T 
 P 
 IBIS 
 
 V, 
 
 UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY
 
 AN 
 
 ESSAY 
 
 IN A COURSE OF LECTURES 
 ON 
 
 ABSTRACTS OF TITLE; 
 
 TO FACILITATE THE STUDY,. 
 
 . 
 
 AND THE APPLICATION 
 OF THE FIRST PRINCIPLES, 
 
 AND 
 
 GENERAL RULES 
 
 OF THE 
 
 LAWS OF PROPERTY; 
 
 STATING IN DETAIL, 
 
 The Duty of Solicitors in preparing, $c. and of Counsel 
 advising, on Abstracts of Title. 
 
 BT RICHARD PRESTON, ESQ. 
 
 BARRISTER AT LAW. 
 
 VOL. I. 
 
 LONDON: 
 
 PRINTED FOR W. CLARKE AND SONS, LAW BOOKSELLERS, 
 PORTUGAL STREBT, LINCOLx's-INN. 
 
 1818.
 
 
 Printed by Luke Hansard & Soiu, 
 near Lincolu's-Inn Fields.
 
 TO 
 THE RIGHT HONOURABLE 
 
 JOHN LORD ELDON, 
 
 BARON ELDON, OF ELDON 
 
 IN THE 
 
 COUNTY OF DURHAM; 
 LORD HIGH CHANCELLOR 
 
 OF THE 
 
 UNITED KINGDOM, 
 
 THIS WORK, designed to assist the rising 
 generation in the study of the Principles 
 and general Rules of the Law of Titles to real 
 Property, and the Practice of the Chamber 
 Counsel, is PRESENTED; as a sincere though 
 humble tribute of esteem for the profound 
 knowledge of Principle and Practice for which 
 his Lordship is so pre-eminently distinguished; 
 and for the zeal with which he has uniformly 
 inculcated the importance and the necessity, 
 even to the Counsel practising at the Bar of 
 his Lordship's Court, of an intimate acquaint- 
 ance with these rules and principles, as the 
 best and most genuine foundation of Legal 
 Knowledge; by 
 
 RICHARD PRESTON. 
 a3 
 
 9366/5-1
 
 TO THE READER. 
 
 THE Work now offered to the Profession 
 originated, and was, in a great measure, com- 
 pleted, in a Course of Lectures to Pupils. 
 
 The Lectures were delivered without any 
 previous arrangement of the subject^ or col- 
 lection of authorities, and without the most 
 distant intention of publication. 
 
 These observations are offered as an apo- 
 logy for the want of a more complete and 
 systematic arrangement of the subject. 
 
 That a large number of copies are in ex- 
 istence, all of them containing inaccuracies 
 committed in dictating the lectures, and many 
 of them containing the errors and omissions 
 of transcribers, are among the motives for 
 offering the work to the Public with priority 
 over the Essay on Estates, &c. 
 
 The object in view dictated the order of the 
 parts, and each head was discussed briefly, or 
 in a more extended manner, as the duty of com- 
 municating useful information to the pupils 
 seemed to require. The different parts of the 
 
 a 4,
 
 work will, on this account, be found very 
 unequal in extent of information. 
 
 To have discussed every head fully would 
 have extended the work to an inconvenient 
 size. Instead of an Elementary Book, a diffuse 
 Treatise would have been produced. The 
 object was to give an outline, not to fill it up ; 
 and to enlarge on those heads only which are 
 most useful in practice, and on which least 
 information, in a connected series of obser- 
 vations, is to be found in other works. 
 
 Pupils in succession have uniformly de- 
 clared, and by their improvement have 
 evinced, that this work has aided their studies 
 more than any other book which has been put 
 into their hands. 
 
 It taught them that practical knowledge, 
 and gave them that facility of analysis, and 
 those results of experience, embodied in writ- 
 ing, which, unfortunately for the Profession, 
 are generally allowed to die with the possessor; 
 or which, if verbally delivered, without being 
 committed to writing, are retained imperfectly, 
 and do not admit of examination, when their 
 accuracy is to be brought to the test of 
 practice. 
 
 To instruct the solicitor in the mode of 
 preparing his abstracts, and assist him in 
 selecting its materials, is not the only object 
 of this work. It aims at the higher and more
 
 important end of inculcating First Principles; 
 of giving the rules, and teaching the reasons 
 on which the practice is founded. The 
 reader is elicited, by easy transitions, from the 
 most simple propositions into the more ab- 
 struse rules of Law. That labor which would 
 deter any student who must collect the ma- 
 terials for himself, from the pursuit of recondite 
 and difficult points, is, it is hoped, rendered, 
 by inductions, and gradual preparation, so 
 simple and so easy, that the present work may 
 be well used, as it is intended to be, as a manual 
 or grammar of the Rules of Law respecting 
 Titles. 
 
 Among his own Pupils, at least, this work 
 has answered the design of the Author far 
 beyond his expectation ; and he has had ample 
 experience of its utility. 
 
 When it is considered that an Abstract is 
 one of the first acts on which a young man is 
 required to employ his talents, or exercise his 
 industry, and that no one can prepare a draft 
 from the deeds or other documents of a title, 
 without first abstracting, or selecting and com- 
 bining, the several parts, arranging them on 
 paper, or on his mind, it will be obvious, that 
 any guide to assist him in this undertaking 
 must, if it teach him the best, or even in the 
 absence of better assistance, a good mode of 
 performing his task, be of great utility.
 
 To carry the Student into a knowledge 
 of the grounds and rudiments of Law, by 
 teaching him, step by step, the Principles and 
 the Reasons of the Practice ; and to lead him, 
 while learning to prepare his abstract, into the 
 more nice and difficult branches of the Pro- 
 fession, was deemed an object justifying the 
 labor of the undertaking, and the still more 
 arduous work of publication. 
 
 It is fully intended, and finally arranged, 
 that this work should be completed in three 
 volumes. 
 
 It consists of one hundred Lectures, deli- 
 vered in as many hours ; each Lecture having 
 occupied one hour. The reader may therefore, 
 by the devotion of one hour in each of one 
 hundred successive days, attain with ease the 
 knowledge to be acquired from the perusal of 
 this work. But though the work was dictated 
 in one hundred hours, its revision, its cor- 
 rection, and the reference to authorities, have 
 occupied a much larger portion of time. 
 
 Great anxiety has been felt to render the 
 work as accurate as circumstances would ad- 
 mit. But in a work of this nature, depending 
 so materially on conclusions formed in practice, 
 and often on an attempt to collect and reconcile 
 the jarring and discordant opinions of Prac- 
 titioners, and the fluctuating opinions of suc- 
 cessive Judges, it would be the height of
 
 presumption and absurdity to expect to be free 
 from error, or to escape from just criticism. 
 
 Were positive exemption from error re- 
 quired from authors, how few works would be 
 proper for the eye of the Public ! The work 
 is as correct as the Author could make it, 
 consistently with his other pursuits; and he 
 has availed himself of every opportunity of 
 detecting and correcting the errors into which 
 he had fallen. 
 
 Many of the propositions depend on prac- 
 tice and opinion, and are not be relied on 
 with confidence, but to be received with 
 caution. When authorities are given, they are 
 intended rather as the medium for further 
 research, than as the foundation of the pro- 
 position to which they are attached. 
 
 In directing the studies of the reader, the 
 author has given a reference to works of merit 
 with every attention to justice and professional 
 utility. He has referred to his own productions 
 oftener than has been pleasant to his feelings; 
 and he has referred to them only because 
 they most fully express the doctrines which 
 he wished to inculcate ; and because the pre- 
 sent work often fills up the chasm left in the 
 preceding works; or because he wished to 
 avoid repetition, and to render the several 
 publications parts of one and the same 
 system.
 
 The reader will observe that the Author has 
 bestowed most labor on those parts which are 
 connected with his first Essay. Thus titles, 
 under Tenants in Tail, and for Life, are 
 meant to be supplements to the Essay on 
 the Quantity of Estates, rendering that work 
 more extensively useful in practice. 
 
 On the other hand, as the productions of 
 the Author's earliest studies were principally 
 employed in collecting or in framing the rules 
 of construction, and collecting the authorities 
 under which estates in fee and in tail, and for 
 life and for years, are created, the observa- 
 tions on these topics, will, in the present work, 
 be very concise. Utility has been the Author's 
 object. His principal motive for the pub- 
 lication is to assist the studies of others ; to 
 supply to those who from their circumstances 
 in life cannot become pupils in a regular 
 course of reading, some of those advantages 
 which are to be derived from a scientific course 
 of study, under the direction of those who 
 devote a portion of their time to this rational 
 and useful mode of assisting young men to 
 become qualified to practise with honor and 
 credit to themselves, and security and advan- 
 tage to the Public. 
 
 To the Writer of these observations it is a 
 pleasing reflection, that his Pupils have been 
 a source of great comfort, satisfaction, and
 
 ( xiii ) 
 
 improvement to himself. In instructing them 
 he has greatly extended the sphere of his own 
 knowledge. The ardor and animation excited 
 in communicating instruction to them have 
 produced most of those works which the 
 Profession have had, or are likely to have, 
 from the Author. 
 
 Without the duty of communicating in- 
 formation to others, he would never have 
 embodied into writing either the present 
 Essay, or the three volumes already pub- 
 lished of the Treatise on the Practice of 
 Conveyancing. Such as these works are 
 they are given to the Profession, as the means 
 of assisting the studies of others, rather than 
 as perfect works; as the foundation for future 
 and more extensive research, than as com- 
 plete treatises. 
 
 To candid and liberal communications, 
 suggesting errors, or questioning the accuracy 
 of any of the propositions, the author will 
 pay every deference and attention. He will 
 be more ready to correct any errors, (and he 
 is prepared to expect that there are many,) 
 than to persist in them. 
 
 In the third volume, an index to the cases, 
 and to the principal points, and a table of 
 errata, &c. will be added.
 
 TABLE OF CONTENTS: 
 
 General Outline. 
 
 Page. 
 
 SOLICITOR of Vendor to prepare Abstract i 
 Solicitor of Purchaser to see that the Abstract is 
 
 warranted by Evidence - ib. 
 
 Counsel to advise on Abstract - 2 
 
 General Outline of his Province and Duties - - ib. 
 
 Every Abstract should have a Head or Title - 4 
 Utility of Arrangement of Dates, and of Summary 
 
 or Abridgment ------- ib. 
 
 Of Commencement of Abstract - - 3 5 
 
 For Sixty Years - 5 
 For more than Sixty Years, when there is 
 
 a Settlement, or - - - - - 5 9 
 
 a Will - ib. 
 an Appointment in Exercise of a Power - 6 8 
 Estate tail, without Evidence of its Crea- 
 tion ------- ib. 
 
 Suspicion of concealed Deeds, 8cc. - * 6 
 a Recovery Deed as the first Deed in the 
 
 Abstract - - 7 
 a Fine by Tenant in Tail, who has the 
 
 Fee by Descent ifc. 
 
 a Conveyance by Husband and Wife - 9 
 a Settlement in pursuance of Articles or 
 
 Trust ... - ib. 
 
 Of Recitals, showing earlier Evidence 9 
 When there is a Term of Years, and no Evidence of 
 
 its Creation - - - j i 
 Titles to Leasehold Interests 
 
 Under Building Least* - -.-13
 
 XVI CONTENTS. 
 
 Page. 
 
 Titles under a Contract for a Lease - 14 
 Under Ecclesiastical Corporations, &c. - - ib. 
 'Under Tenant Right - - - - - ib. 
 Of Commencement of Abstract, with a Purchase- 
 Deed - 16 
 
 A Will- - i ? 
 
 When there are ancient Deeds - ib. 
 When the purchasing Ancestor is to be 
 ascertained - - - - - -18 
 
 Of Evidence commencing within Sixty Years - 20 
 
 Mode of ascertaining Seisin for a prior period - ib. 
 The general rule, is to show a Title for Sixty 
 
 Years - - ib. 
 
 Cases which give a right to further Evidence - - 21 
 
 Of the Statute of Limitations - - - ib. 
 
 Of a Title depending on Descent - 23 
 
 Of Descents to maternal Heirs - - ib. 
 Of Titles depending on Possession without deeds 
 
 when in a Register County - - ib. 
 
 Precautions - - 24 
 
 Of Titles under attendant Terms 25 
 
 Of intermediate Assignments - - ib. 
 
 Presumption of Assignments 2,6 
 
 Arrangement of Dates - ib. 
 
 Cautions to be observed when the abstracted Deeds 
 
 do not embrace a space of Sixty Years - 27 
 Investigation for earlier Evidence, through Assess- 
 ments to Land-Tax, 8cc. - - - ib. 
 Owners of other Property held under the 
 
 same Title - - - ib. 
 
 Leases and Rentals - - ib. 
 
 Covenants for Production of Deeds - - ib. 
 Practice as to Recitals, showing Commencement of 
 
 Title - 20 
 
 Form of Recital recommended for Adoption - - ib. 
 
 When Titles depend on Grants from the Crown - 3 
 
 Nullum Tempus Act, and its Defects - 31 
 
 When the Title is to an Advowsonin gross - - ib.
 
 CONTENTS. XV'ii 
 
 Page. 
 
 When there are more Deeds than are proper to 
 
 be abstracted - 32 
 
 When the Title is in Persons under Disabilities - 33 
 Prudence and Advantages of Investigation of Title 
 
 before Sale - - - - ib. 
 
 Practice, when a defective Abstract is delivered - 34 
 When the Deeds, and not an Abstract, are 
 
 offered to be delivered - ib. 
 
 When the Title is fraudulently misrepre- 
 sented as defective - - 35 
 When a purchaser means to have the estate, 
 and yet insists on objections which cannot 
 be removed - ib* 
 
 Of the Form of the Abstract. 
 
 Head to Abstract - 36 
 
 Its Form - - ib* 
 
 In case of Fee-simple ----- ib. 
 
 For Lives or Years determinable - - ib! 
 
 Of a Farm Parcel of a Manor - ib. 
 
 Or Lands, Parcel of a Farm - 37 
 
 Copyhold Lands - - - ib. 
 
 Lands of Customary Tenure or Customary ib. 
 
 Descent - ib. 
 
 Different Farms sold to different Pur- 
 chasers - ib. 
 
 Advowsons - 38 
 
 Of Notes in Margin of Abstract - - ib. 
 
 Of Order of Dates 39 
 
 Of Wills revoked by Settlement, Sec. of subsequent 
 
 Date - - ib. 
 
 Arrangement of Abstract : 
 
 By keeping the Title to each parcel of Land, in a 
 connected and consecutive order - - - 40 
 
 Or the different shares of Coparceners and Tenants 
 in Common in continuity -- ~ ib.- 
 
 b
 
 XVH1 CONTENTS. 
 
 Page. 
 
 Form of Subdivision or Heads of Abstract - -- 40 
 
 When a Will is prior or subsequent to a Purchase - '41 
 
 Objects of Abstract : 
 
 Legal Ownership - - - - - - 41 
 
 Equitable Ownership - - - - - ib. 
 
 Substance of Abstract : 
 
 To show Deeds - - - 42 
 
 Wills - ib. 
 
 Facts as Descents, Sec. - - ib. 
 
 The Facts to be authenticated by Evidence -> 43 
 
 Of Titles under remote Descents - - - ib. 
 
 Evidence of Pedigree when on a recent Descent - ib. 
 
 When on a Descent at a distant Period - - 44 
 
 When in a Descent at a recent Period to maternal 
 
 Heirs, or to a remote paternal Heir - - ib. 
 
 On Fines levied to bar nearer Heirs 45 
 Evidence of Legitainacy of Persons claiming to be 
 
 .Heirs, &c. - - 46 
 Investigation of Title to Freehold Lands, when the 
 
 Title depends on a Recovery 47 
 
 Evidence of Marriage - - ib. 
 
 On Disseisins, &c. - 48 
 
 On Possessio fratris, &c. - - ib. 
 
 Form of Abstract : 
 
 As to Deeds - _ 49 
 
 Of complex Deeds - - - - - 51 
 
 Deeds without formal Parts ib. 
 
 Essential parts of a Deed - - . - ib. 
 
 Grantor - ib. 
 
 Grantee - - - - - ib. 
 
 Parcels or Subject - - .. - ib. 
 
 Terms of Contract - - - - - ib: 
 
 As to J)ate ----... 53
 
 CONTENTS. XI* 
 
 Page. 
 
 As to Style of Deeds ------ 52 
 
 Names of Parties - - - 53 
 
 Recitals - 56 
 
 Testatum Clause ----- 69 
 
 Consideration - 72 
 
 Name of Grantor and Words of Request, 
 
 &c. - 74 
 
 Operative Word* - - 76 
 
 Name of Grantee 77 
 
 Reference to Lease for a Year. 79 
 
 Parcels 81 
 
 General Words ------ 93 
 
 Habendum - 97 
 
 Reddenduni - - 100 
 
 Declaration of Uses, and the Law of Uses - 101 
 
 Declaration of Trusts - - 133 
 
 Outline of the Law of Trusts - - ib. 
 
 Construction of Marriage Articles - - 136 
 
 Conditions - - - 147 
 
 Conditional Limitations - ib. 
 
 Clause of Redemption -- - - ib. 
 
 Special Agreement* - - ib. 
 
 Powers - - - 149 
 
 Covenants - - - 152 
 
 Execution - - 154 
 
 Attestation - - - ib. 
 
 Receipts - - ib. 
 
 Fines and Recoveries - - - - - 158 
 
 Acts of Parliament - - - - - 160 
 
 Commissions of Bankrupt - 167 
 
 Wills - - - 178 
 
 Probates - ___ -185 
 
 Administrations - - - - - 188 
 
 .Decrees - ib. 
 
 Judgments - - - - - -190 
 
 Crown Debts - - 193 
 
 Of circumstances to be stated in explanation of the 
 
 Abstract - - - 194 
 
 Of Title to Copyhold Lands - - - 202 
 
 b2
 
 XX CONTENTS. 
 
 Page. 
 
 To Lands of the Tenure of Ancient Demesne - - 206 
 Of the Points to which Attention should be paid in 
 considering the Abstract and advising on the State 
 
 of the Title - - fryi^ - 207 
 
 Duty of Conveyancer - .... 208 
 
 Qualification of Conveyancer - - - - ib. 
 
 Of the Study of the Law. 
 
 Books to be read -- - - -212 
 
 Subjects to be studied - - 208.212.220 
 
 Course of Study - - - - - 221 
 
 As to the Commencement of the Title. 
 
 General Maxims of Title - - 244 
 
 Title under Ownership - - 245 
 
 Title by Wrong - - ib. 
 
 Statutes of Limitation and Nonclaiin - - ib. 
 
 Title for Sixty Years - - - 246 
 
 More than Sixty Years - 249 
 
 Remainder after long Leases - 254 
 
 Title by Descent - - - ib. 
 
 Titles doubtful - - 255 
 
 Tenant in Tail, with Remainder by Descent - - 256 
 Of Titles commencing with a Fine and a Deed to 
 
 bar all Estates Tail, &c. - - 257 
 Of Titles attended with Suspicion of concealed 
 
 Evidence - - - ib. 
 Of Titles depending on a frequent Change of Owner- 
 ship among Neighbours or Tenants - - 258 
 Of Titles to Lands bought or exchanged for Con- 
 venience - ----- ib. 
 
 taken under Building Leases - - 259 
 
 Under West Country Leases - ib. 
 
 Under Powers - - - - ib. 
 
 Of Rumours of a Delect in Title - 260 
 Discretion to be exercised by Purchaser on Opinion 261 
 Inconveniences arising from the Want of a Market- 
 able Title - -.__.. jb.
 
 CONTENTS. XXI 
 
 Page. 
 
 Defects are generally in Titles to family Estates , 262 
 Difference in Caution, whether a former Owner died 
 
 recently, or at a distant period - - 263 
 Necessity of Evidence of Seisin of Parcels for want 
 
 of Identity -__--- - ib. 
 
 A Will, whenever it is referred to, should be in- 
 spected -------- 264 
 
 Exception - ------ ib. 
 
 Extraordinary Occurrences, as Feoffment, &c. excite 
 
 Suspicion - ib. 
 
 Of Titles under Fines by Husband and Wife - - 265 
 When there is a Covenant to levy a Fine by them, 
 
 and no Fine appears - - - - ib. 
 
 Of Limitations of Time to Writs of Right - 266 
 There may be a Right to enter, &c. though Sixty 
 
 Years may have barred a Writ of Right - ib. 
 
 Cautions on Reputation, that a Title is bad - - 267 
 Right of an intended Lessee, or Purchaser from 
 
 Lessee, to investigate the Title - - - - 270 
 
 Of Title under Corporations - - T - 272 
 
 Under Bastards - - - . - , - ib. 
 
 Under Denizens ----- ib 
 
 Of the Contents and Progress of the Abstract. 
 
 Points to be considered by the Conveyancer - - 274 
 As to Escrows - - - - - . 275 
 
 Execution of Deeds - - - - - - 276 
 
 Attestation - - -. - - - -277 
 
 Enrolment - - - - 287 
 
 Letter of Attorney ----- 293 
 
 Attornment- ------ 2 p^ 
 
 Entry - - 297 
 
 Receipts - - - - - - - 299 
 
 Exchanges - - - > - -301 
 Enfranchisement - ih. 
 
