commonly called " Lord Cranworth's Act " (r), a power ^^ ' of sale, a power to insure against fire, and a power to powers of require the appointment of a receiver of the rents, or in ^^ ®' ^' default to appoint any person as such receiver, were rendered incident to every mortgage or charge by deed ^ affecting any hereditaments of any tenure. But these provisions were repealed by the Conveyancing and Law Powers of of Property Act, 1881 (s). By the 19th section of that Xrfmort- act, in all cases of mortg'ao^es made bi/ deed after the gage made . bu deed after ^\st December, 1881, a mortgagee has the following sistDec. powers to the like extent as if they had been in terms ^^^^' confeiTcd by the mortgage deed, but not further, viz. : — (i) a power of sale, (ii) a power to insure against fire, (iii) a power to appoint a receiver, and (iv) a power, while in possession, to cut and sell timber (/). But in the absence these provisions and the operation of this section may ^^ \-^^ ^*^°" be varied or extended or entirely excluded by the terms contrary, of the mortgage deed {u). And a mortgagee is not to exercise the power of sale or the power of appointing a receiver conferred by the above act unless and until , (i) notice requiring payment of the mortgage-money has been served on the mortgagor or one of several mortgagors, and default has been made in payment of the mortgage-money, or of part thereof, for three months {q) Corder v. Morgan, 18 Ves. (*) Stat. 44 & 45 Vict. c. 41, 344; CTay V. AS/tar^c, Sugd. Vend. s. 71. & Pur. Appendix, No. XIII. p. {t) Sect. 19, sub-sects. 1, 4 ; 1096, nth ed. see sect. 2. (>•) Stat. 23 & 24 Vict. c. 145, {u) Sect. 19, sub-sects. 3, 4. part 2. 454 OF PERSONAL INTERESTS IN REAL ESTATE, after such service ; or (ii) some interest under tTie mort- gage is in arrear and unpaid for two months after be- coming due ; or (iii) there has been a breach of some provision contained in the mortgage deed or in the act, and on the part of the mortgagor, or of some person concurring in making the mortgage, to be observed or performed, other than and besides a covenant for pay- ment of the mortgage-money or interest thereon {x). Power is expressly given by the act to a mortgagee exercising the above statutory power of sale by deed to convey the property sold for such estate and interest therein as is the subject of the mortgage, freed from all estates, interests and rights to which the mortgage has priority (//). The proper application of the purchase- money by the mortgagee is also provided for {z) . Where a conveyance is made in j^rofessed exercise of the power of sale conferred by this act, the title of the purchaser is not to be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improj)erly or irregularly exercised ; but any person damnified by an unauthorized, or improper, or irregular exercise of the power, is to have his remedy in damages against the person exercising the power {a). iMortgagor If, after the day fixed for the payment of the money calen^J^ ^^ i^ passed, the mortgagor should wish to pay off the months' notice mortgage, he must give to the mortgagee six calendar to repay. months' previous notice in writing of his intention so to do, and must then punctually pay or tender the money at the expiration of the notice {h) ; 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 [x) Stat. 44 & 45 Vict. c. 41, [a) Sect. 21, sub-sect. 2. B. 20. ib) Shrapyiell v. Blake, 2 Eq. {u) Sect. 21, sub-sect. 1. Ca. Abr. G03, pi. 34. (c) Sect. 21, sub-sect. 3. OF A MORTGAGE DEBT. 465 he should have time afforded him to look out for a fresh security for his money. Moi-tgages of freehold lands are sometimes made for ATortgages for long tenns, such as 1,000 years. But this is not now ^^^^J^^"^^ °* often the case, as the fee simple is more valuable, and 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. The reasons for vesting such terms in trustees for these pur- poses were explained in the last chapter (c). Copyhold, as well as freehold lands, may be the Mortgage of subjects of mortgage. The purchase of copyholds, it copyholds, 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 admittance of the latter as tenant to the lord (d). 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 will 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, (c) See ante, p. 429. {d) Ante, pp. 389, 390. 456 OF PERSONAL INTERESTS IN REAL ESTATE. 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 he paid off, all that will then be necessary will be to procm'e the steward to insert on the coui't rolls a memorandum of acknowledgment, by the mortgagee, of satisfaction of the principal money and interest secured by the surrender (e). 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. Mortgage of leaseholds. Leasehold estates also frequently form the subjects of mortgage. The term of years of which the estate 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 further 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 Conveyancing and Law of Pro- perty Act, 1881 (g), extend also to leaseholds. From what has been said in the last chapter {h), it will appear that, as the mortgagee is an assignee of the term, he will be liable to the landlord, duiing the continuance of the mortgage, for the payment of the rent and the performance of the covenants of the lease ; against this liability the covenant of the mortgagor is his only (e) 1 Scriv. Cop. 242; 1 Watk. s. 19. See the interpretation Cop. 117, 118. clause, sect. 2. iff) Stat. 44 & 45 Vict. c. 41, (/*) Ante, p. 411. OF A MORTGAGE DEBT. 457 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 this means becomes the Mortgage by tenant only of the mortgagor, and consequently a mere ^^ ^^ ^^^^' stranger with regard to the landlord (/). The security of the mortgagee in this case is obviously not the whole term of the mortgagor, but only the new and derivative term created by the mortgage. In some cases the exigency of the circumstances will Deposit of , 1 . , n J . , 1 , title deeds. not admit oi time to prepare a regular mortgage ; a deposit of the title deeds is then made with the mort- gagee ; and, notwithstanding the stringent provision of the Statute of Frauds to the contrary (A) , it was held by the Court of Chancery that such a deposit, even without any writing, operated as an equitable mortgage of the estate of the mortgagor in the lands comprised in the deeds (/) . This doctrine still remains ; and the same doctrine applies to copies of court roll relating to copy- hold lands {m), for such copies are the title-deeds of copyholders. When lands are sold, but the whole of the purchase- Vendor's lien, money is not paid to the vendor, he has a lien in equity on the lands for the amount unpaid, together with interest at four per cent., the usual rate allowed in equity («). And the circumstance of the vendor having taken from the purchaser a bond or a note for the payment of the (i) See ante, p. 425. Vend. & Pur. 630, 13th ed.; Jones {k) 29 Car. II. c. 3, ss. 1, 3 ; v. Smith, 1 Hare, 56 ; 1 Phill. ante, p. 158. 244. {/) Jiussell V. Russell, 1 Bro. C. {») Chapman v. Tanner, 1 Vern. C. 269. See Ex parte Ilaigh, 11 267; Pollcxfen v. Moore, 3 Atk. Ves. 403. 272 ; Mackreth v. Symmons, 15 (;h) TFhitbread v. Jordan, lYou. Ves. 328; Sugd. Vend. & Pur. & CoU. 303 ; lewis v. John, 1 C. 552, 13th ed. P. Coop. 8. See, however, Sugd. 458 OF PERSONAL INTERESTS IN REAL ESTATE. Sale for an- nuitv. money will not destroy the lien (o). But if tHe vendor take a mortgage of part of the estate, or any other independent security, his lien will be gone. If the sale be made in consideration of an annuity, it appears that a lien will subsist for such annuity (p), unless a contrary intention can be inferred from the nature of the transaction (•) Ante, p. 465. ( 469 ) PART V. OF TITLE, It is evident that the acquisition of property is of little benefit, unless accompanied with a prospect of retaining it without interruption. In ancient time conveyances were principally made from a superior to an inferior, as from the great baron to his retainer, or from a father to his daughter on her marriage {a). The grantee became the tenant of the grantor ; and if any consideration were given for the grant, it more frequently assumed the form of an annual rent, than the immediate payment of a large sum of money [h). Under these circumstances, it may*, readily be supposed, that, if the grantor were ready to I warrant the grantee quiet possession, the title of the former to make the grant would not be very strictly investigated ; and this appears to have been the practice in ancient times ; every charter or deed of feoffment usually ending with a clause of warranty, by which the Warranty, feoffor agreed that he and his heirs would warrant, acquit, and for ever defend the feoffee and his heirs against all persons (r). Even if this warranty were not expressly inserted, still it would, seem that the word give, used in a feoffment, had the effect of an implied Warranty im- warranty ; but the force of such implied warranty was ^r^^ "^ ^^^^ confined to the feoffor only, exclusive of his heirs, when- ever a feoffment was made of lands to be holden of the chief lord of the fee (c/). Under an express warranty, Express war- ranty. (tf) See ante, p. 40. {d) 4 Edw. I. stat. 3, c. G ; 2 {b) Ante, p. 41. Inst. 275; Co. Litt. 384 a, n. (1). (r) Bract, lib. 2, cap. 6, fol. 17 a. 170 OF TITLE. tlie 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 {e) ; and this warranty was binding on the heir of the feoffor, whether he derived any lands by descent from the feoffor or not (/), except only in the case of the warranty commencing, as it was said, by disseisin ; that is in the case of the feoffor making a feoffment with warranty of lands of which he, by that very act (g), disseised some person {/i), in which case it was too palpable a hardship to' make the heir answerable for the misdeed of his ancestor. But, even with this exception, the right to bind the heu* by warranty was found to confer on the ancestor too great a power ; thus, a husband, whilst tenant by the curtesy of his deceased wife's lands, could, by making a feoffment of such lands with warranty, deprive his son of the inheritance ; for the eldest son of the marriage would usually be heir both to his mother and to his father ; as heir to his mother he would be entitled to her lands, but as heir of his father he was bound by his warranty. This particular case was the first in which a restraint was applied by parliament to the effect of a warranty, it having been enacted (/), that the son should not, in such a case, be barred by the warranty of his father, unless any heritage descended to him of his father's side, and then he was to be barred only to the extent of the value of the heritage so descended. The f orce of a warranty was afterwards greatly restrained by Warranty other statutes, cuactcd to meet other cases (/.•) ; and tual"^^^^°* the clause of warranty having long been disused in {e) Co. Litt. 365 a. {k) Stat. De clonis, 13 Edw. I. (/) Litt. s. 712. c. 1, as construed by the judges; Iff) Litt. 8. 704; Co. Litt. 371 a. see Co. Litt. 373 b, n. (2) ; (//) Litt. ss. 697, 698, 699, 700. Vaughan, 37-5; stats. 11 Hen. VIL (0 Stat. 6 Edw. I. e. 3. c. 20 : 4 & 5 Anno, c. 16, s. 21. OF TITLE. 471 modern conveyancing, its chief force and effect have now been removed by clauses of two modern statutes, passed at the recommendation of the real property commissioners (/). i In addition to an express warranty, there were for- Words which merly some words used in conveyancing, which in Impiy'^^covc- themselves implied a covenant for quiet enjoyment; naut for quiet and one of these words, namely, the word demise, still ^'',°J^7 retains this power. Thus, if one man demises and lets land to another for so many years, this word deniise operates as an absolute covenant for the quiet enjoy- ment of the land hy the lessee during the term {/n). But if the lease should contain an express covenant by the lessor for quiet enjoyment, limited to his own acts only, such express covenant, showing clearly what is intended, will nullify the implied covenant, which the word demise would otherwise contain (ii) . So, as we have seen, the word give formerly implied a personal Give. warranty; and the word grant was supposed to have Grant. implied a warranty, unless followed by an express cove- nant, imposing on the grantor a less liability (o). An exchange and a partition between coparceners have also Exchange until recently implied a mutual right of re-entry, on Partition. the eviction of either of the parties from the lands ex- changed or partitioned {p). And, by the Eegistry Acts Grant, bar- for Yorkshire, the Avords qrant, harqain and sell, in a ^'^"^ and sell, p ' m bargain deed of bargain and sale of an estate m fee simple, in- and sale of rolled in the Register Office, imply covenants for the YodisMre quiet enjoyment of the lands against the bargainor, his heirs and assigns, and all claiming under him, and also for further assurance thereof by the bargainor, his (?) 3 & 4 Will. IV. c. 27, s. 39; Iron Compani/, Limited, 1 C. P. D. 3 & 4 WiU. IV. 0. 74, s. 14. 145. {m) Spencer'' s case, 5 Eep. 17 a; («) Noke's case, 4 Rep. 80 b. Bac. Ab. tit. Covenant (B) ; Mos- (o) See Co. Litt. 384 a, n. (1). tyn V. The West Mostyn Cual and {p) Bi(siard'scase,ilie]^. 121 a. 472 OF TITLE. heirs and assigns, and all claiming under him, unless restrained by express words (5-). 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 ^^^^ q£ ^^^^ 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 (s) . The writer 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 couvey ; although, in most cases, cove- title, nants for title, as they are termed, are also given to the purchaser. On the sale or mortgage of copyhold lands these covenants are usually contained in a deed of co- venant to surrender, by which the sm-render itself is immediately preceded (/), the whole being regarded as one transaction {u). By these covenants, the heirs of the vendor have been always expressly bound ; but, {q) Stats. 6 Anne, c. 35, ss. 30, (s) Stat, 8 & 9 Vict. c. 106, 34; 8 Geo. II. c. 6, s. 35. s. 4, repealing 7 & 8 Vict. c. 76, [)•) As in conveyances hij com- s. 6. panics under the Lands Clauses {t) By the Stamp Act, 1870, Consolidation Act, 1845, stat. stat. 33 & 34 Vict. c. 97, such a 8 tfe 9 Vict. c. 18, s. 132 ; and in deed of covenant is now charged conveyances to the governors of with a duty of 10a\ ; and if the Queen Anne's Bounty, stat. 1 & 2 ad valorem duty on the sale or Vict. c. 20, 8. 22. Conveyances mortgage is less than that sum, by joint stock companies regis- then a duty of equal amount only tered under the Joint Stock Com- is payable. panics Act, 1856 (now repealed), {u) Riddell v. Riddell, 7 Sim. also implied covenants for title. 529. Stat. 19 & 20 Vict. c. 47, s. 46. OF TITLE. 473 like all other similar contracts, they are binding on the heir or devisee of the covenantor to the extent only of the property which may descend to the one, or be devised to the other (.r) , It is not necessary expressly Heirs now to bind the heirs of a vendor in covenants for title made covenant after the 31st December, 1881. For, by the Convey- ^thoutex- ancing and Law of Property Act, 1881 (?/), a covenant, of them and a contract under seal, and a bond or obligation *^^^^^^- under seal made after the 31st December, 1881, though not expressed to bind the heirs, shall, so far as a contrary intention is not expressed therein, and subject to the terms thereof, operate in law to bind the heirs and real estate, as if heirs were expressed. Unlike the simple clause of warranty in ancient days, modern covenants . for title were five and are now four in number, and few conveyancing forms can exceed them in the luxuriant growth to which their verbiage at- tained {a) . The first covenant was, 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 incumbrances; and the last, that the vendor and his heirs ^\dll make any further assurance for the convey- ance of the premises which may reasonably be required. At the present day 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 much diminished. These covenants for title vary in comprehensiveness, according to the circumstances of the case. A vendor never gives ab- Covenants for solute covenants for the title to the lands he sells, but ygndoJ ^ 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 (x) Ante, pp. 83, 85. ss. 59, 1. (y) Stat. 44 & 45 Vict. c. 41, {a) See Appendix (D). ■I^Kfw '^^ 474 OF TITLE. title by a inortofasror been left to him by his father's will, the covenants will extend only to the acts of his father and himself (b) : but if the veijdor should himself have purchased the lands, he will covenant only as to his own acts (c), and the purchaser must ascertain by an examination of the previous title, that the vendor purchased what he may Covenants for properly re-sell. A mortgagor, on the other hand, 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 Covenants by 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 {d) ; 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 investi- gation (/). trustees. Covenants , for title now implied by statute in certain cases. Certain covenants for title are now implied by virtue of the 7th section of the Conveyancing and Law of Property Act, 1881, in certain cases upon conveyances made after the 31st December, 1881 {g). The cove- nants so implied, and the cases in which they are implied, appear to be the following : — (1) In a conveyance for valuable consideration^ other {b) Sugd. Vend. & Pur. 574, Hth ed. (p) See Appendix (D) . [d) Sugd. Vend. & Pur. 574, Hth ed. (/) Ibid. {g) Stat. 44 & 45 Vict. c. 41, sects. 7 (sub-sects. 1, 8), 1; see the interpretation clause, sect. 2, also sects. 59 (sub-sect. 2), 60 (sub-sect. 2), 64. or TITLE. 475 than a mortgage^ covenants hi/ a person wlio conveys and is expressed to convex/ as beneficial owner, for right to convey, for quiet enjoyment, for freedom, from incum- brances, and for further assurance limited to the acts of the person who so conveys, and of any one through whom he derives title otherwise than by purchase for value. The expression "purchase for value" does not in this case include a conveyance in consideration of marriage (/) : (2) In a conveyance of leasehold property for valuable consideration, other than a mortgage, the same covenants by a person icho conveys and is expressed to convey as bene- ficial owner as are implied in case (1) (/>•) ; and a further covenant that the lease is valid, that the rent has been j^aid, and that the covenants have been performed, limited to the acts of the person who so conveys, and of any one through whom he derives title otherwise than by purchase for value. Purchase for value has the same meaning in this case as in case (1) (/) : (3) In a conveyance by way of mortgage, absolute cove- nants for title by a person who conveys and is exjoressed to convey as beneficial owner {m) : (4) In a conveyance by way of mortgage of leasehold p)roperty, the same covenants by a person tcho conveys and is expressed to convey as beneficial owner as are implied in case (3) {n), and, in addition, an absolute covenant that the lease is valid, and covenants for payment of the rent reserved by, and performance of the covenants contained in the lease, so long as any money remains (i) Sect. 7, sub-sect. 1 (A). 420, 4tli ed. [k) An assignment of lease- (;») Sect. 7, siib-sect. 1 (C). holds is included incase (1); see See ante, p. 474; Davidson's Prec. sect. 2. Conv., Vol. I., Parti., p. 121, 4tli (/) Sect. 7, sub-sect. 1 (B). As* ed.. Vol. II., Part II., pp. 110, to covenants for title on an assign- 313, 314, 4th ed. mentof leaseholds, see Davidson's {») A mortgage of leaseholds Precedents in Conveyancing, Vol. is included in case (3) ; see sect. 2. II., Part I., pp. 214—216, 418— 476 OF TITLE. on tlie seciuity of the conveyance, and to indemnify the mortgagor against loss by reason of non-payment of the rent or non-performance of the covenant {p) : (5) In a conveyance hy u-ay of settlement, a covenant for further assm^ance by a person ir/io conveys and is ex- pressed to convey as settlor limited to the person so con- veying, and every person deriving title under him by deed or act or operation of law in his lifetime sub- sequent to that conveyance, or by testamentary disposi- tion or devolution in law on his death (q) : (6) In any conveyance, a covenant against incum- brances hy every person icho conveys and is expressed to convey as trustee or mortgagee, or as personal representative of a deceased person, or as committee of a lunatic so found by inquisition, or under an order of tJie Court, which covenant is to be deemed to extend to every such person's own acts only (r) : (7) Where in a conveyance it is expressed that hy direc- tion of a perso)i expressed to direct as beneficial owner another person conveys, then the person giving the direction, whether he conveys and is expressed to convey as beneficial owner or not, is to be deemed to convey and to be expressed to convey as beneficial owner, and a covenant on his part is to be implied accordingly {s) : (8) Where a wife conveys and is expressed to convey as beneficial owner, and the husband also conveys and is ex- pressed to convey as beneficial owner, then the wife is to be deemed to convey and to be expressed to convey by direction of the husband, as beneficial owner; and, in {p) Stat. 44 & 45 Vict. c. 41, Vol.III.,pp.27o, 634,1029, 3rded. sect. 7, sub-sect. 1 (D). As to (;•) Sect. 7, sub-sect. 1 (F). See mortgages of leasebolds, see ante, ante, p. 474 ; Davidson's Prec. p. 456; Davidson's Prec. Conv., Conv., Vol. I., p. 122, Vol. II., Vol. II., Part II., pp. 117, 413, Part I., pp. 261, 275, 4tli ed. 420, 421, 443, 4tli ed. («) Sect. 7, sub-sect. 2. See 1 {q) Sect. 7, sub-sect. 1 (E). As Dart, Vend. & Pur. 548, 5th ed.; to covenants for title in settle- Davidson's Prec. Conv., Vol. II., ments, seeDavidson'sPrec. Conv., Part I., p. 261, n. (o), 4tli ed. OF TITLE. 477 addition to the covenant implied on the part of the wife, there is also to be implied, first, a covenant on the part of the husband as the person giving that direction, and, secondly, a covenant on the part of the husband in the same terms as the covenant implied on the part of the v^iie{t). In examining any of the above cases the reader must remember always to refer to the interpretation clause of the act (sect. 2). Where in a conveyance made after the 31st De- Cases in cember, 1881, a person conveying is not expressed to nants for title convey as beneficial owner, or as settlor, or as trustee, or ^^^^°j^°^ as mortgagee, or as personal representative of a deceased person, or as committee of a lunatic so found by in- quisition, or under an order of the Court, or by direction of a person as beneficial owner, no covenant on the part of the person conveying is to be implied in the convey- ance by virtue of the 7th section of the above act (u). . In the same section a conveyance includes a deed conferring the right to admittance to copyhold or Copyholds, customary land, but does not include a demise by way of lease at a rent, or any customary assurance, other than a deed, conferring the right to admittance to copyhold or customary land {x) . The benefit of a Benefit of ,.TT p • 1 • I ^ 1 1 implied cove- covenant implied as aforesaid is to be annered and ^^^^ ^o run incident to, and to go with, the estate or interest of the ""'i*^ t^® l^^^*^- implied covenantee, and is to be capable of being en- forced by every person in whom that estate or interest is, for the whole or any part thereof from time to time vested (y). A covenant implied as aforesaid may be Covenant im- varied or extended by deed, and, as so varied or ex- gtatute^n (0 Sect. 7, sub-sect. 3. As to Part I., p. 243, 4th ed. covenants for title on sale of a («) Sect. 7, sub-sect. 4. married woman's property, see 1 {x) Sect. 7, sub-sect. 5. Dart, Vend. «& Pur. 548, 5th ed. ; [y) Sect. 7, sub-sect. 6. Davidson's Prec. Conv., Vol. II., may be varied by deed. 478 OF TITLE. Sixty years' title f omierly required. Advowson. Copyholds. Leaseholds. j tended Is to operate, as far as may be, in the like I manner, and with all the like incidents, effects and conse- I quences, as if such variations or extensions were directed to be implied in the 7th section of the above act (s). The period for which the title was formerly investi- gated was the last sixty years (a) : and every vendor of freehold property was bound, at his own expense, to furnish the intended purchaser with an abstract of all the deeds, wills and other instruments which had 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 ^\dth the jDrobates or office copies of the wills ; for, in every agreement to sell was implied by law an agree- ment to make a good title to the property to be sold {b). The proper length of title to an advowson was, however, 100 years (c), as the presentations, which are the only fruits of the advowson, and, consequently, the only occasions when the title is likely to be contested, occur only at long intervals. On a j)^ii'chase of copyhold lands, an abstract of the copies of court roll, relating to the property for the last sixty years, was delivered to the purchaser. And even on a purchase of leasehold property, the purchaser was strictly entitled to a sixty years' title {d) ; that is, supposing the lease to have been granted within the last sixty years, so much of the title of the lessor was requn-ed to be produced as, mth the title to the term since its commencement, would make up the full period of sixty years. If the lease were more than sixty years old, the lease was required to be produced or its absence accounted for, and evidence given of the whole of its contents (/) . But intermediate c. 41, {-) Stat. 44 & 45 Viet sect. 7, sub-sect. 7. (a) Cooper v. Emeri/, 1 Phill. 388. (i) Sugd.Vend. &Pur. 16, Uth ed. (c) Ibid. 367. (a') Purvis v. Bayer, 9 Price, 488 ; Souter V. Brake, 5 B. & Adol. 992. (/) Frend v. Suckle)/, Ex. Ch., L. R.. o Q. B. 213. or TITLE. 479 assignments upwards of sixty years old were not re- quired to be produced. The Vendor and Purcliaser New enact- Act, 1874 {g), however, now provides (/i), that in the ™^^ ' completion of any contract of sale of land made after the 31st day of December, 1874, and subject to any stipulation to the contrary in the contract, forty years Forty years' shall be substituted as the period of commencement of sufficient. title which a purchaser may require, in place of sixty years, the present period of such commencement ; never- theless earlier title than forty years may be required in cases similar to those in which earlier title than sixty years may now be required. The act uses the word " land," which has a statutory meaning when used in an act of parliament, including tenements and heredita- ments of any tenure, unless there are words to restrict the meaning to tenements of some particular tenure (/). Now an advowson is certainly a hereditament ; but as Act presumed the act substitutes the period of forty years "in place t'o advowsons. of sixty years the present period," and as one hundred years and not sixty years was, when the act passed, the proper period for the deduction of the title to an advow- son, it is presumed that the act was not intended to apply to advowsons, and that the title to an advowson must, therefore, still be deduced for one hundred years. The act further provides (^•), that in the completion of any such contract as aforesaid, and subject to any Grantee or stipulation to the contrary in the contract, under a con- term^fVears tract to grant or assign a term of years, whether derived cannot now or to be derived out of a freehold or leasehold estate, to freehold, the intended lessee or assign shall not be entitled to call for the title to the freehold. The act further pro- vides (/), that in the completion of any such contract, Eecitals and subject to any stipulation to the contrary, recitals, oj^^sufficf nt evidence, (y) Stat. 37 & 38 Vict. c. 78. {k) Stat. 37 & 38 Vict. c. 78, (A) Sect. 1. s. 2. See Patman v. Harland, 17 (i) Stat. 13 & 14 Vict. c. 21, Ch. D. 353. 8. 4. (/) Sect. 2. 480 OF TITLE. statements and descriptions of facts, matters and parties contained in deeds, instruments, acts of parliament, or statutory declarations twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters and descrip- tions. The last provision adopts, as a general rule, a stipulation which had been usually inserted in condi- tions of sale, and in the absence of which the purchaser had a right to require evidence of the truth of the matters recited. Reason for requiring a sixty years' title. Duration of human life. It is not easy to say how the precise term of sixty years came to be fixed on as the time for which an abstract of the title should be required. It is true, that by a statute of the reign of Henry YIII. {ni), the time within which a writ of right (a proceeding now abo- lished [n] ) 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 remainderman, after an estate for life or in tail, to the possession of the lands does not accrue until the determination of the particular estate (|j). A remainder after an estate tail may, however, be barred by the proper means ; but a remainder after a mere life estate cannot. The ordinary duration of human life was therefore, if not the origin of the rule requiring a sixty years' 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 {m) 32 Hen. VIII. c. 2 ; 3 Black. Com. 196. («) By Stat. 3 & 4 Will. IV. 0. 27, s. 36. ip) Ante, p. 266. See Sugd, Vend. & Pur. 609, 11th ed. OF TITLE. 481 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 {q). The recent shortening of the period from sixty to forty years appears justifiable only from the fact that in prac- tice purchasers are generally found willing to accept a forty years' title ; in like manner as, in the purchase of leasehold estates, a condition to dispense with the title to the freehold was usually submitted to. "With regard to the rights of vendors and purchasers Rights of on sales of land made after the 31st December, 1881, purchasers on further alterations were made in the law by the ^i^^^ ^^^^. , , . '^ after the 31st 3rd section of the Conveyancing and Law of Property Dec. I88I, Act, 1881 (r). This section, however, applies only if o^Jprtr'^ and as far as a contrary intention is not expressed stipulation to in the contract of sale, and has effect subject to the terms thereof (.s). It is therein enacted as follows : — (Sub-sect. 1.) Under a contract to sell and assign Contract for a term of years derived out of a leasehold interest in assignment of land, the intended assign shall not have the right '^^^'^erlease. to call for the title to the leasehold reversion (/). (Sub-sect. 2.) "Where land of copyhold or customary Sale of land, tenure has been converted into freehold by enfranchise- copyhoid, ment, then, under a contract to sell and convey the which has 1dG6I1 G11~ freehold, the purchaser shall not have the right to call franchised, for the title to make the enfranchisement (ii). (Sub-sect. 3.) A purchaser of any property shall not Purchaser require the production, or any abstract or copy of any °^°^° require pro- (5) See Mr. Brodie's opinion, & Pur. 367, 14th ed. ; 1 Dart, 1 Hayes's Conveyancing, 5G4 ; Vend. & Pur. 167, 291, 5th ed. Sugd. Vend. & Pur. 365, 14th ed. (u) As to the law previously to (r) Stat. 44 & 45 Vict. c. 41 ; this enactment, see Sugd. Vend, see sect. 3, sub-sects. 8, 10. & Pur. 372, 14th ed.; 1 Dart, («) Sect. 3, sub-sect. 9. Vend. &Pur. 289, 5th ed. ; David- {t) As to the law previously to .son, Prec. Conv. vol. i. 530, 623, this enactment, see Sugd. Vend. 4th ed. R.P. I I 482 OF TITLE. ductlon of documents of title dated before time of commence- ment of title ; or make any -objection or inquiry with respect to them; even though he have notice of them. Purchaser to assume that such docu- ments of title are correctly and suflB.- ciently recited ; and were in all respects perfected. Sale of lease- holds. Sale of under- lease. deed, will or other document, dated or made before the time prescribed by law, or stipulated for commencement of the title, even though the same creates a power subsequently exercised by an instrument abstracted in the abstract furnished to the purchaser ; nor shall he require any information, or make any requisition, objection or inquiry, with respect to any such deed, will or document, or the title prior to that time, not- withstanding that any such deed, will or other document, or that prior title, is recited, covenanted to be produced, or noticed ; and he shall assume, unless the contrary appears, that the recitals contained in the abstracted instruments of any deed, will or other document, forming part of that prior title, are correct, and give all the material contents of the deed, will or other document so recited, and that every document so recited was duly executed by all necessary parties, and per- fected, if and as required, by fine, recovery, acknow- ledgment, inrolment or otherwise (.»). (Sub-sect. 4.) Where land sold is held by lease (not including under-lease) the purchaser shall assume, unless the contrary appears, that the lease was duly granted ; and on production of the receipt for the last payment due for rent under the lease before the date of actual completion of the purchase, he shall assume, unless the contrary appears, that all the covenants and provisions of the lease have been duly performed and observed up to the date of actual completion of the purchase (y) . (Sub-sect. 5.) Where land sold is held by under- lease, the purchaser shall assume, unless the contrary appears, that the under-lease and every superior lease (x) As to the law previously to this enactment, see Phillips v. Caldcleugh, L. R., 4 Q. B. 159; 1 Dart, V. & P. 1.52, 5th ed. ; Davidson, Prec. Conv. vol. i. 542, G08, 4th ed. [y) As to the law previously to this enactment, see 1 Dart, Vend. & Pur. 169, 5th ed. ; Davidson, Prec. Conv. vol. i. 536, 624, 4th ed. OF TITLE. 483 were duly granted ; and, on production of the receipt for the last payment due for rent under the under- lease before the date of actual comj)letion of the pui"- chase, he shall assume, unless the contrary appears, that all the covenants and provisions of the under-lease have been duly performed and observed up to the date of actual completion of the purchase, and further that all rent due under every superior lease, and all the cove- nants and provisions of every superior lease, have been paid and duly performed and observed up to that date {a) . Purchaser to (Sub-sect. 6.) On a sale of any property, the expenses penses of^' of the production and inspection of all acts of parlia- inspection . . , , , , . p , of dociiments ment, mciosure awards, records, proceedings oi courts, of title not in court rolls, deeds, wills, probates, letters of administra- vendor's pos- ' ' '- . session — ■ tion, and other documents, not in the vendor's pos- and of all session, and the expenses of all joui-neys incidental to cidenT^^^^" such production or inspection, and the expenses of thereto— , . (, . T . .p . , and of pro- searching lor, procuring, making, veniymg, and pro- curing all ducing all certificates, declarations, evidences, and in- evidence of p . . , , . title not m formation not m the vendor s possession, and all at- vendor's pos- tested, stamped, office or other copies or abstracts of, or anTof^all extracts from, any acts of parliament or other documents copies, &c. of p ., j'ji ij • • f 1 such docu- aioresaid, not in the vendor s possession, it any such meuts of production, inspection, journey, search, procuring, mak- ?]*^f~., ing, or verifying is required by a purchaser, either for him, whether verification of the abstract, or for any other purpose, ti'on^orthTab- shall be borne by the purchaser who requires the same ; stract or for and where the vendor retains possession of any docu- poses— ment, the expenses of making any copy thereof, at- ^°*^. °* ^^^ tested or unattested, which a purchaser requires to be documents of delivered to him shall be borne by that purchaser (b). b^^ygSdw"^'^ (Sub-sect. 7.) On a sale of any property in lots, a gale of pro- perty in lots. (a) See preceding note. Dart, Vend. & Pur. 156, 407, (i) As to the law previously to 408, 5th ed. ; Davidson, Prec. this enactment, see Sugd. Vend. Conv. vol. i. 550, 554, GOO, 4th ed. & Pur. 430, 431, 14th ed. ; 1 ii2 484 OF TITLE. Rights of piii'chaser in case of action for specific performance. Contract to grant an underlease made after 31st Dec, 1881. purcliaser of two or more lots, held wholly or partly under the same title, shall not have a right to more than one abstract of the common title, except at his own expense (r). (Sub-sect. 11.) Nothing in this section shall be con- strued as binding a purchaser to complete his purchase in any case where, on a contract made independently of this section, and containing stipulations similar to the provisions of this section, or any of them, specific per- formance of the contract would not be enforced against him by the court. By the 13th section of the same act, on a contract, made after the 31st December, 1881 [d), to grant a lease for a term of years to be derived out of a lease- hold interest, with a leasehold reversion, the intended lessee shall not have the right to call for the title to that reversion (/). But this section applies only if and as far as a contrary intention is not expressed in the con- tract and has effect subject to the terms thereof [g). Stipulations similar to the provisions of the Convey- ancing and Law of Property Act, 1881, quoted above, were, previously to the commencement of that act, usually inserted by vendors in contracts and cbnditions of sale, with the object of preventing the assertion of rights to which a pui'chaser would otherwise have been entitled (Ji). The effect of the above enactments is that upon an open contract, that is, in the absence of any special stipulations, the rights of the purchaser are con- siderably curtailed, while the vendor is relieved from many obligations previously imposed uj^on him by law. {c) As to the law previously to this enactment, see 1 Dart, Vend. & Pur. 12G, 5th ed.; Davidson, Prec. Conv. vol. i. 526, 4th ed. {d) Sect. 13, sub-sect. 3. (/) As to the law previously to this enactment, see Sugd. Vend. & Piir. 367, Hth ed. ; 1 Dart, Vend. & Pur. 167, 291, 5th ed. {g) Sect. 13, sub-sect. 2. {h) Davidson, Prec. Conv. vol. i. 506, 607, 623; vol. ii. 13, 16, 4th ed. OF TITLE. 485 The abstract of the title will of course disclose the Concurrence names of all parties, who, besides the vendor, may be terested!^ ^^' interested in the lands; and, if he desire to complete the sale without resorting to the aid of the Court, the concurrence of these parties must be obtained by him, in order that an unincumbered 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 (/). If the widow of any previous owner is entitled to dower out of the lands (,/), she must concur in the conveyance ; if the lands are subject to a rent-charge {k), the person entitled thereto must join to release the lands from his charge. By the 5th section of the Conveyancing and Law of Property Act, 1881 (/), upon sales of land subject to any incumbrance {m) made or to be completed after the 31st December, 1881 («), the Court may, if it thinks fit, Money suffi- on the application of any party to the sale, direct or ^{^q for an allow payment into Court, in case of an annual sum incumbrance ■^ •' ' , may now be charged on the land, or of a capital sum charged on a paid into determinable interest in the land, of such amount as, °^^ ~ when invested in government securities, the Court con- siders will be sufficient, by means of the dividends thereof, to keep down or otherwise provide for that charge, and in any other case of capital money charged on the land, of the amount sufficient to rp^eet the in- cumbrance and any interest due thereon ; ^ut in either together with case there is also to be paid into Court such additional ^de^or^future amount as the Court considers will be sufficient to meet costs, &c. the contingency of further costs, expenses, and interest (j) Ante, p. 445. fee, or for a less estate, and a (j) Ante, pp. 246 — 252. trust for seeming money, and a {k) Ante, p. 344. lien, and a charge of a portion, {I) Stat. 44 & 45 Vict. c. 41. annuity, or other capital or an- ' («() By sect. 2 (vii.). Incum- nual sum. branco includes a mortgage in («) Sect. 5, sub-sects. 1, 4. 486 OF TITLE. Court may thereupon de- clare land to be freed from incumbrance. The money in Court mail 1*6 ordered to be paid to the persons en- titled thereto. and any other contingency, except depreciation of In- vestments, not exceeding one-tenth part of the original amount to be paid in, unless the Court for special reason think fit to require a larger additional amount. Thereupon, the Court may, if it thinks fit, and either after or without any notice to the incumbrancer (;;), as the Court thinks fit, declare the land to be freed from the incumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court {(j) . After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give direc- tions respecting the application or distribution of the capital or income thereof {>•) . Application of purchase - money. New enact- ment. When lands were sold by trustees, and the money was directed to be paid over by them to certain given persons, it was formerly obligatory on the purchaser to see that such persons were actually paid the money to which they were entitled, unless it were expressly pro- vided by the instrument creating the trust, that the receipt of the trustees alone should be an effectual dis- charge (s). The duty thus imposed being often exceed- ingly inconvenient, and tending greatly to prejudice a sale, a declaration, that the receipt of the trustees should be an effectual discharge, was usually inserted, as a common form, in all settlements and trust deeds. By Lord St. Leonards' Act, it was enacted that the boi^d fide payment to and the receipt of any person to whom any purchase or mortgage money should be payable upon any express or implied trust, should effectually (^) See sect. 2 (vii.). {(j) Sect. 5, sub-sect. 2. (r) Sect. 5, sub-sect. 3. seq. Sugd. Vend. & Pur. 657 et 14th ed. OF TITLE. 487 discharge the person paying the same from seeing to the application or being answerable for the misappli- cation thereof, unless the contrary should be expressly declared by the instrument creating the trust or se- ■ curity (t), A further provision that trustees' receipts should be a sufficient discharge was contained in Lord Cran worth's Act {u). This enactment, however, ex- tended only to instruments executed after the passing of the act, the 28th August, 1860. It was repealed by the Conveyancing and Law of Property Act, 1881 (.r), by the 36th section of which it is enacted that the re- ceipt in writing of any trustees or trustee for any money, Trustee's re- securities or other personal property or effects payable, ^^^^^ i i 1 J L J f money, securi- transferable or deliverable to them or him under any ties and other trust or power shall be a sufficient discharge for the jj«-*y" now^a same, and shall effectually exonerate the person paying, §jood dis- transferring or delivering the same from seeing to the application or being answerable for any loss or misappli- cation thereof. This enactment applies to trusts created either before or after the commencement of the act {y) . Supposing 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 desir- able that the person so rightfully entitled 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 dor- (/) Stat. 22 & 23 Vict. c. 35, (.r) Stat. 44 & 45 Vict. c. 41, 8. 23. 8. 71. {ti) Stat. 23 & 24 Vict. c. 145, (y) Sect. 36, sub-sect. 2. 8. 29. 488 OF TITLE. Statutes of LimitatioD . Stat. 3 & 4 Will. IV. c. 27. ^?> Disabilities. mant. Various acts for the limitation of actions and suits relating to real property have accordingly been passed at different times {a). By a statute of the reign of Greorge III. {h) 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 which was in force until the first of January, 1879 [c], was passed in the reign of King William IV., at the sug- gestion of the real property commissioners. By this act, no person could bring an action for the recovery of lands but within twenty years next after the time at which the right to bring such action should have first accrued to him, or to some person through whom he claimed [d) ; and, as to estates in reversion or remainder, or other future estates, the right was deemed to have first ac- crued at the time at which any such estate became an estate in possession {e) . But a written acknowledgment of the title of the person entitled, given to him or his agent, signed by the person in possession, extended the time of claim to twenty years from such acknowledg- ment (/ ) . If, however, when the right to bring an action first accrued, the person entitled should have been under disability to sue by reason of infancy, coverture (if a woman), idiocy, lunacy, unsoundness of mind, or ab- sence beyond seas, ten years were allowed from the time when the person entitled should have ceased to be under any disability, or should have died, notwithstanding the period of twenty years above mentioned might have (a) See 3 Black. Com. 196, 306, amended as to mortgagees by 307; Stat. 21 Jac. I. o. 16; Siigd. Vend. & Pur. 608 et seq. lltbed. {b) Stat. 9 Geo. III. c. 16, amended by stat. 24 & 25 Vict. c. 62, and extended to the Duke of Cornwall by stats. 23 & 24 Vict. c. 53, and 24 & 25 Vict, c. 62, s. 2, and extended to Ire- land by stat. 39 & 40 Vict. c. 37. (c) Stat. 3 & 4 Will. IV. c. 27, stat. 7 Wm. IV. & 1 Vict. c. 28. [d) Stat. 3 & 4 WiU. IV. c. 27, s. 2. See Xe2}enn v. Boe, 2 Mee. & Wels. 894. (e) Sect. 3. See Boe d. John- son d. Liversedge, 1 1 Mee. & Wels. 517. (/) Sect. 14. See Boe d. Cur- zon V. Edmo7ids, 6 Mee. & Wels. 295. OF TITLE. 489 expired (^), yet so that the whole period did not, inelud- iug the time of disability, exceed forty years {//) ; and no further time was allowed on account of the disability of any other person than the one to whom the right of action first accrued (/). When any land or rent was ; Exiiress trust. vested in a trustee upon any express trust, the right of the cestui que trust, or any party claiming through him to bring a suit against the trustee, or any person claim- ing through him, to recover such land or rent, was deemed to have first accrued at and not before the time at which such land or rent should have been conveyed to a purchaser for a valuable consideration, and was then deemed to have accrued only as against such purchaser and any person claiming through him (/.•}. And it was enacted by the Supreme Court of Judicature Act, 187'3 (/), that no claim of a cestui que trust against his trustee for any property held on an express trust, or in respect of any breach of such trust, should be held to be barred by any Statute of Limitations. The Act of King Wil- liam IV. further provided {m), that in every case of a concealed fraud, the right of any person to bring a suit Concealed in Equity for the recovery of any land or rent, of which he, or any person through whom he claimed, might have been deprived by such fraud, should be deemed to have first accrued at and not before the time at which such fraud should, or with reasonable diligence might, have been {n) first known or discovered ; provided that nothing in that clause contained should enable any owner of lands or rents to have a suit in Equity for the (^) Sect. 16; Sorrows \. Ellison, affirmed 8 De Gex, M. & G. 69. L. R., 6 Exch. 128. {I) Stat. 36 & 37 Vict. c. G6, (A) Sect. 17. s. 25, sub-sect. (2). {i) Sect. 18. {m) Stat. 3 & 4 Will. IV. c. 27, {k) Sect. 25 ; Commissioners of s. 26 ; Sturgis v. Morse, 24 Beav. Charitable Donations v. Wybrants, 541 ; affirmed 3 De Gex & Jo. 1. 2 Jones «& Lat. 182 ; Cox v. Bol- («) Chctham v. Eoare, L. R., 9 man, 2 De Gex, M. & G. 592; Eq. 571. Snow V. Booth, 2 K. & J. 132 ; 490 OF TITLE. recovery tliereof, or for setting aside any conveyance thereof on account of fraud, against any bona fide pur- chaser for valuable consideration, who had not assisted in the commission of such fraud, and who at the time he made the purchase did not know and had no reason to believe that any such fraud had been committed (o). And nothing in the act contained was to be deemed to interfere with any rule or jurisdiction of Courts of Equity in refusing relief, on the ground of acquiescence or other- wise, to any person whose right to bring a suit might Mortgagee in not have been barred by virtue of that act {p). The act further provided, that whenever a mortgagee had ob- tained possession of the land comprised in his mortgage, the mortgagor should not bring a suit to redeem the mortgage but within twenty years next after the time when the mortgagee obtained possession, or next after any written acknowledgment of the title of the mort- gagor, or of his right to redemption, should have been given to him or his agent, signed by the mortgagee {q). It has been held that the provision of the act allowing fm-ther time to persons under certain disabilities {r) does not apply to the case of a mortgagor seeking to redeem lands of which a mortgagee is in possession (s). Advowson. By the same act the time for bringing an action or suit to enforce the right of presentation to a benefice was limited to three successive incumbencies, all adverse to the right of presentation claimed, or to the period of sixty years, if the three incumbencies did not together amount to that time {t) ; but whatever the length of the incumbencies, no such action or suit could be brought after the expiration of 100 years from the time at which (o) Vane v. Vane, L. R., 8 Ch. 383. {p) Stat. 3 & 4 Wm. IV. c. 27, s. 27. {q) Sect. 28. SeeJIi/de v. Dal- laway, 2 Hare, 528 ; Trulock v. Euheij, 12 Sim. 402 ; Lucas v. Dennison, 13 Sim. 584 ; Stansficld V. Eobson, 16 Beav. 236. (r) Sect. 16, ante, p. 488. {s) Kinsman v. House, 17 Ch. D. 104 ; Forster v. Patterson, ib. 132. (0 Sect. 30. OF TITLE. 491 adverse possession of the benefice should have been ob- tained (/^). Money secured by mortgage or judgment, Judgments. or otherwise charged upon land, and also legacies, were Legacies, to be deemed satisfied at the end of twenty years, if no interest should have been paid, or written acknowledg- ment given in the meantime (,r). The right to rents, Rents. whether rents service or rents charge, and also the right to tithes when in the hands of laymen (//), was subject Tithes, to the same period of limitation as the right to land (s). And in every case where the period limited by the act was 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, was extinguished {a). A new Statute of Limitations has now been passed {h), New Statute which came into operation on the 1st of January, 1879 (c). "/g^g"^*^' It is called the Real Property Limitation Act, 1874 (d). This act shortens the period of twenty years given by the act of Will. IV. to twelve years (e). It also shortens further the time allowed to estates in reversion or re- mainder or other future estates, in cases where time has begun to run against the owner of the particular estate ; giving twelve years only from that time, or six years {>() Sect. 33. Will. IV. c. 100, amended by stat. (.«■) Sect. 40. This section ex- 4 & 5 Will. IV. c. 83 ; Salkeld tended to legacies payable out of v. JoJiiiston, 1 Mac. & Gord. 242. personal estate ; Sheppardv.BuJce, The circumstances under which 9 Sim. 567. And in this case lands may be tithe free are well absence beyond seas was no dis- explained in Burton's Compen- ability. Stat. 19 & 20 Vict. c. 97, dium, ch. 6, sect. 4. s. 10. {fi) Sect. 34 ; Scott v. Nixon, 3 (y) Bean of Ely v. Bliss, 2 De Dru. & War. 388 ; Be Beauvoir v. Gex, M. & G. 459. Oiven, 5 Ex. Rep. 16G. {£) Stat. 3 & 4 Will. IV. c. 27, {h) Stat. 37 & 38 Vict., c. 57. s. 1. As to the time required to (e) Sect. 12. support a claim of modus deci- {d) Sect. 11. mandi, or exemption from or dis- {e) Sects. 1, 6, 7, 8. charge of tithes, see stat. 2 & 3 492 OF TITLE. from the vesting in possession, whicliever period shall be the longer ; and if the particular tenant is barred, every reversioner claiming under any deed, will or settlement, executed or taking effect after the time when the right first accrued to the particular tenant is barred also (,/) . The period of ten years allowed by the former statute in cases of disability is shortened to six years (g) . And absence beyond seas is removed from the list of disabilities (h). The total period of forty years allowed Express trust by the former act is reduced to thirty (/). And the law as to express trusts (k) is again altered by an enactment, that, after the commencement of that act, no action, suit or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent at law or in equity, and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable and .so secured, or any damages in respects of such arrears, except within the time within which the same would be recoverable if there were not any such trust (/) . of money or legacy charged on laud. Prescription. Legal memory. The title to incorporeal rights, whether appendant, appm'tenant or in gross, depends upon grant or upon prescription from immemorial user, by which a grant is implied. The time of legal memory was long since fixed at the beginning of the reign of King Richard I. by analogy to the time which, by a statute of Ed- ward I, (m), was fixed for the limitation of the old writ of right (;?). And in the absence of an express grant, a man might either prescribe that he and his ancestors had from time immemorial exercised a certain (/) Stat.37&38Vict. C.57, 8.2. iff) Sect. 3. (A) Sect. 4. (0 Sect. 5. {/c) See ante, p. 489. (0 Sect. 10. (wi) Stat, of Westminster the First, 3 Edw. I. c. 39. («) Litt. sect. 170; 2 Inst. 238; 2 Bl. Com. 31. See ante, p. 480. OF TITLE. 493 right in gross (o), or that ho, being seised in fee of certain lands, and all those whose estate he had, had from time immemorial exercised as appendant or appur- tenant to their own lands certain rights, such as rights of common or way, over certain other lands [p). In both of these cases proof of a user as of right, for twenty years or upwards, 'was formerly considered to afford a presumption of immemorial enjoyment {q). But this presumption might be effectually rebutted by proof that the enjoyment had in fact commenced within the time of legal memory (r) ; in which case the enjoyment for centuries would go for nothing. This is still the law with regard to prescriptions of the former kind, namely, prescriptions of immemorial user by a man and his ancestors (*■) . But with regard to prescriptions of the latter kind, where the owner of one tenement, some- times called the dominant tenement, claims to exercise some right over another tenement, called the servient tenement, he may either still prove his rights as before {t), or he may have recourse to an act of King The Prescrip- William lY. («), which has materially shortened the ^i^nAct. proof required, in all cases where a recent uninterrupted user as of right can be shown. By this act no right of liigbts of common or other profit or benefit, called in law French ' 2)rofit a prendre, to be taken and enjoyed from or upon land (except tithes, rent and services), shall, if actually taken and enjoyed by any person claiming right thereto without interruption for thirty years, be defeated by showing only that it was first enjoyed prior thereto ; and if enjoyed for sixty years the right is made absolute (o) Welcome v. Upton, 6 Mee. & (4) Shuttleworth v. Le Fleming, Wels. 536 ; Shuttleworth v. Le uhi supra. Fleming, 19 C. B., N. S. 687. {t) Warrick v. Queen's College, {p) Gateivard''scase,Q'RQ^J^%h. Oxford, L. R., 6 Ch. 716, 728 ; [q) Bex V. JoUffe, 2 Baru. & Aynsley v. Glorcr, L. R., 10 Ch. Cress. 64. 283. (?•) See Jenkins v. Harvcij, 1 («) Stat. 2 & 3 WiU. IV. c. 71. Cro., Mee. & Rose. 894, 895. 494 OF TITLE. and indefeasible, unless it shall appear that the same was taken and enjoyed by some consent or agreement I expressly made or given for that purpose by deed or Rights of "writing (x) . For rights of way and other easements, ■way, &c. watercourses and the use of water, the terms are twenty and forty years respectively instead of thirty and sixty Light. years (y). And when the access and use of light for any dwelling-house, workshop, or other building, shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some con- sent or agreement expressly made or given for that purpose by deed or writing (z) . The periods mentioned are periods next before some action or suit in which the claim is brought in question ; and no act is deemed an interruption unless submitted to or acquiesced in for one year after the party interrupted shall have had notice thereof and of the person making or authorizing Disabilities, the same to be made {a). The time during which any person, otherwise capable of resisting any claim, shall be an infant, idiot, non compos mentis, feme covert or tenant for life, or during which any action or suit shall have been pending, and which shall have been diligently prosecuted until abated by the death of any jDarty thereto, is excluded from the above periods, except when the claim is declared absolute and indefeasible {b) ; provided that in the case of ways and watercourses where the servient tenement shall be held for term of life or years exceeding three years, the time of enjoyment of the way or watercourse during such term is excluded from the computation of the period of forty years, in (x) Stat. 2 & 3 Will. IV. c. 71, («) Sect. 4; Bemiison v. Cart- 8. 1. u right, 5 Best & Smith, 1. {y) Sect. 2. (i) Sect. 7. (;) Sect. 3. &c, OF TITLE. 495 case the claim shall, within three years next after the end or sooner determination of such term, be resisted by any person entitled to any reversion expectant on the determination thereof (c). The rights above men- Abandon- tioned may be lost by abandonment, of which non-user ; for twenty years or upwards is generally sufficient evi-i dence, although a shorter period will suffice if an intent- to abandon appear (r/). On any sale or mortgage of lands, all the title-deeds Title-deeds. in the hands of the vendor or mortgagor, which relate exclusively to the property sold or mortgaged, are handed over to the purchaser or mortgagee. The pos- Importance session of the deeds is of the greatest importance ; for gggsion^ ^°^' 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 -Eegistration. of Middlesex and York, registries have been established, a search in which will lead to the detection of all deal- j ings with the property (e) ; but these registries, though ^ existing in Scotland and Ireland, do not extend to the remaining counties of England or to Wales. Grenerally 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 {c) Sect. 8. information as to the law of pre- {d) Moore v. Jiaivsoii, 3 Barn. scriptive rights, the reader is re- ft Ores. 332, 339 ; The Queen v. ferred to the author's Lectures on Chorley, 12 Q. B. 515, 519; Eights of Common and other Pre- Crossley v. Lightoiolcr, L. E.., 3 scriptive Eights, now published. Eq. 279; 2 Ch. 478. For further (<) Sec ante, p. 204. 496 OF TITLE. Possession of deeds no safe- guard against a rent- charge ; nor against the vendor being tenant for life only. deeds can afford no secm^ity. Thus, the possession of the deeds is no safeguard against an annuity or rent-charge payable out of the lands ; for the grantee of a rent- charge has no right to the deeds (/). So the possession of the deeds, showing the conveyance to the vendor of an estate in fee simple, is no guarantee that the vendor is not now actually seised only of a life estate ; for, since he acquired the property, he 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 {g) ; and if he should be fraudulent 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 sub- sequent sale made by the settlor. Against such a fraud as this the registration of deeds seems the only protection. In some cases, also, persons are entitled to an interest, which they would like to sell, but are pre- (/) The author once met with an instance in "which lands Avere, from pure inadvertence, sold as free from incumbrance, when in fact they were subject to a rent- charge, which had been granted by the vendor on his marriage to secure the payment of the pre- miums of a policy of insiu-ance on his hfe. The marriage set- tlement was, as usual, prepared by the solicitor for the wife ; and the vendor's solicitor, who con- ducted the sale, but had never seen the settlement, was not aware that any charge had been made on the lands. The vendor, a per- son of the highest respectability, was, as often happens, ignorant of the legal effect of the settle- ment he had signed. The charge was fortunately discovered by accident shortly before the com- pletion of the sale. [g) Sugd. Vend. & Pur. 445, n. (I), 14th ed. ; Leathes v. Lcathes, 5 Ch. D. 221. OF TITLE. 497 vented, from not having any deeds to hand over. Thus, if lands be settled on A. for his life, with Difficulty in remainder to B. in fee, A. dnrinar his life will be en- saleof are- , " . Tersion, for titled to the deeds ; and B. will find great difficulty want of evi- •1 • • p ^ ' • L 1 L • donee that no in disposing oi his reversion at an adequate price ; pi-evious salo because, having no deeds to give up, he has no means has been , rniitlc. 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 Sale of rover- would sell a reversion unless they were in difficulties, ^^°°^' equity, whenever a reversion was sold, threw upon the pm'chaser the onus of showing that he gave the fair ' market price for it {h). But it is now provided that New enact- no purchase, made bona fide, and without fraud or unfair dealing, of any reversionary interest in real or personal estate shall hereafter be opened or set aside merely on the ground of undervalue (/). Again, if lands are in mortgage, there may be a dif- ficulty in dealing with them on account of the absence of title-deeds. For a mortgagee under a mortgage Mortg'agor made before the 1st January, 1882, who has possession gp^^.^. ^qqI^[^ of the title deeds of the mortgaged property, cannot, as possession of a general rule, be compelled to produce them for the except by ' inspection of the mortgagor, or any one claiming through consent. him, without being paid off {k) . {h) Lord Aldborough v. Trye, 7 (A') Chichester v. Marquis of CI. & Fin. 436 ; D«m's V. Cooj^er, Bonegall, L. R., 5 Ch. 497; 6 My. & Cr. 270 ; Sugd. Vend. & Sugd. Vend. & Pur. 435, 445, Pur. 278, 14th ed. ; Edwards v. 14th ed. ; 1 Dart, Vend. & Pur. Burt, 2 De Gex, M. & Gr. 55. 