 Conversion of antient Demesne into Frank 
 , Fee . - . - - - 304
 
 XX11 CONTENTS. 
 
 Of the Form and Operation of the Deed itself. 
 
 Whether Feoffment, &c. - - - v '-*< - 305 
 Seisin to supply Uses - - 307 
 
 Admissibility of Uses - - ib. 
 
 What Uses are, and what Uses are not, executed by 
 
 the Statute -_--_.*. ib. 
 Of Uses in the first Degree, and of Uses in the second 
 
 Degree - - ib. 
 
 Of deeds operating in some other Mode than their 
 
 Form imports - - - 312 
 
 Of deeds good in Equity, though bad at Law - 314 
 Material Parts of every Deed - ib. 
 
 a . A Grantor. 
 
 2. Of Ability. 
 
 3. A Grantee. 
 
 4. Words of Grant. 
 
 5. Subject. 
 
 6. Formal Words and valid Limitations. 
 
 7. Proper Reservation of Rent when the Title is to- 
 a Rent. 
 
 Of Ability of Persons : 
 
 Owners - - * - - - - 316 
 
 Disseisors - - 317 
 
 General Rules -< 318 
 
 Infants- - - - - - 319 
 
 Idiots - ... 327 
 
 Lunatics - - 330 
 
 Husbands and Wires ----- og 2 
 
 Maxims - - ib. 
 
 As to Freehold and Copyhold Lands, and 
 
 Rights, Titles, &c. ----- 334 
 
 As to Leaseholds for Years and Chattel In- 
 terests - - - 342 
 
 As to personal Chattels and Choses in Action 347 
 
 Alienations by Tenant for Life - - - - 351 
 
 By Tenant in Fee-simple - 357
 
 CONTENTS. XXlli 
 
 Page 
 
 By Tenants in Tail - - - - - 361 
 
 By Conveyances which are rightful - - 362 
 
 Which are wrongful - ib. 
 
 Which bar the issue - - - - ib. 
 
 Which bar persons in Reversion and Re- 
 mainder - - - - - ib. 
 
 Degrees of Ownership conferred by different Estates. 
 
 By Fee-simple - * " \ A : - 377 
 
 By determinable Fee ----- ib. 
 
 By conditional Fee - 378 
 
 By Fee Tail - * - 379 
 
 Power of Alienation of Tenant in Tail : 
 
 As to himself - - - 379 
 
 As to Issue -------- ib. 
 
 As to Remainder-men and Reversioners - - ib. 
 
 By Discontinuance ------ 380 
 
 By Common Recovery - - - - - 381 
 
 By Grant - - 382 
 
 By Covenant to stand seised - 386 
 
 Case of Machell v. Clarke - - 385 
 Of Estates which may and may not be barred by 
 Common Recovery ------ 
 
 That Estates tail may be subject to an executory 
 
 Devise -------- 401 
 
 Effect of Fines - - 402 
 
 Grants ------- 406 
 
 Contracts ------ ib. 
 
 Exchanges - ' - - - - - 407 
 
 That an Assignee cannot suffer a Recovery - - 408 
 
 Effect of Warranties : 
 
 Which commence by Disseisin - 409 
 
 Lineal -------- 410 
 
 Collateral ------ --ib.
 
 < CONTENTS* 
 
 Effect of Estoppels : 
 
 Page. 
 
 Distinguished from Evidence - 419 
 
 Of Alienation by Tenants for Life - - 426 
 
 Rule in Shelley's Case - - 431 
 Cases involving the Question, whether an Estate in 
 
 Fee or in Life passes - ib. 
 
 By Quasi Tenants in Tail, under Leases for Lives - 434 
 
 Rules of Law applicable to this subject - 435 
 By Tenant in Tail after possibility of Issue extinct 446 S 
 Difference between Estates for Lives and Years 
 
 determinable on Lives - - 445 
 
 By Women Tenants in Tail, ex provisione viri - 448 
 By Tenants in Tail of the Gift of the Crown for 
 
 Services performed - - - 450
 
 ON THE 
 
 AS APPLICABLE TO 
 
 ABSTRACTS OF TITLE. 
 
 ON TITLES. 
 
 'VITHEN land, or other property, which 
 does not pass by mere delivery, but is 
 held by a title, depending on documental evi- 
 dence, is sold, it is the duty of the solicitor for the 
 vendor to prepare an abstract of the title ; and 
 of the solicitor for the purchaser to compare the 
 abstract with the deeds, wills, &c., and to call 
 for evidence of the facts which are stated 
 as relevant to the title ; and to take care that 
 the abstract contains a correct and faithful 
 statement of all circumstances disclosed by the 
 deeds, wills, &c., or depending on extraneous 
 facts, as marriages, burials, baptisms, possession, 
 descents, disseisins, and the like, and which are 
 material to the title. 
 
 The general practice is to produce the deeds, 
 &c. to the purchaser's solicitor, at the office of 
 
 B
 
 ON TITLES : 
 
 the vendor's solicitor. But wherever the docu- 
 ments of title are, the purchaser must procure 
 person on his behalf, to compare the ab- 
 stract with the evidence of title. ^ 
 
 en the abstract is thus prepared, and if 
 necessary, corrected, it is generally submitted 
 to the conveyancer or counsel. Few solicitors 
 tZy^^ take on themselves the heavy responsibility of 
 -~Jf*' advising on a title, if implicated with any 
 ^ ** nicety, or giving occasion to any question of 
 
 Indeed it is a subject of surprise that more 
 *~ ^ u f. titles, accepted under the advice of solicitors,^ 
 do not prove defective, when the most expe- 
 rienced and skilful conveyancers, and learned 
 practitioners, have such arduous duties to 
 perform. 
 
 No one can comprehend the labour which 
 a conveyancer must undergo, unless he has 
 had actual experience or observation of the 
 difficulties to which he is exposed, of collecting 
 and combining facts, expounding intention, and 
 applying abstruse rules of law. 
 
 The conveyancer, of all the other lawyers, is 
 in a situation to be most severely oppressed by 
 labour and by difficulty ; and ought to be 
 as learned, perhaps considering his duties, more 
 learned in the law, than the members who are 
 engaged in any of the other departments of the 
 profession. 
 
 It is his province to consider the title, to 
 advise on the abstract ; to point out the detects,
 
 PRELIMINARY OBSERVATIONS. 3 
 
 if any, which exist in the evidence of the title, 
 and the doubts which arise on the construction 
 or the sufficiency of any of the deeds or wills, or 
 the doubts in which the law, as it applies to the 
 facts, or the language of the instruments of title, 
 is involved ; also the means by which these de- 
 fects may be supplied, or those doubts may be 
 removed ; also on the mode of conveyance 
 proper to be adopted in order to complete a 
 title in the purchaser. 
 
 The observations to be made respecting the 
 form of abstracts, and even the commence- 
 ment of the evidence of title, may with pro- 
 priety be extended to transactions between 
 mortgagor and mortgagee ; though the convey- 
 ancer will be governed in his conclusions by 
 some rules applicable to vendors and purchasers 
 which do not apply with equal force to mort- 
 gagors and mortgagees. 
 
 In treating of abstracts of title it will be 
 proper to consider, 
 
 1st, The circumstances necessary to be re- 
 garded in preparing the abstract, and the can-* 
 tions to be observed in comparing the abstract 
 with the title deeds, &c. 
 
 2dly, The points to which attention is, in a 
 more especial manner, to be paid, in considering 
 and advising on the state of the title. 
 
 Under the first head are to be discussed, 
 
 1st, The commencement of the evidence of the 
 title, in other words., the time from which the 
 abstract of title should take its commencement. 
 
 B 2
 
 4 ON TITLES ! 
 
 2dly, The form in which the abstract should 
 appear ; and 
 
 3dly, The circumstances which should be 
 stated in explanation of the abstract. 
 
 In general a head or title is given to the ab- 
 stract. It should be so far full and explicit as 
 to show whose title is to be considered ; and 
 what is the general description or class of pro- 
 perty to which the attention of the person who 
 is to peruse the abstract, is to be directed. 
 
 Few things are more distressing than to wade 
 through a long abstract; to combine its parts, 
 select the distinctions which different parts re- 
 quire ; and in the sequel to discover that nine 
 tenth parts of the labour which has been em- 
 ployed has been useless, and has distracted the 
 mind to no purpoe. 
 
 On long abstracts it would be useful to give 
 a list of the dates of the deeds in chronological 
 order, and to show by proper references the pages 
 in which the material deeds, wills, &c. are to be 
 found. 
 
 An arrangement of dates artfully made, may 
 lead to great difficulties, and sometimes to very 
 erroneous conclusions. 
 
 If a summary or abridgement of the title 
 were also added, so as to give a general review 
 of the substance of the title, the facility of pe- 
 rusing the abstract would be increased. Such 
 summary, however, should never be attempted, 
 except by a person who can rely on his skill to 
 give the contents with accuracy. A wrong
 
 COMMENCEMENT OP ABSTRACT. 5 
 
 impression once communicated, is not easily 
 effaced ; and may mislead, especially those who 
 are liable to various interruptions during the 
 perusal of a long abstract. 
 
 All these topics will be more fully discussed 
 under the proper heads. 
 
 lst ? Of the time from which the abstract of title 
 should take its commencement. 
 
 THE general practice is to take the com- 
 mencement of the title, so as to show the state 
 of the evidence for a period of sixty years at 
 leasf; and as often as circumstances will permit 
 this should be done. 
 
 In many cases it is material to carry back the c 
 title even to a more remote period.^ 
 
 This is particularly important when the first 
 deed in the abstract is a recovery deed, or some 
 other deed founded on a prior instrument, as an 
 appointment, &c. in execution of a power ; 
 and also in the case of advowsons ; and of heirs 
 deriving their descents from a remote ancestor, 
 as the first purchaser ; also in titles derived under 
 grants from the crown, &c. &c. but even in the 
 
 O ' 
 
 instance of grants from the crown, a vendor is 
 not under an obligation to show the interme- 
 diate deeds, &c. between the grant, and that 
 period at which, by the ordinary rules of prac- 
 tice, the evidence of his title would commence. 
 
 So when a settlement is made in pursuance of 
 articles, great anxiety is properly displayed, to 
 
 B 3
 
 6 ON TITLES : 
 
 obtain an inspection of the articles themselves, 
 that the purchaser may be satisfied that the 
 settlement is a due performance of the articles ; 
 and this anxiety increases in proportion as there 
 is reason 'to suspect that a larger interest has 
 been obtained under the settlement, by the pa- 
 rents, or one of them, than the articles warranted ; 
 or when the settlement manifestly betrays the 
 absence of professional skill in preparing the 
 limitations of the settlement. Also when an ap- 
 pointment is made in exercise of a power, there 
 is a like desire to have an abstract of the deed 
 which created the power ; more especially if 
 there be not any recital, or there is a very short 
 and, apparently, defective recital of the power, 
 r And when the seller's solicitor does not state 
 in the abstract, the deed containing the power 
 under which the appointment was made, or the 
 deed or will by which the intail was created, 
 the purchaser's solicitor or counsel should, by 
 every means, endeavour to trace the commence- 
 ment of the title to its source, by ascertaining 
 the creation of the estate tail, or the power ; and 
 as often as there is ground to suspect conceal- 
 ment, or suppression of material deeds, &c. a 
 bill should be filed in equity for a discovery of 
 the deeds ; or, if a suit be depending, the pro- 
 duction of the deeds may be enforced under the 
 usual order, that the vendor shall produce all 
 deeds on oath, &c. 
 
 Interrogatories may also be exhibited in the 
 master's office, for the discovery of deeds, Sec.
 
 COMMENCEMENT OF ABSTRACT. 7 
 
 on showing a ground, which raises a suspicion 
 of suppression or concealment. 
 
 By established practice, it is no longer an ob- 
 jection to a title under a recovery deed made /JvV 
 upwards of sixty years since, that the creation 
 of the estate tail cannot, in point of fact, be 
 shown. 
 
 And although it be the safe and correct prac- 
 tice, that a person who is tenant in tail with 
 reversion or remainder in fee by descent, should 
 suffer a common recovery, that the title may be 
 independent of the reversion or remainder in 
 fee, and consequently of the charges affecting 
 that estate, yet without showing some existing en- 
 cumbrance, it is not an available objection, that 
 the title depends on a fine with proclamations, 
 by which the estate tail has been barred, and 
 the ownership under the estate tail merged in 
 the remainder or reversion, so that the charges 
 and encumbrances, if any, affecting the rever- 
 sion or remainder would be accelerated. 
 
 In. general appointments contain a full recital 
 of the power under which they are made ; and 
 recovery deeds contain a history of the creation 
 of the estate tail ; and this recital is, in reference 
 to ancient deeds, generally, and by experienced 
 men, treated as satisfactory on the point of the 
 existence of the power, and of the creation of 
 the intaii, and of the mode in which the power 
 was to be executed, and the circumstances and 
 ceremonies which were to attend the execution. 
 
 B 4
 
 8 ON TITLES : 
 
 But inaccuracies in a deed or will, betraying 
 the want of professional knowledge in the person 
 preparing the instrument, lead to an inquiry for 
 an inspection of the deed containing the power, 
 &c. &c. 
 
 The habit which prevails among conveyancers 
 of inquiring for the deed or will, by which the 
 estate tail is created, renders it prudent in most 
 cases in preparing recovery deeds, to show the 
 creation of the estate tail, and the existence of 
 the right to suffer a repovery. 
 
 There are cases, however, in which it would, 
 in preparing such a deed, &c. be injudicious to 
 disclose the creation of the estate tail. 
 
 This observation applies, when it is doubtful, 
 whether the party is tenant for life, or in tail; or 
 when the disclosure of the in tail would lead to 
 other information, which it is better to keep out 
 of view. 
 
 The creation of the power under which an 
 appointment is made should also be shown 
 in every deed, or will, operating as an ap- 
 pointment; and the circumstances required 
 to the valid exercise of the power should be 
 stated, as far as they are material to the ope- 
 ration of the deed, or will, made in exercise of 
 the power. 
 
 When the power is in perplexed language, the 
 power should be recited totidem veriis. 
 
 But in cases in which it is doubtful whether 
 the power would be a good root or foundation
 
 COMMENCEMENT OF ABSTRACT. 9 
 
 for a title, it is, in preparing deeds, expedient to 
 pass over the power without any recital thereof, 
 or reference to, any power in particular. 
 
 Also, when the title depends on a settlement 
 made in favor of a wife as tenant in tail, the 
 state of the prior title should be shown, that it 
 may appear, as often as it can be material to the 
 subsequent deduction of the title, whether the 
 wife is the settlor, or she took an estate tail, 
 ex provisione viri. 
 
 This however is material only when the title 
 would otherwise, apparently, depend on some act 
 done by the wife alone, while sole, or with a 
 second husband, for the purpose of barring the 
 intail ; and which would be ineffectual, in con- 
 sequence of the statute of Henry VII. if she 
 had been tenant of an estate tail, ex provisione 
 viri. 
 
 Prima facie lands settled by the husband 
 and wife by fine, are considered as the inheritance 
 of the wife. 
 
 This presumption however cannot be relied 
 on by the conveyancer, when the fact can be 
 ascertained. 
 
 Also, as often as an abstract commences with 
 a settlement, made in pursuance of articles, or 
 under a trust, the articles, especially if entered 
 into, and executed previous to the marriage ; or the 
 deed creating the trust ; should be abstracted as 
 far as they are material ; and if they are omitted 
 by the vendor's solicitor out of the abstract, this 
 omission should be supplied, as far as it shall be
 
 10 ON TITLES : 
 
 feasible, at the instance of the solicitor for the 
 purchaser. 
 
 And if the articles or deed creating the trust 
 cannot be found, the recitals of the articles, 
 and of the trusts on which the settlement is 
 founded, should be stated fully, as far as they 
 are introduced into the settlement, and are 
 material to the title. 
 
 After acquiescence in the settlement for a long 
 series of years, recitals are frequently deemed 
 sufficient evidence of the contents of the articles. 
 
 But if, as sometimes happens, the settle- 
 ment is made in pursuance of the articles or 
 trusts, and merely with reference to them, with- 
 out stating the particulars of the articles, or the 
 trusts, on which the settlement is founded, the 
 conveyancer will be driven to the necessity of 
 considering whether the settlement is such as 
 the nature of the case seems to have required. 
 And in settlements made in pursuance of mar- 
 . riage articles, as often as the words, " Heirs of 
 the body" are used in the settlement, as words 
 of limitation to give an estate tail to both or 
 one of the parents, especially the husband, this 
 difficulty presents itself with great force, since 
 it is likely that this expression was used in the 
 articles or trusts, as words of purchase descrip- 
 tive of the children of the marriage. 
 
 On settlements made in pursuance of articles 
 a very useful note, for which the author is in- 
 debted to the friendship of Mr. Watkins, when 
 living, will be added in its proper place.
 
 COMMENCEMENT OF ABSTRACT. 11 
 
 Also, as often as a title is for a term of years, 
 the creation of the term should be shown from 
 the original deed or will, if it be in existence ; 
 or if the deed creating the term be lost, the 
 creation of the term should be stated from the 
 recitals, as found in the more ancient deeds ; 
 and there should be a rigid adherence to the 
 language of such recital. 
 
 A title has oftentimes been treated as de- 
 fective, because the deed creating the term could 
 not be found ; but it has always appeared to the 
 writer of these observations, that a title depend- 
 ing on a term for years created at a distant 
 period, may be good, notwithstanding the loss 
 of the deed creating the term. 
 
 The following observations present themselves 
 on this point : 
 
 Though it be true, that the deed creating a 
 term is material to the title, and is the evidence 
 on which a purchaser can best rely, yet a title 
 under a very long term of years, which has been 
 created for sixty years at least, appears to be 
 marketable without evidence of the creation of 
 the term, since against all persons, except the 
 lessor, or those who claim the reversion or re- 
 mainder under him, the recitals are evidence of 
 the state of the title ; and the lessor, or those 
 who claim under him, cannot by any means, 
 after sixty years, recover the lands without proof 
 of an actual seisin within that period. To show 
 the seisin, they must adduce evidence of the
 
 12 ON TITLES : 
 
 t 
 
 tenancy; and, in adducing such evidence, unless 
 in very particular circumstances, (as where a 
 rent is reserved,) they must support the title 
 under the term; and in several instances, titles 
 have been approved by gentlemen of distin- 
 guished eminence, although there was not any 
 evidence of the creation of the term except by 
 recital. Mr. Booth treated the want of an ori- 
 ginal lease creating a term even of a modern 
 date, as a ground only for caution, and not as 
 an absolute defect of title. And though the 
 recital is not evidence as a recital, yet the recital 
 with possession under it, and agreeable to the 
 same, would be admitted as evidence, for the 
 same reason that, for want of other evidence, an 
 ancient abstract, acopy,&c. would be admitted. 
 
 An abstract of title to leasehold property 
 should commence with the original lease, and 
 all subsequent assignments should, in general, 
 be abstracted. 
 
 It should contain the like evidence of deaths, 
 payment of charges, &c. as an abstract of the 
 title to a freehold estate. 
 
 Where the estate is a leasehold for years, and 
 has been recently and specifically bequeathed, 
 and the legatee is the vendor, without the con- 
 currence of the executors, proof must be given 
 of the assent of the executors to the bequest. 
 , Where the estate passes by a will, or letters 
 /** - o f administration, it must be shown that the 
 
 4/^.r / 
 
 will. was proved in, or that the administration 
 was granted by, the prerogative or other court,
 
 COMMENCEMENT OF ABSTRACT. 13 
 
 having jurisdiction over the place in which the 
 lands are situate. 
 
 In preparing abstracts of title to leasehold 
 property under building leases, or beneficial 
 leases for short terms of years, the evidence of 
 the title generally commences with the indenture 
 of lease by which the term was created. 
 
 But as to titles depending on building leases, 
 the practice has for a long time been to require 
 the production of evidence of the title of the 
 person by whom the lease was granted. 
 
 And if the lease was made under a power or 
 a trust, it was always the practice to require 
 that the power or the trust should be abstracted, 
 as the means of showing that the lease was war- 
 ranted by the power or the trust. 
 
 It was formerly a point on which there ex- 
 isted a difference of opinion, whether the pur- 
 chaser of the benefit of a lease could require *?<>** 
 an abstract of the title of the lessor. 
 
 In modern practice the right is generally pre- 
 cluded by one of the articles of sale. 
 
 The question of right can arise only in the 
 absence of stipulation. 
 
 It has recently been decided, that a person 
 who contracts for a lease, to be made by a per- 
 son who holds under a leaseholder, has a right 
 to an abstract, disclosing the title of the free- 
 holder by whom the original lease was granted. 
 
 This is in principle a decision, that the person 
 who contracts for a leasehold interest is, in the 
 absence of stipulation, entitled to know the state
 
 14 ON TITLES: 
 
 of the freehold title out of which the lease is 
 derived. 
 
 So where there was a contract for the sale of 
 an existing and a reversionary lease, specific 
 performance was withheld for want of the pro- 
 duction of the title of the lessors. Deverall v. 
 Lord Bolton, 18 Vesey 505. 
 
 Lessors are become very cautious how they 
 produce the evidence of their title ; and unless 
 they have covenanted to produce the deeds, there 
 does not appear to be any means to compel them, 
 otherwise than as between litigating parties in 
 a court of law by means of a subpoena cilices 
 tecum, &c. 
 