411, 6th ed. ; Soton on Decrees, [i) Stat. 31 Vict. c. 4. See 1058, 4th ed. ; Davidson, Prec. Lord Aylesford v. Morris, L. R., Conv. Vol. II., Part II., p. 251, 8 Ch. 484 ; O'Rorke v. Bolingbroke, 4th ed. 2 App. Gas. 814. K.r. K K 498 OF TITLE. New enact- ment. With regard, however, to mortgages made after the 31st December, 1881, it is provided by the IGth section of the Conveyancing and Law of Property Act, 1881, which has effect notwithstanding any stipulations to the contrary (/), that a mortgagor {m), as long as his right to redeem subsists, shall, by virtue of that act, be en- titled, at his own cost, to inspect and make copies or abstracts of or extracts from the documents of title relating to the mortgaged property in the custody or power of the mortgagee {m). Attested copies. Covenant to produce deeds. New enact- ment. Where the title-deeds related to other property, and could not consequently be delivered over to the purchaser, he formerly was entitled, at the expense of the vendor, to attested copies of such of them as were not enrolled in any court of record {n) ; but as the expense thus incurred was usually great, it was in general thrown on the purchaser, by express stipulation in the contract. Upon sales made after the 31st December, 1881, this expense is, as we have seen, thrown by law on the pur- chaser in the absence of stipulation to the contrary (p). The purchaser was also formerly entitled to a covenant for the production of the title-deeds, whenever required in support of his title (q) ; and the expense of this covenant formerly fell on the vendor, unless thrown on the pur- chaser by express stipulation. But the Vendor and Pur- chaser Act, 1874 (r), now provides (s) that in the com- {l) Stat. 44 & 45 Vict. c. 41, B. 16, sub-s. 2. {m) See sect. 2 (vi.) as to tlie terms "mortgagor" and "mort- gagee." («) Sugd. Vend. & Pur. 446 et seq., 14th ed. {p) Stat. 44 & 45 Vict. c. 41, s. 3, sub-s. 6 ; ante, p. 483. {q) Sugd. Vend. & Pur. 450, 14th ed. ; Cooper v. Emery, 10 Sim. 609. By the Stamp Act, 1870, (stat. 33 & 34 Vict. c. 97), the stamp duty on a separate deed of covenant for the production of title-deeds on a sale or mortgage is 10s. ; and if the ad valorem duty on the sale or mortgage is less than that sum, then a duty of equal amount only is payable. See ante, pp. 202, 443. (r) Stat. 37 & 38 Vict. c. 78. (6) Sect. 2. OF TITLE. 499 pletion of any contract of sale of land made after the 31st of December, 1874, and subject to any stipulation to the contrary in the contract, the inability of the vendor to furnish the purchaser with a legal covenant to produce and furnish copies of documents of title shall not be an objection to title, in case the purchaser will, on the comj)letion of the contract, have an equitable right to the production of such documents (t) ; and further that such covenants for production as the purchaser can and shall require shall be furnished at his expense, but the vendor shall bear the exj)ense of perusal and execution on behalf of and by himself and necessary parties, other than the purchaser; and further that when the vendor retains any part of an estate to which any documents of title relate, he shall be entitled to retain such documents. The covenant for the produc-. Covenant to tion of the deeds will run, as it is said, with the land ; I ^uns with the that is, the benefit of such a covenant will belong tojl^^^- every legal owner of the land sold for the time being ; j 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 («). Accordingly, whenever a purchase has been 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 any subsequent sale these deeds will 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. Under the provisions of the 9th section of the Con- veyancing and Law of Property Act, 1881 (x), an acknowledgment in writing of right to production of {i) See Sugd. Vend. & Pur. («) Sugd. Vend. & Pur. 453, l.')2, 455, 14th ed. ; 1 Dart, Vend. 14th ed. >i- Pur. 142, 143, 5th ed. (.r) Stat. 44 & 45 Vict. c. 41. Jv K 2 600 OF TITLE. documents, and to delivery of copies thereof, may now be substituted for a covenant for production. The 9th section runs as follows : — Acknowledg- (Sub-sect. 1.) Where a person retains possession of to^productfon documents, and gives to another an acknoicledyment in of documents. uTiting of the right of that other to 'production of those documents, and to deliccry of copies thereof (in this section called an acknowledgment), that acknowledgment shall have effect as in this section provided. (Sub-sect. 2.) An acknowledgment shall bind the docu- ments to which it relates in the possession or under the control of the person who retains them, and in the possession or under the control of every other person having possession or control thereof from time to time, but shall bind each individual possessor or person as long only as he has possession or control thereof ; and every person so having possession or control from time to time shall be bound specifically to perform the obli- gations imposed under this section by an acknowledg- ment, unless prevented from so doing by fire or other inevitable accident. (Sub-sect. 3.) The obligations imposed under this sec- tion by an acknowledgment are to be performed from time to time at the request in writing of the person to whom an acknowledgment is given, or of any person, not being a lessee at a rent, having or claiming any estate, interest, or right through or under that person, or otherwise becoming through or under that person interested in or affected by the terms of any document to which the acknowledgment relates. (Sub-sect. 4.) The obligations imposed under this sec- tion by an acknowledgment are — (i.) An obligation to produce the documents or any of them at all reasonable times for the purpose of in- spection, and of comparison wdth abstracts or copies thereof, by the person entitled to request production, or by any one by him authorized in AVTiting ; and OF TITLE. 501 (ii.) An obligation to produce the documents or any of them at any trial, hearing, or examination in any court, or in the execution of any commission, or else- where in tlie United Kingdom, on any occasion on which production may properly be required, for proving or supporting the title or claim of the person entitled to request production, or for any other purpose relative to that title or claim ; and (iii.) An obligation to deliver to the person entitled to request the same true copies or extracts, attested or unattested, of or from the documents or any of them. (Sub- sect. 5.) All costs and expenses of or incidental to the specific performance of any obligation imposed under this section by an acknowledgment, shall be paid by the person requesting performance. (Sub-sect. 6.) An acknowledgment shall not confer any right to damages for loss or destruction of, or in- jury to, the documents to which it relates, from what- ever cause arising. (Sub-sect. 7.) Any person claiming to be entitled to the benefit of an acknowledgment, may apply to the Court for an order directing the production of the documents to which it relates, or any of them, or the delivery of copies of or extracts from those documents or any of them to him, or some person on his behalf ; and the Court may, if it thinks fit, order production, or pro- duction and delivery, accordingly, and may give direc- tions respecting the time, place, terms, and mode of production or delivery, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application. (Sub-sect. 8.) An acknowledgment shall by virtue of this act satisfy any liability to give a covenant for pro- duction and delivery of copies of or extracts from docu- ments. (Sub-sect. 9.) Where a person retains possession of Undertaking documents and gives to another an iiiidci-faliinr/ in tody'^of docu- ments. 502 OF TITLE. writing for safe custody ttereof, that undertaking shall impose on the person giving it, and on every person having possession or control of the documents from time to time, but on each individual possessor or person as long only as he has possession or control thereof, an obligation to keep the documents safe, whole, uncan- celled, and undefaced, unless prevented from so doing by fire or other inevitable accident. (Sub-sect. 10.) Any person claiming to be entitled to the benefit of such an undertaking may apply to the Court to assess damages for any loss, destruction of, or injury to, the documents or any of them, and the Court may, if it thinks fit, direct an inquiry respecting the amount of damages, and order payment thereof by the person liable, and may make such order as it thinks fit respecting the costs of the application, or any other matter connected with the application. (Sub-sect. 11.) An undertaking for safe custody of documents shall by virtue of this act satisfy any liability to give a covenant for safe custody of documents. (Sub-sect. 12.) The rights conferred hj an acknowledg- ment or an undertaking under this section shall be in addition to all such other rights relative to the produc- tion, or inspection, or the obtaining of copies of docu- ments as are not, by virtue of this act, satisfied by the giving of the acknowledgment or undertaking, and shall have effect subject to the terms of the acknowledgment or undertaking, and to any provisions therein contained. (Sub-sect. 13.) This section applies only if and as far as a contrary intention is not expressed in the acknow- ledgment or undertaking. (Sub-sect. 14.) This section applies only to an acknow- ledgment or undertaking given, or a liability respecting documents incm'red, after the commencement of this act(y). iy) After the Slst December, 1881 ; sect. 1, sub-s. 2. OF TITLE. 503 "When the lands sold are situated in either of the Search in counties of Middlesex or York, search, is made in the and York^ registries established for those counties {a) : this search registries, 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 infor- mation. Thus, if any estate tail has existed in the lands, the purchaser can always learn whether or not it has been barred ; for the records of all fines and reco- Search for veries, by which the bar was formerly effected (b), are veries^and preserved in the offices of the Common Pleas Division of disentailing the High Court ; and, now, the deeds which have been substituted for those assurances are enrolled in the Chancery Division of the High Court {c) . It is, how- ever, now provided by the rules of the Supreme Court, April, 1880 (d), that all deeds which by any statute or statutory rule are directed or permitted to be enrolled in any of the Courts whose jurisdiction has been transferred to the High Court of Justice, may be enrolled in the en- rolment department of the central office. Conveyances Deeds ac- hy married women can also be discovered by a search by*^marri^d in the index, which is kept in the Common Pleas women. Division of the High Court, of the certificates of the acknowledgment of all deeds executed and acknow- ledged by married women (/). So, we have seen, that Crown and {a) Ante, p. 204. {d) Kule 46 (Order LXa., {b) Ante, pp. 47, 50. rule 6). (<■) Ante, pp. 50, 52. As to (/) Stat. 3 & 4 Will. IV. c. 74, fines and recoveries in Wales and ss. 87, 88; ante, p. 245. See JoUi/ Cheshu'e, see stat. 5 & 6 Vict. v. Handcoch, Ex., 16 Jur. 550 ; c. 32. S. C, 7 Exch. Eep. 820. 504 OF TITLE. judgment debts. Official searches. Life annid- ties. Bankruptcy or insolvency. debts due from the vendor, or any former owner, to the crown, prior to the 1st of November, 1865 {g), or secured by judgment prior to the 23rd of July, 1860 (/i), together with suits w^hich 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 Common Pleas Division. And the rules of the Supreme Court, April, 1880 (/•), now provide that the clerk of enrolments, the registrar of certificates of acknowledgments of deeds by married women and the registrar of judgments shall, on a re- quest in writing giving sufficient particulars, and on payment of the prescribed fee, cause a search to be made in the registers or indexes under his custody, and issue a certificate of the result of the search. Life annuities, also, which may have been 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 Chancery Division, amongst the memorials of such annuities (/). 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 established in the Common Pleas Division {m). And, lastly, the bankruptcy or insolvency of any vendor or mortgagor may be discovered 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 {n) . The acts for relief of insolvent debtors are now repealed and the Coui't abolished {p). {g) Ante, p. 95. (A) Ante, pp. 90, 91. {{) Ante, p. 96. \k) Eule 48 (Order LXa., rule 8). charged arc not, hoTvever, neces- sarily mentioned in the memorial. (»h) Ante, p. 346. (?)) Cooper V. Stephenson, Q. B., 16 Jur. 424; 21 L. J., Q. B. 292. (/) Ante, p. 34.3. The lands (/;) Stat. 32 & 33 Vict. c. 83. OF TITLE. 605 Some meution should here bo made of the acts which have been passed with a view to the simplification of titles and to facilitate the transfer of land. An act has been passed "for obtaining a declaration of title" (q). Act for ob- This act empowers persons claiming to be entitled to -tj^i'^i^S' a ^ _ ^ ^ o _ _ aeclaration of land in possession for an estate in fee simple, or claiming title. power to dispose of such an estate, to apply to the Court of Chancery, now represented by the Chancery Division of the High Court, 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 un- willing purchaser to accept, an order is made establishing the title, subject, however, to appeal as mentioned in the act. This act, though seldom resorted to, does not appear to have been repealed. Another act of the same session is intituled " An Act to facilitate the Proof of Act to facili- Title to and the Conveyance of Eeal Estates" {r). This of titt^o Inl act established an office of land registry, and contained conveyance of provisions for the official investigation of titles, and for the registration of such as appeared to be good and marketable. It has, however, now been superseded by the Land Transfer Act, 1875 (■?), which provides (/) The Land that after the commencement of that act, which took 'F^'-?^^^^ ■^°*' j place on the 1st of January, 1876 (h), application for the I registration of an estate under the former act shall not j be entertained. For the provisions of this act reference I should be made to the act itself. Registration under i this act is optional, and its success is too doubtful 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, provided it be made by competent persons and under sufficient safe- guards. Compensation, however, ought to be made to /) Stat. 25 & 26 Vict. c. 67. (t) Sect. 125. r) Stat. 25 & 26 Vict. c. 53. {><) Sect. 3. ^.s) Stat. 38 & 39 Vict. c. 87. 506. OF TITLE. > 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 [x). 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, however, cannot be advantageously done without resort to the printing of registered deeds and of probates of wills, and the abo- lition of payment by length. The author's views on this subject will be found in a paper read by him before the Juridical Society, on the 24th of March, 1862, intituled " On the true Remedies for the Evils which affect the Transfer of Land " {>/), and to which he begs to refer the reader. . Such is a very brief and exceedingly imperfect out- I 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 I student for the course of study which still lies before him in this direction. The valuable treatises of Lord St. Leonards and of Mr. Dart 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 princi- ples 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 anti- quity, are in the same degree ill adapted to the require- {x) Sect. 127. I ij) Published in a separate form, by H. Sweet, 3, Chanceiy Lane. OF TITLE. 507 ments of modern society : whilst the laws of personal property, being of more recent origin, are proportionably suited to modern times. Over them both has arisen the jurisdiction of the Court of Chancery, by means of which the ancient strictness and simplicity of our real property laws have been in a measure rendered sub- servient to the arrangements and modifications of ownership, which the various necessities of society have required. Added to this have been continual enact- ments, especially of late years, by which many of the most glaring evils have been remedied, but by which, at the same time, the symmetry of the laws of real pro- perty has been greatly impaired. Those laws cannot indeed be now said to form a 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 pur- pose, 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 rules, because they once were useful, or on the other, to be annually plucking off, by parlia- mentary enactments, the fruit which such rules must, until eradicated, necessarily produce. ( 508 ) PART VI. OF THE PRESENT FORM OF A CONVEYANCE. Date. Parties. Testatum. Considera- tion. The student, having read the chapter on Title, is now in a position to understand all the clauses usual in an ordinary deed of conveyance upon sale of the kind in use previously to the commencement of the Conveyanc- ing and Law of Property Act, 1881 (a), and to consider the changes which are made in the form of a deed of the same nature when the provisions of the act are relied on. The following precedent is the conveyance requisite heforethe 1st January, 1882, to complete a simple trans- action of sale of a piece of land by a vendor who pur- chased it himself {h), and is entitled thereto for an un- incumbered estate in fee simple. For convenience of examination each clause is printed in a separate para- graph. '' THIS INDENTUEE made the aist day of Decem- " ber 1881 (c) " 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 " WITNESSETH {d) that in consideration (/) of the " sum of one thousand pounds upon the execution of (a) Stat. 44 & 45 Vict. c. 41, which commenced immediately after the 31st Dec, 1881. See ante, pp. 199, 200, 212—214. {b) Ante, p. 474. {c) Ante, pp. 156, 205, 206. (d) Recitals are unnecessary in such a simple case as the present. Any special matters, of which it is desirable to preserve evidence, e. g., the descent of the estate upon the intestacy of a previous owner, should always be recited with a view to stat. 37 & 38 Vict, c. 78, 8. 2; ante, pp. 479, 480. (/) Ante, pp. 153, 163, 168, 197. OF THE PRESENT FORM OF A CONVEYANCE. 509 " these presents paid by the said C. D. to the said Nature of " A. B. for the purchase of the fee simple in posses- " sion of the hereditaments hereinafter expressed to be " hereby granted (the receipt of which sum the said Receipt. " A. B. doth hereby acknowledge) the said A. B. doth Operative " hereby grant {(j) unto the said C. D. and his heirs " All that messuage or tenement [insert description Parcels. " of the propcrti/^ " Together with all buildings fixtures lights com- General " mons fences ways waters watercourses easements and ^^'^^ ^' " appurtenances whatsoever to the said hereditaments " or any of them appertaining or with the same or any " of them now or heretofore enjoyed or reputed as part " thereof or appurtenant thereto {/i) " And alt- the estate right title interest claim and Estate clause. " demand of the said A. B. in to and upon the said " premises " To HAVE AND TO HOLD the Said premises herein- Habendum. " before expressed to be hereby granted unto and to To the use of " the use {i) of the said C. D. his heirs and assigns for ^jJaa^er^' ever [J ) In fgg simple. " And the said A. B. doth hereby for himself his Covenants for " heirs executors and administrators covenant with the ^ " said C. D. his heirs and assigns {k) " That notwithstanding anything by him the said i. For right " A. B. (/) done omitted or knowingly suffered he now ° ^^^'^^J- " hath power to grant the said premises hereinbefore " expressed to be hereby granted to the use of the said " C. D. his heirs and assigns " And that the same premises shall at all times re- 2. For quiet " main and be to the use of the said C. D. his heirs and e^J^y^^^t- " assigns and be quietly entered into and upon and held '' and enjoyed and the rents and profits thereof received (ff) Ante, pp. 119, 214. dower, seep. 251. (A) Ante, p. 343. {k) Ante, pp. 472, 473. (() Ante, pp. 153, 1G4, 197. (/) A. B. covenants against his {j) Ante, pp. 150, 151. As to own acts only. Ante, pp. 474, emitting any declaration to bar 508. 510 OF THE PRESENT FORM OF A CONVEYANCE. 3. Free from incumbrances. 4r. For further assurance. by him and tliem accordingly witliout any interruption or disturbance by the said A. B. or any person claim- ing through or in trust for him " And that {m) free and discharged from or other- wise by him the said A. B. his heirs executors or administrators sufficiently indemnified against all estates incumbrances claims and demands created occasioned or made by him or any person claiming through or in trust for him " And further that he and every person having or claiming any estate or interest in the said premises through or in trust for him 'will at all times at the cost of the person or persons requiring the same execute and do every such assurance and thing for the further or more perfectly assuring all or any of the said pre- mises to the use of the said C. D. his heirs and assigns as by him or them shall be reasonably required. " In witness &c." {n). The references given in the notes to the above form are to those parts of the book, where may be found the reasons for inserting in a deed of conveyance the clauses or words to which a note is appended. If the reader will turn to Appendix (D), he will observe that the frame of the precedent given .above is the same as that of the old release : although recitals are dispensed with in the former, and the clauses con- veying the reversion, &c. and the title deeds are omitted as being unnecessary (7;), as well as the covenant that the vendor is seised in fee {q) . The reader will also be able to mark how the old common forms became, in the course of time, shorn of their exuberant verbiage. The (m) The word thai is here a pronoun. (w) Ante, p. 201. {p) Title deeds pass on a con- veyance of the land, to which they relate, without being ex- pressly mentioned. Harrington V. Price, 3 B. & Ad. 170. See "Williams on Personal Property, p. 10, 11th ed. ijl) Ante, p. 473. OF THE PRESENT FORM OF A CONVEYANCE. 511 release in Appendix (D) exhibits them in all their ancient luxuriance ; a perusal of it will repay the emious student. " There is an orientality about it we cannot rise up to." Let lis now suppose that a simple transaction of sale Conveyance - of land exactly similar to those, to which the deeds tiiasist De- given above and in Appendix (D) relate, is to be com- cem bcr, 1 88I. pleted at the present time. In drawing our conveyance, we may then rely on the following provisions of the Conveyancing and Law of Property Act, 1881 (r), which apply only to conveyances made after the 31st December, 1881 (s) : (Section 6, sub-sect. 1.) A conveyance of land shall Conveyance be deemed to include and shall by virtue of this act faJantegesYn operate to convey, with the land, all buildings, erections, the nature of „ . 1 1 t; 1 c i easements nxtures, commons, hedges, ditches, lences, ways, waters, enjoyed with watercourses, liberties, privileges, easements, rights, ^^ J'>°'^ ^^ and advantages whatsoever, appertaining or reputed to conveyance, appertain to the land, or any part thereof, or at the time of conveyance demised, occupied or enjoyed with, or reputed or known as part or parcel of or appurtenant to the land or any part thereof. (Section 6, sub-sect. 2.) A conveyance of land, having houses or other buildings thereon, shall be deemed to include and shall by virtue of this act operate to convey, with the land, houses, or other buildings, all outhouses, erections, fixtures, cellars, areas, courts, courtyards, cis- terns, sewers, gutters, drains, ways, passages, lights, watercourses, liberties, privileges, easements, rights, and advantages whatsoever, appertaining or reputed to ap- pertain to the land, houses, or other buildings conveyed, or any of them, or any part thereof, or at the time of conveyance demised, occupied, or enjoyed with, or reputed or known as part or parcel of, or appurtenant (r) Stat. 44 & 45 Vict. c. 41. (.s) Sects. 6 (suh-s. 6), 7 (rab-s. 8), 63 (sub-s. 3). // 5n OP THE PRESENT FORM OF A CONVEYANCE. Conveyance I of land passes all the estate and interest of the party I conveying. Covenants by party convey- ing implied in a conve3'ance in certain cases. Case in which are implied covenants — -1^* (^^ ,( for right to convey ; to, the land, houses, or other buildings conveyed, or any of them, or any part thereof {t). (Section 63, sub-sect. 1.) Every conveyance shall, by virtue of this act, be effectual to pass all the estate, right, title, interest, claim and demand which the conveying parties respectively have in, to, or on the property con- veyed, or expressed or intended so to be, or which they respectively have power to convey in, to, or on the same. Sections 6 and 63 apply only if and as far as a con- trary intention is not expressed in the conveyance, and have effect subject to the terms of the conveyance and to the provisions therein contained {u). (Section 7, sub-sect. 1.) In a conveyance there shall, ill the several cases in this section mentioned, be deemed to be included, and there shall in those several cases, by virtue of this act, be implied, a covenant to the effect in this section stated, by the person [or by each person] who conveys, as far as regards the subject-matter or share of subject-matter expressed to he conveyed ht/ him, with the person, if one, to whom the conveyance is made, [or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the jDcrsons, if more than one, to whom the con- veyance is made as tenants in common,] that is to say : ' (A) In a conveyance for ralaahle consideration, other than a mortgage, the following covenant hy a person who ^^onveys and is expressed to convey as beneficial owner (namely) {v) : That, notwithstanding anything by the person who (i) Sect. 6 is not to be construed as giving to any person a better title to any property, right, or thing therein mentioned than the title which the conveyance gives to him to the land expressed to be conveyed, or as conveying to him any property, right, or thing in that section mentioned, f ui-ther or otherwise than as the same could have been conveyed to him by the conveying parties (sect. 6, sub-s. 5). {u) Sects. 6 (sub-s. 4), 63 (sub-s. 2). (v) For covenants implied in othercases, see ante, jjp. 474 — 477. OF THE PRESENT FORM OF A CONVEYANCE. 513 80 conveys, [or any one tlirougli whom be derives title, otherwise thcan by purchase for vabie,] made, done, exe- cuted or omitted, or knowingly suffered, the person who so conveys, has, [with the concurrence of every otlier person, if any, conveying by his direction,] full power to convey the subject-matter expressed to be conveyed, [subject as, if so expressed, and] in the manner in which, | it is expressed to be conveyed ; and that, notwithstanding anything as aforesaid, for quiet en - / that subject-matter shall remain to and be quietly ^=^ ^ entered upon, received, and held, occupied, enjoyed, and taken, by the person to whom the conveyance is ex- pressed to be made, and any person deriving title under him, and the benefit thereof shall be received and taken accordingly, without any lawful interruption or dis- turbance by the person who so conveys [or any person conveying by his direction,] or rightfully claiming or to claim by, through, under or in trust for the person who so conveys, [or any person conveying by his du'ection, or by, through or under any one not being a person claiming in respect of an estate or interest subject whereto the conveyance is expressly made, through whom the person who so conveys derives title, otherwise than by pm^chase for value] ; and that, freed and discharged from, or otherwise by free from in- / the person who so conveys sufficiently indemnified ^^^ '^^^^^ ' ' against, all such estates, incumbrances, claims and de- mands [other than those subject to which the conveyance is expressly made,] as either before or after the date of the conveyance have been or shall be made, occasioned or suffered by that person [or by any person conveying by his direction,] or by any person rightfully claiming by, thi'ough, under, or in trust for the person who so conveys, [or by, through or under any person convejdng by his direction, or by, through or under any one through whom the person who so conveys derives title, otherwise than by purchase for value] ; R.P. L L 514 OF THE TRESENT FORM OF A CONVEYANCE. I and for further as- surance. Interpreta- tion of terms, and further, that the person who so conveys, [and any person conveying by his direction,] and every other person having, or rightfully claiming any estate or interest in the subject-matter of conveyance, [other than an estate or interest subject whereto the conveyance is expressly made,] by, through, under, or in trust for the person who so conveys, [or by, through, or under any person conveying by his direction, or by, through or under any one through whom the person who so con- veys derives title otherwise than by purchase for value,] will from time to time and at all times after the date of the conveyance, on the request and at the cost of any person to whom the conveyance is expressed to be made, or of any person deriving title under him, execute and do all such lawful assurances and things for further or more perfectly assuring the subject-matter of the con- veyance to the person to whom the conversance is made, and to those deriving title under him, [subject as, if so expressed, and] in the manner in which the conveyance is expressed to be made, as by him or them or any of them shall be reasonably required : (in which covenant a pm'chase for value shall not be deemed to include a conveyance in consideration of marriage) (,r). In considering the above enactments, regard must be had to the following provisions of the interpretation clause of the act : Sect. 2 (ii) . Land, unless a contrary intention appears, includes land of any tenm^e, and tenements and heredi- ments, corporeal or incorporeal, and houses and other buildings, also an imdivided share in land : (v) Conveyance, unless a contrary intention appears, includes assignment, appointment, lease, settlement and other assurance, and covenant to surrender, made by deed, on a sale, mortgage, demise, or settlement of (.'■) Tlio words enclosed -witldn brackets [ ] arc those ■vvliich arc not material to the conveyance ■we are about to consider. OF THE PRESENT FORM OF A CONVEYANCE. 515 \ any property, or on any other dealing with or for any property ; and convey, unless a contrary intention appears, has a meaning corresponding with that of conveyance. The reader will remember that, before the 6th section Eeason f or of the above act came into operation, it was unnecessary JJf^^.^/ ff<^»^'>'"i on a conveyance of land expressly to grant rights legally appurtenant thereto, although the practice was to include such rights in the general words ( y) ; and that the only real use of general words in a conveyance was to grant, as rights or easements, advantages used in connection with the land conveyed as a matter of fact, without being rights legally appurtenant thereto (2). For example, suppose that a man has two plots of land, plot A. and plot B., and is accustomed to use for the benefit of plot A. an artificial watercourse carried over plot B., or a road over plot B. These advantages cannot be rights or easements appurtenant to plot A., for they are exercised over plot B. : and no man can have an easement over his own land. But if plot A. were to be sold alone and conveyed to a purchaser " together with all watercourses, ways and advantages therewith used and enjoyed," according to recent decisions, these words would operate to grant, as rights or easements, the advantages, in the nature of ease- ments, at the time of conveyance as a matter of fact used over plot B. for the benefit of plot A., although the same never previously existed as of right or as legal easements {a) . Having regard to these decisions, it is considered that the object formerly sought to be effected by the insertion of general words in a convey- ance, will now be attained by the operation of the {?/) See ante, pp. 342, 509. Cli. 166 ; Xa>/ v. Oxkrj, L. E., 10 (z) Ante, p. 343 ; see Williams Q. B. 360; Barhshvx v. Grubb, 18 on Commons, 168— 170. Ch. D. 616; see Williams on . («) W((Us V. KeUon, L. R., 6 Commons, 315— 319, 323. ll2 616 OF THE PRESENT FORM OF A CONVEYANCE. Gtli section of tlie Conveyancing and Law of Property Act, 1881 {b). It will be observed that the above section only operates to convey advantages enjoyed with the land conveyed at the time of conveyance. Ap- parently it would not extend to grant, as rights, advantages enjoyed with the land conveyed at some previous time, but not proved to have been so enjoyed . at the time of conveyance (c). Eeason for With reference to the insertion of an estate clause in XLse of estate , . . „ . . , j^ clause. conveyances, the opinion oi an eminent conveyancer [a) may be quoted : — " This clause is inserted in almost every instrument of alienation, where the entire interest of the conveying parties is transferred, on the alleged ground, that it is necessary to pass any outstanding particular estate or interest w^hich may happen to be vested in any of the conveying parties, distinct from the estate or interest which such party purports to con- vey. No such ground, however, does exist, and the clause, though established by such long and universal practice, that it will hardly be eradicated by less force than an act of parliament, is wholly unnecessary, since even at law it will not pass any interest which it appears by the context of the deed was not intended to be passed" (/). The 63rd section of the Convey- ancing and Law of Property Act, 1881 {g), which appears to incorporate in every conveyance iji) this pro- vision, formerly considered to be unnecessary, is pro- bably not the kind of enactment contemplated by Mr. Davidson when writing the above. The question does not appear to be, whether the estate clause may be now safely omitted from a conveyance, so much as whether a declaration, that the above 63rd section {b) Stat. 44 & 45 Vict. c. 41. (/) Davidson's Prec. Conv., {() See Hall r. Byron, 4 Ch. D. Vol. I., p. 94, 4th ed. 667, 671, 672. {y) Stat. 44 & 45 Vict. c. 41, {d) Mr. Davidson. ante, p. 512. (A) See sect. 2 (v), anto, p. 514. OF THE I'llESENT FOllM OF A CONVEYANCE. 51' shall not apply, ought not to be inserted in every con- ^ veyance. The old estate clan.se, however, was construed as being subservient to the intention of the parties as gathered from the terms of the conveyance (/); and \ the 63rd section of the act is to have effect subject ' to the terms of the conveyance (/.). In the opinion of the editor such a declaration is therefore unnecessary. We now come to consider the incorporation into our statutory- conveyance of the statutory covenants for title. Accord- ^itie"^^*^ ^^^ ing to our supposition, A. B., the vendor, purchased himself the land he is about to convey. He will, therefore, covenant as to his own acts only (/). If we turn to section 7, sub-sect. 1 (A), of the Conveyancing and Law of Property Act, 1881 (m), which is set out above {n), we may extract therefrom covenants for title suited to our present requirements. As the enact- ment in question may be found somewhat intricate by the student, so much of it as is unnecessary for our present purpose has been enclosed within brackets. The words enclosed within brackets do not apply to the transaction we are now considering for the following reasons : — Our conveyance is to be made by one person only to one person only, and not to joint tenants or tenants in common ; A. B., the person conveying, pur- chased the land himself, and, therefore, he does not " derive title through anyone otherwise than by purchase for value ;" there is no one concui'ring in the convey- ance by the direction of A. B. ; and the conveyance is not expressly made subject to any estate, interest or incumbrance. If the above enactment be read straight through, leaving out the words within brackets, its ((') Keame v. Moorsom, L. R., 3 (A) Sect. 63, sub-sect. 2, ante, Eq. 91 ; Francis v. Minion, L. R., p. 512. 2 C. P. 543 ; Hunt v. Eemnant, 9 {I) Ante, pp. 47-1, 509. Ex. 635; Rooper v. Harrison, 2 [m) Stat. 44 & 45 Vict. c. 41. K. & J. 113. (m) Ante, pp. 512—514. 518 OF THE TKESENT FORM OF A COXVEYA>'CE. provisions will be found to correspond with, the terms of the covenants for title in the form of conveyance given above (p). The conditions to be fulfilled in order that the required covenants may be " deemed to be included" in our conveyance, and implied by law upon the exe- cution thereof , appear to be (1) that the conveyance must be a conveyance for valuable consideration other than a mortgage (q), and (2) that the person intended to be bound by the implied covenants must convey and be expressed to convey as beneficial owner (;•). Our con- veyance will then take the following form : — Date. Parties. Testatum. Considera- tion. Kature of transaction. Receipt. Operative words. ParceL<». Habendum. "THIS INDEXTUEE made the 1st day of January 1882 '• Between A. B. of Cheapside in the City of London Esquire of the one part and CD. of Lincoln's Inn in the County of Middlesex Esquire of the other part " WITNESSETH that in consideration (-s) of the sum of one thousand pounds paid by the said C. D. to the said A. B. for the purchase of the fee simple in possession of the hereditaments hereinafter described (the receipt of which sum the said A. B. doth hereby acknow- ledge) {f) the said A. B. as beneficial oivner {u) doth hereby convey (x) unto the said C. D. " All THAT messuage or tenement [Jnsert descrijpiion of the property] " To HOLD unto and to the use (?/) of the said C. D. in fee simple {a) " In witness, &c."(i). {p) Ante, p. 509. [q) Different covenants are im- plied by the use of the words as beneficial owner in different con- veyances ; e.g., in a mortgage absolute covenants for title are thereby implied. See sect. 7, sub-sect. I (A), (B), (C), (D). {>■) Sect. 7, sub-sects. 1 (A), 4; ante, p. 512. (*) Ante, pp. 153, 163, 168, 197. {t) Ante, p. 202. {h) Ante, pp. 212, 213, 512. (.r) Ante, pp. 214, 512. (y) Ante, pp. 153, 164, 197. (ff) Ante, pp. 150, 151. {b) Ante, p. 201. OF THE rUESENT FORM OF A CONVEYANCE. 519 The references, as before, are to those parts of the ' book where the reasons for inserting the words used may be found. The above form of conveyance is certainly shorter than that previously given (c). But it can hardly be said that the rights and obb'gations of the parties to a conveyance may be determined with increased accuracy or simplicity by a deed relying on the provisions of the Conveyancing and Law of Property Act, 1881 {d). The student, when he proceeds to practise drafting, should never forget that a deed is not an end in itself, but is only a means for ascertaining the rights and obligations of the parties thereto. His object should be to define those rights and obligations clearly and accurately, rather than briefly or even concisely. It is of course unnecessary that he should express what is clearly im- plied by law ; but not the least important part of his task is to satisfy himself that the law clearly defines those rights and obligations for which he omits to provide. It is beyond the scope of the present Work to consider the provisions of the Conveyancing and Law of Pro- perty Act, 1881 (f/), with reference to conveyances more complicated than the above. It may be mentioned, however, that the 6th section of the act, besides the 1st and 2nd sub-sections set out above (/), contains pro- visions {g), by reliance on which the general uvrds may now be omitted on a conveyance of a manor. The cases, other than a conveyance on sale, in which cove- nants for title may be implied by law, were indicated in the preceding chapter (//). For a complete examination of those cases the reader is referred to the books men- ((■) Ante, p. 508. (^) Sect. G, sub-sect. 3. {(i) Stat. 44 & 4o Yict. c. 41. (k) Ante, pp. 474—477. (/) Ante, p. 511. 520 OF THE PRESENT FORM OF A CONVEYAXCE. tioned in the notes to pp. 474 — 477, ante, and to the Act itself. One other provision of the above Act, which may affect the form of conveyances, may be here mentioned. By the 58th section, which appHes only to covenants made after the 81st December, 1881 (A-), a covenant relating to land of inheritance, or devolving on the heir as special occupant, is to be deemed to be made with the covenantee, his heirs and assigns, and to have effect as if heirs and assigns were expressed ; and a covenant relating to land not of inheritance, or not devolving on the heir as special occupant, is to be deemed to be made with the covenantee, his executors, administrators and assigns, and to have effect as if executors, administrators and assigns were expressed. The effect of this enact- ment and of the 59th section of the act already men- tioned (/) is that in inserting covenants in a deed it is no longer necessary to express, for instance, that " A. B. doth hereby for himself, his heirs, executors and admi- nistrators covenant with C. D., his heirs and assigns" {m). It is now sufficient to say that " A. B. hereby covenants with C. D." (A) Stat. 44 & 45 Vict. c. 41, (?) Autc, p. 473. ss. 58 (sub-sect. 3), 1. {m) Ante, p. 509. ( 521 ) APPENDIX (A). Eeferred to, p. 105. The case of Mugghton v. Barnett "svas stortly as fol- lows (a): — Edward Muggleton purchased in 1772 certain copyliold property, teld 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 ho had more than one ; and if no son, to the daughters as parceners ; and if no issue, then to the youngest brother of the 2)erso7i 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 hy numerous entries of admission. The pur- chaser died intestate in 1812, 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 {i() Tlie substance of these ob- newspaper, 4 Jui"., N. S., Part 2, eervations appeared in letters pp. 6, 5G. to the editor of the "Jurist" 522 APPENDIX. w every case descent sliall be traced from tlio purchaser. { Under the old law, seisin made the stock of descent. By 1 the new law, the purchaser is substituted m every case for I the person last seised. The legislature itself has j)laced this interpretation upon the above enactment. A well known statute, commonly called the "Wills Act (b), enacts, "that it shall be lawful for every person to devise or disj)ose of by his will, executed in manner hereinafter re- quired, all real estate which he shall be entitled to, either at law or in equity, at the time of his death, and lohich, if not so devised or disposed of, tvoidd devolve upon the heir at law or customary heir of him, or, if he became entitled by descent, of his ancestor.''^ Now the old doctrine of possessio fratris was this, — that if a purchaser died seised, leaving a son and daughter by his first wife, and a son by his second wife, 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 ; biit if the eldest son did not enter, his brother of the half-blood was entitled as heir to his father, the 2^urchaser. 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 heii', 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 piu'chaser die intestate, leaving a sou 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 (i) Stat. 7 Will. IV. & 1 Vict. (f) See Sugden's Eeal Property c. 2G, s. 3, antO; p. 218. Statutes, pp. 280, 281 (1st ed.) ; 267, 268 (2iid ed.). APPENDIX. of tlio 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 expressly comprised in the statute, is in the same manner altered ; and the stock of descent, which was for- merly the person last seised, is now, in every case, the purchaser and the purchaser only. Sujipose, 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 1854, — Avho 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 hev 3^ounger 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 woidd, 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 purchaser is substituted for the person last seised, and whoever would be entitled as heir to the pui'chaser, 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 his 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, that the father of Edward Muggleton had been the purchaser, and that Edward Muggleton was 523 624 APPENDIX. his youngest son, and that tlie 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, however, 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 person last seised. The change, however, which the act has accomj)lished 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 been entitled as customary heir. The step from this case to that which actually occurred is very easy. On failure of the issue of the j)urchaser (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 customaiy heir of Edward Muggleton, the piu-chaser ? The case in Muggleton v. Barnett expressly states, that the land de- scends, 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 statement of the common law. It would have been said that the land descends, for want of issue, to the eldest son of the eldest brother of the person last seised. It would APPENDIX. 525 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 j)laintiff 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 imjiortant, as showing that the person last seised was mentioned in the statement of the custom simply in accordance with the ordinary 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 aj)ply, and that his heir according to the common law was entitled id'). 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 / 1 , ," , - c the purchaser for the person last seised, whatever may bet / ' the custom as to descents. It follows, therefore, that the ^ plaintiff in Mugcjleton v. Barnett, being the customary heir of the purchaser, was entitled to recover. Since these observations were written, the following remarks have been made by Lord St. Leonards on the case i Muggleton Y. Barnett: — "In the result, the Exchequer and Exchequer Chamber, with much diversity of opinion 13 to the extent of the custom, decided the case against ;he claimant, who claimed as heir by the custom to the [d) Pnyne v. Barker, 0. Bridg. 18 ; Rider \. IFood, 1 Kay & J. 644. 526 APPENDIX. last imrcliaser, wMcli lie was ; because he was not heir by the custom to the person last seised. And yet the act extends to all customary tenures, and alters the descent in all such cases as well as in descents by the common law, by substituting the last purchaser as the stock from whom the descent is to be traced for the person last seised. The Court, perhaps, hardly explained the grounds upon which . they held the statute not to apply to this case " (e). (e) Lord St. Leonards' Essay on the Eeal Property Statutes, p. 271 (2nd ed.). ( 527 ) APPENDIX (B). Referred to, p. IIG. The point in question is as follows («) : — Suppose a man to be the purchaser of freehold land, and to die seised of it intestate, leaving two daughters, say Susannah and Catherine, but no sons. It is clear that the land will then descend to the two daughters, Susannah and Catherine, in equal shares as coparceners. Let us now suppose that the daughter Catherine dies on or after the 1st of January, 1834, intestate, and without having disposed of her moiety in her lifetime, leaving issue one son. Under these circumstances the question arises, to whom shall the inheritance descend ? The act to amend the law of inheritance enacts, " that in every case descent shall be traced from the purchaser." In this case Catherine is clearly not the purchaser, but her father ; and the descent of Catherine's moiety is accordingly to be traced from him. "Who, then, as to this moiety, is his heir ? Supposing that, instead of the moiety in question, some other land were, after Catherine's decease, to be given to the heir of her father, such heir would clearly be Susannah, the surviving daughter, as to one moiety of the land, and the son of Catherine as to the other moiety. It has been argued, then, that the moiety which belonged to Catherine, by descent from her father, must, on her (a) The substance of tlie follow- Cli. 313, the authority of which ing observations appeared in the decision is recognized by Lord St. '"Jurist" newspaper for Febru- Leonards in his Essay on the Real aiy 28, 18i6. The point has Property Statutes, p. 282 (1st ed.), [since been expressly decided, in 269 (2nd ed.), and in Lcivin v. laccordanco with the oi^inion for Lcwin, C. P., 21 Nov. 187-1, stated wliich the author has contended, in Williams on Seisin, pp. 81 — in Cooper v. France, V.-C. E., U 84. Jur. 2U; S. (J., 19 L. J., N. S., 528 APPENDIX. decease, descend to tlie heir of her father, in the same manner as other land would have done had she been dead in her father's lifetime ; that is to say, that one moiety of Catherine's moiety will descend to her surviving sister Susannah, and the other moiety of Catherine's moiety wiU \ descend to her son. But the following reasoning seems to show that, on the decease of Catherine, her moiety will not descend equally between her surviving sister and her own son, but will descend entirely to her son. In order to arrive at our conclusion, it will be necessary to inquii'o, first, into the course of descent of an estate tad, under the circumstances above described, according to the old law ; secondly, into the cause of descent of an estate in fee simple, according to the old law, suj)posing the circumstances as above described, with this qualification, that neither Susannah nor Catherine shall be considered to have obtained any actual seisin of the lands. And, when, these two points shall have been satisfactorily ascertained, we shall then be in a better position to place a correct interpretation on the act by which the old law of inheritance has been endeavoured to be amended. 1. First, then, as to the course of descent of an estate tail according to the old law. Let us suppose lands to have been given to the purchaser and the heirs of his body. On his decease, his two daughters, Susannah and Catherine, are clearly the heirs of his body, and as such will accord- ingly have become tenants in tail each of a moiety. Now there is no proposition more frequently asserted in the old books than this : that the descent of an estate tail is per I formam doni to the heirs of the body of the donee. On ' the decease of one heir of the body, the estate descends not to the heir of such heir, but to the heir of the body of the original donee jier formam doni. Suppose, then, that Catherine should die, her moiety would clearly have descended, by the old law, to the heir of the body of her father, the original donee in tail. Whom, then, under the above circumstances, did the old law consider to be the heir of his body quoad this moiety ? The Tenures of Littleton, ; APPENDIX. 529 as explained by Lord Coke's Comraentan', supply us with an answer, Littleton says, " Also, if lands or tenements be given to a man in tail who hath as much land in fee simple, and hath issue two daughters, and die, and his two daugh- ters make partition between them, so as the land in fee simple is allotted to the younger daughter, in allowance for the land and tenements in tail allotted to the elder daughter; if, after such partition made, the younger daughter alieneth her land in fee simple to another iu fee, and hath issue a son or daughter, and dies, the issue may enter into the lands in tail, and hold and occupy them in purparty with her aunt" (i). On this case Lord Coke makes the following comment: — " The eldest coparcener hath, by the partition, and the matter subsequent, barred herself of her right in the fee-simple lands, insomuch as when the youngest sister alieneth the fee-simple lands and dieth, and her issue entereth into half the lands entailed, yet shall not the eldest sister enter into half of the lands iu fee simple upon the alienee" (c). It is evident, therefore, that Lord Coke, though well acquainted with the rule that an estate tail should descend j^er for mam donl, yet never for a moment supposed that, on the decease of the younger daughter, her moiety would descend half to her sister, and half to her issue ; for he presumes, of course, that the issue would enter into half the lands entailed, that is, into the whole of the moiety of the lands which had originally belonged to their mother. After the decease of the younger sister, the heirs of the body of her father were no doubt the elder sister and the issue of the younger ; but, as to the moiety which had belonged to the younger sister, this as clearly was not the case ; the heir of the body of the father to inherit this moiety was exclusively the issue of such younger daughter, who were entitled to the whole of it in the place of their parent. This incidental allusion of Lord Coke is as strong, ii not stronger, than a dii-ect assertion by him of Ithe doctrine: for it seems to show that a doubt on the sub- ject never entered into his mind. (i) Litt. sect. 260. {c) Co. Litt. 17'2b. R.P. M M 630 APPENDIX. At tlie end of the section of Littleton, to which, we have referred, it is stated that the contrary is holden, M., 10 Hen. YI. ; scil. that the heir may not enter upon the par- cener who hath the entailed land, but is put to a for- medon. On this Lord Coke remarks ((/), that it is no part of Littleton and is contrary to law ; and that the case is not truly vouched, for it is not in 10 Hen. YI., but in 20 Hen. YI., and yet there is but the opinion of Newton, obiter, by the way. On referring to the case in the Year Books, it appears that Yelverton contended, that if the sister, who had the fee simple, aliened, and had issue, and died, the issue would be barred from the land entailed by the partition, which would be a mischief. To this Newton replied, "No, sir; but he shall have formedon, and shall recover the half'' (e). Newton, therefore, though wrong in supposing that a formedon was necessary, thought equally with Lord Coke, that a moiety of the land was the share to be recovered. This appears to be the Newton whom Littleton calls (y) "my master, Sir Richard Newton, late Chief Justice of the Common Pleas." There is another section in Littleton, which, though not conclusive, yet strongly tends in the same direction; namely, section 255, where it is said, that, if the tenements whereof two parceners make partition " be to them in fee tail, and the part of the one is better in yearly value than the j)art of the other, albeit they be concluded during their lives to defeat the partition, yet, if the parcener who hath the lesser part in value hath issue and die, the issue may disagree to the j)artition, and enter and occxipy in common the other part which was allotted to her aunt, and so the other may enter and occupy in common the other part allotted to her sister, t&c, as if no partition had been made." Had the law been that, on the decease of one sister, her issue were entitled only to an undivided fourth part, it seems strange that Littleton should not have stated that they might eater {d) Co. Litt. 173 a. (/) Sect. 729. \t) Year Book, 20Hen. VI. 14 a. APPENDIX. into a fourth only, and that tho othei* sister might occupy the remaining three-fourths. In addition to these authorities, there is a modern case, which, when attentively considered, is an authority on the same side ; namely. Doe d. Gregory and Geere v. Whi- chelo {g). This case, so far as it relates to the point in question, was as follows : — Eiehard Lemmon was tenant in tail of certain premises, and died, leaving issue by his first wife one son, Eiehard, and a daughter, Martha; and by his second wife three daughters, Anne, Elizabeth, and Grace. Eiehard Lemmon, the son, as heir of the body of his father, was clearly tenant in tail of the whole premises during his life. He died, however, witliout issue, leaving his sister Martha of tho whole blood, and his three sisters of the half blood, him surviving. Martha then intermarried with John AVhichelo, and afterwards died, leaving John Whichelo, the defendant, her eldest son and heir of her body. John Whichelo, the defendant, then entered into the whole of the premises, under the impression that as he was heir to Eiehard Lemmon, the son, he was entitled to the whole. In this, however, he was clearly mistaken ; for the descent of an estate tail is, as we have said, traced from the purchaser, or fii'st donee in ioiX, per formam doni. The heirs of the purchaser, Eiehard Lemmon, the father, were clearly his four daughters, or their issue ; for the daughters by the second wife, though of the half blood to their brother by the former wife, were, equally with their half sister Martha, of the whole blood to their common father. The onl}^ cj^uestion then is, in what shares the daughters or their issue became entitled. At the time of the ejectment all the daughters were dead. Elizabeth was dead, without issue ; whereuj)on her one equal fourth part devolved, without disj)ute, on her three sisters, Martha, Anne and Grace : each of these, there- fore, became entitled to one equal third part. Martha, as we have seen, died, leaving John Whichelo, the defendant, her eldest son and heir of her body. Anne died, leaving James Gregory, one of the lessors of the plaintiif , her grand- {(/) 8T. R. 211. M ^[ 2 531 532 APPENDIX, son and heir of her body ; and Grace died, leaving Diones Geere, the other lessor of the plaintiff, her only son and heir of her body. Under these circumstances, an action of ejectment was brought by James Gregory and Diones Geere ; and on a case reserved for the opinion of the Court, a ver- dict was directed to be entered for the plaintiff for two- thirds. Neither the counsel engaged in the cause, nor the Court, seem for a moment to have imagined that James Gregory and Diones Geere could have been entitled to any other shares. It is evident, therefore, that the Court sup- posed that, on the decease of Martha, the heir of the body of the purchaser, as to her share, was her son, John Whichelo, the defendant ; that on the decease of Anne, the heir of the body of the purchaser, as to her share, was James Gregory, her grandson ; and that, on the decease of Grace, the heir of the body of the purchaser, as to her share, was her son, Diones Geere. On no other suppo- sition can the judgment be accounted for, which awai'ded one-third of the whole to the defendant, John "WTiichelo, one other third to James Gregory, and the remaining third to Diones Geere. For let us suppose that, on the decease of each coparcener, her one-third was divided equally amongst the then existing heirs of the body of the pur- chaser ; and the result will be, that the parties, instead of each being entitled to one-third, would have been entitled in fractional shares of a most complicated kind ; unless we presume, which is next to impossible, that all the three daughters died at one and the same moment. It is not stated, in the report of the case, in what order the decease of the daughters took place ; but according to the principle suggested, it will appear, on working out the fractions, that the heir of the one who died first would have been entitled to the largest share, and the heir of the one who died last would have been entitled to the smallest. Thus, let us sup- pose that Martha died first, then Anne, and then Grace. On the decease of Martha, according to the principle sug- gested, her son, John Whichelo, would have taken only one- third of her share, or one-ninth of the whole, and Anne and Grace, the surviving sisters, would each also have taken one third of the share of Martha, in addition to their own APPENDIX. one-third of tlio whole. The shares would then have stood thus : John Whichelo J, Anne ?, -f » > Grace i -\- ^. Anne now dies. Her share, according to the same principle, would be equally divisible amongst her own issue, James Gregory, and the heirs of the body of the piirchaser, namely, John Whichelo and Grace. The shares would then stand thus : John "Whichelo i + -•, (i + i) ; namely, his own share and one-third of Anne's share = -^-- : James Gregory, i{i + i) = ^f: Grace, ^ + i- + a (^ 4. i) ; namely, her own share and one-third of Anne's share, = J ?. Lastlj', Grace dies, and her share, according to the same principle, woidd be equally divisible between her own issue, Diones Geere and John "Whichelo and James Gregory, the other co-heirs of the body of the purchaser. The shares would then have stood thus: John Whichelo, -/f -^ {If X if): namely, his own share and one-third of Grace's share, = H- of the entirety of the land. James Gregory, -^V -f (J- X if); namely, his own share and one-third of Grace's share, = fj- ; Diones Geere, J X i?= if. On the principle, therefore, of the descent of the share of each co-parcener amongst the co-heirs of the body of the purchaser for the time being, the heir of the body of the one who died first would have been entitled to thirty-seven eighty-first parts of the whole premises ; the heir of the body of the one who died next would have been entitled to twenty-eight eighty-first parts ; and the heir of the body of the one who died last would have been entitled only to sixteen eighty-first parts. By the judgment of the Court, however, the lessors of the plaintiflt were entitled each to one equal third part ; thus showing that, although the descent of an estate tail under the old law was always traced from the purchaser (other- wise John Wliichelo would have been entitled to tlie whole), j-et this rule was qualified by another of equal force, namely, that all the lineal descendants of any person deceased should represent their ancestors; that is, should stand in the same place, and take the same share, as the ancestor would have done if living. 