 ~ In the case of leases by Hospitals, Bishops, 
 
 ""^(Ecclesiastical Per sons, and Ecclesiastical Corpora- 
 it ions, &c. who have an unalienable estate as to 
 the inheritance, and who have a particular power 
 of leasing under Acts of Parliament; and also as 
 to corporations (such as the city of London) who 
 have notoriously been the owners for a long 
 series of years ; the invariable practice is not to 
 require any evidence of title beyond that of the 
 lessee. 
 
 But leases from these ecclesiastical bodies and 
 other corporations, and even individuals, are 
 frequently obtained under a tenant right ; namely, 
 a favour to the former tenant, as a continuance 
 or an enlargement of his interest. 
 
 As to leases under enabling statutes, care 
 should be taken to see that the former leases 
 have been duly surrendered by the persons who, 
 
 i
 
 COMMENCEMENT OF ABSTRACT. 15 
 
 in point of estate, were competent to make the 
 surrender, and that the lease does, in all its cir- 
 cumstances, pursue the power under which it was 
 made. 
 
 In order to see that the former leases were 
 duly surrendered, the legal title is to be traced 
 without any regard to the equitable ownership. 
 Many titles are defective in this particular. 
 Indeed few will bear strict investigation. When 
 they are good, it is more from chance or the 
 lapse of time, than from caution. Suppose there 
 are three leases in succession for forty years on 
 different renewals made by different deans, &c. 
 The second lease might be granted without a 
 surrender, actual or virtual, before the first lease 
 was expired, and before the commencement of 
 the last year of that lease. Thus this lease would 
 not be good under the statute of Henry VIII. 
 since it was not either surrendered or expired 
 within one year : and the third lease might be 
 granted after the expiration of the first lease, 
 but during the second lease. The third lease, 
 without a surrender of the second lease, would be 
 good only on the ground that the second lease 
 was or had become void. 
 
 On this point some observations will be found 
 in that part of these notes which shows the duty 
 of the conveyancer. 
 
 Leases of this description are frequently the 
 subject of settlements, and the renewals are 
 obtained under that preference to the former 
 tenants, which in courts of equity is denominated
 
 16 ON TITLES : 
 
 the tenant right ; and as often as the lease is 
 obtained under a tenant right, the state of the 
 title should be shown during the last sixty years, 
 so that it may appear that the title is good in 
 equity, as well as at law, and not affected by 
 any trust founded on the tenant right. 
 
 At least the purchaser must trace the title 
 through each successive owner, as far as he has 
 notie of any trust. 
 
 Any reference to former settlements by means 
 of a surrender, or through the existing lease, will 
 lead to an inquiry, and be constructive notice of 
 all encumbrances falling within the scope of the 
 inquiry suggested by this notice. 
 
 It would greatly relieve titles of this descrip- 
 tion that the new lease should be made altogether 
 independently of, and without any reference to, 
 the title under the former leases. 
 
 Of course the surrender of the former leases 
 should not form a part of the express consider- 
 ation of the new lease. 
 
 As often as it may be practicable, the abstract 
 of title to freehold lands should commence with 
 the deeds of conveyance to a person who was 
 the first purchaser. 
 
 Such conveyance would afford a strong pre- 
 sumption that the title was considered good at 
 that time; and that the person by whom the 
 conveyance was made was the absolute owner 
 in fee simple. And possession for the last sixty 
 years under that conveyance, renders the pre- 
 sumption in favour of the title so strong, that
 
 COMMENCEMENT 'OF ABSTRACT. 17 
 
 no one ever thinks it necessary to inquire for 
 further evidence, except under particular cir- 
 cumstances, as rumour of a threatened claim, or 
 actual knowledge from other deeds that there 
 is a latent defect of the title. 
 
 And it frequently occurs to conveyancers in 
 extensive practice, to know that the title, as 
 represented by the abstract, does not disclose 
 all the material information which ought to be 
 stated : and though they will not, unless a fraud 
 be practising, give any intimation of their know- 
 ledge, they will be firm in pressing for further 
 evidence. 
 
 When the title cannot be taken up with a pur- 
 chase deed, the next best instrument on which 
 to found its commencement, is a will, or some 
 settlement, made by a person acting as the abso- 
 lute owner of the fee simple. This document, 
 with possession, consistent with the evidence of 
 the title, furnishes the like presumption of a 
 good title. And the presumption is greatly 
 strengthened, if there has been a frequent change 
 of ownership, without any adverse claim. 
 
 When a vendor has very ancient deeds, there 
 is frequently a difficulty on the part of his soli- 
 citor in deciding whether all the deeds should 
 be abstracted. 
 
 To abstract all the deeds is, in many cases, 
 to invite tedious inquiries and long discussions, 
 which would answer no useful purpose to the 
 purchaser. A discretion ought to be exercised 
 on this point.
 
 18 fctf TITLES: 
 
 No substantial defect in the title ought to be 
 concealed by withholding the knowledge of the 
 deeds, which may give a different complexion 
 to the title. 
 
 On the other hand, it cannot be expected that 
 on mere matters of form, a vendor should fur- 
 nish the means of enabling a reluctant or over 
 cautious purchaser, or those professional men 
 who are more nice than wise, to treat the title as 
 difficult or doubtful ; when no one, acting with 
 a sound discretion, would view it as attended 
 with either difficulty or doubt. 
 
 It must not however be forgotten, that many 
 titles which are by the abstract, made to appear 
 as if they were good and free from all questions, 
 are, in point of law, defective, if the facts which 
 the title involves were fully disclosed ; since there 
 may be dormant titles under old intails, re- 
 mainders, &c. On the other hand, by a sup- 
 pression of material deeds, the heir of a family 
 has frequently been able to show a title in him- 
 self as the rightful or absolute owner, while he 
 had only a limited interest as a base fee, or he 
 was not the heir to the first purchaser. 
 
 Suppose, for instance, a man seised ex parte 
 matemd, to have made a settlement at the dis- 
 tance of sixty years, and to have limited the 
 ultimate use to his right heirs ; the limitation 
 in favour of his right heirs would be his old use; 
 and the fee would have been descendible to his 
 heirs on the part of the maternal ancestor, the 
 first purchaser.
 
 COMMENCEMENT OF ABSTRACT. 19 
 
 Collecting the title from the settlement, 
 without knowledge of the descent, the settler 
 would be treated as seised in fee as the first 
 purchaser, and consequently a title derived 
 under the paternal heir could not be questioned 
 without knowing the state of the title in the 
 settler ; while the title really would be in the 
 maternal heir. 
 
 So if a will or other instrument, dated at the 
 distance of about sixty years, and constituting 
 the root of the title, give all the messuages, &c. 
 purchased of a particular person ; it is usual, if 
 practicable, to show the purchase deeds, to make 
 out the application of the language of the deed 
 or will to the parcels. 
 
 However, enjoyment for sixty years under the 
 gift in the deed or will, would be presumptive 
 evidence, sufficient to render the title markets- 
 able, since possession would prove primd facie, 
 that the lands thus held were derived under this 
 purchase. 
 
 Other like cases may call for a like exten- 
 sion of the evidence of the title ; more espe- 
 cially when the deeds, &c. are applicable to a 
 reversionary interest, and the same has never 
 fallen into possession, or has fallen into posses- 
 sion within a recent period. 
 
 And the knowledge and fullest experience 
 that suppressions take place, and that titles are 
 manufactured, to make them subservient to the 
 interests of the parties, conveyancers frequently 
 ncuri the imputation of making inquiries which 
 
 c 2
 
 TITLES: 
 
 are deemed irrelevant, while these inquiries are 
 suggested by the experience they have derived 
 from practice. 
 
 Sometimes the first deed in the abstract is of 
 a date falling within the period of sixty years : 
 But the history of the title is traced through a 
 period of that duration, by showing, either from 
 the recitals, or from a detail of the title in the 
 description of the parcels, or from the assess- 
 ments to the land tax, &c., that the ownership 
 on which the title depends, commenced upwards 
 of sixty years since ; and this, in general, is 
 deemed satisfactory ; especially after an inquiry 
 for wills, settlements, &c. as far as that inquiry 
 can reasonably be prosecuted. 
 
 Different circumstances however impose the 
 necessity of different degrees of caution. 
 
 That a large estate has been subdivided 
 among many purchasers, at the distance of 
 thirty or forty years, removes the suspicion of 
 concealment ; and accounts, in the most satis- 
 factory manner, for the absence of the more 
 early deeds. 
 
 The general rule is to take up the commence- 
 ment of the title from a period of sixty years, 
 or from the last purchase deed, or the last settle- 
 ment prior to that period. 
 
 But the purchaser has a right, if he think fit, 
 to require that the abstract should state all the 
 deeds, wills, Sec, in the possession or power of 
 the seller; and, as may be collected from a 
 former observation, there are many instances-
 
 COMMENCEMENT OF ABSTRACT. 21 
 
 in which a title appearing regular during the 
 period of sixty years, would assume a very dif- 
 ferent complexion, and furnish a very different 
 conclusion if it were investigated for a further 
 period. 
 
 The case which gave rise to Goodright v. 
 Forrester*, particularly illustrates this propo- 
 sition : and it is observable, that though sixty 
 years possession, under a seisin in fee, is a bar to 
 the remedy by a writ of right, a title may, in I 
 point of law, remain defective after a period 1 
 however indefinite. For instance, if successive 
 estates tail be created, with remainder in fee, 
 the title may, under fines and nonclaim, or the 
 statutes of limitation, be good as against one or 
 more of the tenants in tail, and be defective as- 
 to the more remote estates. 
 
 For each tenant in tail and his issue, and also- 
 the owner of the remainder or reversion in fee^ 
 will be allowed a period of twenty years from 
 the determination of the prior estate for the 
 purpose of asserting his title ; and if the right 
 Jirst commence in an infant, married woman, 
 person beyond the sea, non compos, or in prison, 
 each person labouring under such disabilities, 
 and being the person to whom the right first 
 accrues, will have a further period of ten years 
 to make his claim. See the statute 21 James I, 
 cap. 16, 2. 
 
 These observations, as they refer to time, apply 
 to a case in which no fine with proclamations, 
 
 1 Taunton, p. 585. 
 
 c3
 
 22 ON TITLES: 
 
 capable of operation under the statutes of non- 
 claim, has been levied ; for when a fine with 
 proclamations has been levied, the claim must 
 be made within five years from the time when 
 the -right accrues, or the time at which the dis- 
 
 o 
 
 abilities cease. 
 
 Hence, in a case involving the common mis- 
 take of levying a fine, when a common recovery 
 was the proper and only available assurance, 
 the title becomes involved in great difficulty, 
 and at least requires many, and in some in- 
 stances, very expensive inquiries and investi- 
 gation, to prove a title to the entire fee simple: 
 and in many instances no title can be obtained 
 to more than a base or determinable fee ; or, at 
 least, the title to any greater interest cannot be 
 relied on as clearly acquired : or if there be a 
 fee simple in the vendor, his title to that estate 
 commenced under a discontinuance,, or a disseisin, 
 and has left, in other persons, rights or titles of 
 entry or of action not yet effectually or indis- 
 putably barred. 
 
 Also when a title is derived by descent 
 through successive ancestors, it is sometimes 
 (as may be collected from a former observation) 
 necessary to go back for a period exceeding 
 sixty years for the purpose of ascertaining the 
 first purchaser ; since the descent may be ma- 
 terially varied, in this respect, by the actual, 
 when compared with the presumable, state of 
 the title. Indeed, a vendor, deriving his title 
 under or through a maternal ancestor, cannot
 
 COMMENCEMENT OF ABSTRACT. 23 
 
 make out the evidence of that title, without 
 showing seisin in the maternal ancestor. 
 
 The like observations apply to instances in 
 which there are not any title deeds whatever.. . 
 
 In a case of this sort the title depended on > . 
 successive descents. An objection was taken , 
 to the title on the ground that there were mere 
 descents and no deeds. 
 
 It was the better opinion, that the want of 
 deeds did not afford any objection to the title ; 
 but the conveyancers who were consulted would 
 not be satisfied with the title as strictly mar- 
 ketable. They advised that the seller ought to 
 make an abatement of one third part of the 
 purchase money, on account of the risk to 
 which the title was exposed ; and the difficulty 
 which would attend the same when carried to 
 market : and such abatement was made accord- 
 ingly. 
 
 In a subsequent case, a gentleman who was 
 the purchaser, resisted specific performance, 
 on the ground that the title rested merely on 
 possession, without any deeds carrying on 
 the evidence of title. A suit was instituted in 
 Chancery. The report and the decision were in 
 favour of the title, and specific performance was . ~ 
 decreed against the purchaser. 4 ^J^ i 
 
 Were the rule different, a title depending on 
 successive descents through many generations, 
 would be the worst of titles to carry to market, 
 while in intendment of law it is deemed the 
 safest of titles. 
 
 c 4t
 
 24 ON TITLES: 
 
 When the land lies in a register county the 
 title is relieved from difficulties of this nature : 
 and this is one of the many advantages to a ven- 
 dor attending the registry of deeds in counties 
 which have a register : for as no will, settle- 
 ment, &c. would have appeared on the register, 
 the purchaser's suspicions would not have arisen, 
 nor could his objections have been sustained ; 
 since a deed or will not registered is not bind- 
 ing at law against a purchaser with or without 
 notice : and even in equity is not of any avail 
 against a purchaser for a valuable consideration, 
 without notice. To the purchaser there is the 
 further advantage from a register, that he ob- 
 tains a clue to all deeds, wills, &c. affecting the 
 property. 
 
 Great however as are the advantages of a 
 register in some cases, yet the advantages are 
 more than counterbalanced by the inconve- 
 niences to which they give rise ; from the diffi- 
 culty of investigating titles, or of answering the 
 doubts which a register often suggests ; thus 
 leading to useless and inconvenient researches. 
 
 In the instance of the purchase without any 
 title deecls, various precautions were taken to 
 guard against the possibility of latent intails 
 and other encumbrances. A common recovery 
 was suffered by the vendor, with a view to bar 
 his estate tail, if any, and all remainders expec- 
 tant on the same. A feojfment was made by 
 him and his brothers and sisters, and a fine 
 levied with proclamations by them and the
 
 COMMENCEMENT OF ABSTRACT. 25 
 
 vendor, for the purpose of establishing the title 
 through the medium of the statutes of nonclaim 
 on fines, and to bar dormant intails not within 
 the scope and operation of the recovery. The 
 deeds also stated by recitals the reason of these 
 several assurances ; avering that there were not 
 any settlements or wills in the knowledge of 
 any of the parties. 
 
 There was also a separate conveyance by 
 lease and release from the vendor to the pur- 
 chaser, with covenants for the title generally, 
 as against all persons. 
 
 As often as there is an attendant term, which 
 was created upwards of sixty years since, the 
 abstract ought to state the deed or will creating 
 the term : and it is the practice, though this 
 practice is attended with a heavy expense, and 
 certainly is in many cases very unjustifiable, 
 to deduce the title through the intermediate 
 period. 
 
 No part of practice stands more in need of 
 reform, than that which calls for such an expen- 
 diture. 
 
 If a title under the term for years be shown 
 during a period of thirty or forty years, how 
 can any defect in the title to the term well 
 exist? The only instance of such defect which 
 has ever occurred, is when the term vested in a 
 person who is dead, and no representation to 
 that person has been made out ; so that there 
 has been a dormant title without an adverse 
 possession.
 
 %6 ON TITLES: 
 
 Generally speaking, the courts will presume 
 the existence and the regularity of mesne as- 
 signments. [2 Black. Reports, 1228.] 
 
 Frequently the original deed creating the 
 term is not in the custody of the present owner 
 of the property which is sold. Under these 
 circumstances the creation of the term does, in 
 general, appear for the first time from the recital 
 in some subsequent deed. 
 
 With a view however to the arrangement of 
 the evidence of the title, and rendering the 
 same more simple and intelligible, and also to 
 display the skill of the person by whom the 
 abstract is prepared, it would be more correct 
 to state the creation of the term in the order of 
 its date, and in this mode, viz. ; 1st Apri/,1700, 
 It appears in the recital of the deed of the 
 day of afterwards abstracted, that, fyc. 
 
 [here show the creation of the term]. 
 
 Afterwards, in abstracting the deed which 
 contains the recital, it will be sufficient to refer 
 to that recital in these or the like terms : 
 
 After reciting the Indenture of the 1st day of 
 April 1700, already noticed p. by which 
 
 the term of years was created, $c. 
 
 This observation is equally applicable to the 
 deduction of the title in its subsequent stages. 
 Some further observations on this head will 
 be offered in considering the subject of the 
 arrangements proper to be made in abstracting 
 the evidence of the title. 
 
 When the earliest deeds of which the vendor
 
 COMMENCEMENT OF ABSTRACT. 27 
 
 has the possession are dated within the period 
 of sixty years, and he relies on the possession of 
 some ancestor, or of the testator himself, or of a 
 former owner, as completing the evidence of the 
 seisin for a period of sixty years, there should be 
 an abstract of the leases, if any can be found, 
 which were granted by such former owner ; or 
 for want of leases, it should be shown that the 
 supposed owner was assessed to the land tax for 
 these lands ; or some other evidence, as recitals, 
 stewards accounts of rents, old maps, local his- 
 tories, old abstracts, cases submitted to counsel, 
 and the like, should be produced to raise the 
 presumption of ownership : and when estates 
 have been sold in parcels, inquiry should be 
 made for the more ancient evidences of the title, 
 among the different persons who are the present 
 owners of other parts of the property held under' 
 the same title. 
 
 In many instances the title has been traced 
 to a proper source by this species of investiga- 
 tion. And even though the original deeds may 
 not be found, the chances are, that in the pro- 
 gress of this inquiry, some authentic copies, or 
 other evidence of the more early deeds, will be 
 
 */ 
 
 discovered in the custody of some or one of the 
 owners of the other property held under the 
 same title. 
 
 Deeds and even wills, are sometimes found in 
 the hands of those who represent the stewards, or 
 the law agents of the family of the former owners, 
 or of the gentlemen who have succeeded to the 
 professional concerns of such law agents, &e.
 
 28 ON TITLES: 
 
 It would tend greatly to public convenience 
 by facilitating such researches ; and be a pro- 
 fitable appointment to any individual, that all 
 deeds, wills, Sec. left or found in the hands of 
 persons who have no connection with the pro- 
 perty, or with the owners, or a table of their 
 dates, and the names of the parties, and the de- 
 scription of the parcels, should be deposited in 
 some public office. The existence of such 
 office would quickly give it abundance of em- 
 ployment. 
 
 The covenant for the production of title deeds 
 also frequently throws some light on the state 
 of the early title, and leads to the discovery of 
 the deeds themselves. 
 
 On the other hand, as these covenants are 
 constructive notice of encumbrances, and, after 
 a long interval, lead to an inquiry for deeds, &c. 
 which have been converted into dust or ashes, 
 the safe practice is, and it is the general prac- 
 tice in modern times, to take the covenant in a 
 separate instrument ; and cases exist in which 
 it is prudent to take several deeds of covenant 
 for the production of the evidence of title ; each 
 deed containing a different series ; so that one 
 of the covenants may be given over to a future 
 purchaser, without any notice of deeds, which 
 had better, even for the sake of such purchaser, 
 be kept out of view. 
 
 When an estate is sold in parcels, and the 
 deeds do not accompany the title to the lands 
 which are sold ; and even in other cases, it is 
 frequently pr'udent, in preparing title deeds, to.
 
 COMMENCEMENT OF ABSTRACT. '29 
 
 show the commencement of the title of the 
 vendor, with the intention, in the event of the 
 loss of the title deeds, of supplying that loss 
 by affording reasonable evidence, or in some 
 cases, presumption only, of their operation and 
 effect. 
 
 This is done either by a short recital of the 
 purchase deed, settlement, or will, under which 
 the owner, or his ancestor, or testator, became 
 seised or entitled ; or it is done, at this day, as 
 was the common practice in former times, by 
 way of superadded description to the parcels, in 
 a clause to this effect, " Which said messuage, fyc. 
 were formerly the inheritance of 
 who died intestate, and descended from him to 
 
 his nephew and heir at law, 
 who by his last will and testament, $c. devised 
 the same to, $c." Or in this form, " Which said 
 messuage, $c. were formerly the inheritance of 
 A. B. to whom the same were conveyed by inden- 
 tures of lease and release, bearing date, $c. and 
 made or expressed to be made between, fyc. And 
 the said A. B. by indentures of lease and release, 
 bearing date, $c. conveyed the same to, $c." 
 
 Of course this clause may be varied ad infiiii- 
 tum t according to the circumstances which call 
 for its application. 
 
 It remains only to be observed, that such re- 
 cital or clause of description may be called in 
 aid of the evidence of the title, so as to carry 
 back the same to the period of the more early 
 deed, of which notice is taken ; and such his-
 
 30 ON TITLES. 
 
 tory of the title is deemed satisfactory by con- 
 veyancers, except in particular circumstances 
 which call for more than ordinary caution. 
 
 It is even evidence against any person being 
 a party to the deed, and who gives this history 
 of the title. 
 
 As often as a title is derived by' grant from 
 the crown, as is the case with all rectorial tithes, 
 &c. the original grant should be abstracted, for 
 the purpose of showing that no reversion or re- 
 mainder was reserved by the crown ; but it is 
 not necessary to trace the title through all the 
 intermediate stages. At least this is the general 
 practice and more prevailing opinion. 
 
 The reason for requiring evidence of the ori- 
 ginal grant from the crown is, that a reversion 
 or remainder in the crown cannot be barred by 
 fine or recovery. 
 
 Formerly the maxim of the law was " nullum 
 tempus occurrit regi ;" so that there was no limi- 
 tation of time to bar the right of the crown. 
 
 By the statute of the 9 George III. chap. 16, 
 the crown is disabled to sue or implead any 
 person for any manors, lands, or heredita- 
 ments, &c. where the right hath not, or shall 
 not first accrue and grow within sixty years 
 next before the commencing such suit, &c. and 
 the subject is secured in the free and quiet en- 
 joyment thereof, as well against the crown, &c. 
 as all persons claiming any estate or interest 
 therein, by colour of any letters patents or grants 
 upon suggestion of concealment, &c. wrongfully
 
 COMMENCEMENT OF ABSTRACT. 31 
 
 detaining, for which judgment hath not or shall 
 not be given to the crown within sixty years 
 before the commencing such suit. 
 
 Several provisos and exceptions will be found 
 in the act. 
 
 It is a great drawback on the utility of this 
 statute, that no purchaser can have the benefit 
 of the enactment, if the lands he has purchased 
 are parcel of an honor, &c. and such honor, &e. 
 has been put in charge within the limited pe- 
 riod. There are few farms, &c. which are not 
 parcel of an honor, &c. which remains in the 
 crown, and is continued in charge ; and entire 
 honors, &c. are of too much importance to be 
 obtained by intrusion. 
 
 In an abstract of title concerning advowsom 
 in gross, the title should be stated from as re- 
 mote a period as circumstances will admit, and 
 presentations by the successive owners should be 
 shown, as the best evidence of seisin. The title 
 to advowsons has been subjected to certain sta- 
 tutes of limitation ; but these statutes have been 
 repealed, so that a title may be outstanding 
 after a seisin for more than sixty years. 
 
 It frequently requires and merits great con- 
 sideration, at what period the commencement of 
 the title should be taken up, when the seller is 
 in possession of title deeds which carry back 
 the evidence to a very remote period. 
 
 On the one hand there is a want of candor, 
 not to say of honesty, in withholding any mate-
 
 32 ON TITLES: 
 
 rial information from the purchaser, since a title 
 may be radically defective if all its circum- 
 stances were disclosed, although it may, by the 
 abstract, be made to appear perfectly good. 
 
 On the other hand, by carrying back the 
 evidence of title beyond a reasonable period, 
 the vendor may involve himself in difficulties 
 which may not be easily removed; especially if 
 the abstract should fall into the hands of an 
 unwilling purchaser, a troublesome or timid 
 solicitor, or of a conveyancer who will not be 
 satisfied with probabilities, and with those pre- 
 sumptions on which the more candid and more 
 experienced gentlemen of the profession, feel it 
 a duty to the public, and for the interest of 
 their clients, to rely. And let it never be for- 
 gotten, that many an advantageous bargain has 
 been lost, and the convenience of a purchaser 
 sacrificed, by objections and difficulties which 
 were more ingenious than solid ; more cautious 
 than wise. 
 
 In cases of this sort, the duty of the solicitor 
 appears to be, on the one hand, not to disclose 
 the title by the abstract, beyond the common 
 and ordinary rules of practice, either from mis- 
 taken candor, or from the still more culpable 
 motive of extending the abstract, for the purpose 
 of increasing his fees. 
 
 ~o ^ n ^ ie ther hand, if the solicitor be aware 
 of any defect in the title, he ought not wilfullyi 
 to conceal the same,
 
 COMMENCEMENT OF ABSTRACT. 33 
 
 It is his duty to disclose all the deeds and 
 \vills which may raise the question, and to leave 
 the purchaser's solicitor or counsel to his own 
 discretion in deciding for himself. 
 
 In particular, when the solicitor for the vendor 
 knows that some of the parties are in a state of 
 mind which renders their sanity, &c. or the fact 
 of their majority or legitimacy doubtful, he 
 ought not to withhold from the purchaser the 
 means by which the fact may be investigated, 
 unless the parties are known to the purchaser or 
 his solicitor, and the purchaser or his solicitor 
 has equal information with the vendor. 
 
 But as it often happens that a defect in the 
 title disclosed to a purchaser leads to a claim 
 by a person who may assert a title founded on 
 this defect, it is a very prudent caution on the 
 part of sellers, to have their title thoroughly in- / , / 
 vestigated by their own counsel, before they / 
 offer their lands for sale ; so that they may be 
 satisfied there is not any reasonable chance of 
 exposing their title to a successful claim, or even 
 to a troublesome and expensive litigation. 
 
 Nor is this the only advantage to be derived 
 from such previous investigation of the title, 
 under the advice of those who are conversant 
 with the subject. 
 
 The formal difficulties with which the title 
 may be attended may be pointed out; the ne- 
 cessary means may be taken to remove the 
 same; and if they be found insurmountable, 
 the precise circumstances of the title may be 
 
 D
 
 34 ON TITLES : 
 
 stated by the particulars or conditions, or con- 
 tract of sale ; and stipulation may be intro- 
 duced into these particulars, or into the condi- 
 tions or contract, so as to preclude the purchaser 
 from all right to object to the title on these 
 grounds. 
 
 Such stipulations seldom injure the sale, or 
 materially affect the price ; and they prevent the 
 infinite trouble and the heavy expense frequently 
 incurred for want of this precaution. Such 
 objections are too frequently taken, or if not 
 originally taken, are insisted on, for the pur- 
 poses of delay, or to impose on the seller terms 
 to which he would not otherwise submit : and 
 they involve the seller sometimes in considerable 
 difficulties, and not unfrequently in actual ruin 
 and bankruptcy, by depriving him of those 
 means by which he expected to discharge en- 
 gagements, into which he had entered on the 
 faith of this resource, which thus fails him. 
 
 Should a vendor think fit to deliver the deeds 
 to a purchaser, as a substitute for an abstract, 
 the purchaser would have a right to require the 
 vendor to take back the deeds, and insist on an 
 abstract at the vendor's expense. 
 
 Should an abstract be withheld, its delivery 
 may be compelled in equity, under a bill for 
 specific performance ; and deeds, &c. which are 
 suppressed or withheld may be brought to light 
 by interrogatories in the bill, or under the usual 
 order, and the interrogatories exhibited under 
 that order.
 
 COMMENCEMENT OF ABSTRACT. 33 
 
 A reluctant vendor may make the title appear 
 ineligible or defective, merely to induce a pur- 
 chaser to forego the specific performance of a 
 beneficial contract. 
 
 A person playing this game, merits severe 
 animadversion, and even punishment; and every 
 means should, for public example, be taken to 
 bring forward the real state of the title. And 
 a contract abandoned under a fraud thus prac- 
 tised, may, it should seem, be revived at a sub- 
 sequent period, on a detection of the fraud. The 
 existing equity, under the contract, would bind 
 a purchaser, with notice of the grounds on which 
 the contract had been abandoned. 
 
 On the other hand, when a purchaser insists 
 on specific performance, and at the same time, 
 for the sake of delay, and to make use of the 
 money in trade, or in any speculation, requires 
 information not in the power of the vendor ; or 
 requires the concurrence of persons not under 
 the vendor's control, the vendor should file a 
 bill to compel the purchaser to make his election, 
 to accept the title as it stands, or to rescind 
 the contract. 
 
 Many purchasers have by these means been 
 compelled either to pay the price, or abandon 
 the contract.
 
 36 ON TITLES r 
 
 Of the Form of the Abstract. 
 
 EVERY abstract should have a head or title. 
 
 This part of the abstract should propound 
 the names of the persons whose title is to be 
 considered, the estate or degree of interest they 
 have, and the lands to which the attention is 
 to be directed, and names of the parishes and 
 county in which the lands are situate ; and as 
 far as it is practicable, connect the modern with 
 the ancient description of the parcels : 
 
 The form may be to this effect : 
 
 An abstract of the title of A. B. to the fee- 
 simple and inheritance of the manor of 
 
 in the county of ; or a 
 
 farm, or close in the parish of called 
 
 ; or to a farm, &c. or close, &c. 
 in the parish of, &c. containing, 
 
 &c. formerly parcel of a farm 
 
 called or to a farm, Sec. formerly 
 
 called and now called 
 
 When the lands are held for lives, or for the 
 residue of a term of years, then the head of the 
 abstract should be in this form : 
 
 An abstract of the title of to a 
 
 farm, &c. called situate in, Sec. 
 
 for the lives of ; or for 
 
 the residue of a term of years; 
 
 or the residue of a term of years, now deter- 
 minable on the death of 
 
 These particulars are to be given by way of 
 intimation, to direct the attention of the soli-
 
 FORM OF ABSTRACT. 37 
 
 citor for the purchaser and the conveyancer, 
 to the specific lands which are the subject of 
 the title to be considered by him, so that he 
 may read every part of the abstract with a due 
 application to the parcels. 
 
 Of course the head of the abstract should be 
 varied, in point of form, as circumstances may 
 require ; thus directing the attention to those 
 points which are most material and prominent. 
 
 And when the lands are of copyhold tenure, or 
 customary freehold, or are held in gavelkind, or 
 in borough English; or there is any other cus- 
 tomary mode of descent or peculiarity, it should 
 appear in the head of the abstract. 
 
 And as to lands in Kent, which are pre- 
 sumptively all of gavelkind tenure, it should be 
 noticed that the lands have been disgavelled, 
 if such be the fact. 
 
 Sometimes an abstract is prepared with a 
 view to show the title to divers farms; and this 
 abstract is made for the use of different pur- 
 chasers, who have purchased different farms, or 
 different parcels, so that one abstract is made 
 to answer the purpose of several purchasers. 
 
 This is a slovenly mode of transacting busi- 
 ness, and frequently leads to infinite trouble to 
 the conveyancer, as his attention is directed to 
 points in no ways material to his client. 
 
 In cases of this sort, a particular of sale, with 
 an intimation of the lands which are purchased, 
 or a copy of the contract, should accompany the 
 abstract ; or, which is still preferable, the soli- 
 
 D 3
 
 38 ON TITLES : 
 
 citor for the vendor or purchaser should, by a 
 note at the head of the abstract, or by some 
 indorsement on the same, state the particular 
 parcels purchased by his client ; and those parts 
 of the abstract which are relevant should re- 
 ceive some mark of distinction ; or rather those 
 parts which are immaterial should be noticed 
 as such, or cancelled. It would, in many cases, 
 be well worth the trouble and the expense that 
 the solicitor for the purchaser should frame a 
 new abstract out of this heterogeneous mass. 
 
 But the practice of encumbering the margin 
 of the abstract with notes, criticisms, &c. or 
 any other observations, except material facts, 
 should be avoided. Such observations are not 
 in their proper place; they distract the attention 
 of the conveyancer, and they interrupt that 
 train of reasoning and connection of facts, which 
 must be pursued to do justice to the client. 
 Observations (if any are to be made on the 
 law, &c.) should be at the end of the abstract, 
 or in a separate statement. 
 
 In deducing the title to advowsons the pre- 
 sentations should be shown at the head of the 
 abstract. It may be thus intituled ; " A state- 
 ment of the presentations, with the names of 
 the patrons, and of the clerks, presented during 
 the period of this abstract/' 
 
 Thomas Squire, clerk, presented by Thomas 
 Nicholson, March 12, 1690. 
 
 Thomas Dal ton, clerk, presented by William 
 Cartwright, March 4, 1740.
 
 FORM OF ABSTRACT. 39 
 
 E. Cartwright, clerk, presented by William 
 Cartwright, November 2, 1749- 
 
 N. Stow, clerk, presented by Catherine Cart- 
 wright, spinster, July 31, 1794. 
 
 Edmund Cartwright, clerk, presented by 
 Catherine Cartwright, spinster, April 2, 1802. 
 
 Thomas Raddish, clerk, presented by Duke 
 of Norfolk, January 17, 1805. 
 
 Care should be taken that these presentations 
 are warranted by the title, as disclosed in the 
 abstract. 
 
 In general the abstract should state the dif- 
 ferent deeds and wills of which the title is con- 
 stituted, in the order of their dates. 
 
 Sometimes it happens that a will has been 
 revoked by a subsequent settlement, recovery, 
 fine, or other assurance. 
 
 In this case the more prevailing practice is 
 to state the settlement in the first place, and 
 the will in a subsequent part of the abstract; 
 and then if the conveyancer should not pay par- 
 ticular attention to the order of the dates, the 
 question of revocation would not be raised in 
 his mind. This oversight may happen even to 
 the most cautious person, unless he has formed 
 the habit of paying especial attention to this 
 point. 
 
 In fair and candid practice the will ought to 
 be stated according to its date, and conse- 
 quently as preceding the settlement, &c.
 
 40 ON TITLES ! 
 
 Arrangement of Abstract. 
 
 HOWEVER there are many cases in which it is 
 even eligible, and almost a duty on the solicitor, 
 to simplify the evidence of the title, by giving 
 a different arrangement to the abstract. This 
 is the case, as often as the abstract relates to 
 different parcels of land, or different terms which 
 have been purchased at different times, and 
 have ultimately centered in one person. And 
 it is also the case, as often as a farm, or other 
 property, has vested in several persons as tenants 
 in common, co-parceners, or even as joint- 
 tenants, who have severed the tenancv, and there 
 
 / 7 
 
 is, through a long series of years, a different 
 deduction of title to the different shares. 
 
 This mode is equally eligible, whether the 
 different shares have already united in one per- 
 son, or they are, on the present occasion, to be 
 purchased from the different part-owners. In 
 instances of this sort it is also proper to give 
 different heads to the different parts of the 
 Abstract ; for example ; 
 
 As to the farm called A, purchased of B ; 
 Or as to the third part or share of A. 
 
 And when two or more farms, or two or more 
 shares, become vested in the same person, and 
 the title, applicable to the several farms, or the 
 several shares, is united, there should be a new 
 head directing the attention to this fact ; thus, 
 
 As to the farm called A, purchased of C ; 
 
 And the farm called B, purchased of D ;
 
 OBJECTS OF ABSTRACT. 41 
 
 Or as to the third part formerly of A, 
 And the third part formerly of - - B. 
 Of course the abstract should in every in- 
 stance be varied in this respect according to the 
 circumstances ; and if a will be so dated that it 
 is prior to some of the purchases, and conse- 
 quently inoperative as to them ; while it is sub- 
 sequent to other purchases, and governs the title 
 to the parcels so purchased ; a memorandum 
 ought to be made to express this circumstance. 
 
 It should be at the end of each purchase deed ; 
 and to this effect : 
 
 The will of was made prior to this 
 
 purchase ; or subsequent to this purchase ; or 
 the memorandum should be at that part of 
 the abstract which introduces the will, and be 
 to this effect; 
 
 ' This will was prior to the purchase made in 
 the year 
 
 Objects of Abstract. 
 
 THE object of every abstract is to enable the 
 purchaser or his counsel to judge of the evidence 
 deducing the title, and of the encumbrances 
 affecting the title. 
 
 Every title involves in itself the question of 
 legal and beneficial ownership. 
 
 On the one hand, it is in vain that there is a 
 good title at law, if that title be bad or defective 
 in equity. 
 
 On the other hand, it is not sufficient that 
 there is a good title to the legal estate, or to
 
 42 ON TITLES: 
 
 the equitable estate, if it be encumbered with 
 judgments, legacies, debts to the Crown, or other 
 charges to its value ; for in proportion to the 
 extent of such encumbrance will there be a re- 
 duction in the actual value of the interest of the 
 vendor. 
 
 In short, every abstract should describe what- 
 ever will tend to enable a purchaser, or his 
 counsel, to form an opinion of the precise state 
 of the title at law and in equity, together with all 
 chances of eviction, or even of adverse claims. 
 
 And these points should be kept in mind in 
 preparing the abstract of title, and also in com- 
 paring the same with the documents or evidences 
 of the title. 
 
 In the following observations an attempt will 
 be made to direct the attention to those different 
 points. 
 
 Substance of Abstract. 
 
 EVERY abstract ought to consist of a short 
 statement of the material parts of the deeds, 
 wills, and other documents or writings, if any, 
 and records and private Acts of Parliament, and 
 even of public Acts passed for private purposes, 
 which can in anywise implicate or affect the title. 
 
 To these should also be added such facts as 
 fill up the interval of title, as descents, deaths, 
 marriages, births, burials, and other circum- 
 stances generally called matters in pats; or facts 
 which may vary the state of the title, as happens 
 in titles which depend on special limitations or
 
 SUBSTANCE OF ABSTRACT. 43 
 
 contingencies, in which the right is made to 
 arise upon some fact or event; and also in 
 titles by descent, &c. 
 
 All facts which are stated should be stated 
 correctly, and the seller should be prepared to 
 verify or authenticate them by legal evidence ; 
 and the purchaser's solicitor should take care 
 that such evidence will be within the power of 
 his client. 
 
 And as often as a title depends on a descent 
 from a remote ancestor, a pedigree should ac- 
 company the abstract ; and it is the duty of the 
 solicitor, on the part of a purchaser, to take care 
 that the pedigree should be authenticated ; not 
 only by such evidence as would be deemed prima 
 facie proof in a court of law of the title of the 
 supposed heir, but such evidence as it would be 
 incumbent on him to give for the purpose of 
 suporting the title in the event of an adverse 
 claim. 
 
 This is more particularly the case when the 
 vendor is not in possession, but is to transfer a 
 remainder, a reversion, or other remote interest. 
 However no case of this description is to be 
 considered as* governed by any precise rules. 
 Circumstances will and must occasion the neces- 
 sity of exercising a discretion in this respect. 
 The material distinction to be kept in mind is, 
 that a man maybe able to give primd facie title of 
 being heir, while in point of fact he is not heir. 
 The observations which have been made, are 
 to be considered as applied to a title which of a 
 recent date depends on such extraneous facts ;
 
 44 ON TITLES : 
 
 for if these facts arose at a very distant period, 
 and the title was claimed on their foundation, 
 and there has been a possession consistent with 
 this state of the title, then the possession fur- 
 nishes the jiecessary evidence of the facts, or 
 rather such a presumption of them as, in many 
 cases, may be safely relied on ; and the cautions 
 which are recommended are to be adopted only 
 in proportion as the facts admit of more certain 
 and decisive proof. 
 
 ^ 3 For instance, if it appear that thirty or forty 
 years ago, A died, leaving J5 his heir at law, and 
 &./sr. that B entered and enjoyed without interruption; 
 -r.4f^ and that he sold, and that the purchaser entered, 
 and had peaceable possession ; no one, except 
 under extraordinary circumstances, as an as- 
 serted claim, ever thinks of requiring any evi- 
 dence to prove the fact that B was the heir at 
 law. 
 
 Of all titles depending on descent, those to 
 be viewed with most jealousy, and accepted 
 with the greatest caution, are those in which a 
 maternal heir claims the right of succession ; and 
 enters into possession on the ground that there 
 is a failure of paternal heirs. 
 
 Evidence of extinction or failure of inheritable 
 blood, in the line of the father, by reason of 
 attainder, or alienage or bastardy, may exempt 
 the title of the maternal heir from difficulties or 
 suspicion. 
 
 But in all other cases, though the paternal heir 
 may not have been found ; and though the 
 maternal heir may have obtained undisturbed
 
 SUBSTANCE OF ABSTRACT. 45 
 
 possession ; or though he may, even against a 
 tenant, or an abator, have established a title by 
 the judgment of a court, yet it does not follow 
 that his title is good. The probabilities, in- 
 deed, are, that it is defective. In the nature of 
 things there must be a paternal heir, though he 
 neither has been or can be discovered. 
 
 This probability is increased in proportion to 
 the number of progenitors, whose issue must 
 have failed ? before there can be an extinction of 
 inheritable blood on the part of the father, or 
 other paternal ancestor. 
 
 The like difficulty occurs when the father, or 
 grandfather or great grandfather, is the pur- 
 chasing ancestor, and some one who derives a 
 title under a very remote and distant branch of 
 the family, claims and even establishes a primd 
 facie title as heir. The chance of a more im- 
 mediate heir renders caution necessary. 
 
 Experience proves, that in titles of this de- 
 scription, more remote heirs obtain the posses- 
 sion ; more immediate heirs recover against 
 them ; and they, in their turn, are evicted by 
 persons who prove themselves to be nearer in 
 the line of inheritable blood. 
 
 Titles, involving these circumstances, have 
 generally been fortified by a fine with proclama- 
 tions. Such fine and non-claim certainly add to 
 the security of the title. But disabilities may- 
 have protected the actual heir from the bar of 
 the statutes of non-claim on fines. 
 
 Few titles are therefore to be accepted with
 
 46 AfH ON TITLES ! 
 
 more caution than a title by descent asserted by 
 an heir, m a remote degree, from the first pur- 
 chaser, or the person last seised. 
 
 So if a limitation be made in favour of the first 
 son of A in tail, and a person claiming to be the 
 first son has either in the lifetime of his father, 
 together with his father, or after the death of his 
 father, and alone, suffered a recovery, and the 
 possession has been consistent with the title de- 
 rived under that recovery, the recognition by the 
 father, of the son, as his first son, or a continued 
 possession for several years, is considered as rea- 
 sonable evidence of the fact, that this son was the 
 first son. But in proportion as the title is of a 
 modern date, caution may be even necessary in 
 this case; for it has more than once happened that 
 such son has been illegitimate, and the fact of 
 illegitimacy has been suppressed. The certificate 
 of baptism, and an affidavit of legitimacy, are 
 the proper precautions against a surprise in this 
 particular. 
 