2. Let us now inquire into the course of descent of an estate in fee simple, according to the old law, in case the 533 534 APPENDIX. piu'diaser sliould have died, leaving two daughters, Susan- nah and Catherine, neither of whom should have obtained any actual seisin of the lands, and that one of them (say Catherine) should afterwards have died, leaving issue one son. In this case, it is admitted on all sides, that the share of Catherine would have descended to the heir of the purchaser, and not to her own heir, in the character of heir to her ; for the maxim was sei.mia facit stqntem. Had either of the daughters obtained actual seisin, her seisin would have been in law the actual seisin of the sister also ; and on the decease of either of them her share would have descended, not to the heir of her father, but to her own heir, the seisin acquired having made her the stock of descent. In such a case, therefore, the title of the son of Catherine to the whole of his mother's moiety would have been indisputable; for, while he was living no one else could possibly have been her heir. The supposition, how- ever, on which we are now to j)roceed is, that neither of the daughters ever obtained any actual seisin ; and the question to be solved is, to whom, on the death of Catherine, did her share descend ; whether equally between her sister and her son, as being together heir to the purchaser, or whether solely to the son, as being heir to the purchaser, quoad his mother's share. In the late Mr. Sweet's valuable edition of Messrs. Jarman and Bythewood's Conveyancing (A), it is stated to be " apprehended that the share of the deceased sister would have descended in the same manner as by the recent statute it will now descend in every instance," which manner of descent is explained to be one-half of the share, or a quarter of the whole only, to the son, and the remain- ing half of the share to the surviving sister, thus giving her three-quarters of the whole. This doctrine, however, the writer submits, is erroneous ; and in proof of such error it might be sufficient simply to call to mind the fact that the law of England had but one rule for the discovery of the heir. The heirs of a purchaser were, first the heirs of his (A) Vol. i. p. 139. This point opinion in Prt<«;-so» v. Jjfi7/«,V.-C. has, however, since been decided K. Bruce, 15 Jur. 1; S. C, 19 in accordance with the author's L. J., N. S., Ch. 310. APPENDIX. 535 body, and then his collateral heirs ; and an estate tail was merely an estate restricted in its descent to lineal heirs. If, therefore, the heir of a person had been discovered for the purpose of the descent of an estate tail, it is obvious that the same individual vrould also be heir of the same person for the purpose of the descent of an estate in fee simple. No distinction between the two is ever mentioned by Lord Coke, or any of the old authorities. Now, we have seen that the heir of the purchaser, under the circumstances above mentioned, for the purpose of inheriting an estate tail, was the son of the deceased daughter solely, quoad the share which such daughter had held ; and it would accord- ingly appear that the heir of the purchaser, to inherit an estate in fee simple, was also the son of the deceased daughter quoad her share. That this was in fact the case appears incidentally from a passage in the Year Book («'), where it is stated, that " If there be two coparceners of a reversion, and their tenant for term of life commits waste, and then one of the parceners has issue and dies, and the tenant for term of life commits another waste, and the aunt and niece bring a writ of waste jointly, for they cannot sever, and the writ of waste is general, still their recovery shall be special ; for the aunt shall recover treble damages for the waste done, as well in the life of her parcener as after- wards, and the niece shall only recover damages for the waste done after the death of her mother, and the place wasted they shall recover jointly. And the same law is, if a man has issue two daughters and dies seised of certain land, and a stranger abates, and afterwards one of the daughters has issue two daughters and dies, and the aunt and the two daughters bring assize of mort d'ancestor ; here, if the aunt recover the moiety of the land and da- mages from the death of the ancestor, and the nieces recover each o)ie of them the moiety of the moiety of the laud, and damages from the death of their mother, still the writ is general." Here we have all the circumstances required; the father dies seised, leaving two daughters, neither of whom obtains any actual seisin of the land ; for (i) .3.5 Hen. VI. 23. 536 APPEXDIX. a stranger abates, — that is, gets possession before them. One of the daughters then dies, without having had pos- session, and her share devolves entirely on her issue, not as heirs to her, for she never -was seised, but as heirs to her father quoad her share. The surviving sister is en- titled only to her original moiety, and the two daughters of her deceased sister take their mother's moiety equally between them. There is another incidental reference to the same subject in Lord Coke's Commentary upon Littleton (k) : " If a man hath issue two daughters, and is disseised, and the daugh- ters have issue and die, the issues shall join in a praecipe, because one right descends from the ancestor, and ti maketh no difference whether the common ancestor, being out of possession, died before the daughters or after, for, that, in both cases, they must make themselves heirs to the grand- father which was last seised, and when the issues have recovered, they are coparceners, and one prsecipe shall lie against them." " It maketh no difference," says Lord Coke, "whether the common ancestor, being out of possession, died before the daughters or after." Lord Coke is cer- tainly not here speaking of the shares which the issue would take ; but had any difference in the quantity of their shares been made by the circumstance of the daughters surviving their father, it seems strange that so accurate a writer as Lord Coke should not " herein " have " noted a diversity." The descent is traced to the issue of the daughters not from the daughters, but from their father, the common grand- father of the issue. On the decease of one daughter there- fore, on the theory against which we are contending, the right to her share should have devolved, one-half on her own issue and the other half on her surviving sister ; and, on the decease of such siu-viving sister, her three-quarters shoiild, by the same rule, have been divided, one-half to her own issue, and the other half to the issue of her deceased sister; whereas it is admitted, that had the daughters both died in their father's lifetime, their issue would have inhe- (/.•) Co. Litt. 164 a. APPENDIX. 537 rited in equal shares. Lord Cuko, however, remarks no difference whether the father died before or after his daughters. Surely, then, he never could have imagined that so great an equality in the shares coiild have been produced by so mere an accident. It should be remem- bered that the rule of representation for which we are con- tending is the rule suggested by natural justice, and might well have been passed over without express notice ; but had the opposite rule prevailed, the inequality and injustice of its operation could scarcely have failed to elicit some remark. This circumstance may, perhaps, tend to explain the fact that the writer has been unable, after a lengthened search, to find any authority expressly directed to the point ; and yet, when we consider that in ancient times, the title by descent was the most usual one (testamentary alienation not having been permitted), we cannot doubt but that the point in question must very frequently have occurred. In what manner, then, can we account for the silence of our ancient writers on this subject, but on the sujoposition, which is confirmed by every incidental notice, that, in tracing de- scent from a purchaser, the issue of a deceased daughter took the entire share of their parent, whether such daughter should have died in the lifetime of the piu'chaser or after his decease ? Having now ascertained the course of descent among coparceners under the old law, whenever descent was traced from a piu'chaser, we are in a better situation to place a construction on that clause of the act to amend the law of inheritance which enacts, " that in every case descent shall be traced from the purchaser" (/). AVhat was the nature of the alteration which this act was intended to effect ? Was it intended to introduce a coui-se of descent amongst coparceners hitherto unknown to the law, and tending to the most intricate and absurd subdivision of their shares ? or did the act intend merely to say that a descent from the purchaser, which had hitherto occiu-red only in the case of an estate tail, and in the case where the heir to a fee (0 Stat. 3 & 4 Will. IV. c. 106, s. 2. 538 APPENDIX. simple died without obtaining actual seisin, should no'W' apply to eveiy case? In other Tvords, has the act abolished the rule that, in tracing the descent from the purchaser, the issue of deceased heirs shall stand quoad their entire shares in the place of their parents ? "We have seen that pre- viously to the act, the rule that descent should be traced from the purchaser whenever it applied, was guided and governed by another rule, that the issue of every deceased person should, quoad the entire share of such person, stand in his or her place. AYhy, then, should not the same rule of representation govern descent, now that the rule tracing descent from the purchaser has become applicable to every case? Had any modification been intended to be made of so important a rule for tracing descent from a purchaser, as the rule that the issue, and the issue alone, represent their ancestor, surelj^ the act would not have been silent on the subject. A rule of law clearly continues in force until it be repealed. No repeal has taken place of the rule that, in tracing descent from a purchaser, the issue shall always stand in the place of their ancestor. It is submitted, there- fore, that this rule is now in full operation ; and that, although in every case descent is now traced from the pur- chaser, yet the tracing of such descent is still governed by the rules to which the tracing of descent from purchasers was in former times invariably subject. If this be so, it is clear, then, that, under the circumstances stated at the com- mencement of this paper, the share of Catherine will descend entirely to her own issue, as heir to the purchaser quoad her share, and will not be divided between such issue and the surviving sister. It is said, indeed, that, by giving to the issue one-half of the share which belonged to their mother, the rule is satis- fied which requires that the issue of a person deceased shall, in all cases, rej)resent their ancestor ; for it is argued that the issue still take one-fourth by representation, notwith- standing that the other fourth goes to the siuwiving sister, who constitutes, together with such issue, one heir to their common ancestor. This, however, is a fallacy; the rule is, "that the lineal descendants in infinitum of any person APPENDIX. 539 deceased shall represent their ancestor, that is, shall stand in the same place as the person himself would have done had he been living " (m). Nq-sv, in what place would the deceased daughter have stood had she been living ? Would she have been heir to one-fourth only, or would she not rather have been heir to the entire moiety ? Clearly to the entire moiety, for had she been living, no descent of her moiety would have taken place ; if, then, her issue are to stand in the j^lace which she would have occupied if living, they cannot so represent her unless they take the whole of her share. But it is said, again, that the surviving daughter may have aliened her share ; and how can the descent of her deceased sister's share be said to be traced from the purchaser, if the survivor, who constitutes a part of the purchaser's heir, is to take nothing ? The descent of the whole, it is argued, can- not be considered as traced over again on the decease of any daughter, because the other daughter's moiety may, by that time, have got into the hands of a perfect stranger. The i:)roj)er reply to this objection seems to be, that the laws of descent were prior in date to the liberty of aliena- tion. In ancient times, when the rules of descent were settled, the objection could scarcely have occurred. Estates tail were kept from alienation by virtue of the statute De Donis for about 200 years subsequent to its passing. Eights of entry and action were also inalienable for a very much longer period. Reversions expectant on estates of freehold, in the descent of which the same rule of tracing from the purchaser occurred, could alone have afforded an instance of alienation by the heir; and the sale of reversions appears to have been by no means frequent in early times. In addi- tion to other reasons, the attornment then required from the particular tenant on ever}' alienation of a reversion operated as a check on such transactions. It may, therefore, be safely asserted as a general proposition, that on the decease of any coparcener, the descent of whose share was to be traced from the purchaser, the shares of the other coparceners (m) 2 Black. Com. 216. 540 APPENDIX. had not been aliened ; and to have given them any part of their deceased sister's share, to the prejudice of her own issue, -would have been obviously unfair, and contrary to the natural meaning of the rule, that " every daughter hath a several stock or root" (m). If, as we have seen, the rule remained the same with regard to estates tail, notwithstand- ing the introduction of the right of alienation (o), surely it ought stiU to continue unimpaired, now that it has become applicable to estates in fee, which enjoy a still more perfect liberty. Eules of law which have their foundation in natural justice, should ever be upheld, notwithstanding they may have become applicable to cases not specifically contemplated at the time of their creation. («) Co. Litfc. 164 b. {o) Doe V, Whichcio, 8 T. R. 211 ; ante, p. 531. ( 541 ) APPENDIX (C). Referred to, p. 123. It has been remarked that the author differs from the view of the Court of Exchequer Chamber in the case of Lord Dunraven v. Llewelhjnia), without stating his reason (i). In that case the Court held that there was no general common law right of tenants of a manor to common on the waste ; but the author remarked that, in his humble opinion, the authorities cited by the Court tend to the ojjposite con- clusion (c). The judgment of the Court is as follows : — ■ " The question in this case is, whether my brother Piatt The judg- " was right in rejecting evidence of reputation, offered on ™®^ ' " the trial before him, to show the title of the lord of the " manor of Ogmore to certain lands within the ambit of the " manor. ' * The evidence was that there were very many lands and " tenements held of the manor, the tenants whereof, in " respect of those lands, had always exercised rights of ' ' common for all their commonable cattle on a certain waste " adjoining to which was the locus in quo; and that the " deceased persons, being such tenants and exercising " rights cmte litem motam, declared that the locus in quo " was parcel of the waste. Another description of evidence " was, that certain deceased residents in the manor had " made similar declarations. No evidence was given of the " exercise of the rights of those tenants over the locus in {a) 15 Q. B. 791. 9 Eq. 241, and Warrick\. Queen's [h) Six Essays on Commons College, L. R., 10 Eq. 105, 123; Preservation, Essay 3, by Mr. F. affirmed L. R., 6 Ch. Ap. 71G ; 0. Crump, p. 188. Belts v. Thompson, L. R., 6 Ch. {c) Ante, p. 123, n. (;). The Ap. 732 ; Hall y. Byron, ^Ch.Ji. reader is now referred to the cases 667. of Sinith V. Earl Broicnloic, L. R., 542 APPENDIX. ^?() Co. Litt. 122 a ; Tear Book, 21 Hen. VI., 10 a; Fitz. Nat. Brev. 179, n. (i). {x) Co. Litt. 121 b. (V) Co. Litt. 122 a, n. (2); Jeii- JiitiY. Vivian, Popham, 201. APPENDIX. 553 into a luoro minute doscriptiou. Had it boon 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 custom 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 (z). Secondly, "If a man purchase part of the land wherein common appendant is to be had, the common shall be ap- Common ap- portioned, because it is of common riqlit ; but not so of a com- P™*^'™* s'^^^'- r ^ .' i> ' be appor- mon appurtenant, or of any other common of what nature tioned. 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. Ti/rrin(/ham^s Tyrringham' s case (b) turned on this distinction. The tenant there lost ''"'^'^' 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 was 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 that the common was appurtenant and not appendant, and so against common riyht, it was adjudged that by the said purchase all the common was extinct" (r/). Common appurtenant is Common ap- (r) Bac. Abr. tit. Customs (H). (r) Ante, p. 551. (rt) Co. Litt. 122 a. {d) 4 Rep. 38 a. [h) 4 Rep. 36 b. 554 APPENDIX. purtenant is ' ' against ' ' common right. against comniou right "because it depends upon a special grant, either expressed or implied from long usage ; and tlie 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 be appor- tioned on the union of the tenements in resi^ect 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 woidd 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. Common fields. 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. Llewelhjn 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, wore of Saxon or German rather than of Norman 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" (/), were at least of Saxon, if not in many cases {e) See Mr. Beale's suggestive Es6ay on Commons Preservation, Essays, p. 109 ; Abbreviatio Pla- citorum, Mich. 4 Jolin, p. 3G ; Trin. 4 John, p. 40; Easter, 7 & 8 John, p. 51. (/) Sir Miles Corbefs case, 7 Kep. .5 b. APPENDIX. 555 of ancient British origin {'™ed tenement. The refined distinctions between apj)endant and appurtenant are not noticed in the writ, and were probably the work of a later age. But here was an incorporeal tone- i ment only, belonging to a corporeal one. The wiit, as Fitz- | herbert remarks, does not say that the claimant Is disseised of his freehold, as was done in the case of land, but only of his common of pasture belonging to his freehold (b). * Here was an end of any claim to the soil of the waste. All the tenants who had been accustomed to put their cattle on the waste had their rights defined more accurately than before, but narrowed also to fit the definition. This appears to have been the actual origin of common appendant in most parts of the principality of Wales ; and if this be so, that right, in that country at least, has had its origin, not In a number of actual separate grants made by the lord to cer- tain tenants, but in the adaptation of the ancient rights | (2) P. 866 of fol. edit, by Record {h) Fitz. Nat. Brev. vol. 2, p. Coimnissioners. 179. («) Vol. 2, p. 179. 560 APPENDIX. of the freeliolders as a class to the remedies prescribed by Eno:Hsh law. County of Glamorgan not granted by Llewellyn, Conquered by Robert Fitz- hamon. Subjected to the laws of England. The county of Glamorgan, in which the lands in dispute in the case of Lord Dunraven v. Llewellyn were sitiiate, does not appear to have been comprised in the grant made by Prince Llewellyn to King Edward I. (c). The lordshij) of this county appears to have been acquired by the crown from Anne, Countess of AVarwich, whose daughter married Richard, Duke of Gloucester, afterwards Eichard III., King of England. Anne, Countess of Warwick, was a descendant of one Robert Fitzhamon, (a great lord and kinsman of William the Conqueror,) who acquired the lordship of Glamorgan by concjuest from the Welsh, in the fourth year of the reign of King William Eufus, and who gave the castle and manor of Ogmore to William de Londres, knight, in reward for his services (r/). And by a statute of the reign of King Henry YIII. (e), it was provided that after the feast of All Saints then next coming, justice should be ministered and executed to the king's subjects and inha- bitants of the said county of Glamorgan, according to the laws, customs and statutes of the realm of England, and after no Welsh laws, in such form and fashion as justice was ministered and used to the king's subjects within the three shires of North Wales. This statute preserved the equal descent amongst all the sons then prevalent in Wales (y), which, however, was abolished by a subsequent act of the same reign ((7). In the case of Lord Dunraven v. Lleivellyn, the lord who claimed the land in dispute as part of the waste tendered, as we have seen, evidence of reputation — that so it was consi- dered by the commoners. This evidence was rejected, and (r) See an interesting article on tbe political geography of Wales by Henry Salusbury Mil- man, Esq., in the Archseologia, vol. 38, p. 19. {d) Stradling'sWinningof Gla- morgan from the Welsh, printed in Caradoc of Llancarvan's His- toiy of Wales, a.d. 177-1, pp. xxiii., xxvi., xxix., xxxi. (t) Stat. 27 Hen. VIII. c. 26, s. 14. (/) Stat. 27 Hen. VIII. c. 26, 8. 35. {(/) Stat. 34 & 35 Hen. VIII. c. 26, 8s. 91, 128. APPENDIX. 5G1 the commoners -wore not considered as a body or class, because certain tenants only — namely, the tenants of arable lands — liave by law a right to common appendant. If, how- Modus, ever, the dispute had been between the rector of the parish and an occupier of arable land, with respect to a parochial modus payable in lieu of great tithe, evidence of reputation would have been clearly admissible {h). And yet the ques- tion Avould have been one which did not concern every occupier of land in the parish, for the occupier of pasture land paid no great tithe. The tithe of agistment of pasture was a small tithe only (/). This exception, however, arising as it did from the nature of the subject of occupancy, did not prevent the other occupiers from being treated as a class. So in the case of common appendant, the exceptions which arise from the nature of certain holdings should not pre- vent the claimants, "who all claim under one common title — namely, a right given by the law itself — from being considered as a class of persons, with respect to whose rights evidence of reputation is admissible. If the commoners who claimed common appendant for their commonable beast had claimed by the custom of the manor a right to put on the waste beasts not commonable, such as geese and pigs, evidence of reputation would have been admissible on the ground that a custom "was in dis- Custom, pute {k). But such evidence is admissible in the case of a custom solely on the ground that a custom affects a class or body of persons in a j)articular place (/). Can it be said that the commoners are less a class when the custom of the manor coincides with the common law, which is the general custom of the realm, than when it differs from it ? It may be said that common appendant at the present Extinguish- day is comparatively rare, that many such rights have now "^^^ ° "° become extinguished, and, that, supposing a single right to {h) White y. Zi6;c, 4Mad. 214, Q. B. 589, 603, as explained in 225. Lord Dunraven v. Llewellyn, ante, (i) 1 Eagle on Tithes, 44. p. 544. [k) Damei-ell v. Protheroe, 10 [l) Jones y. Robin, \Q Q,.B. b9,l, Q. B. 20; rrichard v. Pou-ell, 10 583, G20, G35. R.P, O O 562 APPENDIX. remain in a manor, ought evidence of reputation to be given in support of it ? The answer is, that this depends upon the manner in which the claimant frames his claim. He may choose to rely on his continuous enjoyment of the right of common in respect of his tenement, or he may claim the benefit of the provisions, with liability to the limitations, of the Prescription Act (m) ; but he will not then be able to avail himself of the former exercise of similar rights in respect of other tenements holden of the same manor. If, however, he claim his common as appendant, there seems no reason why, in relying on a general right, he should not have the benefit of evidence of reputa- tion as to similar rights once existing but now extinct. Reputation is admissible as to the boundaries of a manor, and none the less though the manor as such has ceased to exist («). The cesser, therefore, of any general right ought not to prevent the admission of evidence of reputation as Customs. to its former existence. The cases as to customs afford an analogy. If all the copyholds but one, parcel of a certain manor, should become extinct, the tenant of that one may, if he pleases, allege a customary right of common as belong- ing to that tenement only (o) ; but in that case he cannot adduce evidence of the enjoyment of a similar right by other tenants of the same manor (/>). He must prove the custom as he alleges it(q). He may, however, if he pleases, allege the right as belonging by custom to all the customary tenements of the manor (r), and in that case evidence as to the other tenements will be admissible in his behalf; but at the same time he will expose his claim to be met by evidence relating to any other tenement in the manor standing in the same situation as his own (s). (w) Stat. 2 & 3 Will. IV. c. 71, {p) Wilson v. Page, 4 Esp. 71. ante, p. 493. [q) Dunstan v. Tresider, 5 T. (w) Steel V. Prickett, 2 Stark. Eep. 2. 463 ; Doe d. Molesuorth v. She- (>•) See Potter v. North, 1 Wma. man, 9 Q. B. 298 ; and see Barnes Saund. 34G, 348; 1 Lev. 268. V. 3Iaivson, 1 Mau. & Sel. 77. (4) 1 Scriv. Cop. 597, 3rd edit.; {0) Bac.Abr. tit. Copyhold (E); Cort v. BirHeck, 1 Doug. 218, Foiaton and Crachroode^s Case, 4 219, 223 ; Freeman v. FJiillipps, 4 Rep. 31b. Mau. & Sel. 486, 495. APPENDIX. 563 For these i-easons the author is of opinion that the case of Lord Dunraven v. Llexoclhjn 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 i admission of evidence of reputation. With this decision ' the author has no fault to find. oo2 564 APPENDIX. APPENDIX (D). Keferred to, pp. 196, 212, 318, 473, 474. Date. Parties. Testatum. Consideratiou, Bargain and sale. Parcels. General "words. Bargain and Sale, or Lease for a Year. (See p. 194.) Tuis IxDEXTUEE made the fii-st daj^ of January (a) [in the third year of our Sovereign Lady Queen Yictoria by the grace of Grod of the United Kingdom of Great Britain and Ireland Queen Defender of the Faith and] in the year of our Lord 1840 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 "WITNESSETH that the said A. B. in consideration of five shillings (b) of lawful money of Great Britain to him in hand paid by the said C. D. at or before the sealing and delivery of these presents (the receipt whereof is hereby acknowledged) Hath bargained and sold and by these presents Doth bargain and sell unto the said C. D. his executors administrators and assigns All that messuage or tenement situate lying and being at &c. and commonly called or known by the name of &c. \Jiere describe the pre- 7nises~\ Together with all and singular the houses outhouses edifices buildings barns dovehouses stables yards gardens orchards lights easements ways paths passages waters watercourses trees woods underwoods commons and com- monable rights hedges ditches fences liberties privileges emoluments commodities advantages hereditaments and appurtenances whatsoever to the said messuage or tenement lands and hereditaments or any part thereof belonging or in anywise appertaining or with the same or any part thereof 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 [a) The words within brackets were latterly most generally omitted. [b) Ante, p. 163. ATPEXDIX. 565 reversions remainder and remainders yearly and other rents issues and profits of the same premises and every part thereof To have axd to noLD the said messuage or tene- Habendum, ment lands and hereditaments and all and singular other the premises hereinbefore bargained and sold or intended so to be with their and every of their rights members and appurtenances unto the said C. D. his executors administra- tors and assigns from the day next before the day of the date of these presents for and during and unto the full end and term of one whole year thence next ensuing and fully to be comi^lete and ended Yieldixg axd tayixg therefor the Reddenduin. rent of one peppercorn (e) at the exjiiration of the said term if the same shall be lawfully demanded To the intent and purpose that by virtue of these presents and of the statute for transferring uses into possession the said C. D. may be in the actual possession of the same premises and may thereby be enabled to accept and take a grant and release of the freehold reversion and inheritance of the same premises and of every part and parcel thereof to the said C. D. his heirs and assigns to the uses and for the intents and purposes to be declared by another indenture of three parts already prepared and intended to be dated the day next after the day of the date hereof In witness whereof the said parties to these presents have hereunto set their hands and seals the day and year first above written. 77ie Release. Tins Indenture made the second day of January (d) [in Date, the third year of the reign of our Sovereign Lady Queen Yictoria 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 Between A. B. of Parties. Cheapside in the city of London Esquire of the first 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 ' (c) Ante, p. 258. [rl) The words within brackets •were latterly omitted. 566 APPENDIX. Recital of the conveyance to the vendor. Recital of the contract for sale. Testatum. Consideration, Receipt. Operative words. gentleman of the third part (b) "Whereas by indentures of lease and release bearing date respectively on or about the first 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. imto and to the use of the said A. B. his heirs and assigns for ever And whereas the said A. B. hath contracted and agreed with the said 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 Now THIS IxDEXTURE WITNESSETH that for carrpug 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 0. D. upon or immediately before the sealing and delivery 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 messuage or tenement lands and hereditaments hereinafter described and intended to be hereby granted and released with the appurtenances 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. Hath granted bargained sold aliened released and con- firmed and by these presents Doth grant bargain sell alien release and confirm unto the said C. D. (in his actual (b) The reason why Y. Z. is made a party to this deed is, that the widow of C. D., if married on or before the 1st of January, 1834, may be barred or deprived of her dower. Seeante,pp. 317, 318. If this should not be intended, the deed would be made between A. B. of the one part, and C. D. of the other part, as in the deed given, p. 200. APPENDIX. 