 In some cases it has happened that the limi- 
 tation has been confined to t lie first son without 
 extending to the second son ; and the person 
 who, in point of fact, was the first son, died at 
 a very early age ; and his death has been cau- 
 tiously concealed for the purpose of enabling the 
 second-born son to assert a title to the estate. 
 In such case no register of baptism will be found. 
 
 This happened in a county near the metro- 
 polis, and the fact was never discovered till the 
 second-born son was about fifty years of age,
 
 SUBSTANCE OF ABSTRACT. 47 
 
 and then, like most other cases of fraud, it led 
 to his ruin, or at least hastened it. 
 
 In many cases also more caution is necessary 
 than is generally adopted to ascertain the fact, 
 that the person who claims as heir, or as the 
 eldest or other son, is legitimate. In various 
 instances titles have proved defective in conse- 
 quence of taking this for granted, or, in short, 
 from the inability to disprove the fact. 
 
 And when titles depend on recoveries suffered 
 by an heir in tail, the attention is not so fre- 
 quently directed as it ought to be, to ascertain 
 that the freehold was not outstanding at the 
 date of the recovery, in a tenant by the curtesy, 
 or a tenant in dower. 
 
 It is observable, however, that a mere title of 
 dower does not raise any impediment to the 
 validity of a recovery. 
 
 It also sometimes happens, that infants are 
 married with the consent of guardians appointed 
 by the ecclesiastical court, instead of being mar- 
 ried with the consent of guardians appointed by 
 the court of chancery. Such marriages are void, 
 and of course the issue illegitimate. 
 
 A case of this sort occurred, in which the 
 parties were apprized of the law before the 
 birth of the child who was to take the first 
 estate tail under the marriage settlement, and 
 from a mistaken delicacy, no entreaties could 
 prevail on them to be re-married, though both 
 were adult. 
 
 A child was actually born illegitimate : but
 
 48 ON TITLES 1 
 
 fortunately for him he died while of tender 
 years ; but yet there is no doubt if he had lived 
 to attain the age of majority the circumstance 
 would have been buried in oblivion, at least for 
 a long period of time, and he would have as- 
 serted a title to the estate, and the title have 
 been accepted under a conveyance from him, 
 without any inquiry into his legitimacy; since 
 all the neighbours, and among them the pur- 
 chaser, would have assumed the regularity of the 
 marriage, from habitual belief that the father and 
 mother were husband and wife legally married. 
 
 In instances of this sort, local knowledge 
 misleads by substituting belief in the place of 
 evidence. 
 
 Entries by disseisin, abatement, intrusion, &c. 
 may also materially affect the title, and when 
 they have existed they should be stated. 
 
 Wills may be revoked, and consequently be- 
 come inoperative by such disseisin ; and re- 
 entries, $c. may also be equally relevant, by 
 restoring the effect of the will : and they should 
 be stated when any conclusion may depend on 
 them. 
 
 The state of a title by descent may be 
 varied by such entry, &c. and a possessio fratris,; 
 or the nature of the remedy, and consequently 
 the period of bar under the statute of limita- 
 tions, may be changed ; for instance, if there 
 has been an abatement or intrusion, and it is 
 avoided by entry, and an actual seisin acquired/ 
 
 (Zrt^i? it^u^i**- J^a 4*^u*ri i^j+t+^i tsti^4-i 44.S+**. J 
 
 ^a \vrit of right may become the remedy, in-
 
 FORM OF ABSTRACT. 4$ 
 
 stead of a writ of entry sur abatement, or sur 
 intrusion, &c. 
 
 Of the Form of the Abstract. 
 
 The more immediate form of the abstract 
 will now be the subject of consideration. For 
 this purpose the observations will be applied, 
 
 1st, To deeds. 
 
 2dly, To records. 
 
 3dly, To acts of parliament. 
 
 4thly, To commissions of bankrupt. 
 
 5thly, To wills and their probates. 
 
 6thly, To administrations, 
 
 Tthly, To decrees. 
 
 Sthly, To judgments ; 
 
 Since these are the several documents from 
 which an abstract is generally prepared. It is 
 to be observed, however, that mere agreements 
 are to be abstracted in like mode as deeds ; 
 and therefore must be considered as falling 
 under that head of division. 
 
 Every formal deed consists for the most part 
 of several particulars or clauses, viz. 
 
 1st, The date. 
 
 2dly, The style or character of the deed. 
 
 3dly, The names of the parties. 
 
 4thly, The recitals. 
 
 5thly, The testatum, or operative clause ; 
 and this clause is again subdivided into several 
 parts, viz. 
 
 ]^t, The part which expresses the consi- 
 deration.
 
 50 ON TITLES: 
 
 2dly, The name of the grantor, words of 
 request, &c. 
 
 3dlj, The operative words of grant, and 
 
 4thly, The name of the grantee. 
 
 5thly, In some cases, a reference to a lease 
 for a year, as in releases founded on a previous 
 lease for a year. 
 
 6thly, The parcels, with their description ; 
 and either with or without an exception. 
 
 Tthly, The general words, and the clauses of 
 reversion, estate, deeds, &c. 
 
 Sthly, The habendum, or clause limiting the 
 estate. 
 
 Qthly, In some cases a reddendum. 
 
 lOthly, In some cases a declaration of uses. 
 
 llthly, In some cases a declaration of trusts. 
 
 12thly, In some cases, a condition or con- 
 ditional limitation, by way of shifting or 
 springing use ; or a clause of agreement for 
 redemption in equity ; or some other special 
 agreement which may affect the title in equity, 
 if not at law 
 
 13thly, Powers. 
 
 14thly, Covenants for the title, or other 
 covenants which may affect the title, and either 
 with or without exceptions introduced into these 
 covenants. 
 
 15,thly, The execution. 
 
 l6thly, The attestation. 
 
 ITthly, The receipt. 
 
 In this arrangement, a simple deed is con-
 
 FORM OF ABSTRACT. 51 
 
 templated ; but many deeds may be considered 
 as compound ; consisting of various testatum 
 clauses, and consequently \vith a repetition of 
 all or several of these clauses. 
 
 This is particularly the case in deeds which 
 convey freehold and leasehold lands ; or free- 
 hold or leasehold lands and personal estate ; or 
 which convey the inheritance, and also assign a 
 term or terms for years in the same lands, or 
 release any encumbrance affecting the property. 
 
 As often as a deed consists of these various 
 parts, the abstract must state these parts, as far 
 as they are relevant and material to the title 
 under consideration. 
 
 There are also some cases (as in articles for a 
 settlement, c. and agreements creating an 
 equitable lien), which do not contain the dif- 
 ferent formal parts already noticed ; or at least 
 do not exhibit them in the order they are enu- 
 merated ; but they necessarily have these par- 
 ticulars in substance, or in construction of law, 
 though they may not have them in point of 
 form ; for every deed or instrument, inter vivos, 
 which is effectual at law, or in equity, must, in 
 terms or in substance, have 
 
 1st, An agent, grantor, or party contracting. 
 
 2dly, A patient, grantee, or person with 
 whom the contract is entered into. 
 
 3dly, The parcels, or subject, about which 
 the grant or contract is concerned ; and 
 
 4thly, The terms upon which that grant is 
 made, or contract is entered into. 
 
 E 2
 
 52 ON TITLES : 
 
 1st, As to the date. 
 
 The date should be stated, and for the fa- 
 cility of reference, it is generally given in the 
 margin ; and when an assurance consists of 
 several parts, as in the instance of a lease and 
 release, the date of each instrument should be 
 stated. 
 
 3d, As to the style or character of the deeds. 
 
 It is also usual, in introducing; the different 
 
 7 o 
 
 parts of a deed, to state the mode of its opera- 
 tion, thus, " By indenture of lease. By inden- 
 tures of lease and release. By indenture of 
 feoffment. By indenture of assignment. By 
 articles of agreement. By indenture of bar- 
 gain and sale irirolled," or the like. 
 
 And when a deed consists of several opera- 
 tive parts, it is also usual to refer to its different 
 operations in these or the like terms, " By inden- 
 tures of lease and release, or indenture of lease, 
 and indenture of release and assignment," c. 
 This exordium brings the abstract, in effect, to 
 state, that by indenture, &c. a particular person ? 
 or certain persons, did grant, &c. or that by in- 
 denture, &c. after reciting, &c. a particular per- 
 son, or certain persons, did grant, &c. And this 
 is the general form adopted in practice. Some- 
 times, however, deeds are abstracted in this form ; 
 
 " 1st May 1804, an indenture, or indentures 
 of lease and release, made, &c. whereby, after re- 
 citing, &c. A. B. did, &c." but though this mode 
 is sufficient for the purpose, the former mode 
 appears more correct, ftnd is to be preferred, as
 
 FORM OF ABSTRACT. 53 
 
 being the form generally adopted, and as guard- 
 ing against the appearance of singularity. 
 
 Under this division it will be proper to notice 
 that in case of a simple abstract, or an ab- 
 stract concerning one farm, or one estate only, 
 carried on by a regular series of deeds, the 
 deeds, wills, &c. should be abstracted in the 
 order of their dates. But in compound or com- 
 plex abstracts ; as in the instance of several 
 farms purchased at different times from diffe- 
 rent persons ; or a farm which is subdivided 
 into different shares, which become the subject 
 of different sales, mortgages, settlements, &c., 
 the arrangement should keep the title to each 
 farm, or each share, in a connected series, as 
 long as the title remains distinct. On this point 
 a former observation, directing the mode of ar- 
 rangement of the abstract should be consulted. 
 
 3dly. As to the names of the parties. 
 
 Every well-penned deed names the grantor 
 and other parties, with their additions, viz. the 
 places of their residence, their professions, cal- 
 lings, &c. and sometimes, indeed frequently, it 
 adds the description of their characters, as heir 
 at law, executor, &c. trustee, &c. or surviving 
 executor, &c. surviving trustee, &c. 
 
 In abstracting ancient deeds it is not neces- 
 sary to do more than state the names of the 
 parties, without adding the places of their resi- 
 dence : but it is always proper to add the des- 
 criptive character in which they acted, namely, 
 as heirs, executors, &c. ; since this description 
 
 E3
 
 54 ON TITLES: 
 
 affords, at one view, an intimation of the cha- 
 racter in which they conveyed, &c. and connects 
 the title with the former part, if any, of the ab- 
 stract, and if there be not any former part of the 
 abstract, it may lead to an inquiry which will tend 
 to elucidate the title, or will induce the produc- 
 tion of evidence, which will have that effect. 
 
 There are also many cases in which it is 
 proper to add the additions of the parties, either 
 for the purpose of distinguishing them from 
 other persons of the same names, or affording 
 the information necessary to a search for their 
 wills, the birth of children, or the like circum- 
 stances connected with their residence. 
 
 This is more particularly important, in refe- 
 rence to persons through whom a title must be 
 derived, with a view to some act to be done, to 
 render a title complete by supplying a defect 
 in the same, or investigating a pedigree. 
 
 In some deeds a great number of persons are 
 introduced as parties, and the acts done by many 
 of them are immaterial to the title under con- 
 sideration. 
 
 As often as this happens these parties should 
 be named very briefly, or there should be merely 
 a reference to them in these or the like terms, 
 " several other persons, of the 2nd, 3rd and 
 4th parts." 
 
 And to render a reference to the different 
 parts of the abstract more easy and more ob- 
 vious, it is very eligible to arrange the different 
 parties in different lines, thus,
 
 FORM OF ABSTRACT. 55 
 
 Between, 
 
 A. ]3. of the 1st part, 
 
 C. D. of the 2nd part, 
 
 E. F. of the 3rd part, &c. &c. 
 For it may be justly observed, that whatever 
 assists the eye to read, or to collect the facts, 
 will leave the mind more free to ascertain the 
 effect of the deeds, and to form a correct esti- 
 mate of the connexion of the facts with the former 
 and subsequent parts of the transaction. 
 
 In this part also of the abstract, if it has not 
 been done in a previous clause, it is very con- 
 venient for the information of the person by 
 whom the abstract is to be perused, to aver such 
 facts as may tend to elucidate the title in the pro- 
 gress of considering it ; for example, Between 
 A. jB., since deceased ; or A. B., who was the heir 
 at law, or was the surviving child of, Sec.; or who 
 had then survived A. B. andC.D. his co-trustees; 
 or who is executor, &c., or who is a trustee, &c. 
 
 This however is proper, only when the infor- 
 mation is not introduced into a former part of 
 the abstract, or will not occur in its proper 
 place in the recitals of the deed in question. 
 
 These statements should be in brackets, that 
 they may appear as averments, distinguished 
 from statements in the deeds ; since, as state-, 
 ments in the deeds they would receive more 
 credit, and be allowed more weight than they 
 would receive, or be allowed, when they are- 
 stated by way of averment, for which proofs are 
 to be adduced. 
 
 E 4
 
 56 ON TITLES ; 
 
 4thly, Of the recital. 
 
 Immaterial matter contained in the recitals of 
 a deed should not be stated in the abstract ; or 
 should be stated as concisely as possible. On 
 the other hand, recitals, which may materially 
 affect the history of the legal or equitable title, 
 should be fully expressed. 
 
 On the other hand, it is pregnant with incon- 
 venience to introduce recitals in this or the like 
 phrase : After reciting among other things, with- 
 out adding, " not material to the present title," 
 or some expression to that effect. 
 
 The recitals generally deemed material to be 
 introduced fully into the abstract are of former 
 deeds, c. not in the power of the vendor, and 
 which show a deduction of the evidence of the 
 title, so as to carry it back to a more remote 
 period ; descents, and other facts which fill up 
 those parts in the chain of evidence which are 
 wanting. 
 
 In transactions of small purchases, in which 
 the lands were parcel of a large property, the 
 nature of the transactions leads to the conclusion 
 that the deeds remain in the hands of the former 
 proprietor, or were delivered to the purchaser of 
 a larger estate ; and such recitals are, with great 
 reason, as hath already been noticed, considered 
 as affording a reasonable presumption of the 
 correctness of the statement ; especially when 
 taken from deeds executed at a distant period ; 
 say thirty or forty years. 
 
 Such recitals are also relied on when there is
 
 FORM OF ABSTRACT. 5? 
 
 reasonable evidence that the title deeds them- 
 selves have been destroyed by fire, or casually 
 lost. In titles derived under deeds of a more 
 modern date, and which are in existence, it is 
 proper that reference should be had to the deed? 
 themselves, either by the solicitor for the pur- 
 chaser, or some one employed on his behalf, 
 that the purchaser may be satisfied that the 
 abstract is correct. 
 
 In settlements founded on marriage articles, 
 the articles should be fully abstracted, as far as 
 they are material, and are recited in the settle- 
 ment ; unless the articles themselves are pre- 
 viously abstracted. This statement is generally 
 given as a recital in and as part of the abstract 
 of the settlement. 
 
 Another and more eligible mode, is to give 
 the recital, as it occurs in the settlement, by way 
 of previous statement, so as to precede the ab- 
 stract of the settlement ; but then this part of 
 the abstract should be stated, as taken from a 
 recital in the settlement; thus, in the settlement 
 next abstracted there is a recital to this effect, 
 viz : By indenture, &c. 
 
 Deeds of trust, on which another deed is 
 founded, are open to the same observation. 
 So are all other agreements which may mate- 
 rially affect the title at law or in equity. 
 
 A distinction however may be made between 
 articles or trusts which are from the period of 
 their date relevant to the title of those of identical 
 lands which are the subject of the abstract ; and
 
 58 ON TITLES : 
 
 those articles and trusts, (as articles and trusts 
 under the directions of which the lands are pur- 
 chased), which do not affect the title, until the 
 lands are purchased or settled. 
 
 Articles and trusts, of the latter description, 
 seem to fall most naturally into the order of 
 being stated in the abstract of the deed in which 
 they are recited ; or they should be inserted im- 
 mediately before the purchase deed executed in 
 pursuance of these articles or trusts. 
 
 Care however must be taken, even when the 
 articies are recited, that the effect of the arti- 
 cles has been correctly given. 
 
 For this purpose the original articles should, 
 if circumstances admit, be inspected ; and if the 
 recital be incorrect, the purchaser's solicitor 
 should, by a rider, or by a correction of the 
 abstract, supply a full and faithful statement of 
 the material parts of the articles, as far as these 
 parts are omitted. In most instances it will be 
 found more convenient to cancel the former 
 notice of the articles, and substitute in its place 
 a correct abstract of the articles. 
 
 When an indenture of a former date is recited 
 in a deed of more recent date, then, if no state- 
 ment of the recited deed is introduced into a 
 former part of the abstract, the recital should 
 be given at large, as to all the material points. 
 But as often as the deed so recited is intro- 
 duced into a former part of the abstract, there 
 should be a short reference to the deed, and 
 this will be sufficient, except so far as the recital
 
 FORM OF ABSTRACT. 59 
 
 does, by averments, or other means, disclose 
 new and material information, and then such 
 additional facts should be abstracted. 
 
 The general mode of reference to such re- 
 citals is in this form : 
 
 After reciting the indentures of the and 
 days of and and day of 
 
 And it is in all cases proper that such or the 
 like reference should be made. 
 
 And it is attended with convenience to have 
 the reference to the different deeds arranged in 
 columns, thus : 
 
 After reciting the indentures of 
 1st and 2nd May, 1700. 
 2nd and 3rd April, 1720, &c. 
 4th and 5th April, 1721, &c. 
 
 An additional convenience arises, in long 
 abstracts, from a reference to the page in which 
 the recited deeds are to be found : and, under 
 the like circumstances, it greatly assists the me- 
 mory, and preserves the chain of thought, and 
 the due application of the judgment, to give a 
 short reference to the operation of the deed by 
 these or the like terms : 
 
 After reciting the indenture of the 1st and 
 2nd May 1700, p. 4. (being the settlement made 
 on the marriage of A. B. with C. D.) 
 
 And also the indentures of the 2nd and 3rd 
 April 1720 (being the conveyance in fee to 
 
 IK.) 
 
 These references should be varied so as to be
 
 60 Otf TITLES t 
 
 adapted to the circumstances. But such refe- 
 rences are of use only in abstracts of title, 
 which are of great length, and require such aids 
 to assist the memory, and bring the transaction 
 more within the compass of the mind, without 
 the labour of a classification of the abstract, and 
 a digest, to be made of the same. 
 
 In this part also of the abstract, any mistakes 
 of dates, &c. which may occur, should be 
 noticed in this or the like manner: 
 
 After reciting the indentures of the 1st and 
 2d May 1700 (therein by mistake recited as 
 indentures of the 2dand 3d May 1700). 
 
 Sometimes an error in the recital of the date 
 of the deed is material, and may affect the 
 validity of the title ; for instance, a lease, bear- 
 ing date the 1st of March, is recited as bearing 
 date the 2d of March, and then there is an 
 assignment of all the lands which were demised 
 by the hereinbefore in part recited indenture of 
 lease. 
 
 Now as there is not any such indenture of 
 lease, there is, in point of law, no valid as- 
 signment; for, as the date in the recital is the 
 essential part of the descriptive terms used in 
 the assignment, the assignment itself fails of 
 effect. 
 
 To avoid such and the like mistakes, the 
 modern and correct practice of preparing the 
 recital of deeds, as bearing date on or about, ^-c. 
 should be more generally observed, so that the
 
 OF ABSTRACT. 6l 
 
 date may not be conclusively material ; and as 
 a consequence, the error may not vitiate the 
 assignment. 
 
 The books seem agreed that an assignment 
 made with reference to an erroneous and posi- 
 tive recital would be void ; yet, it is likely that 
 judges of modern times would, from the other 
 certainties, if any, of the lease, to be collected 
 from the names of the parties, the parcels, &c. 
 reject the erroneous date, and support the as- 
 signment. 
 
 It would not, however, be safe to rely on the 
 liberality of the courts to interpose against rules 
 of law established by decided cases, and founded 
 on those principles which require that every 
 contract should be proved by the contents of 
 the deed which contains the evidence of the 
 transaction ; and an assignment of a lease, as- 
 sumed to be dated the 1st day of April, cannot 
 be predicated of, or pleaded, or given in evidence 
 as an assignment of a lease, dated the 2d April. 
 Equity may on those occasions of sale for a 
 valuable consideration, &c. which give juris- 
 diction to that court, correct the mistake ; while 
 a court of law must take it for granted, that there 
 is another lease of the date which is recited. 
 
 Various distinctions occur on points of this 
 sort. When the recital is correct, or an inac- 
 curacy in the date, &c. is rendered immaterial, 
 then a subsequent error in referring to the date 
 will not vitiate the deeds ; for instance, if the 
 lease be recited as bearing date on or about
 
 62 ON TITLES! 
 
 the 2d day of March; and then the assignment 
 is made by words to this effect : 
 
 "All those messuages, &c. which were assigned 
 by the said indenture, bearing date on or about 
 the 4th day of March ;" this error would be 
 immaterial. 
 