567 possession now being by virtue of a bargain and sale to him thereof made by the said A. B. in consideration of five shillings in and by an indenture bearing date the day next before the day of the date of these presents for the term of one whole year commencing from the day next before the day of the date of the same indenture of bargain and sale and by force of the statute made for transferring uses into possession) and to his heirs (c) Ale that messuage Parcels, or tenement situate lying and being at «&c. commonly called or known by the name of &c. [here describe the premises] General Together with all and singular the houses outhouses words, edifices buildings barns dovehouses stables yards gardens orchards lights easements ways paths passages waters watercourses trees woods underwoods commons and com- monable 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 and released or intended so to be or any part thereof be- longing or in anywise appertaining or with the same or any part thereof now or at any time heretofore {d) usually held used occupied or enjoyed [or accepted reputed taken or known as part parcel or member thereof] And the re- version and reversions remainder and remainders yearly and other rents issues and profits of the same premises and every part thereof And all the estate right title interest Estate, use trust inheritance property 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 tene- (c) If the deed were dated at " the fourth year of the reign of anytime between the month of " her present Majesty Queen Vic - May, 1841 (the date of the statute " toria intituled An Act for ren- 4 & 5 Vict. c. 21 ; ante, pp. 189, " dering a Release as effectual for 196), and the first of January, " the Conveyance of Freehold Es- 1845 (the time of the commence- " tates as a Lease and Release by ment of the operation of the Trans- " the same Parties) grant bargain fer of Property Act, ante, p. 189), "sell alien release and confirm the form would be as follows: — "unto the said C. D. and his " He the said A. B. Doth by these "heirs." ' ' presents (being a deed of release As to the form in a deed of " made in pursuance of an act of grant, see ante, pp. 201, 509. " Parliament made and passed in {d) See ante, p. 616. 568 APPENDIX. And all deeds. Habendum. Uses to bar dower. ment lands liereditaments and premises hereby granted and released or intended so to be and every part and parcel of the same Tvith their and every of their appurtenances And all deeds evidences and writings relating to the title of the said A. B. to the said hereditaments and premises hereby gi-anted and released or intended so to be now in the cus- tody of the said A. B. or which he can procure without suit at law or in equity To have and to hold the said messuage or tenement lands and hereditaments herein- before described and all and singular other the premises hereby granted and released or intended so to be with their and every of their rights members and appurtenances unto the said C. D. and his heirs (e) To such uses upon and for such trusts intents and purposes and with under and subject to such jiowers provisoes declarations and agreements as the said C. D. shall from time to time by any deed or deeds instrument or instruments 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 witnesses 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 imjieach- ment of waste And from and after the determination of that estate by forfeiture or otherwise in his lifetime To the use of the said Y. Z. and his heirs during the life of the said C. 1). In trust nevertheless for him the said C. D. and his Covenants for 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 said A. B. doth hereby for himself his heirs {/) executors and administrators covenant promise and agree with and to the said C. D. his appointees heirs and assigns in manner follow- ing that is to say that for and notwithstanding any act deed matter or thing whatsoever by him the said A. B. or any title. {)■) If C. D. was not man-ied on or before the Lst of January, 1834, or if, having been so mar- ried, the do wer of his widow should form would here simply be ' ' To " the use of the said CD. his heirs " and assigns for ever." (/) See ante, pp. 83, 8i, 472, not be intended to be barred, the 473. APPENDIX. 569 person oi* persons lawfully or equitably claiming or to claim by from through under or in trust for him made done or committed to the contrary (^) [he the said A. 13. is at the That tho time of the sealing and delivery of these presents lawfully gc^e^^i^^'foe rightfully and absolutely seised of or well and sufficiently entitled to the messuage or tenement lands hereditaments and j)remises hereby granted and released 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 revocation 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 not- withstanding any such act matter or thing as aforesaid] That the ven- he the said A. B. now hath in himself good right full dor has a good 1 . 1 . right to con- power and lawful and absolute authority to grant bargain vey. sell alien release and confirm the said messuage or tene- ment lands hereditaments and premises hereinbefore granted and released 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 For quiet en- messuage or tenement lands hereditaments and premises J^y"^^*^"^ • 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 hin- drance 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 claim by from through under or in trust for him And For freedom that (h) free and clear and freely and clearly acquitted r"'^^ mciiin- ^ ' . '' . . . brances. exonerated and discharged or otherwise by him the said A. B. his heirs executors or administrators well and suf- (ff) See ante, p. 474. {h) The word iJtat is here a pronoun. assurance. 570 APPENDIX. 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 and 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 claiming or to claim by from For further through under or in trust for him And moreover that he the said A. B. and his heirs and all and every persons and 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 and released or intended so to be with their appurtenances by from through imder 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 executed 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 releasing conveying and assuring the said messuage or tenement lands hereditaments and premises hereinbefore granted and released 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 as by him the said C. D. his appointees heirs or assigns or his or their counsel in the law shall 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 APPENDIX. 571 administrators acts and deeds only and so that the person or persons -who shall bo 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 his her or their d'welling or respective dwellings or usual place or places of abode or residence] In witness, &c. On the back is endorsed the attestation and further re- ceipt 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 sum 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. 072 APPENDIX. APPENDIX (E). Referred to, p. 243, u. (a). Ox the decease of a ■^oman 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 sim2:)le or in fee tail general, or seised as heir in tail especial, and hath issue by the same wife, male or female, born alive, albeit the issue after dieth or liveth, yet if the wife dies, the husband shall hold the land during his life by the law of England. And he is called tenant by the curtesie of England, because this is used in no other realme, but in England only" [b). 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- March 14, 1846. lowing observations appeared in (b) Litt. s. 35. the "Jurist" newspaper for APPENDIX. 573 estate of tenements, &c., as the issue "which he hath by his wife may by possibility inherit the same tenements of such an estate as the wife hath, as heir to the ivife ; in this case, after the decease of the wife, he shall have the same tene- ments by the curtesie of England, but otherwise not " (c). "Memorandum," says Lord Coke, in his Commentary (r/), " this word doth ever betoken some excellent point of learn- ing;." Again, "^s heir to the xoife. 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 cvirtesie 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 are 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 him who was last actually seised." The same doctrine again appears in Blackstone (_/). "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. (e) 8 Rep. 36 a. \d) Co. Litt. 40 a. (/) 2 Black. Com. 128. 574 APPENDIX. any issue that can be heir to those lands, he shall not be tenant of them by the curtesy. And hence," continues Blackstone 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 inter- woven together, supporting, illustrating and demonstrating one another." Here we have, indeed, a formidable array, of authorities, all to the point, that, in order to entitle the husband to his curtesy, his wife must have been the stock from whom descent shovdd have been traced to her issue ; for the principal 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, endeavoTU' to apply this principle to the pre- sent law. The act for the amendment of the law of inherit- ance (y) enacts (A), 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. AVith respect to the per- sons to become entitled, as heii* to the purchaser on this descent, if the woman be a coparcener, the question arises, which has already been discussed (/), whether the surviving sister 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 iff) 3 & 4 "Will. IV. c. 106. (0 Appendix (B), ante, p. 527. (A) Sect. 2. APPENDIX, 575 tenancy by the curtesy was allowed of those lands only of which the wife had obtained actual seisin, because it was a necessary 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, liow can the husband obtain his curtesy in any case where the stock of descent is con- fessedly not the wife, but the wife's ancestor? Amongst all the recent alterations of the law, the doctrine of curtesy has been left untouched; there seems, therefore, to be no means of determining any question respecting it, but by applying the old principles to the new enactments, by which, indi- rectly, 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. i In the section of Littleton, which we have already quoted (/), 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 here 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, atid dieth be/ore any entry, the husband shall not be tenant by the curtesy, and yet, in this case, she had a seisi;a in law ; but, if she or her husband had, during her life, entered, he should have been tenant by the curtesy" (?n). Now, it is (0 Sect. 3.5. {m) Co. Litt. 29 a. 576 APPENDIX. ■well tnown that the descent of an estate tail is always traced from the purchaser 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 simplici facit sororem esse hseredem." AVhere, therefore, a woman who had been seised as heir or coparcener in tail died, leaving issue, such issue made themselves heir not to her, but to her ancestor, the purchaser or donee; and whether the mother did or did not obtain actual seisin was, in this respect, totally imma- terial. When actual seisin was obtained, the issue still made themselves heir to the purchaser only, and yet the husband was entitled to his curtesy. TVTien 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 men- tioned 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 circum- stances, be traced from her, but must have been traced from the original donee to the heir of his hoibf j)er 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 advowson and a rent, although no actual seisin had been obtained, in the wife's lifetime, by receipt of the rent or presentation to the advowson (m). 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 (o). The husband, therefore, was entitled to his curtesy where the («) Watk. Descents, 39 (47, («) Watk. Descents, 60 (67, 4th ed.). 4th ed.). APPENDIX. 577 descent to the issue was traced from tlie ancestor of his wife, as well as where traced from the wife herself. In this case, also, the right of curtesy was, accordingly, inde- pendent 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 ho hath but a seisin in law, and yet the wife shall be endowed, albeit 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 tvife's land ivhen 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 was, that his wife may not suffer 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 tlie 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 hus- band's power to do with regard to the wife's lands ; tchich is one reason lohy he shall not be tenant by the curtesy but of such lands xohereof the ivife, or he himself in her right, ivas actually seised in deed'''' (q). The more we investigate the rules 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 xmfrequently incui-red in entering {jj) Co. Litt. 31 a. (?) 2 Black. Com. 131. R.P. P P 578 APPENDIX. on lands for tlie sake of asserting a title ; for, in order to obtain an actual seisin, any person entitled, if unable to approach, tbe premises, was bound to come as near as he dare(r). And "it is to be observed," says Lord Coke, " tbat every doubt or fear is not sufficient, for it must con- cern the safety of the person of a man, and not bis bouses or goods ; for if be fear the biu'ning of bis bouses or the taking away or spoiling bis goods, tbis is not sufficient " (s). Tbat actual seisin sbould be obtained was obviously most desir- able, and notbing could be more natural or reasonable tban tbat tbe busband sbould bave no curtesy wbere be bad failed to obtain it. Perkins seems to tbink tbat tbis was tbe reason of tbe rule ; for in bis Profitable Book be 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, wbicb lands are in tbe county of York, and tbe busband and bis wife are dwelling in tbe county of Essex, and tbe wife dietb witbin one day after tbe descent, so as tbe busband could not enter during tbe coverture, for tbe sbortness of tbe time, yet be shall not be tenant by tbe curtesy, &c. ; and yet, according to common pretence, there is no default in the hushand. But it may be said tbat tbe busband of tbe woman, before tbe death of tbe ancestor of the woman, might have spoken unto a man dwelling near unto tbe place where the lands lay, to enter for the woman, as in her right, immediately after the death of her ancestor," &c. (;'). This reason for tbe rule is also quite consistent with the circumstance tbat the busband was entitled to bis curtesy out of incorporeal hereditaments, notwithstanding his failure to obtain an actual seisin. For if tbe advowson were not void, or the rent did not become payable during tbe wife's life, it was obviously impossible for the busband to present to the one or receive the other ; and it would have been unreasonable that he should suffer for not doing an impossibility, tbe maxim being " impotentia excusat legem." This is the reason, indeed, usually given to explain this circumstance ; and it (>•) Litt. ss. 419, 421. [t] Perk. 470. (.«) Co. Litt.. 253 b. APPENDIX. 579 ■^ill be found "both in Lord ColvO («) and Blackstone (x). This reason, liowever, 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 (y), as an apparent authority on the other side. Littleton expressly says, that when the issue may, by possibility, inherit, of suck an estate as the loxfe 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 toife, means here to inherit from the loife as the stock 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 we 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 husbaiid hath, as heir to the husband, of such tenements she shall have her dower, and otherwise 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 piu'pose, an actual seisin was requisite, according to the rule "seisina facit stipitem." In this case, therefore, it is obvious that Littleton could («) Co. Litt. 29 a. (;) Litt. s. 53. {x) 2 Black. Com. 127. («) Watk. Descents, 32 (42, (V) Sect. 52. 4th ed.). pp2 580 APPENDIX. not mean to say tliat tlie husband must have been made the stock of 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 en- dowed 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, for 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 wife 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 husband 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 tlien intended to state with respect to curtesy, was the rule Inid down by the Statute de Ponis (i), which (A) 13Edw. I. c. 1. APPENDIX. 581 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 the 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 thovigh 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 theii* common parent, the purchaser. But, in tracing this descent, we have seen in Appendix (B), that the issue of the deceased coparcener (c) See Bac. Abr. tit. Curtesy of England (C), 1. 582 APPENDIX. ■would inlierit 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. ( 583 ) APPENDIX (F). Referred to, p. 289. — ♦— If the rule of perpetuity, whicli restrains executory interests "svitliin a life or lives in being and twenty-one years after- wards, be, as is sometimes contended («), the only limit to the settlement of real estate by way of remainder, the fol- lowing limitations would be clearly unobjectionable : — To the use of A., a living unmarried person, for life, with re- mainder to the use of his first son for life, with remainder to the use of the fii'st son of such first son, born in the life- time of A., or within twenty-one years after his decease, for life, with remainder to the use of the first and othersons of such first son of such first son of A., born in the Kfetime of A., or within twenty-one years after his decease, succes- sively in tail male, with remainder to the use of the first son of the fii'st son of A., born in his lifetime, or within twenty-one years after his decease, in tail male, with re- mainder 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 re- mainder to the use of the second 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 third 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 as before, successively in tail male, with remainder to the use of such third son of the fii-st 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 of A., born as before, for {(i) Lewis on Perpetuity, p. 408 ct yeq. 584 APPENDIX. life respectively, followed by like remainders to the use of their respective first and other sons, born as before, succes- sively 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 that 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 probably 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 within 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 2:)0ssible ; 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, or now by the Chancery Division of the High Court. 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 evi- dence that such a settlement is illegal is that no conveyancer ever heard of such a draft being drawn. ( 585 ) APPENDIX (G). Eeferred to, pp. 389, 391. ♦ The Manor of \ A General Court Baron of John Freeman Fairfield in / Esq. Lord of the said Manor holden in and the County of I 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 Grrace 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- Considera- 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 Surrender. 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. \_/iere describe the jjremises^ with their Parcels. 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 Estate. 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. Now at this Court comes the said C. D. and prays to be Admittance, 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 586 APPENDIX. by the said steward grants seisin thereof by the rg^-^To Habendum. HAVE AND TO hold the said messuage hereditaments and 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 therefor 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 Fine £50. such his admittance a fine certain of £50 and his fealty is respited. (Signed) John Doe Steward. INDEX. A. Abandonment, evidence of, 495. Abeyance, inheritance in, 280. Abstract of title, vendor bound to furnisli an, 478. now forty years sufficient, 479. Account current, stamps on mortgages to secure, 465, n. AccuMUiiATiON, restriction on, 334. Acknowledgment of deeds by married women, 245, 246, n., 503. of right to production of documents, 499— 502. Actions, real and personal, 7. Administrator, 10, 353. of bare trustee, 119. Admittance to copyholds, 366, 372, 380, 390, 391, 393, 585. Advowson appendant, 340. agreements for resignation, 356. conveyance of, 358. in gross, 340, 355, 358. of rectories, 357. of vicarages, 358. proper length of title to, 478, 479. limitation of actions and suits for, 490. Agreements, what required to be in writing, 174. stamps on, 175, n. for lease, 408. stamps on, 408, n. Agricultural Holdings (England) Act, 1875 . . 404, 405, 428. Aids, 124, 126. Alien, 67, 172. Alienation of real estate, 18, 19, 40, 41, 43, 44, 46, 63, 65, 67, 68, 71, 79, 80, 82, 97, 98, 264. power of, unconnected with ownership, 314. of executory interest, 330. of copyholds, 377, 387, 389, 390, 391, 585. Ambassadors, children of, 68. 588 INDEX. Ancestor, descent to, 108, 116, 117. formerly excluded from descent, 109. Aif CIENT demesne, teniire of, 1 34, 370. incidents of tenure in fee, 122. AiwcriTiES for lives, enrolment of memorial of, now unneces- sary, 345. registration of, 346. search for, 504. Anticipation, clause against, 238, 239. Appendant incorporeal hereditaments, 336, 338, 340, 479. common appendant, 123, n., 493, 553. Application of purchase-money, necessity of seeing to the, 486. Appointment, powers of, 216, 310, 314 — See Powers. Apportionment of rent, 30, 31, 352, 417. of rent-charge, 352. by Inclosure Commissioners, 353. Appurtenances, 342, 343. Appurtenant incorporeal hereditaments, 342, 492, 493, 511, 515. rights of common and of way, 342, 493, 511, 515. Arms, grant of, 150, n. directions for use of, 306. Arts, conveyance for promotion of, 79. Assart, 555. Assets, 83. equitable, 84. Assignee of lease liable to rent and covenants, 411, 412. Assignment of satisfied terms, 434 — 437. of lease, 421, 479, 482. of chattel interest must be by deed, 421. of underlease, 481, 482. Assigns, 67, 151. Assurance, further, 473, 475, 510, 514, 570. Attainder of tenant in tail, 60. of tenant in fee, 71, 130. abolition of, 24, 60, 71, 172. Attendant terms, 434 — 438. Attestation to deeds, 201, 311. to wills, 218, 220, 313, 392. to deeds exercising powers, 311, 312, Attested copies, 483, 498. INDEX. 589 Attorneys' and Solicitors' Act, 1870 . .210, 466— See stat. 33 & 34 Vict. c. 28. Attornment, 261, 337. now abolished, 262, 338. Auction, sale of land by, 175. opening of biddings abolished, 175. Autre droit, estates in, 433. Autre vie, estate pur, 21, 22. quasi entail of, 61. in a rent-charge, 349, 350. in copyholds, 373. B. Bankruptcy, 97, 380, 423. of tenant in tail, 61. of cestui que trust, 179. of tenant in fee simple, 97. of trustee, 179. search for, 504. exercise of powers in, 309. of owner of land subject to rent-charge, 353, 353, n. power of trustee in, as to copyholds, 380. as to leaseholds in, 423, 426, n. Bare trustee, 119, 246, 391. Bargain and sale, 192, 193, 215, 410, 471, 564. required to be enrolled, 194, 194, n., 215. for a year, 194, 196, 564. of lands in Yorkshire, 215, 471. Base fee, 56. Bastardy, 130. Bedford Level registry, 205. Benefice with cure of souls, 99. Beneficial owner, conveyance as, 213, 475, 512, 518. Biddings, opening of, abolished, 175. Borough English, tenure of, 134. Breach of covenant, waiver of, 416. actual waiver of, 416. implied waiver, 416. re-entry upon, 414 — 421. Burial grounds, vesting of property in, 181. sites for, 78. 690 INDEX. c. Calvin's case, 68. Canal shares, personal property, 8. Certificate of official search of registers, &c., 504. Cesser of a term, proviso for, 431. Cestui que trust, 167, 179, 299. is tenant at wiU, 404. que vie, 21, 22. Chambers, 15. Chancery Amendment Act, 1858 . .186. — See stat. 21 & 22yict. c. 27. ancient, 161, 168. modern, 168. interposition of, between mortgagor and mortgagee, 448. Chancery Division, matters assigned to, 107, 168, 188, 448. Charities, Incorporated, 80. Charity, conveyance to, 71, 72, 73, 74. inrolment of, 71, n., 74, n., 79, n. new trustees of, 180. commissioners, 77. official trustee, 77. investment of funds, 80. Chattels, 6, 7, 7, n., 8. Cheltenham, manor of, 400. Codicil, 223. Collation, 356. Commissioners of Inclosui-es, 144, 339, 353. Common forms, 209, 510. Common Law Procedui-e Act, 1854 . .184. — See stat. 17 & 18 Vict, c. 125. Common, rights of, 123, n., 338—340, 342, 493, 511, 541. of cop3'holds, 385. appendant, 493, 541, 546, 551, 552, 553. commonable beasts, 550. no common for a house, 551. ancient meadow, 551. appendant need not be prescribed for, 552. shall be apportioned, 553. appui'tenant is against common right, 554. writ of novel disseisin, 559. the remedy ascertained the right, 559. extinguishment of rights, 493, 561. INDEX. 591 Common fields, 340, 554. metropolitan commons, 339. suburban commons, 339. in gross, 355, 493. limitation of rights of, 493, 562. tenants in, 142. Commutation of titbos, 3G2. of manorial rights, 383. CoMPAIflES, joint stock, 81. Compensation for improvements, 404, 428. Concealed fraud, limitation in cases of, 489. Condition of re-entry for non-payment of rent, 259, 419. ■ demand of rent formerly required, 259. modern proceedings, 259. formerly inalienable, 260. severance of reversion, 413, 416. on breach of covenants, 414 — 421. effect of licence for breach of covenant, 414, 415. effect of waiver, 416. Conditional gift, 39, 45, 98. Consent of protector, bb. as to copyholds, 378, 394. Consideration, 153, 163, 168, 197, 508, 518, 564, 566, 585. on feoffment, 153, 162, 164, 168. a deed imports a, 154. Consolidation of securities, 466 — 468. Construction of wills, 19, 20, 226, 232. of law as to attendant terms, 437. of words, 15, 20. Contingent remainders, 276, 280, 334. anciently illegal, 277. Mr. Pearne's Treatise on, 281. definition of, 281. example of, 281, 285, 290, 329. rules for creation of, 283, 287. vesting of, 284, 286. Contingent Eemainders Act, 1877.— See statute 40 & 41 Vict, c. 33. remainders, formerly inalienable, 291, 292. destruction of, 293. now indestructible, 293, 298, 299. trustees to preserve, 297, 298. of trust estates, 299, 344. difference between executory devises and, 329. of copyholds, 393. 692 INDEX. CoNTiNTJiNa breach of covenant, 416. Contract cannot bar estate tail, 58. special, 83. where time not of essence, 176. Conveyance, fraudulent, 81. of advowson, 358. of tithes, 361. _ by tenant for life, 34. voluntary, 82. by deed, 154, 155, 194, 253, 257. by married women, 245. to uses, 197, 198, 199. form of a conveyance, 199, 508. of land passes advantages not strictly appurtenant, 343,511,516. passes aU the estate and interest of party convejdng, 512. CoxVEYANCiNG and Law of Property Act, 1881. — See statute 44 & 45 Vict. c. 41. .changes in form of conveyance rendered possible by, 212, 511—520. COPAECENERS, 106. descent amongst, 115, 527. Copyhold Acts, 1852 and 1858 •• 384. Copyholds, definition of, 364. origin of, 364. for lives, 365, 373. of inheritance, 366. history of, 366. estates in copyholds, 368. estate tail in, 373, 374, 377. exchange of freehold for copyhold, 339, n. estate pur autre vie, 373. customary recovery, 377. forfeiture and re-grant, 377. equitable estate tail in, 395, 396. ancient state of copj'holders, 368, 376. alienation of, 377, 387, 389 — 391, 585. subject to debts, 379. power of trustee in bankruptcy as to, 380. trustee in bankruptcy need not be admitted, 380. descent of, 380, 521. tenure of, 381. commutation of manorial rights in, 383. enfranchisement of, 384. redemption of certain rents, rent-charges, &c., 386. mortgage of, 455. grant of, 388, 389. INDEX. 593 Copyholds, seizure of, 393. surrender of, 366, 389, 585. admittance to, 366, 372, 380, 390, 391, 393, 477, 585. contingent remainders of, 393. deposit of copies of court roll, 457. abstract of title on purchase of, 478. sale of land formerly copyhold which has been en- franchised, 481. CoEPORATiON, conveyance to, 80. Corporeal hereditaments, 11, 14, 354. now lie in grant, 354. Costs, mortgage to secure, 466. Counter-claims, 187. Counterpart, stamp on, 156. CoTJNTiES palatine, 93, 94. County Courts, equity jurisdiction of, 169, 180, 452. agreements for sale or lease, 176. Court of Judicature.— See Supreme Court of Judicature Acts. Court of Probate, 221. Court, suit of, 125, 126, 129, 132. customary, 365, 387, 388. rolls, 364, 388. Covenant to stand seised, 216. Covenants in a lease, 411. run with the land, 412, 413. lessor's, 413. re-entry on breach of, 414, 418. effect of licence for breach of, 414, 415. waiver of breach of, 416. for quiet enjoyment, implied by certain words 471 for title, 213, 472, 473, 474—477, 509, 568. ' statutory covenants for title, 213, 474 477 512 517. ' ' heirs now bound by covenant, 84, 473. now implied by statute in certain cases, 474, 512. cases in which covenants for title are not now im- plied, 477. benefit of implied covenant to run with the land 477. ' implied by statute may be varied by deed, 477, to produce title deeds,'498, 499. Coverture, 237, 488. R.P. Q Q 594 INDEX. Creditors, convoyances to defraud, 81. Judgment, 87. — See Judgment Debts. may witness a will, 221. Bale of coiDyhold estates for benefit of, 379. Cbown debts, 60, 94, 178, 379.— See Debts. registration of, 95, 96. search for, 96, 503. forfeiture to the, 59, 71, 130, 171, 172. limitation of rights of, 488. Curtesy, tenant by, 241, 242, 242, n., 243, n. of gavelkind lands, 133, n., 242. as affected by the new law of inheritance, 243, 572. of copyholds, 385, 399. Custody of documents, undertaking for safe, 501. Customary freeholds, 370, 371, 372. recovery, 377. Customs, 364, 561, 562. Cy pres, doctrine of, 290. D. Daughters, descent to, 105, 115, 527. Death, civil, 24. gift by will in case of, without issue, 228. Debts, crown, 60, 94, 178, 379, 503. where trustees and executors may sell or mortgage to pay, 233, 234. _ devisee in fee or in tail charged with, 234. of deceased traders, 85. judgment, 60, 87, 89, 92, 93, 177, 379, 422, 504. liability of lands to, 83, 85, 331. of leaseholds to, 422. simple contract, 85. charge of, by will, 85, 86, 233, 235. creditors who now stand in equal degree, 86. copyholds now liable to, 379. liability of trust estates to, 176. Declaration of title, act for, 505. Deed, 154. of grant, 190, 214, 508, 518. alteration, rasure or addition in, 155, 155, n. whether signing necessary to, 158. poll, 156, 157. required to transfer incorporeal hereditaments, 253. on grant of rent-charge, 345. of grant, conveyance of reversion by, 257. INDEX. 696 Deeds, stamps on, 156. similarity of, 207. onxoLmont of, 503. undertaking for safo custody of, 501. grant of, 510, n., 568. — See Title Deeds. Demand for rent, 259. Demandant, 49. Demesne, the lord's, 123, 365. Demise, implies a covenant for quiet enjoyment, 471. Denizen, 68. Descent 10 ' of an estate in fee simple, 103—119, 521, 527, 572. of an estate tail, 61, 108. of estate of mortgagee, 120, 235, 450. of estate of trustee, 120, 140, 172, 235. gradual progress of tlie law of, 101. of gavelkind lands, 133. of borough. English lands, 133. of an equitable estate, 173. of tithes, 361. of incorporeal hereditaments, 354. of copyholds, 380, 521. Destruction of entails, 46. Devise. — See Wlll. Disabilities, time allowed for, 488, 490, 492. Disclaimer, 100, 231, 353, 423. Distress, 258, 549. clause of, 347. statutory powers of distress, 348. for rent reserved by underlease, 424. Dockets, 89. Dominant tenement, 493. Donative advowsons, 356. Donee in tail, 38. Doubts, legal, 159. Dower, 246, 247. action for, 252. recovery of widow's dower by bill in equity, 252. of gavelkind lands, 218. under old law independent of husband's debts, 247. qq2 596 , INDEX. Dower, old method of barring, 248. under the Dower Act, 250, 250, n. declaration against, 251. modern method of barring, 317. uses to bar, 318, 568. of copyholds, 385, 400. ^ formerly defeated by assignment of attendant term, 436. leases, by tenant in, 252. Draining, 31, 32, 339. Duplicate deed, stamp on, 156. E. Easements, 511. grant of, by general words, 343, n., 515. limitations of right to, 493. Educational association, conveyance to, 79. incorporation of trustees, 81. new trustees, 180. Ejectment of mortgagor by mortgagee, 447. Elegit, writ of, 85, 379. Emblements, 29, 404. Enclosure. — See Inclosure. Endowed schools, 77. Enfranchisement of copyholds, 384. Enrolment. — See Ineolment. Entail.— See Tail. Entireties, husband and wife take by, 240. Entirety, 107. Entry, necessary to a lease, 190, 410. tenant's position altered by, 190. right of, supported a contingent remainder, 294. on court roll of deed, barring estate tail, must be made within six months, 395, n. power of, to secure a rent-charge, 348. statutory powers of entry, &c., 348. Equitable assets, 84. estate, 168—171, 188, 299, 347, 461. no escheat of, 171. forfeiture of, 172. creation and transfer of, 174. descent of, 173. INDEX. 597 Equitable estate liable to debts, 176. tail in lands to be purchased, 170. tail in copyhold may be barred by deed, 395. in mortgaged lands, 461. surrender of, 395. of alien, 172. curtesy of, 242. relief, 186. waste, 26, 27. Equities, incidental, 187. Equity, rules of, now to prevail, 166. follows the law, 169. a distinct system, 184. of redemption, 449, 466, n., 467. is an equitable estate, 168, 461. mortgage of, 464, 467, 468. Ekasuee, 155, 160, n. Escheat, 129, 130, 130, n., 131, n., 132. none of trust estates, 171. none of a rent-charge, 355. of copyholds, 381. Escrow, 155. ESCUAGE, 126. Estate during widowhood, 23. legal, 167. pur autre vie, 21, 22, 350, 373. in autre droit, 433. leases and sales of settled, 26, 27, 34, 36, 56. grant of, 39, 509, 516. tail, 37, 38, 45, 53, 55, 108, 150, 169, 225, 229, 272, 531. forhfe, 17, 18, 20, 23, 34, 150, 169, 227, 349. for life in copyholds, 373. in fee simple, 150, 350. in fee simple in copyholds, 378, 380. ancient incidents of tenure, 122, 541. no escheat of trust, 171. forfeiture of trust, 172. of Ufe, 152, 294. creation and transfer of trust, 173. must be marked out, 197. of wife, 239. particular, 255. one person may have more than one, 267. words of limitation, 149, 150, 213, 269. in remainder, 270, 272. where the first estate is an estate tail, 273. in copyhold, 368, 372, 378. sale of, by trustee in bankruptcy, 380. at will, 368. 598 INDEX. Estate, equitable, 167—171, 188, 299, 347, 461.— See Eqtht- ABLE Estate. clause, 213, 509, 512, 516, 567, 585. Estoppel, lease by, 410. Exchange, implied effect of tbe word, 471. power of, 321, 322. of freehold for copybold, 339, n. statutory provision for, 339, n. ExEcrTiON of a deed, 154, 311, 312. Executors, directions to, to sell land, 326, 327. devise of real estate independent of assent of, 233. where tbey may sell or mortgage to pay debts, 234. take an interest in real estate vested in a sole trustee or mortgagee, 120, 235. power to convey real estate contracted to be sold, 120, 235. exoneration of, from liability to pay rent-charges, 353. exoneration of, from rents and covenants in leases, 422. Executory devises.— See Executory Interest. devise, difference between contingent remainder and, 329. validity of a limitation as an, 333. Executory interest, 277, 286, 303, 328, 331, 582. creation of, under Statute of Uses, 304. by will, 326. alienation of, 330. limit to creation of, 332. in copyholds, 398. where preceded by estate tail, 333. Express trust, limitation in cases of, 489, 492. F. Father, descent to, 110, 116. his power to appoint a guardian, 127. FE.U.TY, 125, 126, 129, 132, 257, 381. Fee, meaning of term, 45. simple, 63, 66, 121, 122, 150. words in fee simple may be used in a deed, 150, 373, 518. simple, alienation by tenant in fee. — See Alienation. joint tenants in, 138. equitable estate in, 171. gift of, by will, 227, 229. INDEX. 599 Fee simple, estate of, in a rent-charge, 350. customary estate in, 370, 378. enlargement of long term into fee simple, 439 — 441. See also Term. Fee farm rent, 420, n. tail, 45, 150.— See T.ilL. Feme Covert. — See Mareied Woman ; Wife. Feoffment, 41, n., 146, 160, 164, 256. to the use of feoffor, 162. forfeitm-e by, 152. deed reqiiii'ed for, 158. by idiots and lunatics, 152. by infants of gavelkind lands, 152. by tenant for life, 152. writing formerly unnecessary to a, 153. FeTJDAL system, introduction of, 3. abolition of, 6, 66. feuds originally for life, 18, 268. tenancies become hereditary, 38, 268. Feudtjm novum ut antiquum, 109. Fields, common, 340, 554. Fine, 50, 52, 244, 586. formerly used to convey wife's lands, 244. attornment could be compelled on conveyance by, 262. payable to lord of copyholds, 372, 586. Fines, search for, 503. Fire, relief against forfeiture for non-insurance, 418. power to insure against, in mortgages, 453. Fixtures on agricultural and pastoral holdings, 412. Foreclosure, 451. court may direct sale of property instead of, 451. assigned to Chancery Division, 449. Foreshore, 341, 342. Forfeiture by feoffment, 152. and re-grant of copyholds, 377. for treason, 59, 71, 130, 130, n., 172, 381. aboHtion of, 24, 60, 71, 130, 172, 381. on breach of covenants, 414, 418 — 421. Form of a conveyance, 199, 508, 518. foemedon, 47. Frankalmoign, 41, 135. 600 INDEX. Frankmarriage, 40. Fraud, concealed, limitation in cases of, 489. Frauds, Statute of (see also statute 29 Car. II. c. 3), 21, 158, 174, 176, 177, 218, 258, 406, 407, 421, 457. Freebench, 385, 400. Freehold, 23, 38, 63, 66. customary freeliolds, 370, 371. exchange of freehold for copyhold, 339, n. any estate of, is larger than estate for term of years, 431. Freemen, 549. - • Gain, 548. Gaudens for the poor, 340. Gavelkind, 132, 152. curtesy of gavelkind lands, 133, n., 242.' dower of gavelkind lands, 248. General occupant, 21. residuary devisee, 224. registry, 495, 505. words, 201, 213, 509, 515, 564, 567. Gestation, period of, included in time allowed by rule of per- petmty, 332. Gift, conditional, 39, 45, 98. in tail, 121, 230. in fee, 121, 230. to use of feoffee, 153. with livery of seisin, 148, 161. to husband and wife and a third person, 240. their heirs, 240. Give, word used in a feoffment, 149. warranty formerly implied by, 469, 471. Glamorgan, county of, 560. Goods, 6, 7, n., 8. Grand serjeanty, 132. Grant, deed of, 190, 214, 256, 257, 266, 372, n., 508, 518. an innocent conveyance, 214. construed most strongly against grantor, 19. incorporeal hereditaments lay in, 253, -336, 342. proper operative word for a deed of grant, 214. of easement, 343, n., 515. of copyholds, 388, 389. implied effect of the word, 214, 471. INDEX. 601 Gb0S3, incorporeal hereditaments in, 344, 492. seignory in, 3-14. common in, 355, 493. advowson in, 340, 355, 358. prescription for exercise of rights in, 492. GUAKDIAN, 127. H. Habendttm, 201, 206, 207, 509, 518, 565, 568, 585. Half-blood, descent to, 112, 117, 522. Helr, anciently took entirely from grantor, 19. at first meant only issue, 38. alienation as against, 40. is appointed by the law, 67, 99. bound by specialty, 83, 84, 473, 520. at law, 99, 100. expectant, 39, 44. apfarent, 100. presumptive, 100. cannot disclaim, 100. word " heirs" used in conveyance of estate of inheritance, 150, 151. is a word of limitation, 151, 269. devise to, 232. contingent remainder to, 272, 275, 279. gift to "heirs," 279. Hereditaments, 5, 8. corporeal, 14. incorporeal, 11, 253, 336, 354. Heriots, 382, 385. Hides and yard lands, 547. High Court of Justice, 86, 94, 143, 144, 165. enrolment of deeds in, 503. High treason, 59, 71, 130, 381. Homage, 124, 387. Honour, titles of, 8, 362. Hull registry, 204. Husband, right of, in his wife's lands, 99, 237, 243, 426. Married Women's Property Act, 1870 . . 239, 426. and wife one person, 240. could not convey to his wife, 241. unless by Statute of Uses, 241. holding over, is a trespasser, 244. appointment by, to his wife, 314. 602 INDEX. I. Idiots, 69, 152, 393, 488. Immoveable property, 2, 5. Implication, gifts in a will by, 229. Improvements, 31, 32, 34, 75, 404, 405, 428. Inclostjee, 338, 339. conveyance of, will carry adjoining waste, 341. commissioners, 144, 339, 353. partition by, 144. Incobpoeated charities, 80. Incoeporeal property, 11, 12, 253, 336, 354. not subject to tenirre, 354. Incumbrances, searches for, 503 — 506. money sufficient to provide for, may now be paid into Coui't, 485, 486. covenant that estate is free from, 473, 475, 510, 513, 569. Indenture, 156. Indesteuctibility of land, 1. Induction, 356. Infants, 69, 152, 328, 393, 488. management of land during minority, 128, n. marriage settlements, 69, 315. Inheeitance, law of. — See Descent. trust of terms to attend the, 434, 435. owner of, subject to attendant term, had a real estate in equity, 437. Injunction, 25, 185, 187. Innocent conveyance, 214. Inrolment of deeds barring estate tail, 50, n., 52, 55, n., 395, 503. of conveyance for charitable uses, 71, 71, n., 74, n., 79, n. of separate deed of trust, 74. of bargain and sale, 194, 205. of memorial of deeds as to lands in Middlesex and Yorkshire, 204, 503. of wiUs in Middlesex and Yorkshire, 235, 236, of memorial of annuities for lives, 345, 504. of deeds in the iurolmeut department of the central office of the High Court of Justice, 503. Insolvency, 97, 504. INDEX. 603 Institution, 356. Insurance, relief against forfeiture for non-insurance, 418. Intention, rule as to observing, in wiUs, 226, 229. Interesse termini, 410. Interest, stipulation to raise, void, 457, 458. stipulation to diminisli, good, 458. former highest legal rate of, 458. Intestacy, 10, 11, n. (z), 22, 99, 462. of a bare trustee, 119. Investment of charity funds, 80. Ireland, leases by tenant for life in, 27, 28, 244. Issue, in taU, bar of, 50, 55. devise to, of testator, 225. devise in case of death without, 228. J. Joint stock companies, 81. Joint tenants for life, 137. in tan, 137. in fee simple, 138. of copyholds, 383. trustees made, 139, 172. release by, 141. tenancy, severance of, 141. estate, no ciu-tesy of, 242. no dower of, 248, 249. Jointure, 249. equitable, 250. Judgment debts, 60, 87, 89, 177. lien of, now abolished, 92. in counties palatine, 93. registry of, 90, 503, 504. as to trust estates, 177. as to powers, 309. as to copyholds, 379. search for, 92, 92, n., 503. as to leaseholds, 422. limitation of actions on, 491. against a mortgagee, 460. Judicature. — See Supreme Court of Judicature Acts. 604 INDEX. K. Knight'8 service, 124, 127. L. Land, indestructibility of, 1, 5. term, 7, n., 15, 479, 514, 550. Transfer Act, 505. means arable land, 550. Land laws, earliest English, 2, n. (/). Lands, Kability of, for debts, 83, 86. Lapse, 224, 225. Law and equity, distinct systems, 184, 404. to be administered concurrently, 186 — 188. Lease, agreements for, 408. stamp duty on agreements for, 408, n. from year to year, 405. for a term of years, 9, 403. for a number of years, 121, 190, 407, 409. for years is personal property, and why, 8, 10. for Hfe, 121. entry, necessary, 190, 410. by tenant in tail, 58. by tenant in dower, 252. for a year, 564. abolished, 196. leases in writing to be by deed, 407. no formal words required in a, 407. leases made after 31st December, 1881. ..412, 417. by tenant for Hfe, 27, 319. by husband of wife's lands, 243. power to, 27, 319, 320, 446, 447. by copyholder, 369. stamps on, 408, n. by estoppel, 410. rent reserved by, 257—261, 411—414. condition of re-entry in, 259, 414 — 421. mortgagor could not make a valid, 445. forfeiture of, 131, n. Lease and release, 189, 190, 195, 214, 564. an innocent conveyance, 214. Leaseholds, will of, 421. mortgage of, 456. disclaimer of, in event of bankruptcy, 423. purchaser of, formerly entitled to a sixty years' title, 478. cannot now require lessor's title, 479. sale of, 482. INDEX. 605 Legacies, limitation of suits for, 491, 492. charge of, 234. Legal doubts, 159. estate, 167, 188, 347, 445. memory, 492. rights to be recognized, 187. Lessor's title cannot now be required, 479. Licence, effect of licence for breach of covenants in a lease, 414. restrictions on effect of, 415. to demise copyholds, 369, n. Lien of vendor, 457, 463. Life annuities, 344, 345, 504. estate for, 17, 18, 20, 23, 34, 160, 227, 266, 268. joint tenants for, 137. equitable estate for, 169. tenant for, concurrence of, to bar entail, 54, 56. estate for, in a rent- charge, 349. estate for, in copyholds, 365, 373. tenant for, entitled to custody of title-deeds, 496. forfeiture of life estate, 152, 294. Light, limitation of right to, 494. right to, passing by conveyance, 511. Limitation of estates, 149, 197, 286, 329, 330, 332, 583. of a vested remainder after a life estate, 266. words of, 149, 150, 213, 269. statutes of, 488, 491, 492, 493. Limited Owners' Residences Acts, 33. Lis pendens, 96. Literary institutions, 78, 181. incorporation of trustees, 81. Livery in deed, 148. in law, 149. of wardship, 124. of seisin, 146, 148, 149, 158, 161. corporeal hereditaments formerly lay in, 253. Loans, 8. Lodgers' Goods Protection Act, 259, n. Logic, scholastic, 166, 287. London, custom of, 65. Lot mead, 551. Lots, sale of property in, 483. Lunatic, 69, 152, 393, 476, 477, 488. 606 INDEX, M. Maeste, Sir Henry, on primogeniture, 555. Males preferred in descent, 105, 110, 111. Mandamus, 185, 187. Manoes, 123, 134, n., 369, 376. rigMs of lords of, to wastes by side of commons, 341. common appendant, 123, n., 541. conveyance of, 519. Maeriage, 124, 222. settlements, 69, 298, 321, 322. Married woman, separate property of, 98, 237, 238, 399. has no disposing power, 71, 99, 237. Married Women's Property Act, 1870. .239, 399, 426. conveyance of her lands, 245, 246. bare trustee, 246, 391. surrender of her cojjyhold lands, 391, 396. rights of, in her husband's lands, 99, 249. rights of, in her husband's copyholds, 399, 400. admittance of, to copyholds, 393. husband's rights in her term, 426. appointment by, 314. release of powers by, 325. release of her right to dower, 247, 485. Maternal ancestors, descent to, 110, 118. Meadows, 25, 547, 551. Memory, legal, 492. Men, means tenants, 550. Merger, 263, 295, 431, 432. none of tithes in the land, 362. of tithe rent- charge, 362. of a term of years in a freehold, 431, 432. none of estates held in autre droit, 433. Merton, Statute of, 5, 542, 549. Messuage, term, 14. Middlesex registry, 204, 236, 503. devise of lands in, 235, 236. Mines, 15, 25, 82, 441. lease of, 28. sale under powers reserving, 323. right of the lord of copyholds to, 369, 386. Modus decimandi, 491, n., 561. INDEX. 607"^ Money land, 170. MOETGAGE, 401, 442. construction of, in law, 444. for payment of debts, 233, 331, 465. legacies, 233, 234. stamps on, 443, n., 461. origin of term, 445. legal estate in, 445. to trustees, 455. equity of redemption of, 449, 461, 464, 466 — 468. foreclosure of, 451, 452, 453. power of sale in, 452, 453. statutory power of sale in, 453. appointment of receiver in, 453. fire insurance in, 453. repayment of, 454. of copyholds, 455. of leaseholds, 456, 475. by underlease, 457. by deposit of title deeds, 457. interest on, 458, 459. to joint mortgagees, 459, 460. now primarily payable out of mortgaged lands, 462, 463. 30 & 31 Yict. c. 69 . .462. 40 & 41 Vict. c. 34.. 463. tacking, 405. for future debts and advances, 465, 466. to secure an account current, 465, n. for fiiture costs, 466. for long term of years, 455. transfer of, 461. effect of two mortgages by same person, 466. consolidation, 466 — 468. covenants for title on, 474, 475, 518, n. MOETGAGEE and mortgagor, relative rights of, 445 — 448. descent of estate of, 120, 235, 450. powers of mortgagee where mortgage made by deed after 31st December, 1881 . .453. judgment against, 460. may sue in his own name, 448. in possession, 447, 490. power to lease, 447. deeds in possession of, 495, 497, 498. MoETGAGOE, could not make a valid lease, 445. except under express power of leasing, 446. statutory power to lease, 446. covenants for title by a, 474, 475, 518, n. limitation of his rights to redeem, 490. must give notice of intention to repay mortgage money, 454. 608 INDEX. Mortgagor, inspection of deeds in possession of mortgagee, 497, 498. Mortmain, 47, 71, 73, 74, 76, 78, 81. Mother, descent to, 117, 118. Moveables, 2, 5. Museum, Public, conyeyance of land for, 79. N. Name, directions to assume, 306. Natural life, 24. Naturalization, 67, 69. Act of 1870 . .67, 69, 172. New trustees, 179—181. statutory power to appoint, 181, 182. vesting of trust estate in new trustee, 183. stamps on appointment of, 184. Next presentation, 359, 360. Norman conquest, 2. French, 4, n. {p). Notice of an incumbrance, 91, 436, 465. for repayment of mortgage money, 454. to quit, 405. Novel disseisin of common of pasture, writ of, 559. 0. Occupant, 21. of a rent-charge, 350. Official searches of registers, &c., 504. Operative words, 201, 206, 509, 518, 566. Order for sale by Court of Chancery, 93. Ownership, no absolute ownership of real property, 18. OXGANQS, 548. P. Palatine, judgments in counties, 93, 94. Paramount, Queen is lady, 3, 122. INDEX. 609 Parcels, 201, 206, 509, 518, 564, 566, 585. Parks, public, conveyance for, 79. Particular estate, 255. Parties to a deed, 200, 206, 508, 518, 564, 565. person taking benefit need not bo a party, 157. Partition, 106, 143, 339, n., 471. 31 & 32 Vict. c. 40. .144. of copyholds, 383. Pastoral holdings, 405. Paternal ancestors, descent to, 110, 111, 116, 117. Patron of a Hying, 356. Perpetuity, 53, 288, 332, 334, 583. Personal property, 7, 8, 401. Petit serjeanty, 132. Plat grounds, 78. Ploughlands, 548. Pond, description of, 15. Portions, terms of years used for securing, 431. Possession, mortgagee in, 447, 490. Possibility, alienation of, 291, 292. of issue extinct, tenant in tail after, 57. on a possibility, 286. common and double, 286, 287. Posthumous children, 284. Power, 308, 315. vested in bankrupt or insolvent, 309. compliance with formalities of, 310. attestation of deed executing, 311. equitable relief on defective execution of, 312. exercise of, by deed, 310. exercise of, by will, 301, 313. extinguishment of, 316. suspension of, 316. special, 318. of leasing, 319, 320. in mortgages, 446, 447. estates under, how they take effect, 324. release of, 325. of sale in mortgages, 452, 453. of sale and exchange in settlements, 321, 322. R.P. R R 610 INDEX. Precipe, tenant to the, 49. Peedecessoe, 301. Peemises, term, 15. Peescription, 342, 492, 493. Peesentation, 356. next, 359. sale or assignment of, by spiritual person, when Yoid, 359. Peesextment of surrender of copyhokls, 390. of will of copyholds, 392. Peimogenituee, 53, 106. Sir Henry Maine on, 555. Peivity between lessor and assignee of term, 412. none between lessor and under-lessee, 425. Peobate, Coui't of, 221. Peoclamations of fine, 51. Peodttction of documents, 482, 498, 499. acknowledgment of right to, 500, 501. Peofessed persons, 24. Peofessional remuneration, 207, 208, n., 210, 466. Peofit a prendre, 493. Protector of settlement, 55, 378, 395. Pur autre vie, estate, 21, 22, 61, 350, 373. Purchase, meaning of term, 103. when heir takes by, 232. deed, specimen of a, 200. deed, stamps on, 202, 203. money, application of, 486. PuRCHASEE, voluntary conveyances void as to, 82. judgments formerly binding on, 88, 96. protection of, without notice, 91, 379, 435, 436. descent traced from the last, 103, 521. conveyance to the use of, 197. relief against mistaken payment by, 322. what expenses to be borne by, 483. rights of, on an open contract, 478 — 484. rights of, in case of action for specific perform- ance, 484. INDEX. 611 Q. Quasi entail, Gl. Queen is lady paramount, 3, 122. Quia emptores, Statute of (see statute 18 Edw. I. c. 1). Quiet enjoyment, covenant for, 471, 473, 475, 509, 513, 5G9. Quit rent, 128, 132, 386. E. Eack-rent, enactment as to tenants at, 29. Eailway Eolling Stock Protection Act, 259, n. shares, personal property, 8. Eeal property, 7, 8, 10. act to amend the law of, 190, 197, 258, 263, 292, 296, 472. Eeceipt clause, 486. of trustees now discharges, 487. for purchase-money, form of, 202, 509, 518, 566, 571. Eeceiveb, power to appoint in a mortgage, 453. Eecital of contract for sale, 200, 508, n., 566. of conveyance to vendor, 200, 206, 508, n., 566. Eecitals in deeds, 479, 508, n. Eecognizances, 93. Eecoveries, search for, 503. Eecovery, 47, 48, 49, 50. customary, 377. Eeceeation grounds, 340. Eectoeies, advowsons of, 357. Eeddendum, 565. Eedemption, equity of, 449, 466, n., 467. action for, 452. Ee-ENTRY, condition of, 259, 260, 261, 413—421. not now destroyed by licence for breach of covenant, 415. not now destroyed by waiver of breach of covenant, 416. R R 2 612 INDEX. Eegister of judgments, 90, 503, 504. of writ of elegit, 90, 92. of crown debts, 96, 503. of lis pendens, 96. of deeds, 204, 495, 503, 504. of wills, 235, 236. search in the, 503, 504. of annuities, 346, 504. Eegisteation, 495. of title, 505, 506. Eegrant after forfeiture, 377. Eelease, 565. proper assurance between joint tenants, 141. conveyance by, 189, 191, 214, 262, 565. from rent- charge of part of hereditaments not an ex- tinguishment, 352. of powers by married women, 325. Eelief, 124, 126, 129, 132, 381. Eeligious association, conveyance to, 79. vesting of property in new trustees, 180. incorporation of trustees, 81. Eemaindeb, 256, 264, 272. bar of, after an estate tail, 54, 55. arises from express grant, 256. no tenure between particular tenant and remain- derman, 264. vested, 265, 266. vested, may be conveyed by deed of grant, 266. estates in remainder, 270. definition of vested, 267. example of vested, 281. contingent. — See Contingent Eemainder. of copyholds, 397. Eemuneration, professional, 207 — 211, 466. Eenewable leases, 251, 426, 427. Eent, 257, 411, 439. quit, 128, 132, 386. demand for, 259. remedy by statute, 260, 261. reservation of, 258, 413. apportionment of, 30, 31, 352, 417. of estate in fee simple, 126, 128, 386. service, 257, 258, 264, 381, 411. passes bj' grant of reversion, 261, 413. not lost now by merger of reversion, 263. none incident to a remainder, 264. seek, 344, 348. INDEX. 613 Eent of copyhold, 381. redemption of certain rents, 119, n., 386. fee farm, 420. limitations of actions and suits for, 491. Eent charge, 344, 491, 496. power to grantee to distrain for, 348. statutory powers of distress, entry, «S:c., 348. estate for life in, 349. estate in fee simple in, 350. release of, 352. apportionment of, 352. accelerated by merger of prior term, 435. grantee of, has no right to the title deeds, 495. creation of, under the Statute of Uses, 346. bankruptcy of owner of land subject to, 353, 353, n. exoneration of executors and administrators from liability to pay, 353. Eesiduahy devise, 224. Eesignation, agreement for, 356. Eestjlting use, 164. Eeversion, 256, 261. bar of, expectant on an estate tail, 48, 54, 55. on a lease for years, 256, 413. lessor's covenants binding, 413. severance of, 413, 416. on lease for life, 257. difficulty in making a title to, 497. purchaser of, 497. 31 Vict. c. 4.. .497. Eevocation, conveyance with clause of, 82. of wills, 222, 223. ErvEB, soil of, 341. rights of owner of lands adjoining to, 341. EoAD, soil of, 340. Etjles, technical, in construing a will, 226, 232. S. Sale of copyhold estates by trustee in bankruptcy, 380. of settled estates, 26, 27, 34, 56. for payment of debts, 234, 235, 331. power of, in settlements, 321, 323. in mortgages, 452 — 454. of mortgaged property, 451, 454. action for, 452. 614 INDEX. S-:VLE, riglits of yendors and purchasers on sales made after 31st December, 1881. ..481. of leaseholds, 479, 482. of underlease, 481, 482. contract for. — See Agreements. Satisfied terms, 437. Scholastic logic, 166, 287. Schools, endowed, 77. sites for, 77, 78, 79. Scientific institutions, 78, 181. incorporation of trustees, 81. Scintilla juris, 307, 308. Sea-shore, rights of owner of adjoining lands to, 341, 342. rights of the crown to, 341, 342. Searches for incumbrances, &c., 503, 504. official, 504. Seignory, 336. in gross, 344. Seisin, 104, 146, 161, 192, 307, 372, 534. transfer of, required to be notorious, 193, 283. actual seisin required for curtesy, 243. legal seisin required for dower, 247. of copyhold lands is in the lord, 368. Seizure of copyholds, 393. Separate property of wife, 98, 237, 238, 242, n., 395, 399. Serjeanty, grand, tenure of, 132. petit, tenure of, 132. Services, feudal, 43. Servient tenement, 493. Settled estates, leases and sales of, 26, 27, 34, 36, 56, 243. Settlement, 52. protector of, 55, 378, 395. on infants on marriage, 69, 315. voluntary, 82. extract from a, 298. of copyholds, 394. Severalty, 107, 142. Severance of joint tenancy, 141. of reversion, 416. Shelley's case, rule in, 268, 270, 274, 275, n. INDEX. 615 SniFTlNQ use, 304, 305, 307, 328, 329, 333, 398. no limitation construed as, which can bo regarded as a remainder, 307. in copyhold surrenders, 399. Signing of deeds, 158. of wiUs, 220, 221. SmoNT, 359. Sites for schools, 77, 78, 79. for places of worship and burial, 78. Socage, tenure of free and common, 125, 126. derivation of word, 125, n. Soil of river, 341. of road, 340. Solicitors' Eemuneration Act, 1881 ••210, 466. new princij^les of remuneration, 209, 210. mode of remuneration, 210. amount of, 211. agreement as to amount and mode of, 211, 466. Sons, descent to, 105, 114. Special occupant, 21, 120. Specialty, heir boiind by, 83, 84, 473, 520. Specific performance, rights of pm-chaser in case of action for, 484. Springing uses, 286, 304, 306, 307, 308, 328, n., 333, 398. Stamps on deeds, 156, 202, 203, 254. abolition of i^rogressive duty, 156, 203, n. on purchase deeds, 202, 203. on convej^ances in consideration of annuities, 351, n. on agreements, 175, n. on declarations of trust, 175, n. on appointment of new trustees of charity property, 180. on presentation to ecclesiastical benefice, 356. on agreements for leases, 409, n. on orders of court vesting trust property, 180. on lease for year now repealed, 190, n. on surrender of copyholds, 389, n. on leases, 408, n. on assignment of leases, 421, n. on covenant to surrender copyholds, 472, n. on appointment of new trustees, 184. on covenant for j^roduction of title deeds, 498, n. on mortgages, 443, n. on transfer of mortgage, 461, n. on securities for the payment of money advanced on an account cui'rent, 465. Statutes cited : 9 Hen. III. 9 Hen. III. 20 Hen. III. 3Edw. I.e. 4Edw. I.e. 6Edw. I. e. 6 Edw. I.e. 12 Edw. l.(i 616 INDEX. e. 29 (M-agna Cliarta, freemen), 376. e. 32 (Magna Cliarta, alienation), 43. e. 4 (approvement), 5, 542, 549. . 39 (limitation), 492. . 6 (warranty), 44, 469. , 3 (warranty), 470. , 5 (waste), 25 (Statutum Wallise), 557. 13 Edw. I. e. 1 (De donis),-^ 18, 45, ^, 295, 375, 470, 580. ">^ 13 Edw. I. c. 18 (judgments), m, 178. 13 Edw. I. e. 32 (mortmain), 47. 13 Edw. I. e. 46 (eommons), 549. 18 Edw. I. e. 1 (Quia emptores), 19, 65, ^ ^^ «» 131, 2^ 337, 3^, «7*, 4207 54?- 18 Edw. I. e. 2 (apportionment of services), 65. 18 Edw. I. Stat. 4 (fines), 51. 25 Edw. III. stat. 2 (natural-born subjects), 68. 34 Edw. III. c. 16 (fines), 51. 15 Eicb. II. e. 6 (vicarages), 359. 4 Hen. IV. c. 12 (vicarages), 359. 1 Eich. III. c. 1 (uses), 163. 1 Eich. III. e. 7 (fines), 51. 4 Hen. YII. c. 24 (fines), 51. 11 Hen. VII. c. 20 (tenant in tail ex provisions viri), 58, 470. 19 Hen. VII. c. 15 (uses), 177. 21 Hen. VIII. e. 4 (executors renouncing), 327, 398. 26 Hen. VIII. c. 13 (forfeiture for treason), 59, 130. 27 Hen. VIII. c. 10 (Statute of Uses), 17, 66, 153, 160, 161, 163, 177, 192, 217, 231, 245, 249, 303, 304, 326, 394. 27 Hen. VIII. c. 10, ss. 4, 5 (rent-cbarge), 346. 27 Hen. VIII. Q. 16 (enrolment of bargains and sales), 194, 215. 26 (Wales), 560. 28 (dissolution of smaller monasteries), 360, 361. 1 (partition), 113. 13 (dissolution of monasteries), 361. 1 (wills), 19, 66, 217, 218, 327. 2 (bmitation of real actions), 480. 7 (conveyances of titbes), 361. 24 (dissolution of monasteries), 361. 28 (leases by tenant in tail, &c.), 59, 243. 32 (partition), 143. 34 (condition of re-entry), 260, 412, 414. 32 Hen. VIII. c. 36 (fines), 52, 58. 33 Hen. VIII. c. 39 (crown debts), 60, 94. 34 & 35 Hen. VTII. c. 5 (wills), 66, 217. 34 & 35 Hen. VIII. c. 20 (estates tail granted by crown), 56. 27 Hen. VIII. c. 27 Hen. vni. c. 31 Hen. VIII. c. 31 Hen. VIII. c. 32 Hen. \^II. c. 32 Hen. VIII. c. 32 Hen. VIII. c. 32 Hen. VIII. c. 32 Hen. VIII. c. 32 Hen. VIII. c. 32 Hen. VIII. c. INDEX. 617 Statutes cited : 34 & 35 Hen. YUl. c. 26 (Wales), 560. 37 Hen. VIII. c. 9 (interest), 445. 3 et 4 Edw. VI. c. 3 (commons), 549. 5 & Edw. VI. c. 11 (forfeiture for treason), 59, 130 5 & 6 Edw. VI. c. 16 (offices), 99. 5 Eliz. c. 26 (palatine courts), 215. 13 Eliz. c. 4 (crown debts), 60, 95. 13 Eliz. c. 5 (defrauding creditors), 82. 13 Eliz. c. 20 (charging benefices), 99. 14 Eliz. c. 7 (collectors of tenths), 60. 14 Eliz. c. 8 (recoveries), 57. 27 Eliz. c. 4 (voluntary conveyances), 82. 31 Eliz. c. 2 (fines), 51. 31 Eliz. c. 6 (simony), 359, 39 Eliz. c. 18 (voluntary conveyances), 82. 21 Jac. I. c. 16 (limitations), 488. 12 Car. II. c. 24 (abolishing feudal tenures), 6, 66, 127 132, 218, 382. J ' > , 15 Car. II. c. 17 (Bedford level), 205. 29 Car. II. c. 3 (Statute of Frauds), s. 1 (leases, &c., in writing), 158, 174, 196, 258, 404, 406, 407, 457. s. 2 (exception), 158, 258, 406, 407. s. 3 (assignments, &c. in writing), 421, 424, 457. s. 4 (agreements in writing), 174. ■ 8. 5 (wills), 218. ss. 7, 8, 9 (trusts in writing), 174. 8. 10 (trust estates), 177. 8. 12 (estate pur autre vie), 19, 21. 8. 16 (chattels), 422. 2 Will. & Mary, c. 5 (distress for rent), 259. 3 Will. & Mary, c. 14 (creditors), 84, 177. 4 & 5 Will. & Mary, c. 16 (second mortgage), 464. 4 & 5 Will. & Mary, c. 20 (docket of judgments), 89. 6 & 7 Will. III. c. 14 (creclitors), 84. ^ 7 & 8 Will. III. c. 36 (docket of judgments), 89. 7 & 8 Will. III. c. 37 (conveyance to corporations), 80. 10 & 11 Will. III. c. 16 (posthumous children), 284 11 & 12 Will. III. c. 6 (title by descent), 68. 2 & 3 Anne, c. 4 (West Eiding registry), 204, 236. 4 & 5 Anne, c. 16, ss. 9, 10 (attornment), 262, 338. s. 21 (warranty), 470. 5 & 6 Anne, c. 18 (West Eiding registry), 204, 215. 6 Anne, c. 18 (production of cestui que vie), 22*, 23, '244. 6 Anne, c. 35 (East Eiding registry), 204, 215, 236*, 472*. 7 Anne, c. 5 (natural-born subjects), 68. 7 Anne, c. 20 (Middlesex registry), 204, 235. 8 Anne, c. 14 (distress for rent), 259. 10 Anne, c. 18 (copy of enrolment of bargain and sale), 12 Anne, stat. 2, c. 12 (presentation), 360. 12 Anne, stat. 2, c. 16 (usury), 458. 618 INDEX. Statutes cited : 4 Geo. II. c. 21 (aliens), 68. 4 Geo. II. c. 28 (rent), 259, 260, 263, 344, 348, 425, 428. 7 Geo. II. c. 20 (mortgage), 448, 451. 8 Geo. n. c. 6 (North Biding registry), 204, 215, 236, 472. 9 Geo. n. c. 36 (charities), 71, 72. 11 Geo. II. c. 19 (rent), 30, 259, 262. 14 Geo. II. c. 20 (common recoveries), 49, 54. s. 9 (estate pur autre vie), 22. 25 Geo. II. c. 6 (witnesses to wills), 220. 25 Geo. n. c. 39 (title by descent), 68. 9 Geo. III. c. 16 (crown rights), 488. 13 Geo. III. c. 21 (natural-born subjects), 68. 25 Geo. III. c. 35 (crown debts), 60, 95. 31 Geo. III. c. 32 (Roman Catholics), 24. 39 Geo. in. c. 93 (treason), 130. 39 & 40 Geo. III. c. 56 (money land), 171. 39 & 40 Geo. III. c. 88 (escheat), 131. 39 & 40 Geo. III. c. 98 (accumulation), 334, 335. 41 Geo. III. c. 109 (General Inclosure Act), 328. 44 Geo. III. c. 98 (stamps), 204. 47 Geo. III. sess. 2, c. 24 (forfeiture to the crown), 131. 47 Geo. III. sess. 2, c. 25 (half-pay and pensions), 99. 47 Geo. III. c. 74 (debts of traders), 85, 177. 