 In the first place, the courts may reject, as 
 surplusage, the words, On or about the 4th day 
 of March ; retaining the words, The said inden- 
 ture ; and even though the 2d day of March 
 were not the true date, yet the words, on or 
 about, in the recital, would relieve the case 
 from the difficulty with which it would other- 
 wise be attended, by the admission of the actual 
 lease in evidence; for the actual lease will not 
 be at variance with the recital of the date, since 
 the recital has guarded against the error or 
 materiality of the recital of the date. 
 
 In this place it may also be noticed, that 
 when a person, or corporation, is nee properly 
 described, and afterwards the name is mis- 
 
 taken, as the said Richard, instead of the 
 said John, no error in referring to the name, 
 unless it be from uncertainty, by producing a 
 doubt who is the grantor or contracting party, 
 or the grantee, will injure the title. 
 
 Another observation is deserving of a place 
 under this head. 
 
 Whatever errors may be in the recitals, and 
 in whatever degree they may perplex the evi- 
 dence in point of deduction, yet a substantive 
 independent grant of parcels, c. by a full de-
 
 FORM Otf ABSTRACT. 63 
 
 scrip tion, or by certainties, which are free from 
 mistake, will not be impugned by any error in the 
 recitals; and the present disposition of the courts 
 is never to give importance to inaccuracies, or 
 mere technical objections of this nature, except 
 so far as the judges are bound by positive rules, 
 or by cases fully and clearly in point, as con- 
 clusive authorities. 
 
 In well-drawn deeds, such facts of death, and 
 of contingencies, majority, marriage, &c. as will 
 keep up the connection of the title, and show 
 the different links in the chain of evidence, are 
 uniformly recited. 
 
 The facts thus recited should be stated in 
 the abstract, either as separate and independent 
 facts, &c. in explanation of the state o the 
 title, and so as to precede the deed which con- 
 tains the recitals of these facts ; or, as is more 
 usual, and on the whole, more satisfactory, since 
 the source from which the information is de- 
 rived is shown, these facts are introduced as 
 recitals, in abstracting the very deed which 
 contains the recitals. 
 
 Such facts, &c. are frequently of the first and 
 most essential importance to the title. 
 
 Without these recitals, the title would appear 
 defective, and a strict inquiry would be made 
 into the facts ; and the title be considered as 
 defective, in point of evidence, till satisfactory 
 information could be obtained in answer to these 
 inquiries. 
 
 Of this description are the facts of the deaths?
 
 64 ON TITLES : 
 
 or death and failure of the issue, of persons hav- 
 ing prior estates or annuities, or such like en- 
 cumhrances ; also the survivorship of one or more 
 of several persons, being either beneficial owners 
 or trustees ; some contingency by which one es- 
 tate was to determine, and another take effect ; 
 deaths under age, or before portions become 
 payable ; deaths of husband and wife without 
 having had, or without having left, issue ; titles 
 by descent, showing the death of the owner, 
 and the succession of an heir ; and frequently 
 the different descents to different heirs in suc- 
 cession ; wills, and the devises contained in them; 
 the probate of these wills, and the courts in 
 which these wills were proved, and the time of 
 probate (both which circumstances are useful : 
 partly to facilitate a search for the will, and 
 partly to show the time of the death of the tes- 
 tator, or rather to show that he was dead before 
 a given time ;) also intestacies, administrations, 
 and the like ; also settlements ade of certain 
 lands to certain uses, for the purpose of com- 
 plying with the terms of some power on which 
 the title may depend : in short, these and all 
 other circumstances which may be important 
 to the title, either with a view to its deduction, 
 or to show that it is free from encumbrances, 
 should appear on the abstract. 
 
 Also if an encumbrance appear from a re- 
 cital, it is the duty of the solicitor who prepares 
 the abstract to state such encumbrance, even 
 although it may not be existing; and if he
 
 SUBSTANCE OF ABSTRACT. $5 
 
 should omit this part of his duty, the solicitor 
 for the purchaser should take care that the 
 omission shall be supplied. 
 
 For it is the province and duty of the con- 
 veyancer ultimately to consider, whether such 
 encumbrance is or is not material, and whether 
 there are any grounds for presuming that it has 
 been released or discharged. 
 
 As notice of a deed is constructive notice of 
 all its contents, the purchaser becomes impli-* 
 cated in the transaction ; and it is fair that his 
 counsel, or the person on whose judgment he 
 relies j should have an opportunity of consider- 
 ing how far such encumbrance affects the title. 
 
 In all these and the like cases, liberal, and 
 even honest practice, imposes on the solicitor by 
 whom the abstract is prepared, the duty of sup- 
 plying rather more information than may, in 
 his own judgment, be material, than the latitude 
 of withholding any fact or circumstance which 
 may give a turn to the title ; or show an encum- 
 brance which once existed, however strong he 
 may consider the presumption in favour of its 
 having been discharged or satisfied, or barred 
 by the lapse of time. 
 
 The contract, or the agreement on which the 
 
 7 O 
 
 deed is founded, should, in general, be shortly 
 stated ; and in many cases it is material to state 
 the contract fully, as an important part of the 
 abstract. 
 
 This contract is particularly relevant when it 
 is made by or with a person who is dead ; so 
 
 p
 
 6*6 ON TITLES: 
 
 that there is a conversion of the property from 
 real into personal estate, and the mode of pay- 
 ing and receiving the purchase-money is varied 
 by this change. 
 
 For instance, if A, who has the fee, contracts 
 to sell to JB, the interest of A is, in the view of 
 a court of equity, and according to the rules of 
 that court, converted into personalty ; and if he 
 die his heir is considered as a trustee for the 
 purchaser, and the executor of A is entitled to 
 the purchase-money. On the other hand, the 
 purchaser, or his heir, or (if any) devisee, is en- 
 titled to have a conveyance of the land ; and if 
 the purchaser die, then, unless the contrary is 
 directed by the purchaser, the purchase-money 
 must be paid by his executor, out of the personal 
 estate, for the benefit of the heir or devisee. 
 
 The same point, and also the date of the con- 
 tract, are material, when there is, first, a con- 
 tract, and secondly, a will, or a codicil republish- 
 ing a will ; since the date of the contract may 
 alter the state of the equitable title, as between 
 the heir and devisee. 
 
 In order, however, that this change may be . 
 effectual, as between heirs and executors, it is 
 essential that the purchaser should have accept- 
 ed the title in his lifetime, or that the vendor 
 should be in a situation to make such a title as 
 a court of equity Mould have compelled the 
 purchaser to accept. 
 
 For should the title prove defective, the heir 
 at law of the purchaser, or the devisee, if any,
 
 SUBSTANCE OF ABSTRACT. 67 
 
 of the will of the purchaser, will not be at liberty 
 to wave the objections to the title, so as to charge 
 the executor or administrator with the price. 
 But the executor or administrator may interpose 
 and resist specific performance, on the ground 
 of a defective title, and thus keep the amount 
 of the purchase-money as part of the personal 
 estate, instead of applying it, for the benefit of 
 the heir or devisee, in performance of the con- 
 tract. In Broom v. Monck, 10 Ves. j. 597 the 
 purchaser had directed the contract to be car- 
 ried into execution, without having in his life- 
 time accepted or approved the title, and yet 
 the executor successfully resisted the claim of 
 having the purchase completed out of the per- 
 sonal estate. But although the executor re- 
 sisted specific performance, the devisee, and if 
 there had not been a devisee, then the heir 
 might have paid the price, and insisted on 
 specific performance. 
 
 On this point various distinctions presfent 
 themselves, and are deserving of notice in this 
 place. 
 
 The effect of a contract as against the vendor, 
 supposing the contract to be such as would be 
 carried into specific performance, is, 
 
 1st. To convert the land into money, as be- 
 tween the representatives. 
 
 2dly, To revoke the mil of the vendor in 
 equity ; but unless a conveyance shall be made 
 in the lifetime of the vendor, the will of the 
 vendor will remain in operation at law, and the
 
 68 o$ TITLES r 
 
 conveyance must be taken from the devisee, ancS 
 the purchase-money paid to the executor or 
 administrator of the vendor. 
 
 On the other hand, on the part of the vendee 
 or purchaser/ 
 
 1st. The money will belong to the vendor, 
 and the land will, in equity, belong to the pur- 
 chaser. 
 
 2dly, This interest in the land is devisable^ 
 and will pass under the general words, " all my 
 real estate." See Seeton v. Slade, 7 Vesey 
 jun. 274, and 12 Vesey jun. 214. 
 
 3dly, Unless devised by a will subsequent to 
 the contract, the right to the benefit of the 
 contract will descend to the heir, 
 v. Lozvther, 12 Vesey jun. = 
 
 4thly, In either case, unless the contrary be 
 directed by the purchaser, the purchase-money 
 must be answered out of his personal estate, a& 
 far as there are assets for the purpose. 
 
 5thly, Though the purchaser take a convey- 
 ance after the date of his will, yet his will 
 remains operative in equity on the equitable 
 ownership, unless there be a new modification 
 of the ownership by the conveyance. But the 
 will, whatever may be its language, cannot 
 transfer the legal estate, unless the will be made 
 subsequent to the conveyance, or be republished 
 after the conveyance shall be taken. 
 
 In short, whatever will tend to elucidate the 
 title either at law or in equity, or may show in 
 what manner the purchase-money ought to be
 
 OF THE TESTATUM. 69 
 
 applied, and if circumstances .will permit, that 
 it has been duly applied, should be stated from 
 the recitals, though the recitals are not evidence 
 of the fact when the fact requires proof, as often 
 as it cannot be stated from the original deed, 
 &c. and as near as may be, these circumstances 
 should be given in like manner as they would 
 have been stated, from such deed or will, if the 
 abstract of the deed or will, could have been 
 given from the original instrument. 
 
 Of the Testatum, or Witnessing Clause. 
 
 AND first of the part which expresses the 
 consideration. 
 
 The consideration should be stated in the 
 abstract of every deed, either concisely or fully, 
 according to the circumstances of the case ; for 
 instance, when^f, who is the absolute owner, sells 
 to B, it is sufficient to state that in consideration 
 of 100 1. paid to A by B, with the addition, if 
 such be the language of the deed, for the abso- 
 lute purchase, $c. ; but as often as some trust, 
 or power, requires that the money should be 
 paid in a special manner, then that part of the 
 deed which expresses the application, is to be 
 detailed, and yet the statement without evidence 
 would not prove the due application, unless the 
 receipts of the trustees are to be discharges. In 
 cases of that sort, the language of the clause 
 should be fully detailed, so as to show that all 
 the requisites of the trust, or circumstances of 
 the powjer, have been observed ; for example, in 
 
 F 3
 
 70 ON TITLES: 
 
 consideration of paid to the said A B, 
 
 by C D, at the instance and request, &c. of the 
 said E JF, in full for the absolute purchase, &c. 
 or in satisfaction and discharge., $c. 9 and to be 
 held and applied, $c. ; and in all these and the 
 like cases, the language of the deed should be 
 closely pursued in the abstract. 
 
 Also when a deed is made in consideration of 
 money payable out of a particular fund, as trust 
 monies, c., and a trust is implied from the 
 mode in which the money is paid, or arises from 
 the fund out of which it is taken, this circum- 
 stance should be stated in the abstract. 
 
 So when a deed is made for a particular pur- 
 pose, as for docking and barring all estates tail, 
 &c. or for settling, &c. these objects should be 
 noticed. 
 
 In general a short intimation of the professed 
 object is sufficient. This clause is, for the most 
 part, given more at length than is necessary for 
 ordinary cases. 
 
 Under particular circumstances, however, (as 
 where a settlement is made for a jointure, and 
 in bar of dower, &c.) this part of the object 
 should be distinctly stated, especially if it be 
 the only part of the deed which can be used to 
 exclude the wife from dower. 
 
 Nominal considerations, as ten shillings, and 
 the like, should be noticed very briefly ; nor is 
 it essentially necessary that they should be ex- 
 pressed in any case, except in bargains and 
 sales, in which it is the essence of the deed,
 
 OF THE TESTATUM. 71 
 
 with a view to its operation in that particular 
 mode, that there should be a pecuniary, or at 
 least a valuable, consideration in money, or, a 
 rent of a pepper-corn, &c. being money's worth, 
 as distinguished fromfriejidship, &c. 
 
 Sometimes a deed intended to operate in a 
 given mode, may be defective as a conveyance 
 of that description, but may operate, by con- 
 struction of law, in some other mode, as a 
 covenant to stand seised, or as a grant at the 
 common law, &c. 
 
 As often as this circumstance occurs, the 
 consideration of marriage, blood, &c. on which 
 alone an assurance by covenant to stand seised 
 can be founded, should be shown ; and if it do 
 not appear on the face of the deed, it should be 
 stated as a fact, that consanguinity, or the mo- 
 tive of marriage, existed between the parties. 
 
 By the observation that it is on marriage, &c. 
 alone, that a covenant to stand seised can be 
 grounded, it must be only understood that such 
 consideration is essential to its operation in this 
 mode ; not that the existence of another con- 
 sideration, in addition to marriage, &c. will ex- 
 clude this operation. From a variety of cases, 
 it may be collected that a deed may operate 
 as a covenant to stand seised, although it be 
 founded partly on marriage, &c. and partly on 
 a pecuniary consideration. 
 
 And an instrument intended as a covenant 
 to stand seised, may operate, under proper cir- 
 
 F 4
 
 72 ON TITLES : 
 
 cumstances, as a grant; or being inrolled as a 
 bargain and sale of an use. 
 
 In this part of the deed it is also usual to 
 acknowledge the receipt of the consideration 
 money. Such clause should be noticed in the 
 abstract, very shortly, except so far as it may 
 show the due application of the money ; and 
 when the nature of the transaction does, under 
 such circumstances as have been suggested, call 
 for such specification, then the clause should be 
 stated fully. 
 
 In ancient deeds the consideration is neces- 
 sarily presumed to have been duly paid ; but 
 in reference to modern deeds, courts of equity, 
 which, for the most part, have peculiar juris- 
 diction over matters of this sort, through the 
 medium of trusts, require the purchaser to look 
 to the receipt usually indorsed on the deed, as 
 evidence of the payment of the consideration ; 
 and not to the receipt, generally contained, as 
 a mere form, in the body of the deed itself. 
 
 The want of a receipt by indorsement, or in 
 a separate instrument, is implied notice that the 
 purchase money has not been paid, and raises 
 a question of equitable hen in favour of the 
 seller for his purchase-money, or so much thereof 
 as does not appear to have been paid. 
 
 Such presumption, it should seem, is admis- 
 sible only in deeds of modern date ; for in- 
 stance within the last twenty years ; and in 
 practice there seems to be a difference arising 
 from the form of the deed
 
 OF THE TESTATUM. 73 
 
 When a deed is expressed to be made in con- 
 sideration of a sum then paid, the receipt is 
 indorsed on the deed ; but if it appear by the 
 recitals, as is oftentimes the case, on a re-con 
 veyance by mortgagees, or their representatives, 
 and sometimes even on sales to purchasers, that 
 the purchase-money has been paid, and the 
 deed is founded on that consideration, the sub- 
 stantive recital of a fact which previously ex- 
 isted, is, as between the parties, considered to 
 be conclusive on the point, and no receipt is 
 expected to be found as an indorsement on 
 the deed ; and of consequence the want of such 
 receipt does not appear to be material. 
 
 In a case of this nature, the recital of the 
 payment of the consideration should be given 
 in abstracting the deed. 
 
 Whether a lien exists by reason that part of 
 the purchase money remains unpaid, must depend 
 on circumstances. 
 
 Prima facie there is a lien ; and in order to 
 show that the lien is excluded, there must be 
 evidence to prove that the vendor relied on some 
 other security, and had given up his right of lien. 
 
 Whenever part of the purchase money re- 
 mains unpaid, and the vendor agrees to take a 
 bond or note, or any other like security for the 
 same, a few words should be added in the 
 purchase deed when prepared, to rebut the pre- 
 sumption of a lien. 
 
 Any form of words will answer this purpose. 
 It regularly falls into the order of being part of 
 the clause, acknowledging the receipt, and may
 
 74 ON TITLES: 
 
 be to ~this effect, The receipt or satisfaction of 
 which said sum of one hundred pounds, the said 
 A. doth hereby acknowledge; and of and from 
 the same, and every part thereof; and of and from 
 all equitable or other lien, by reason that part of 
 the said purchase-money remains unpaid, [or is 
 secured only, and not paid], doth acquit, release, 
 and for ever discharge the said purchaser, his 
 heirs, $c. 
 
 Whenever there is in this clause of the deed 
 any expression which, on the one hand, shows 
 that there is a lien for the purchase-money, or, 
 on the other hand, negatives such lien, that 
 clause should be inserted in the abstract. 
 
 Sndly, The name of the grantor, $c. 
 
 It should appear in the abstract who is or are 
 named as the grantor or grantors ; and when 
 they are trustees, at whose request, &c. they 
 made the grant ; and if any particular mode 
 of execution or attestation was prescribed, to 
 express such request, &c. the clause which ex- 
 presses this mode of execution, or attestation, 
 should be stated. 
 
 The rule however that non quod dictum est, 
 sed quod factum est t respicitur, is applicable ; 
 and it is material to show, by the memorandum 
 of attestation, that these requisites were actually 
 and duly observed. 
 
 Also, as often as a deed is made with refe- 
 rence to, and in exercise of, a power, the words 
 of reference to the power, should be stated, to- 
 gether with the circumstances of the mode of 
 execution and attestation; but the preceding
 
 OF THE TESTATUM. 75 
 
 observation is equally, indeed more, relevant to 
 this clause. 
 
 When there are several distinct clauses of 
 grant, it is convenient and eligible to give them 
 in distinct clauses, to render them more imme- 
 diately obvious. 
 
 It sometimes happens that an abstract is so 
 negligently prepared, and written in so close 
 and small a hand, that it requires infinite care, 
 and a great sacrifice of the eyes, to select and 
 arrange, or even to collect, the operation of the 
 deed, as to the different granting parties; and 
 the mode of abstracting is sometimes so obscure, 
 that the precise operation of the deed is rendered 
 very confused. Nothing can be conceived more 
 distressing to the conveyancer, or, in the result, 
 more injurious to the client, than an abstract so 
 prepared. Such an abstract never can have the 
 same degree of attention, revision, and fre- 
 quent consideration, as one written properly and 
 legibly. 
 
 In this part of the abstract, a common error, 
 unless such be the language of the deed, should 
 be avoided. It is that of stating that it is wit- 
 nessed that A. B. in consideration of, &c., then 
 introducing the clause of grant, namely, the 
 said A. did, &c. 
 
 This is a grammatical error, and it corrupts 
 the sense. There are two antecedents applied 
 to the same verb ; each antecedent expressing 
 the same thing ; and one of them being incom- 
 patible with the rules of grammar.
 
 76 ON TITLES: 
 
 As often as it occurs, as it frequently does, 
 that the name of a grantor is omitted, so that 
 in point of fact there is no antecedent to the 
 verbs, which express the grant, the abstract 
 should be a faithful transcript from the deed ; 
 and the fact of the omission of the grantor's 
 name, should be noticed in the margin. It 
 is the province of the conveyancer to judge 
 whether such omission be material ; and also his 
 duty, though his attention be riot called to the 
 fact, to notice that the antecedent is omitted. 
 
 In several instances, and in particular in 
 2 Ventris 141, the courts of law have supplied 
 in construction, the omission of the name of the 
 grantor ; and it may be safely concluded, that 
 the courts will follow this precedent, as often as 
 the context of the deed, renders it necessary to 
 a sound and genuine construction of the several 
 parts of the instrument, that the name should be 
 supplied : but many cases may be supposed, of 
 compound or complex deeds, in which it would 
 be uncertain whose name was intended ; and in 
 such cases, the court would not feel themselves at 
 liberty to render that certain by construction, 
 which was, in point of intention, and of expres- 
 sion, left in doubt and uncertainty. 
 
 When a deed is made between two parties, 
 and in all its parts imports to be a grant from 
 one to the other, the court can seldom, if ever, 
 be left in doubt respecting the intention, or 
 have any difficulty in supplying the omission. 
 
 3dly, Of the operative words of grant.
 
 OF THE TESTATUM. 77 
 
 These words should be given fully ; in short, 
 all the words of grant should be introduced, even 
 though some of them may appear redundant, 
 and though of necessity all of them cannot be 
 operative. 
 
 And when there are several clauses of grant, 
 the words of each clause should be furnished, 
 and there is a neat, correct and technical mode of 
 framing the abstract, so as to keep each distinct 
 clause, as a distinct clause in the abstract. 
 
 4thly, Of the name of the grantee. 
 
 The grantee or grantees should, as a transcript 
 from the deed, be mentioned in this part of 
 the abstract ; and the words of limitation which 
 are to be found in this clause of the deed should 
 be added, as to A. B. his heirs and assigns; 
 or to A. B. his executors, administrators, and 
 assigns; or to A. B. and C. D. their heirs and 
 assig?is; or to A. B. and C. D. and the heirs of 
 A. B.; for as this is a material part of the deed, 
 and this part of the instrument may influence 
 the construction of other parts of the assurance, 
 it ought to be given with fidelity. 
 
 In various instances, this part of the deed 
 may be operative, and the habendum rejected 
 as repugnant : and an opportunity ought to be 
 afforded to the conveyancer of judging in what 
 manner, and to what extent, decided cases are 
 to be applied to the different operative parts of 
 the deed. 
 