48 Geo. ni. c. 149 (stamps), 204. 49 Geo. III. c. 126 (offices), 99. 53 Geo. III. c. 141 (ini-olment of memorial of life an- nuities), 345. 54 Geo. III. c. 145 (attainder), 130. 54 Geo. III. 0. 168 (attestation todeedsexercisingpowers}, 311. 55 Geo. ni. 0. 184 (stamps), 156, 204. 55 Geo, in. c. 192 (surrender to use of will), 392. 57 Geo. III. c. 99 (benefices), 99. 59 Geo. in. c. 94 (forfeiture to the crown), 131. 1 & 2 Geo. IV. c. 121 (crown debts), 95. 3 Geo. IV. c. 92 (annuities), 346. 6 Geo. IV. c. 16 (bankruptcy), 309. 6 Geo. IV. c. 17 (forfeited leaseholds), 131. 7 Geo. IV. c. 45 (money land), 171. 7 Geo. IV. c. 75 (annuities), 346. 9 Geo. IV. c. 31 (petit treason), 130. 9 Geo. IV. c. 85 (charities), 72. . 9 Geo. IV. G. 94 (resignation), 356, 357. 10 Geo. IV. c. 7 (Eoman Catholics), 24. 11 Geo. IV. & 1 Will. IV. c. 20 (pensions), 99. 11 Geo. IV. & 1 WiU. IV. 0. 47 (sale to pay debts), 34, 70, 85, 177, 331. 11 Geo. IV. & 1 Will. IV. c. 60 (trustees), 179. 11 Geo. IV. & 1 AVill. IV. c. 65 (infants, &c.), 70, 393, 394, 428. 11 Geo. IV. & 1 Will. IV. c. 70 (administration of jus- tice), 94, 215. INDEX. 619 Statutes cited : 2 & 3 Will. IV. c. 71 (Prcf?cription Act), 493, 562. s. 1 (rights of common, &c.), 494. s. 2 (way, water), 494. s. 3 (light), 494. s. 4 facquioscenco), 494. 8. 7 (disabilities), 494. s. 8 (waj's, waters), 495. 2 & 3 Will. IV. c. 100 (tithes), 491. 2 & 3 Will. IV. c. 115 (Eoman Catholics), 24. 3 & 4 WiU. IV. c. 27 (Hmitations), 488. s. 1 (rents, tithes, &c.), 491. s. 2 (estate in possession), 488. s, 3 (remainders and reversions), 488. s. 14 (acknowledgment of title), 488. ss. 16—18 (disabilities), 489, 490. s. 25 (express trust), 489. s. 26 (concealed fraud), 489. 8. 27 (acquiescence), 490. 8. 28 (mortgage), 490. s. 30 (advowson), 490. s. 33 (advowson), 491. s. 34 (extingmshment of right), 491. s. 36 (abolishing real actions), 25, 106, 143, 252, 480. s. 39 (warranty not to defeat right of entry), 471. s. 40 (judgments, legacies, &c.), 492. 3 & 4 Will. IV. c. 42 ^distress for rent), 259. 3 & 4 Will. IV. c. 74 (fines and recoveries abolished), 50, 52, 245, 325, 378. 8S. 4, 5, 6 (ancient demesne), 135. s. 14 (warranty), 471. 8. 15 (leases), 59. 8. 18 (reversion in the crown), 56, 57. s. 22 (protector), 55. 8. 32 (protector), 55. ss. 34, 35, 36, 37 (protector), 55. s. 40 (will, contract), 58, 59. s. 41 (inrolment), 50, 59. ss. 42 — 47 (protector), 55. ss. 50—52 (copj'holds), 378, 396. 8. 53 (equitable estate tail in copy- holds), 395. s. 54 (entry on court rolls), 395. ss. 56 — 73 (bankruptcy), 61, 380. ss. 70, 71 (money land), 171. s. 74 (inrolment), 50. 620 INDEX. Statutes cited : 3 & 4 Will. IV. c. 74, ss. 77—80 (alienation by married women), 245, 246, 396. 63. 87, 88 (index of acknowledg- ments), 503. s. 90 (wife's equitable copybolds), 396. 3 & 4 WiU. rV. c. 87 (inclosure, inrolment of award), 338. 3 & 4 Will. IV. c. 104 (simple contract debts), 85, 177, 379. 3 & 4 Will. IV. c. 105 (dower), 246, 250, 251, 400. 3 & 4 Will. IV. c. 106 (descents), 10, 102, 103, 110, 112, 113,232,280,381,537,594. 4 & 5 Will. IV. c. 22 (apportionment), 30. 4 & 5 WiU. IV. 0. 23 (trust estates), 131, 172, 179. 4 & 5 Will. IV. c. 30 (common fields exchange), 340. 4 & 5 WiU. IV. c. 83 (titbes), 491. 5 & 6 WiU. IV. c. 41 (usury), 458. 6 & 7 WiU. IV. c. 19 (Dui-bam), 94. 6 & 7 WiU. IV. c. 71 (commutation of titbes), 362. 6 & 7 WiU. IV. c. 115 (inclosure of common fields), 340. 7 Wm. IV. & 1 Vict. 0. 26 (wiUs), 218, 313, 315, 350, 374. s. 2 (repeal of old statutes), 350, 392. 8. 3 (pro^jerty devisable), 22, 130,218,292,350,374, 390, 392, 522. ss. 4, 5 (copybolds), 392. _ s. 6 (estate pur autre vie), 22, 350, 374. 8. 7 (minors), 128. s. 9 (execution and attesta- tion), 218, 392. 8. 10 (execution of appoint- ments), 313. ss. 14 — 17 (witnesses), 221. ss. 18, 20, 21 (revocation), 222, 223. 8. 23 (subsequent disposi- tion), 223. 8. 24 (will to speak from deatbof testator), 224. 8. 25 (residuary devise), 224. 8. 26 (general devise), 228, 421. s. 27 (general devise an exer- cise of generalpower), 316. 8. 28 (devise without words of Hmitation),20,228. 8. 29 (death without issue), 229. INDEX. 621 Statutes cited : 7 WiU. rV. & 1 Vict. c. 26, ss. 30, 31 (estates of trus- tees), 231. 8. 32 restate tail, lapse), 225. 8. 33 (devise to issue, lapse), 225. 7 Will. IV. & 1 Vict. 0. 28 (mortgagees), 488. 7 Will. IV. & 1 Vict. c. 69 (titlio commutation), 362. 1 & 2 Vict. c. 20 (Queeu Anne's bounty), 472. 1 & 2 Vict. c. 64 (tithes), 362. 1 & 2 Vict. c. 69 (trust estates), 179. 1 & 2 Vict. c. 106 (benefices), 99. 1 & 2 Vict. c. 110 (judgment debts, insolvency), 60, 88, 89, 90, 94, 97, 178, 309, 379, 422. 2 & 3 Vict. c. 11 (judgments, &c.), 89, 90, 91, 95, 96, 178, 379, 422. 2 & 3 Vict. c. 37 (interest), 458. 2 & 3 Vict. c. 60 (mortgage to pay debts, infants), 34, 70, 331. 2 & 3 Vict. c. 62 (tithes), 362. 3 & 4 Vict. c. 15 (tithes), 362. 3 & 4 Vict. c. 31 (inclosure), 338, 340. 3 & 4 Vict. c. 55 (draining, now repealed), 31. 3 & 4 Vict. c. 82 (judgments), 89, 91. 3 & 4 Vict. c. 113 (spiritual persons), 360. 4 & 5 Vict. c. 21 (abolishing lease for a year), 189, 196, 204, 567. 4 & 5 Vict. c. 35 (copyholds), 134, 383, 384, 385, 387, 388, 389, 390, 391, 392. 4 & 5 Vict. c. 38 (sites for schools), 78. 5 Vict. c. 7 (tithes), 302. 5 & 6 Vict. c. 32 (fines and recoveries in Wales and Cheshii-e), 503. 5 & 6 Vict. c. 54 (tithes), 362. 5 & 6 Vict. c. 116 (insolvency), 97. 6 & 7 Vict. c. 23 (copyholds), 383, 384. 6 & 7 Vict. c. 73 (soUcitor's bills), 208. 6 & 7 Vict. c. 85 (interested witnesses), 221. 7 & 8 Vict. c. 37 (sites for schools), 78. 7 & 8 Vict. c. 55 (copyholds), 383, 384. 7 & 8 Vict. c. 66 (aliens), 67, 68. 7 & 8 Vict. c. 76 (transfer of property now repealed), 146, 147, 189, 204, 567. 8. 2 (conveyance by deed), 189. s. 3 (partition, exchange, and assign- ment by deed), 107, 143, 421. 8. 4 (leases and surrenders by deed), 258, 407, 432. 8. 5 (alienation of possibilities), 330. 8. 6 (the words grant und exchange), 472. s. 7 (feoffment), 69. s. 8 (contingent remainders), 277, 293, 296. 8. 11 (indenting deeds), 157. 622 INDEX. Statutes cited : 7 tfe 8 Vict. c. 76, s. 12 (merger of reversion on a lease), 263. s. 13 (time of commencement), 189. 7 & 8 Vict. c. 96 (insolvency), 97. 8 & 9 Vict. c. 18 (lands clauses consolidation), 472. 8 & 9 Vict. c. 56 (draining), 31. 8 & 9 Vict. c. 99 (tenants of crown lands), 263, 415. 8 & 9 Vict. c. 106 (amending law of real property), 146, 147, 158, 197, 204, 263, 296, 298. B. 1 (contingent remainders), 277. s. 2 (grant), 190, 254. s. 3 (deed), 107, 133, 143, 153, 158, 258, 263, 265, 406, 407,421, 424, 432. s. 4 (feoffment, &c.), 69, 153, 472. s. 5 (indenture), 157. s. 6 (possibilities), 292, 330. s. 7 (married women), 245. s. 8 (contingent remainders), 293. s. 9 (reversion on lease), 263. 8 & 9 Vict. c. 112 (satisfied terms), 437, 438. 8 & 9 Vict. c. 118 (Inclosure Act), 144, 338, 339, 340. 8 & 9 Vict. c. 119 (conveyances), 207, 210. 8 & 9 Vict. c. 124 (leases), 207, 210. 9 & 10 Vict. c. 70 (inclosure), 144, 338, 339, 340. 9 & 10 Vict. c. 73 (tithes), 362. 9 & 10 Vict. c. 101 (draining), 32. 10 & 11 Vict. c. 11 (draining), 32. 10 & 11- Vict. c. 38 (draining), 339. 10 & 11 Vict. c. 102 (bankruptcy and insolvency), 90, 97. 10 & 11 Vict. c. 104 (titbes), 362. 10 & 11 Vict. c. Ill (inclosure), 144, 338, 340. 11 & 12 Vict. c. 70 (proclamations of fines), 51. 11 & 12 Vict. c. 87 (infant heirs), 70, 331. 11 & 12 Vict. c. 99 (inclosure), 144, 338, 339, 340. 11 & 12 Vict. c. 119 (draining), 32. 12 & 13 Vict. c. 26 (leasing), 319, 320. 12 & 13 Vict. c. 49 (sites for schools), 78. 12 & 13 Vict. c. 83 (inclosure), 144, 338, 339, 340. 12 & 13 Vict. c. 89 (treasury commissioners), 95. 12 & 13 Vict. c. 100 (drainage), 32. 12 & 13 Vict. c. 106 (banki-uptcy), 309, 353, 380. 13 & 14 Vict. c. 17 (leasing), 319, 320. 13 & 14 Vict. c. 21 (interpretation), 479. 13 & 14 Vict. c. 28 (religious and educational trusts), 180. 13 & 14 Vict. c. 31 (draining), 32. 13 & 14 Vict. c. 56 (interest), 458. 13 & 14 Vict. c. 60 (trustees), 34, 70, 131, 144, 172, 179, ISO, 383. 13 & 14 Vict. c. 97 (stamps), 156, 190, 203, 254. 14 & 15 Vict. c. 24 (sites for schools), 78. 14 & 15 Vict. c. 25 (emblements, distress, &c.), 29, 259. 14 & 15 Vict. c. 53 (enclosure, tithes), 338, 362, 383. 14 & 15 Vict. c. 83 (Lords Justices), 90. INDEX. 623 Statutes cited : 14 & 15 Vict. c. 99 (eviclonce), 221. 15 & 16 Vict. c. 24 (Wills Act Ameudment), 219. 15 & 16 Vict. c. 48 (lunatics), 70. 15 & 16 Vict. c. 49 (sites for schools), 78. 15 & 16 Vict. 0. 51 (copyhold enfranchisement), 383, 384, 385, 386. 15 & 16 Vict. c. 55 (trustees), 70, 179, ISO. 15 & 16 Vict. c. 76 (common law amendment), 259, 260, 448. 15 & 16 Vict. c. 79 finclosures), 144, 338, 339, 340. 15 & 16 Vict. c. 86 (chancery amendment), 451. 16 & 17 Vict. c. 51 (succession duty), 300, 301, 302, 324. 16 & 17 Vict. c. 70 (idiots and lunatics), 70,393,394, 428. 16 & 17 Vict. c. 83 (witnesses), 221. 16 & 17 Vict. c. 107 (crown bonds), 95. 16 & 17 Vict. c. 124 (copyholds, inclosures, tithes), 362. 16 & 17 Vict. c. 137 (charity commissioners), 77, 180. 17 & 18 Vict. c. 75 (alienation by married women), 246. 17 & 18 Vict. c. 83 (stamps), 351. 17 & 18 Vict. c. 90 (usury law repeal), 346, 459. 17 & 18 Vict. c. 97 (inclosures), 144, 338, 339, 340, 353. 17 & 18 Vict. c. 112 (literary and scientific institutions), 78, 181. 17 & 18 Vict. c. 113 (mortgage debts), 462. 17 & 18 Vict. c. 125 (common law procedure), 185, 202. 18 & 19 Vict. c. 13 (estate of idiots and lunatics), 70. 18 & 19 Vict. c. 15 (purchasers' protection), 89. ss. 2, 3 (palatine courts), 94. ss. 4, 5 (notice to purchaser), 91. s. 6 (registration of judgments), 91. s. 10 (orders in bankruptcy), 90. s. 11 (mortgages), 460. ss. 12, 14 (annuities), 346. 18 & 19 Vict. c. 43 (settlements on infants), 69, 70, 315. 18 & 19 Vict. c. 124 (charity commissioners), 77, 80, 180. 19 & 20 Vict. c. 9 (drainage), 32. 19 & 20 Vict. c. 47 (joint-stock companies), 81, 472. 19 & 20 Vict. c. 97 (Mercantile Law Amendment Act), 423, 491. 19 & 20 Vict. c. 108, s. 73 (acknowledgment of deeds by married women), 246. 19 & 20 Vict. c. 120 (leases and sales of settled estates, now repealed), 27, 34. s. 11 (sale of timber), 20. 8. 35 (repeal of former acts), 59, 243. ss. 44, 46 (commencement of act), 27. 20 & 21 Vict. c. 14 (joint stock companies), 81. 20 & 21 Vict. 0. 31 (inclosures), 144, 338, 339, 340. 20 & 21 Vict. c. 77 (Court of Probate), 11, 221, 222. 21 & 22 Vict. c. 27 (Chancery Amendment Act), 25, 186. 21 & 22 Vict. c. 45 (county of Durham), 94. 21 & 22 Vict. c. 53 (inclosure, tithes), 144, 338, 362, 363. 21 & 22 Vict. c. 60 (joint stock companies), 81. 624 INDEX. Statutes cited : 21 & 22 Vict. c. 77 (settled estates), 27, 34. 21 & 22 Vict. c. 94 (commutatioii of manorial rights), 383, 384, 385, 386. 21 & 22 Vict. c. 95 (Court of Probate), 11, 221. 22 Vict. c. 27 (literary institutions), 78. 22 & 23 Vict. c. 35 (property amendment and relief of trustees), 233. ss. 1, 2 (effect of licence), 415. 8. 3 (severance of reversion), 417. s. 4 (relief against forfeiture), 418. 8. 5 (relief to be recorded on lease), 418. 8. 6 (court to grant relief once only), 418. 8. 10 (rent-cbarge), 352. 8. 12 (powers), 312. 8. 13 (purchase - money, mistaken payment), 322. s. 14 (trustees of wills), 233. 8. 15 (trustees), 234. 8. 16 (executors, power to raise mo- ney), 234. 8. 17 (purchasers and mortgagees), 234. S3. 19, 20 (inheritance, descent), 10, 102, 103, 105, 113. s. 21 (assignment of personalty), 198. 8. 22 (index of crown debtors), 96. 8. 23 (payment of mortgage or pur- chase-money), 487. 8. 27 (liability of executors for rents, &c.), 422. 8. 28 (exoneration of executors from rent-charges, &c.), 353. 22 & 23 Vict. c. 43, ss. 10, 11 (inclosure acts amendment, partition), 144, 338, 339. 23 & 24 Vict. c. 38 (property amendment), 89, 92. s. 1 (judgments), 91, 178, 380. 8. 2 (writs of execution to be regis- tered), 92, 178. s. 6 (restriction of waiver), 416. s. 7 (uses, scintilla juris), 308. 23 & 24 Vict. c. 53 (Duke of Cornwall), 488. 23 & 24 Vict. c. 81 (completing proceedings under tithe commutation acts), 338, 383. 23 & 24 Vict. c. 83 (infants' settlements), 69. 23 & 24 Vict. c. 93 (commutation of tithes), 362. 23 & 24 Vict. c. 115, s. 1 (crown bonds, &c.), 95. 8. 2 (entering satisfaction on judg- ment), 90. 23 & 24 Vict. c. 124, ss. 35, 39 (purchase of reversion of leaseholds), 428. 23 & 24 Vict. c. 126 (law and equity), 260. INDEX. 625 Statutes citod : 23 & 24 Vict. c. 126, es. 26, 27 (dower), 252. 23 & 24 Vict. c. 134 (Roman Catholic Charities), 24, 73. 23 & 24 Vict. c. 136 (charities), 77, 180. s. 16 (majority of trustees, power of, to sell, &c.), 78. 23 & 24 Vict. c. 145 (power of sale, &c.), 322, 453. ss. 8, 9 (renewal of leases and raising money), 428. 8. 10 (consent to sale, «&:c.), 322. s. 27 (power to appoint new trustees), 181. 8. 28 (death of trustee of will in lifetime of testator), 181. 8. 29 (trustees' receipts good dis- charges), 487. s. 32 (negative declaration in settle- ments), 323. s. 34 (extent of the act), 181. 24 Vict. c. 9 (conveyance of land to charitable uses), 73. s. 1 (reservation of rent, &c.), 74. ss. 2 — 5 (separate deed ; inrolment), 74, 76. 24 & 25 Vict. c. 62 (limitation as to crown suits), 488. s. 2 (Duke of Cornwall, limitations as to suits by), 488. 24 & 25 Vict. c. 91, s. 31 (stamps), 156. 24 & 25 Vict. c. 95 (repeal of criminal statutes), 130. 24 & 25 Vict. c. 96, s. 28 (destruction, &c. of title deeds), 156. 24 & 25 Vict. c. 100 (attainder), 130. 24 & 25 Vict. c. 133 (draining), 339. 24 & 25 Vict. c. 134 (bankruptcy), 380. 25 Vict. c. 17 (charities), 75. 25 & 26 Vict. c. 53 (title and conveyance of real estates), 505. 25 & 26 Vict. c. 67 (declaration of title), 505. 25 & 26 Vict. c. 73 (inclosure commissioners), 338, 383. 25 & 26 Vict. c. 86 (lunatics), 70. 25 & 26 Vict. c. 89 (joint-stock companies), 81. 25 & 26 Vict. c. 108 (sale, minerals), 323, 324. 25 & 26 Vict. c. 112 (charity commission), 77, 180. 26 & 27 Vict. c. 106 (charities), 75. 27 Vict. c. 13 (charities), 75, 76. 27 & 28 Vict. c. 45 (settled estates), 27, 34. 27 & 28 Vict. c. 112 (judgments), 61, 92, 178, 309, 380, 423, 461. 27 & 28 Vict. c. 114 (improvement of land), 32, 33. 28 & 29 Vict. c. 96 (stamps), 203. 28 & 29 Vict. c. 99 (county coui'ts), 169, 180, 452. 28 & 29 Vict. c. 104 (crown suits), 96. 28 & 29 Vict. c. 122 (simouy), 359. 29 & 30 Vict. c. 57 (inrolment of charity deeds), 76. 29 & 30 Vict. c. 122 (metropolitan commons), 339. 30 & 31 Vict. c. 47 (Us pendens), 97. R.P. S S Statutes cited : 30 & 31 Vict. 0. 30 & 31 Viet. c. 30 & 31 Yict. c. 30 & 31 Vict. c. 30 & 31 Vict. c. 30 & 31 Vict. c. 626 INDEX. 48 (auctions of estates), 175. 69 (mortgage debts), 462,463. 87 (Court of Chancery), 70. 131 (companies), 81. 142 (county coiu-ts), 169, 176, 452. 143 (exjoiring laws continuance), 383. 31 Vict. c. 4 (sales of reversions), 497. 31 & 32 Vict. c. 40 (partition), 144. 31 & 32 Vict. 0. 44 (sites of buildings for religious pm-- poses), 78, 79. s. 3 (inrolment of deed), 77. 31 & 32 Vict. c. 54 (judgments), 93. 31 & 32 Vict. c. 89 (commons), 338, 383. 32 & 33 Vict. c. 36 (burial grounds), 181. 32 & 33 Vict. 0. 46 (specialty and simple contract debts), 86, 177. 32 & 33 Vict. c. 56 (endowed schools), 77. 32 & 33 Vict. c. 71 (bankruptcy), 61, 97, 179, 309, 353, 380, 423. 32 & 33 Vict. c. 83 (Insolvency Court), 97, 309, 353, 504. 32 & 33 Vict. c. 107 (inclosure), 339. 32 & 33 Vict. c. 110 (charities), 77, 78, 180. 33 Vict. c. 14 (naturalization), 67, 69, 172. 33 & 34 Vict. c. 23 (abolition of attainders), 24, 60, 71, 130, 172. 33 & 34 Vict. c. 28 (attorneys' and solicitors' remunera- tion), 210, 466. 33 & 34 Vict. c. 34 (trust funds), 80. 33 & 34 Vict. c. 35 (apportionment), 31. 33 & 34 Vict. c. 44 (stamps), 409. 33 & 34 Vict. c. 56 (limited owners' residences), 33. 33 & 34 Vict. c. 93 (married women's property), 239, 240, 399, 426. 33 & 34 Vict. 0. 97 (stamps), 156, 175, 180, 184, 190, 202, 204, 351, 356, 390, 409, 421, 443, 461, 465, 472, 498. 33 & 34 Vict. c. 99 (stamps repeal), 190, 202, 203, 351. 33 & 34 Vict. c. 102 (naturalization), 69. 34 Vict. c. 13, s. 4 (exemption from Mortmain Acts), 79. ss. 5, 6, (inrolment, limitation of gift), 80. 34 & 35 Vict. c. 79 (lodgers' goods protection), 259. 34 & 35 Vict. c. 84 (limited owners' residences act amend- ment), 33. s. 3 (improvements), 33. 35 & 36 Vict. c. 24 (charitable trustees incorporation), 81, 181. s. 13 (inrolment), 76. 35 & 36 Vict. c. 39 (naturalization), 69. 35 & 36 Vict. c. 50 (railway rolling stock protection), 259. 36 Vict. c. 19 (inclosures), 338. 36 & 37 Vict. c. 42 (tithes of market gardens), 362. 36 & 37 Vict. c. 50 (sites for places of worship and burial), 78. INDEX. 627 Statutes cited : 36 & 37 Vict. c. GO ('Supi-omo Court of Judicature Act, 1873), 25, 27, 04, 166, 176, 179, 186, 252, 433, 448. 8. 16 (transfer of jurisdiction), 143, 144, 166. sub-sect. 9 (transfer of juris- diction), 94. s. 17 (transfer of jm-isdiction), 94, 143, 166. s. 18 (transfer of jurisdiction), 166. s. 24 (law and equity to be concur- rentlj' administered), 186. 8. 25, sub-sect. 1 (deceased insol- vents, now re- pealed), 86. sub-sect. 2 (express trust), 489. sub-sect. 3 (waste), 27. sub-sect. 4 (merger), 433. sub-sect. 5 (mortgagor may sue in bis own name), 448. sub-sect. 7 (time not essence of contract), 176. sub-sect. 8 (injunctions), 26, 187. sub-sect. 11 (rules of equity to prevail), 166. 8. 34, sub-sect. 3 (Cbancery Divi- sion), 107,168, 188, 449. 36 & 37 Yict. c. 87 (endowed schools), 77. 37 & 38 Vict. c. 33 (settled estates), 27, 34, 37 & 38 Vict. c. 57 (limitations), 491, 492. 37 & 38 Vict. c. 78 (Vendor and Purchaser Act, 1874), s. 1 (forty years' title), 465, 479. s. 2 (lessor's title, recitals, title deeds, &c.), 479, 498. 6. 5 (bare trust estate, now repealed), 119. s. 6 (married woman, bare trustee), 246, 391. s. 7 (tacking, now repealed), 465. s. 8 (registration of wills), 236. 37 & 38 Vict. c. 83 (Supreme Court of Judicature Com- mencement Act, 1874), 25, 27, 94, 143, 144, 145, 166, 433. 37 & 38 Vict. c. 87 (endowed schools), 77. 38 & 39 Vict. c. 77 (Supreme Court of Judicature Act, _ 1875), 25, 86, 186. s. 7 (idiots and lunatics), 70, 179. s S 2 628 INDEX. Statutes cited : 38 & 39 Vict. c. 77, s. 10 (deceased insolvents, repeal of stat. 36 & 37 Vict. c. 66, s. 25, sub-sect. 1), 86, 176, 177. s. 33 (repeal), 179. 38 & 39 Vict. c. 87 (Land Transfer Act, 1875), 119, 505, 506. s. 48 (repeal and amended re-enact- ment of stat. 37 & 38 Vict. c. 78, s. 5), 119. s. 129 (repeal of stat. 37 & 38 Vict, c. 78, s. 7), 465. 38 & 39 Vict. c. 92 (agricultural holdings), 404, 405, 406, 428, 429. 39 & 40 Vict. c. 17 (partition), 144. 39 & 40 Vict. c. 30 (settled estates), 27, 34. 39 & 40 Vict. c. 37 (crown rights), 488. 39 & 40 Vict. c. 56 (commons), 144, 339, 340. 39 & 40 Vict. c. 59 (appellate jurisdiction), 186. 39 & 40 Vict. c. 74 (agricultural holdings), 404, 428. 40 Vict. c. 13 (stamps), 356. 40 & 41 Vict. c. 18 (settled estates), 27, 34. s. 4 (leases), 28. s. 9 (licence to grant leases), 369. s. 16 (sale of timber), 26. s. 17 (costs of proceedings for pro- tection of estate), 35. s. 34 (sales), 35. s. 36 (investment of purchase- money), 35. s. 38 (exercise of powers), 35. ss. 44, 46 (leases by tenant for life), 28, 244, 252. s. 47 (demise by husband), 244. s. 48 (execution of counterpart), 28. s. 55 (reversion in the Crown), 56. s. 57 (date of settlement), 27. 40 & 41 Vict. c. 31 (water supply), 33. 40 & 41 Vict. c. 33 (contingent remainders), 285, 296, 330, 333, 397. 40 & 41 Vict. c. 34 (exoneration of charges), 171, 463. 41 Vict. c. 23 (acknowledgment, Ireland), 246. 41 & 42 Vict. c. 42 (tithes), 362. 41 & 42 Vict. c. 56 fcommons), 339. 41 & 42 Vict. c. 71 (metropolitan commons), 339. 42 & 43 Vict. c. 37 (inclosure), 340. 42 & 43 Vict. c. 59 (outlawry), 24. 44 Vict. c. 12, s. 41 (cesser of duties), 300. 44 & 45 Vict. c. 41 (Conveyancing and Law of Property Act, 1881), 146, 211,212, 348, 373, 413, 419, 425, 439, 485, 499, 508, 511, 516, 519. s. 1 (commencement, extent), 197, 199, 239, 343, 413, 417, 460, 468, 473, 474. INDEX. 629 Statutes cited : 44 & 45 Vict. c. 41, 8. 2 (interpretation), 239, 343, 348, 38G, 413, 419, 441, 446, 452, 453, 45G, 459, 4G7, 474, 475, 481, 486,498, 516. s. 3 (contracts for sale), 481, 498. B. 4 (completion of contract after death), 120, 220, 235. s. 5 (discharge of incumbrances on sale), 485, 486. s. 6 (general words), 212, 214, 243, 511, 512, 519. s. 7 (covenants for title), 212, 213, 214, 474, 475, 476, 477, 478, 511, 512, 518. s. 9 (production, &c. of title deeds), 466, 500, 501. s. 10 (leases), 261, 413, 414. s. 11 (covenants to run with re- version), 413. s. 12 (apportionment on severance), 417. 8. 13 (sub-demise), 484. s. 14 (forfeiture), 414, 418, 419. s. 16 (insijection of title deeds), 498. s. 17 (consolidation of mortgage), 407. s. 18 (leases), 446, 447. s. 19 (powers of mortgagee), 453,456. s. 20 (exercise of power of sale), 454. s. 2 1 (convej^ance by mortgagee), 454. s. 25 (action respecting mortgage), 451, 452. s. 30 (trust and mortgage estates on death), 120, 140, 173, 235, 450. s. 31 (new trustee), 181, 182. s. 32 (retirement of trustee), 183. 8. 33 (powers of new trustee), 180. s. 34 (vesting estate in new trustee), 183, 184. s. 36 (trustees' receipts), 487. s. 39 (married women), 239. s. 41 (infantowner infee simple), 128. 8. 42 (management during minority), 128. 8. 44 (rentcharges, &c.), 349. 8. 45 (redemption of quit rents), 129, 180, 386. s. 49 (words in deeds of grant), 214. 8. 50 (conveyance to self), 199, 213, 241. 8. 51 (words of limitation), 150, 151, 167, 169, 197, 199, 230. s. 54 (receipt in deed), 202, 213. s. 55 (receipt in or on deed), 202. 630 INDEX. Statutes cited : 44 & 45 Yict. c. 41, s. 58 (heirs, &c. of covenantee), 520. s. 59 (covenants to bind heirs), 84, 473, 474, 520. s. 60 (covenant vrith two or more jointly), 474. s. 61 (advance on joint account), 460, 502. s. 63 (all the estate), 212, 214, 511, 512, 517. s. 64 (construction of implied cove- nants), 474. s. 71 (repeals), 181, 207, 453, 487. 44 & 45 Yict. c. 44 (Solicitors' Eemuneration Act, 1881), 210, 466. 44 & 45 Yict. 0. 70 (expiring laws continuance), 339, 383. Statutes, merchant and staple, 93. Stewaed of manor, 388. Stops, none in deeds, 206. Subinfeudation, 41, 64. Succession, definition of the term, 301. duty, 300, 301, 324. SUCCESSOE, 301. Sutfeeance, tenant by, 405. Suit of Coui-t, 125, 126, 129, 132, 381. Supeeme Court of Judicature Acts, 1873, 1875 (see stats. 36 & 37 Yict. 0. 66, and 38 & 39 Yict. c. 77). Sueeendee of life interest, 296. of copyholds, 366, 378, 387, 394, 395, 396, 585. natui-e of surrenderee's right, 390. of copj'holds of a married woman, 390, 391. of a term of years, 414, 435. in law, 427. SuEVlYOES of joint tenants entitled to the whole, 138. of copyhold joint tenants do not require fresh ad- mittance, 383. T. Table of descent, explanation of, 114. Tacking, 465. INDEX. 631 Tail, estate, 37, 45, 4G, 53, 55, 56, Gl, 150, 169, 225, 227, 230, 261, 273. derivation of word, 45. inrolment of disentailing deeds, 50, n., 52, 55, n. destruction of entaUs, 46. quasi entail, 61. constructive estate, in a -will, 229. bar of estate, 48, 50, 54, 56, 57, 58, 378, 395. descent of estate, 61, 108, 531. words in tail, in tail male, in tail female used in convey- ance of estate of inheritance, 150, 373. tenant in, after possibility of issue extinct, 57. tenant in, ex provisione viri, 58. equitable estate, 169. no lapse of an estate, 225. joint tenants in, 137. estate not subject to merger, 295. in copyholds, 374, 376, 380. equitable, in copybolds, 395. TAiiTAEUM' grease, 46. Tenant for life, 23, 26, 27, 34, 54— (and see Life). costs of, in protecting estates, 36. in tail, 38 — (and see Tail). for life, feoffment by, 152. in dower, leases by, 252. in fee simple, 63 — (and see Fee Simple). in common, 142. of copyhold, 383. at will, 403, 404. right of, to inspect court rolls, 388. by suiferance, 405. Tenants' improvements, 404, 428. fixtures, 429. Tenements, 5, 6, 7, 7, n., 8, 14. Tenure of an estate in fee simple, 121, 131. of an estate tail, 121. none of purely incorporeal hereditaments, 354. of copyholds, 381. by knight ser-vdce, 124, 127. rise of copyholds to certainty of, 366. Tenures, feudal, introduction of, 3. Term of years, tenant for, 9, 401, 403,405,410 — (and see Lease). long terms for securing money, 429. husband's rights in his wife's, 426. attendant on the inheritance, 434, 435. mortgage for, 455. for securing portions, 431. attendant, by construction of law, 437. enlargement of long term into fee simple, 439. 632 INDEX. Testatum, 200, 205, 219, 508, 518, 564, 566. Thellussox, Mr., will of, 334. Act, 335. " Things real, personal, or mixed," 7, n. Tillage, 548, 557. TiMBEE, 24, 25, 26, 58, 82. on coyphold lands, 369. on mortgaged lands, 453. Time, unity of, in joint tenancy, 137, 140. where not of essence of a contract, 176. ■within wHcli an executory interest must arise, 331. limited for making entry on court roll of disentailing deed, 395, n. limited by statutes of limitations, 488, 491, 492, 493. Tithes, 360, 491, 549, 561. lay, 361, 491. conveyances of tithes, 361. distinct from the land, 361. commutation of, 362. remedies for the recovery of a tithe rent-charge, 263. limitations of actions for, 491. Title, 469. covenants for, 213, 472, 473, 509, 568. now implied by statute in certain cases, 474—477. cases in which covenants for title are not now implied, 477. covenants implied by statute may be varied by deed, 477. documents of title dated before commencement of, 482. sixty years formerly required, 478, 479. reasons for requiring sixty years, 480. forty years now sufficient, 479. act for obtaining a declaration of, 505. act to facilitate proof of, 505. Land Titles and Transfer Act (see stat. 38 & 39 Vict. c. 87). Title deeds, destruction, &c. of, 156, n. mortgage by deposit of, 457. importance of possession of, 495. who entitled to custody of, 495, 496, 499. in possession of mortgagee, 495, 497, 498. covenant to produce, 498. attested copies of, 483, 498. grant of, 510, n., 568. acknowledgment of right to produce, 499 — 502. undertaking for safe custody of, 501. Titles of honour are real property, 8, 302. INDEX. 633 Teadees, debts of deceased, 85. bankruptcy of, 87, 87, n. Tkansfee of land, 505. of mortgages, 461. of property, act to simpUfy (see stat. 7 & 8 Vict. c. 76). Teeason, forfeiture for, 59, 71, 130, 130, n., 172. abolition of forfeiture, 24, 60, 71, 130, 172. Teustee Act, 1850. . 179. bare, 119, 246, 391. Trustees made joint tenants, 139, 172. failure of heirs of, 172. descent of estate of trustee, 120, 140, 172, 235. bankruptcy of, 179. retirement of trustee, 182. acts for appointing new, 179 — 181. statutory power to appoint new trustees, 181, 182. vesting of trust estate in new trustees, 183. of charity proj^erty, 77, 180. incorporation of trustees of certain charities, 81. official trustee of charity lands, 77. stamps on appointment of new, 180, 184. where they may sell or mortgage to pay testator's debts or legacies, 233. estates of, under wills, 231, to preserve contingent remainders, 297, 298. such trustees not now required, 296. of copyholds, tenants to the lord, 395. mortgages to, 459. covenants by, on a sale, 474, 476, 477. receipts of, good discharges, 487. Tetjsts, 161, 165, 299. declarations of, stamp on, 175, n. in a will, 231. contingent remainders of trust estates, 299, 334. of copyholds, 394. for separate use, 98, 237, 395. for alien, 172. limitation in cases of express, 489, 491. not abolished, 187. See also Equitable Estate. TUEF, 25. U, V. Vendoe, lien of, for unpaid purchase-money, 457, 463. covenants for title by a, 473, 509, 517, 568. and Purchaser Act, 1874 (see stat. 37 & 38 Vict. c. 78). rights of vendors and purchasers on sales made after 31st Dec. 1881.. 481. R.P. T T 634 INDEX. Vested remainder, 266, 276. definition of, 267. See also Remainder. YiCAEAGES, advowsons of, 358. UN30EN persons, gifts to, 57, 288, 289, 290, 583. Uia)EELEASE, 424, 425, 426. ■ mortgage by, 457. contract for sale of, 481. sale of, 482. contract to grant, 484. Unities of a joint tenancy, 137, 140. Voluntary conveyance, 82. Vouching to -warranty, 49. User, immemorial, 492. abandonment by non-, 495. Uses, 161, 163, 192, 193, n., 206, 304, 308, 327. explanation of, 163, 308. statute of, does not apply to copyholds, 394. no use upon a use, 166. conveyance to, 197, 198. doctrine of,' applicable to mils, 231. springing and shifting, 286, 304, 306, 307, 308, 328, n. , 333, 398. examples of, 304, 305, 306. power to appoint a use, 310. to bar dower, 318, 568. Usury laws, repeal of the, 459. Waiver of breach of covenant in a lease, 416. Wales, common appendant in, 556. Wardship, 124. Warranty, 47, 49, 469. formerly implied by word give, 469. effect of express, 470. now ineffectual, 470. Waste, 24, 25, 26, 58, 82, 557. equitable, 27. by copyholder, 370. common appendant, 123, n., 541. strips of, by the roadside, 340. INDEX. 635 Wateb, descriptiou of, 1 J. limitation of right to, 494. rights, passing on a conveyance, all. Way, rights of, 342, 494, 511. Widow, dower of, 246, 250, 250, n., 251, 485. freebonch of, 400. Widowhood, estate during, 23. Wife, separate property of, 98, 237, 238, 242, n., 395, 399. Married Women's Property Act, 1870. . 239, 426. conveyance of her lands, 245, 246. rights of, in her husband's lands, 99, 246, 251, 399, 400. appointment by, and to, 314. surrender of copyholds to use of, 390. surrender of wife's copj'holds, 391, 396. husband's right in her term, 426. See also Maeried Woman. Will, tenant at, 403. cannot bar an estate tail, 58. construction of, 20, 21, 226. ignorance of legal rules, 226, 232. alienation by, 65, 217. witnesses to, 218, 220, 313, 392. revocation of, 222, 223. of real estate, now speaks from testator's death, 224. gift of estate tail by, 225, 227, 229, 230. gift of fee simple by, 227, 230. uses and trusts in a, 231. registration of, in Middlesex and Yorkshire, 235, 236. exercise of powers by, 313, 314. executory devise by, 326, 328, 329. of copyholds, 391, 392. of leaseholds, 421. of Mr. TheUusson, 334. charge of debts by, 86, 233, 235. devise to heir, 232. devise in fee or in tail charged with debts, 234. Wills, Statute of, 217. new acts, 22, 218, 228, 229, 313, 350, 421. Amendment Act, 1852. . 219. Witnesses to a deed, 201. to a wiU, 218, 220, 313, 392. to a deed executing powers, 311.- Words, construed according to their usual sense, 16, 20. words of limitation, 150, 151, 213, 230, 269, 373. Writ of elegit, 85. registration of, 91, 92. 636 INDEX. Writing, employment of, on transfer of incorporeal property, 12. formerly unnecessary to a feoffment, 153. notliing but deeds formerly called -vsTitings, 154. now required, 158. bargain and sale for a year must be in, 196. required to assign a lease, 421. contracts and agreements in, 174. trusts of lands required to be in, 174. Wrong, estate by, 152. Y. Yard lands, 547, 555, n. Year to year, tenant from, 405, 406. York registry, 204, 503. Yorkshire, devise of lands in, 235, 236. bargain and sale of lands in, 471. ^^^ 7 ^ (JAN 2 9 1S52 rUINTED BY C. F. EOVOETH, 1 , BEEAM's BiniDINGS, CHANCEEY LANE. v/ia3AINn3l\v 9 '^^OjnV3JO> '^tfOJlTVDJO^' %a3MNnn\v^ *- ' ^ its - ^ It ^OFCAUFOft^ ^OFC ^^Okmm^ ^- <: -^iUBRARYG<^ ^lUBRARYp/^ «AVEINIVER% Ott ^lOSANCEl^^ ^oiimi^"^ %Qi\mi^^ '^mm^'^ '^/shmmi\ii> ?,IIIBRARYGa ^lllBRARYQr ^d/OJIWDJO't^ ^<«ojnv3jo^ ^^^^EUNIVERy/A vj,lOSANCElfj> j^.OFCAllFOftfc, ^0FCAIIF0% 4? ^ ^J