 In Spyve v. Topham, 3 East, 115, there were 
 a lease and release ; the release was made be-
 
 78 ON TITLES : 
 
 tween one Thickeston of the first part, Topharn 
 of the second part, and Bass (a trustee of Top- 
 ham,) of the third part. And in consideration 
 of 700 /. to Thickeston, paid by Topham, it was 
 witnessed, that Thickeslon confirmed to Topham 
 and his heirs, to hold to Bass, and his heirs, 
 to uses which gave Topham a power of appoint- 
 ment, while the lease for a year was from 
 Thickeston to Bass. 
 
 An objection was made to the title, under a 
 supposition, that Topham was the releasee, or 
 grantee in the release; and that the estate for 
 a year, the only foundation for a release, was in 
 Bass, and not in Topham ; so that Topham had 
 not any estate capable of enlargement; and it 
 was urged, that as Bass was named in the ha- 
 bendum only, and not in the granting clause of 
 the release, he could not be deemed the re- 
 leasee ; but on the authority of 1 Inst. 7. a. 
 Sheph. Touch. 15, Butler v. Elton, Carey's 
 Reports in Chancery, 122, Earles v. Lambert, 
 Alley n, 41 ; in opposition to B v. 
 
 Coulter, Cro. Eliz. 903, the court rejected the 
 grant or release to Topham, and treated Bass, 
 though named in the habendum, and not in the 
 premises, or clause of grant, as the releasee, 
 the judges observing, that the cases cited 
 were perfectly satisfactory in authorizing them 
 to put a construction on the deed, in support of 
 it, which, from the reason and good sense of 
 the thing, they should probably have done 
 without such authorities.
 
 OF LEASE FOR A YEAR. 79 
 
 Cases of this sort are founded on the rule, 
 that a grant will be good, although the grantee 
 be named as such in the habendum only, and 
 not in the granting clause. 
 
 Further distinctions on this point will be 
 noticed under that division which treats of the 
 habendum. 
 
 When a personal annuity in fee, as distin- 
 guished from a rent-charge as such, is originally 
 created, the deed creating the annuity should 
 not only state the words of limitation to the 
 grantee : it should also state the words of lien 
 or obligation on the part of the grantor and his 
 heirs; for instance, A. B. for himself, and his 
 heirs, did grant, &c. to C. D. and his heirs ; 
 for an annuity in fee, as a personal charge, can- 
 not exist, unless the heirs are bound to the pay^- 
 ment of it. Preston on Conveyancing, vol. 2, 
 p. 469- 
 
 Of the Lease for a Year. 
 
 IN the abstract of an assurance by lease and 
 release, it is usual to introduce the abstract by 
 these words, first giving the dates in the mar- 
 gin, " By indentures of lease and release." 
 
 Sometimes there is a short reference to the 
 lease for a year in the premises ; thus, in the 
 actual possession, tyc. merely to show that the 
 lease for a year is recited. This recital of a 
 lease for a year is particularly important, when 
 the lease for a year has been lost, or cannot be 
 found.
 
 80 ON TITLES ! 
 
 It is also important in deeds of conveyance of 
 Irish estates ; since, by the laws of Ireland, the 
 recitals are conclusive evidence of the lease for 
 a year ; or rather, no lease for a year is made, 
 and the recital of a supposed lease for a year, 
 supplies its place. 
 
 In conveyances of Jamaica estates, no lease 
 for a year is used by the gentlemen most con- 
 versant with the laws of the island. 
 
 Some gentlemen have doubted whether the 
 recital of a lease for a year, in a recovery deed, 
 by lease and release, can be used against issue 
 in tail, or persons in remainder or reversion. 
 The gist of the objection is, that issue, re- 
 mainder-men, &c. are not bound by estoppels; 
 but there is strong ground to contend that the 
 recital is not used as an estoppel, but as evidence ; 
 that the recital is evidence against the tenant 
 in tail ; and that whatever is evidence against 
 the tenant in tail himself, is evidence against all 
 persons connected with him in privity of estate. 
 It is clear that a copy of the lease and release, 
 or of the lease for a vear, would be evidence of 
 
 % 
 
 the original against the issue and remainder- 
 men ; and ci fortiori, a recital by a tenant in 
 tail of an act, as being his deed, must be the 
 best evidence, next after the original, of the 
 existence of the lease for a year. 
 
 The late case of Holmes v. Ailsbie, 1 Mad. 
 Rep. 551, has not obviated the alleged diffi- 
 culty. That case merely decides, that under 
 the act of 14 Geo. II. c. 20, sec. 5, the recovery
 
 FORM OF ABSTRACT. 81 
 
 shall be valid, notwithstanding the loss of the 
 lease for a year, as part of the assurance by 
 lease and release. That statute does not apply 
 except there has been a lapse of twenty years 
 since the recovery was suffered. 
 
 Of the Parcels. 
 
 IT has already been noticed, that at the head 
 of the abstract there should be an intimation 
 as to the parcels to which the attention is to 
 be directed. 
 
 Sometimes, particularly when the description 
 of the parcels is short, and uniformly the same 
 in different deeds, or without any material vari- 
 ation, there is not any more eligible mode of 
 describing the parcels, than by giving them at 
 length, at the head of the abstract, in the terms 
 in which they are to be found in the last pur- 
 chase deed. 
 
 But this is not convenient, when the parcels 
 run into great length; and it is inadmissible 
 when the parcels are described in a different 
 manner in different deeds. 
 
 The more general plan is to give the parcels 
 at large, in abstracting the first deed, and in 
 the terms of description which occur in that 
 deed ; and in the subsequent deeds to notice 
 each variation, if any, which has taken place 
 in the names, or other material parts of the 
 description. 
 
 And as often as the abstract relates to a single 
 
 G
 
 82 ON TITLES:' 
 
 farm, which was formerly parcel of a manor ; 
 or to a close, which was parcel of a farm, and 
 the farm or close passed inclusively, under the 
 general denomination, the abstract should state 
 the parcels in these or the like terms : 
 
 All that the manor, &c. of which the farm, 
 &c. or all that farm of which the close, &c. 
 mentioned in the subsequent deeds, is parcel. 
 
 Another mode of arriving at the end proposed 
 is to state in the head of the abstract, that the 
 farm, &c. or close, &c. was formerly parcel of 
 the manor of, &c. or farm of, &c. 
 
 But if the farm or close be particularly de- 
 scribed in the deed in question, then 'the par- 
 ticular description should be given ; and if the 
 farm or close in question, &c. passed under 
 general words, or there be any error in the par- 
 ticular description ; in each instance, the general 
 words embracing all other manors, &c. or all 
 other manors, &c. comprised in certain deeds, 
 &c. should be added. 
 
 Inaccuracies and errors in the names and 
 quantities, and even omissions of parcels are 
 so common, that it is prudent in most instances, 
 in preparing deeds, to insert general words 
 adapted to the case, so as to supply any such 
 error or omission ; and whenever the deed war-r 
 rants such insertion, it is proper to abstract these 
 general words ; or at least to give an intimation, 
 that there are general words in the deed, thus : 
 And all other manors, $c. which were purchased 
 ly from, $c.
 
 FORM OF ABSTRACT. 83 
 
 In subsequent deeds, it will be sufficient to 
 refer to the premises generally, in these or the 
 like terms : All the parcels comprised in the 
 abstracted indentures, dated the and 
 
 days of or, all that 
 
 the said manor of . The said farm 
 
 called ; the said close, called 
 
 But when any distinction is necessary, as is 
 the case when various parcels of land are in- 
 cluded, and it is material to distinguish some 
 of them from others of them; then the more 
 prominent feature of distinction is the name; 
 and the reference should be to the name. " But 
 sometimes the quantity, the occupier, the local 
 situation, or the like, is the distinguishing cir- 
 cumstance ; and then the reference should be to 
 that circumstance, as the said close, containing 
 10 acres, or the like. 
 
 To the general rule, that, in the abstract of 
 the subsequent deeds after the first, the parcels 
 may be referred to generally, or by a slight 
 notice of them, the following exceptions should 
 be made, and others of the like nature will fall 
 under the same consideration. 
 
 1st, If the lands in question are a farm parcel 
 of a manor, or a close parcel of a farm, and the 
 manor or farm is the subject of description in 
 the former deeds, then the description of the 
 farm or close should be given at length, from 
 the first deed in which the farm is separated 
 from the manor, or the close from the farm, and 
 
 o 2
 
 84 ON TITLES t 
 
 is fully described, instead of passing under a 
 general denomination. 
 
 2dly. As often as there is any material vari- 
 ation in the description, either as to the name, 
 the quantity, or the like, which can, by any 
 construction, vary the effect of the deed, or 
 elucidate the identity of the parcels, such vari- 
 ation should be shown. As the said farm, <fyc. 
 therein described as all that farm called 
 or heretofore called, 
 and now called ; or, as containing 
 
 acres; or, as in the parishes of 
 &c. or, as in the occupation of 
 
 or, as having descended from to 
 
 ; or, as having been devised by 
 to 
 
 The former circumstances are more particu- 
 larly important when they connect the modern 
 description with the ancient description ; and 
 the latter circumstances are material only to 
 show that the title has been acted on according 
 
 o 
 
 to the former statement of the evidence, or these 
 circumstances fill up a chasm in the evidence of 
 the title ; or afford notice of some circumstance 
 which it may be proper to investigate. 
 
 It is too common to change the description 
 of the parcels, by adapting them to the present 
 state of the closes; or, to substitute for a general 
 or comprehensive description, a more minute, 
 detailed, and particular description. 
 
 There are various modes of accoirrplishing 
 this object, when advisable.
 
 FORM OF ABSTRACT. 85 
 
 Some gentlemen use the description as found 
 in the ancient deeds, and afterwards add a new 
 description, introduced by these or the like 
 words: Which said messuage, farm, lands, and 
 hereditament s* are now better known by the de- 
 scription of, $c. 
 
 Whenever this mode is adopted, it is highly 
 expedient that a few words should be added, to 
 embrace within the scope of the grant, all the 
 closes, &c. which are known by the modern 
 description, since, without this addition, the old 
 description is the only substantial part of the 
 deed, and no error in that description is cured, 
 or inaccuracy supplied, by the superadded 
 description. 
 
 The words of additional grant may be of 
 this or the like import : And all other the mes- 
 suages, fyc. which are hereinbefore mentioned, 
 enumerated, or described by their present cer- 
 tainties or descriptions. 
 
 Some gentlemen adopt a more eligible plan ; 
 they, in the first instance, describe the farms, 
 closes, Sec. by their modern description, and 
 then add a reference, by way of showing their 
 identity, and their connection with the ancient 
 description. 
 
 In this mode the lands known by the new 
 description are the subject of the grant ; and 
 the sole use of the reference to the ancient de- 
 scription, is to connect the deed which is pre- 
 paring, with the more ancient evidences of the 
 title, 
 
 G 3
 
 86 ON TITLES I 
 
 It is always, however, a circumstance to be 
 investigated, whether this application of the 
 ancient description to the parcels which are 
 purchased, is warranted by the fact. 
 
 On many occasions this averment is added, 
 without sufficient evidence to justify it; and the 
 title really depends on deeds or documents of 
 title, of which no abstract is given. 
 
 Unless the facts imperiously call for an 
 alteration in the description of the parcels, the 
 more secure, and, for that reason, the more 
 correct mode is to adhere strictly and closely, 
 as far as circumstances will admit, to the de- 
 scription in the former deeds. 
 
 But in some cases, the description must ne- 
 cessarily be varied, and new denominations in- 
 troduced; as when a particular farm is purchased, 
 and it used to pass under the name, and as 
 parcel of, the manor, Sec. 
 
 With the exceptions which cases of this sort 
 render necessary, the description of the parcels 
 should never be varied. 
 
 When allotments, exchanges, fyc. are made 
 under inclosure acts, the lands received upon 
 such allotment or exchange become subject to 
 the title which attached and belonged to the 
 lands, in respect of which, such allotments r or 
 exchanges were made; and the existence of 
 such allotments or exchanges ought to be stated, 
 in the order of the elates, and at the period 
 when they took place. 
 
 From that period it is to be shown, that the
 
 FORM OF ABSTRACT, 87 
 
 deeds, &c. are in terms comprehending these 
 allotments. 
 
 The omission of parcels of this description 
 most frequently occurs in deeds of assignment 
 of attendant terms, special letters of admini- 
 stration, and the like. And in modern practice 
 a few words are added in these and the like 
 species of instruments, for the purpose of bring- 
 ing within the operation of the deed or other 
 instrument, the parcels of this description ; of 
 course, when relevant, these descriptive terms 
 ought to be stated in the abstract. 
 
 It is to allotments and exchanges only under 
 acts of parliament for inclosure, &c. that these 
 observations are applicable- 
 
 The effect of one of these acts is to commu- 
 nicate to the lands received on allotment or 
 exchange, the precise title which affected the 
 property, in lieu of which the allotment or 
 exchange was made. 
 
 In exchanges between individuals by way of 
 conveyance, or even by an enabling act of par- 
 liament obtained for the sole purpose of ex- 
 change, no such identity of title is preserved 
 or communicated. The title to the lands re- 
 ceived in exchange, will depend on the deeds, 
 c. which concerned those lands prior to the 
 exchange ; and on account of the warranty 
 annexed to such, exchanges, whether made by 
 private deeds between individuals, or through 
 the medium of an act of parliament, the abstract 
 ought to contain the history of the title, as well 
 
 G 4
 
 88 ON TITLES : 
 
 to the lands given, as to the lands received, in 
 exchange ; since there may be an eviction for 
 want oi a good title to the lands given in ex- 
 change, or the lands received in exchange. 
 
 A title of a still more complex nature, and 
 of greater difficulty, exists, when a gentleman 
 has many farms, held under different titles, and, 
 on an inclosure act, he receives an allotment 
 in lieu of all these lands, or of common rights, 
 affecting all these lands; or he purchases various 
 allotments made to cottagers or other persons in 
 small quantities, in respect of different tenements. 
 
 Under these and the like circumstances, to 
 show a marketable title, there ought, in strict- 
 ness, to be an abstract of the deeds, Sec. con- 
 taining the evidence applicable to each tene- 
 ment, for which an allotment was made. 
 
 Supposing the allotment to be entire for many 
 tenements, and the title to one of these tene- 
 ments to be defective, the title to a part at 
 least of the allotment will be equally defective; 
 and the inconvenience and incalculable mischief 
 are, that no person can ascertain the particular 
 part of the allotment which would be recovered 
 on eviction by reason of this defect. 
 
 In some cases, titles, involving these circum- 
 stances, would be attended with more expense 
 to put them in a marketable state, than the 
 actual value of all the lands. 
 
 In one instance it was reasonably computed, 
 that there must have been two hundred different 
 abstracts, to show the real state of the title.
 
 FORM OF ABSTRACT. 89 
 
 In another instance, a vendor abated twenty 
 thousand out of sixty thousand pounds, rather 
 than have the contract rescinded, on account 
 of an objection insisting on this defect ; and 
 that since the lands were not ascertainable, the 
 court could not decree performance with an 
 abatement. 
 
 Transactions connected with the redemption of 
 the land tax, sometimes also involve the title, with 
 reference to the parcels, in great perplexity. 
 
 When the land tax is purchased by a parti- 
 cular tenant, and some of the lands are settled 
 to one class of uses, and others to a different 
 class of uses; and there is one entire contract 
 for the redemption of the land tax ; for example, 
 when some of the lands are held in fee, and 
 others for a particular estate, and there is one 
 contract only for the purchase of the land tax 
 of both estates; a title derived under a sale, 
 made under the powers given by the land tax 
 acts, will be defective. 
 
 It is obvious, that cases falling within these 
 observations wall require particular attention 
 concerning the parcels. 
 
 In regard to in closure acts, it would be con- 
 venient that general commissioners should be 
 appointed, enabling them, at the instance of 
 the parties interested, to make allotments dis- 
 tinctly, for lands held under distinct titles, or 
 distinct tenures, so as to correct any errors or 
 omissions of the commissioners acting under 
 local acts.
 
 90 ON TITLES : 
 
 And on redeeming the land tax, each contract 
 should be for such lands only as are subject to 
 the same uses, and there should be a power to 
 commissioners, to correct mistakes made in this 
 particular. 
 
 It has happened more than once, that an 
 allotment under inclosure acts has been entire, 
 and made in respect of some lands held for life; 
 others held in tail, and others held in fee ; and 
 in the present state of the law, and in the 
 absence of decisions, a title more perplexed, 
 in respect of the parcels, cannot be easily 
 conceived. 
 
 Whenever any doubt exists whether particular 
 lands were the subject of deeds which granted 
 lands in general terms; or by a description now 
 grown obsolete, the relevancy of the former 
 deeds ought, in a complete abstract, to be shown 
 by means of cotemporaneous documents, as 
 leases, assessments to the land tax, poor rates, 
 &c. maps, stewards accounts, and the like. 
 
 That the present assessment to the land tax, 
 or poor rates, as it applies to the lands actually 
 purchased, can be traced back through the 
 whole period of the abstract, without any ma- 
 terial variation, will, in general, relieve the title 
 from all doubt on the point of identity. 
 
 The advice to be given is, to compare the 
 assessments at the distance of each period of 
 ten years, unless grounds appear for abridging 
 the period. This is a short mode of investi- 
 gating the identity.
 
 PORM OF ABSTRACT. 91 
 
 In stating the duty of the conveyancer, it 
 will be proper to advert to those errors in the 
 description of the parcels, which are, and those 
 which are not, deemed material. 
 
 Another reason for disclosing a variation 
 in the parcels, is, to enable the purchaser, or 
 his counsel, to form an opinion, whether such 
 variation can affect the validity of the title. 
 
 3dly, As often as the abstract is delivered 
 with a view to a sale, or that deeds may be 
 prepared from the abstract, the parcels should 
 be stated at full length, from such of the deeds 
 as are proper to be recited ; especially the last 
 purchase deed; and also, in the mortgage deed, 
 or trust deed, if any conveyance is to be taken 
 from the mortgagee or trustee ; since mortgagees 
 and trustees, frequently, with more caution than 
 good reason, refuse to join in conveying by any 
 other description than that which was introduced 
 into the conveyance under which their title is 
 
 / 
 
 derived. See Shepherd's Precedent of Prece- 
 dents, 160. 
 
 4thly. The description is sometimes given by 
 terms of reference. 
 
 In these instances, the terms of reference 
 should be stated fully, since they are of the 
 essence of the description ; and a mistake in 
 them would, in many, indeed most cases, be fatal. 
 
 A mistake of this sort frequently occurs in 
 the assignments of terms, made with reference 
 to the deed, by which the lands were previously 
 assigned to the present trustee, or the testator,
 
 92 ON TITLES : 
 
 or intestate ; and, on that point, the more 
 material and relevant observations have already 
 been offered. 
 
 And when the mistake destroys the essence 
 of the description, so that there is a want of the 
 certainty required by law, the error will no 
 doubt vitiate the deed: but if a certainty exist, 
 notwithstanding a mistake, as it does in the in- 
 stance already stated of a correct recital, and a 
 
 if 
 
 mistake in the reference to this recital, the deed 
 would be supported, and have its operation. 
 
 Also when the grant is of a reversion or re- 
 mainder, and the substance of the grant is, " all 
 that the reversion or remainder, &c. expectant 
 on, &c." these words should be set out at full 
 length, since any error in the essential part of 
 the description, would destroy the effect of the 
 grant ; for example, if the reversion or remain- 
 der was described as expectant on the death of 
 A, when in truth it was expectant on the death 
 of JB, then, as in point of fact, there was not any 
 such reversion or remainder, the words of grant 
 cannot have any application, and will for that 
 reason fail of effect. 
 
 The mistake, however, of calling a remainder 
 by the name of a reversion, or a reversion by 
 the name of a remainder, is not material ; for 
 a reversion may pass by the name of a remain- 
 der, or converso; as well as by its proper 
 denomination.
 
 FORM OF ABSTRACT. 93 
 
 Of general wards : exception, and the clauses of 
 reversion, estate, deeds. 
 
 WHEN the terms of description are of a 
 general nature, as, ' all that farm called A/ so 
 that a question may arise whether it extends to 
 certain lands reputed to be parcel of the farm ; 
 and a reliance is placed on the clause of general 
 words, granting " all messuages, &c. or all out- 
 houses, closes, &c. parcel, &c. or reputed par- 
 cel ; or held, used, occupied, &c." this clause 
 should be abstracted fully, as it may tend to 
 remove doubts which otherwise might exist. 
 
 This is more particularly the case when a 
 farm is enlarged by the addition of certain 
 closes, which had formerly passed by certain 
 names, and a distinct description ; and this de- 
 scription is sunk in the general denomination of 
 the farm, &c. ; so that those particular lands 
 cannot pass, otherwise than under the general 
 denomination of the farm, or the general words, 
 which embrace all closes, lands, &c. held with 
 the farm, or reputed parcel, &c. thereof. 
 
 And sometimes it may be even necessary to 
 add an abstract of old leases, or the like docu- 
 ments, to show that there has been an unity of 
 occupation ; and to give evidence, by affidavits, 
 to support the fact, that the closes have been 
 deemed parcel of the farm. 
 
 Some observations have already been offered
 
 94 ON TITLES : 
 
 on the subject of general words, containing the 
 clause commonly called the sweeping clause. 
 
 This clause should be added as often as any 
 aid can be derived from it ; so as to remove a 
 difficulty respecting the parcels, as that diffi- 
 culty may arise, either from an error in the de- 
 scription, or from a want of sufficient identity ; 
 or from any other cause which raises a ques- 
 tion of defect, which may be supplied by such 
 general words. 
 
 But in a well prepared abstract, no morep ar- 
 cels should be introduced than those which are 
 materially relevant to the title to be considered ; 
 and if one abstract be made for the use of 
 divers purchasers, the parcels which are pur- 
 chased by such purchasers respectively, or by the 
 purchaser for whose use the particular abstract 
 is delivered, should be pointed out by mar- 
 ginal observation, or by some other notice ; and 
 this observation is equally applicable to each 
 deed, &c. 
 
 In abstracting clauses which contain general 
 words, the attention should not be drawn to 
 more parishes, townships, &c. or other terms in 
 the deeds, than are relevant to the parcels, as 
 to which the title is under consideration ; for 
 example, when the abstract concerns lands in 
 Tunstall only, the form should be, " And all 
 manors, fyc. messuages, farms, lands and here- 
 ditaments, in several parishes and places therein 
 mentioned, and amongst them Tunstall"
 
 FORM OF ABSTRACT. 95 
 
 It would be a great accommodation to the 
 conveyancer, and promote the dispatch of busi- 
 ness, that this observation should receive atten- 
 tion, and be introduced into general practice ; 
 and the practice should be extended to all simi- 
 lar cases to which the observation can be ap- 
 plied. Nothing displays more attention, or 
 more skill on the part of the solicitor. 
 
 And in this place it may be properly noticed, 
 that in preparing deeds of extensive property, 
 with general words, either naming the several 
 occupiers or tenants* or the townships or parishes 
 in which the lands are situate, it is usual, with 
 gentlemen whose experience has taught them 
 the value and utility of such arrangement, to 
 name the occupiers, the tenants, the townships, 
 the parishes, &c. c. in alphabetical order. And 
 the adoption of this practice cannot be too 
 strongly recommended. 
 
 The exception also, if any, in the deed, out of 
 the parcels, should be noticed, as far as it is 
 relevant to the parcels to which the abstract 
 relates. 
 
 The clause of the reversion, unless it contains 
 special matter, as the apportionment of rent, or 
 the like, ought to be noticed only by a short 
 reference, in these or the like terms, ' and the 
 reversion,' fyc. 
 
 The like observation is equally applicable to 
 the clause of * all the estate,' with the exception, 
 however, that if from any error in the haben-
 
 96 ON TITLES: 
 
 dum, the estate is not well limited by that 
 clause, and consequently the clause of all the 
 estate may be the efficient and operative clause 
 of limitation, the language of this clause should 
 be fully detailed. See Jermyn v. Orchard, 
 Show. Parl. Cases, p. 199- 
 
 But although the clause of ' all the estate' 
 import to grant all the time or ownership which 
 is in the grantor, yet it is now, in opposition to 
 the current of the earlier authorities, decided, 
 that this clause does not exclude the power of 
 the habendum to give a partial interest by way 
 of underlease : for the effect of the grant and 
 habendum, collectively taken, are to demise the 
 land and all the estate, for a term of years, so 
 that there is not any repugnancy or inconsistency. 
 See Earl of Derby v. Taylor, 1 East Reports, 
 502. The point decided in this case, differs 
 from the long and much controverted point, 
 raised in Jermyn v. Orchard. 
 
 In the latter case the habendum zvas void, and 
 the court would not suffer a void habendum to 
 defeat a grant which was complete. In that 
 case a term was granted. Habendum from and 
 after the death of Thomas Nicholas. This ha- 
 bendum, for a reason purely technical, and 
 which merits reconsideration, could not operate ; 
 and as there was a grant of the recited lease, the 
 court decided that the habendum might be 
 rejected, and the granting words retained, Ut 
 res majis valeat, quampereat.
 
 FORM OF ABSTRACT. 97 
 
 The clause granting all deeds, &c. should also 
 be noticed only bj a short reference in .this or 
 the like form, And all deeds, $c. 
 
 Of the Habendum. 
 
 WHEN the habendum is correctly prepared, 
 it has words of reference to the parcels, and 
 names the grantee, and limits the estate. 
 
 Supposing the habendum to be correct, the 
 common practice, in reference to the parcels, is 
 to give the effect of the habendum thus, To hold 
 the same unto, fyc. But as often as the haben- 
 dum is inartificially penned, by omitting some 
 of the parcels in the enumeration, or reference 
 to them, this variation should be noticed. 
 
 Sometimes also there are different clauses of 
 habendum. 
 
 In these and the like instances the parcels 
 enumerated in the different clauses should be 
 specified, so as to show that the terms of refe- 
 rence are correct, and what are the operations 
 of the different clauses. 
 
 Sometimes also one person is named as the 
 grantee in the premises, and another in the 
 habendum. In general the grant will operate, 
 and the habendum be rejected. 
 
 But under circumstances, as already noticed, 
 the habendum may be retained, and the name 
 in the grant rejected ; as where a lease was to A, 
 and the release to B ; habendum to A ; under 
 these and other circumstances, which manifested 
 an intention that A should be the grantee, the 
 
 H
 
 98 'ON TITLES: 
 
 grant in the premises was held inoperative, and 
 the habendum was allowed to be effectual. 
 
 So when a feoffment is made, the livery would 
 probably determine the operation ; for example, 
 the charter has a grant to A, habendum to B: 
 If livery be made to A, he would be deemed the 
 grantee. On the other hand, li very to jB would 
 determine the courts to decide that the deed 
 and livery were an effectual conveyance to B. 
 
 In the case of Spyve v. Topham, 3 East 115, 
 the difficulty was to reject the grant, and to 
 retain the habendum. Had the grant been 
 correct, and the habendum repugnant, there 
 would not have been any difficulty ; for it is 
 established by many authorities, that when there 
 are two clauses in a deed, and one of them is re- 
 pugnant, the latter shall be rejected : also that a 
 grant maybe good without an habendum, so that 
 upon a substantive case of a grant to A and his 
 heirs, habendum to jB and his heirs, indepen- 
 dent of other circumstances, the grant would be 
 retained, and the habendum rejected. In a case 
 which occurred in practice the grant was to K. 
 and H. and their heirs, habendum to Cross and 
 his heirs. So that on the general rule the ha- 
 bendum, and not the grant, was to be rejected ; 
 the livery also was made to K. and H., and this 
 circumstance showed they were, in point of in- 
 tention, to be the grantees : for livery, it is to be 
 observed, is the essential part of a feoffinent. 
 Had the livery been made to Cross, instead of 
 K. and H., that circumstance would have
 
 FORM OF ABSTRACT. 99 
 
 brought the case within the reason of Spyve v. 
 Topham, and have determined the construction 
 of the deed, by leading to the conclusion, that 
 it amounted to a grant to Cross and his heirs 
 As in effect the grant was to K. and H. and their 
 heirs, to uses, the habendum to Cross was re- 
 jected : thus the uses arose from the seisin which 
 passed to K. and H. 
 
 In this part also of the abstract the name of 
 the grantee or grantees should be added : and 
 when there are any words of modification, 
 severing the tenancy, these words should be faith- 
 fully abstracted, or rather transcribed. 
 
 The words of limitation also should be faith- 
 fully given, and rather fully than concisely. 
 
 And as a deed, operating under the rules of 
 the common law, may be void, because it limits 
 an estate of freehold, to commence infuturo, the 
 words which suspend the limitation or operation 
 of the grant, quo ad the estate, by limiting the 
 same to commence at a future time, should be 
 added. 
 
 Let it be remembered, that an use or a trust, 
 or a term of years, or a rent, on its creation de 
 novo, may be limited to commence in futuro. 
 [Essay on Estates, ch. Freehold^] 
 
 In a note by Mr. Powell to his edition of 
 Wood's Conveyancing, the law, as it regards the 
 learning on the habendum, is given with great 
 accuracy, and in a very neat and. compressed 
 form, and is deserving of particular attention. 
 
 H 2
 
 100 ON TITLES : 
 
 Connected with this subject, and belonging 
 to it, is the important learning of remainders, 
 of contingent remainders, and the various con- 
 sequences to which contingent remainders are 
 subject. 
 
 Remainders are in abstracts generally intro- 
 duced by that word^ unless the remainders are 
 limited by words of contingency. 
 
 The abstract should always state the words 
 of contingency by which contingent remainders 
 are limited. 
 
 There is scarcely any learning connected with 
 the forms of deeds which requires more attention 
 than that which concerns the description of the 
 parcels, the rules regarding the exception of 
 parcels, and the repugnancy between the grant 
 and the habendum. 
 
 In detailing the duties of the conveyancer an 
 attempt will be made to collect the rules of law 
 applicable to these several heads. 
 
 Of the Reddendum. 
 
 THIS clause should be stated very briefly, 
 except in two cases, viz. 
 
 1st. Where the rent is reserved in some par- 
 ticular manner, and a question may be raised 
 on the validity of the reservation. 
 
 2ndly. Where the rent is the subject of the 
 title to be considered, and the deed is abstracted 
 for the purpose of showing the creation of the 
 rent
 
 FORM OF ABSTRACT. 101 
 
 In these and the like cases the abstract should 
 be full, so as to give all the particulars which 
 may be material. 
 
 With these exceptions it is sufficient to show 
 the quantum of rent, and the stated times of 
 payment ; and also, if such be the fact, that the 
 rent is to be clear of deductions for land tax, or 
 of all deductions generally. 
 
 Of the Declaration of Uses. 
 
 As often as a conveyance is made to a man 
 and his heirs, to the use of him and his heirs, 
 so that, in effect, he takes by the rules of the 
 common law. and the declaration of use has no 
 other effect than to exclude a resulting use, the 
 limitation of the estate, and the expression of 
 the use, are in abstracts consolidated into this 
 form, To hold the same, &c. unto and to the use 
 of the said A. B. and his heirs. 
 
 This mode of abstract is also observed in 
 application to freeholds for lives, when the 
 expression of the use is a mere echo of the li- 
 mitation of the estate, for in assignments of 
 estates for lives to a purchaser ; or trustees, who 
 are to retain the estate, the grant, or rather the 
 assignment, is generally made to and to the use 
 of the grantees during the lives. 
 
 But observe, that when the grant or assign- 
 ment is to and to the use of the grantee, no 
 further uses to be executed by the statute are 
 admissible. Of course, when the uses are to 
 be declared to govern the legal estate, there 
 
 ii 3
 
 102 ON TITLES : 
 
 should be a simple grant to the grantee, his 
 heirs, &c. to the intended uses : and the ab- 
 stract of a deed, so penned, should show the 
 uses, as distinct from the legal seisin. 
 
 A 9 tenant for life, made a grant, with livery, 
 to A 9 and to his heirs, habendum to A, and his 
 heirs, to the use of A, and his heirs, for the life 
 of A. 
 
 On these facts a question arose whether there 
 was a forfeiture. It was attempted to support 
 the conveyance as a grant for life only, and 
 therefore as exempt from the right by for- 
 feiture. The ground taken was, that the grant 
 and the use were parts of the same limitation, 
 so that, in effect, there was a grant only for the 
 life of A; but it was decided, that the grant was 
 distinct from the use, and that the grant with 
 livery passed the whole fee ; and that the for- 
 feiture was not saved by confining the limitation 
 of the use, which was a distinct clause, to the 
 period of the life of A . 
 
 This mischief would have been avoided had 
 the habendum been to and to the use of the 
 grantee and his heirs for the life of A . ; for in 
 this mode the use would have formed part of 
 the limitation of the legal estate. 
 
 A like error sometimes occurs in levying a 
 fine sur concesserunt in fee, or sur conuzance de 
 droit come ceo, &c. when the conuzor has merely 
 an estate of freehold. It is in vain that the 
 deed of uses treats the conuzor as tenant for
 
 FORM OF ABSTRACT. 103 
 
 life ; for though to some purposes, the fine and 
 deed of uses are parts of the same assurance, 
 there is not any reason to expect that the rule 
 would be applied to a case of this description. 
 
 And yet where a grant was made to a man 
 and his heirs, habendum to him and his heirs, to 
 the use of the heirs of his body, the court held 
 the habendum and the use to be part of 'the 
 same limitation. 
 
 As often as the declaration of use is to operate 
 distinctly, through the medium of the statute of 
 uses, it governs the legal title, and the uses 
 should be given fully, at least so far that the 
 precise state of the title may be collected from 
 them. 
 
 As titles more frequently turn on limitations 
 of use than on any other part of the deed, it will 
 be right to consider this part of the abstract 
 with particular attention, and to give some di- 
 rections, by means of which abstracts may be 
 prepared with accuracy. 
 
 These observations are equally applicable also 
 to limitations of use in wills, and for that reason 
 should be read as equally referrible to them. 
 
 In every limitation of use four circumstances 
 are to be considered ; 
 
 1st. The time at which, and the circumstances 
 under which,, the use is to arise. 
 
 2dly, The person in whose favor the use is 
 limited . 
 
 Sdly, The duration of the estate, as expressed 
 in the limitation. 
 
 H 4
 
 104 ON TITLES t 
 
 4thly, The words of modification, which re- 
 gulate the order, or manner of the enjoyment. 
 
 The time at which an use, or estate is to 
 commence, is for the most part expressed in the 
 words by which the limitation is introduced. 
 
 This is more particularly the case, in intro- 
 ducing limitations by way of remainder, and 
 on the creation of future springing, or shifting 
 uses. 
 
 In deeds to operate by the rules of the com- 
 mon law, a grant of an estate to commence 
 in future, is void, because it places the freehold 
 in abeyance. 
 
 But in wills, under the learning of executory 
 devises, and in conveyances to uses, under the 
 learning of springing uses, the estate may com- 
 mence from a future day:, or from a given event : 
 so as such event fall within the rule prescribed 
 against perpetuities. 
 
 The language which expresses this future use 
 or estate, and also the language which limits a 
 contingent remainder, should be fully and faith- 
 fully abstracted ; and the more special are the 
 words by which the limitation is introduced, the 
 more full and correct should be the statement 
 of these words. Clauses which are expressed 
 in a special manner, or which have a more than 
 ordinary portion of language to denote the in- 
 tention, require to be particularly detailed. The 
 construction must be made on the whole clause, 
 and the intention collected from, and conse- 
 quently the rules of law be applied to, every 
 part of the clause.
 
 FORM OF ABSTRACT. 105 
 
 Future uses are denominated from the cir- 
 cumstance, that they give interests to arise at 
 a future time, or on an event ; and when they 
 are to arise on an event, of contingency, they 
 fall under the denomination of contingent uses, 
 and, in some cases, contingent remainders. 
 
 But sometimes there may be a future use, 
 which is neither a remainder or contingency, as 
 in a conveyance to A and his heirs, to the use 
 of J3, and his heirs, from and after the 29th day 
 
 / 
 
 of next September. This use is not contingent, 
 nor is it a remainder : it is a future or springing 
 use. No use will arise till the limited period ; 
 and in the mean time the use of the fee will 
 result, so that the original settler or grantor has 
 a fee de terminable when this future use shall 
 give a vested estate. 
 
 Such future use, while it remains in its exe- 
 cutory state, is devisable, or may be released, or 
 may be bound by estoppel, or may be extin- 
 guished, or may be the subject of a contract, or 
 agreement in equity : but an interest, under a 
 future use, while it remains executory, cannot 
 be transferred by a common law conveyance. 
 
 Besides, when the first use is future, all the 
 other uses depending on the same, are, except 
 in very particular cases, arising from special 
 regulations, also future. 
 
 Hence the importance of stating all circum- 
 stances which may afford any information re- 
 specting the nature of the use, and the contin- 
 gencies on which it depends.
 
 106 ON TITLES I 
 
 Also, whether a remainder is to be deemed 
 vested or contingent, must depend on the lan- 
 guage or terms in which that limitation is 
 penned, or the object in whose favor the use 
 is expressed. 
 
 An use may be contingent from various 
 causes ; 
 
 1st, Because it is limited expressly on an 
 event which may or may not happen, as the death 
 of A, in the life-time of B ; or the payment of a 
 sum before a given day; or the payment of a 
 sum by B; since it is uncertain whether he ever 
 will pay. And here note that if the payment is 
 to be by B. or his heirs, there must be a limited 
 time, or the use depending on this contingency 
 will be too remote, since the payment may not 
 be made within the period prescribed by the 
 rule against perpetuities. 
 
 So an interest to commence from the return 
 of C.from Rome, is contingent, for he never 
 may return. 
 
 In short, an interest is contingent as often as 
 in terms, or in construction of law, it is limited 
 to commence from an event which may or may 
 not happen. Also an interest may be contin- 
 gent, because it is limited to commence at a 
 time (as the death of B) 9 which, though it ne- 
 cessarily must happen, will not certainly happen 
 during the continuance of a particular estate, 
 for the life of some other person than B. 
 
 Thus, if A be tenant for his own life, and a 
 remainder is limited to C, from and after the
 
 FORM OF ABSTRACT. 10? 
 
 death of B, this remainder is contingent, be- 
 cause A may die in the life-time of jB ; in other 
 words, the particular estate may determine 
 before the remainder is capable of vesting. 
 
 So if A be tenant for his life, and a remain- 
 der is limited to C from and after the deaths of 
 A and B, the remainder is, for the same reason, 
 contingent, because A may die in the life-time 
 of JB, and the remainder of C cannot, consist- 
 ently with the language of the gift, take effect, 
 as a vested interest, until the death of B. In 
 short, the remainder will be void if A should 
 die in JETs life-time. 
 
 These conclusions arise from a rule of law, that 
 a remainder must vest during the continuance 
 of the particular estate, or eo instante, that it 
 determines, or the remainder will fail of effect. 
 
 These are contingencies, therefore, by impli- 
 cation of law, arising from the nature of the 
 limitations, and their legal operation. 
 
 These gifts are not contingent in themselves. 
 They are only contingent with reference to the 
 law on remainders, that B must die in the life- 
 time of A, to gift effect to the remainder. 
 
 This shows the necessity of distinguishing 
 accurately between a remainder and a spring- 
 ing or future use. For if lands be conveyed to 
 A in fee, with a substantive independent use to 
 C, after the death of B, this is a future but not 
 a contingent use. It is future, because it is to 
 \vait for effect until the death of B ; but it is 
 not contingent, because B will certainly die ;
 
 108 ON TITLES : 
 
 and the future use will, in construction of law, 
 certainly take effect on his death. 
 
 And there would not be any inaccuracy in 
 treating this as a contingent use ; since, in point 
 of law, it depends on the contingency that it 
 shall riot be released or destroyed before it can 
 take effect ; and all that is necessary is to distin- 
 guish it from contingent uses being remainders, 
 as far as such contingent remainders are sub- 
 ject to be destroyed by the determination, tor- 
 tious alienation, surrender, merger, or forfeiture 
 of the particular estate. 
 
 But every interest, which is limited to com- 
 mence, and is capable of commencing, on the 
 regular determination of the prior particular 
 estate, at whatever time the particular estate 
 may determine, is, in point of law, a vested 
 estate : and the universal criterion for distin- 
 guishing a contingent interest from a vested 
 estate, is, that a contingent interest cannot take 
 effect immediately, even though the former estate 
 were determined ; while a vested estate may 
 take effect immediately, whenever the particular 
 estate shall determine. 
 
 Hence it often happens that a limitation, 
 expressed in words of contingency, is, in law, 
 treated as a vested estate. 
 
 The obvious examples are, To the use of A 
 for life, and if A shall die in the life- time of B, 
 to the use of B for his own life. In this instance 
 the estate of B is vested. The reason of this 
 particular case is, that no more is expressed
 
 FORM OF ABSTRACT. 10J) 
 
 than is implied by law, since he could never 
 take in the order of limitation, unless A should 
 die in his life-time. The rule which governs this 
 case is expressio eorum qu& tacite insunt nihil 
 operatur. But if the limitation to B had been 
 to him for years, or for the life of C, or in tail, 
 the rule would not have been applicable, and of 
 consequence, the remainder would have been 
 contingent. 
 
 On a recent occasion a curious question calling 
 for the application of this rule arose. Lands 
 were limited to A for life ; and if A should die 
 in the life-time of .B, his intended wife, to the 
 use of the wife for life ; and after the death of 
 the survivor of A and B to the use of the heirs 
 of the body of B, to be begotten by A. A 
 gentleman of great eminence and experience 
 considered JB as simply tenant in tail, and her 
 interest as contingent. He construed the several 
 limitations as if an estate tail had been given 
 by one entire clause. On the other hand, it was 
 contended, that the several limitations were to 
 be construed separately and distinctly, so that 
 B had a vested estate of freehold, which con- 
 nected itself with, and drew to itself, under the 
 rule in Shelley's case, the benefit of the limi- 
 tation to the heirs of the body of the wife, as a 
 vested estate tail. No decision has been ob- 
 tained on a case thus circumstanced. 
 
 Also, if an estate be limited to the use of A, 
 and the heirs of his body, or is devised to A 
 and his heirs, and if A shall die without heirs
 
 110 ON TITLES : 
 
 of his body, or issue of his body to B 9 though 
 these words express a contingency, they do not 
 suspend the vesting of the limitation in re- 
 mainder. They merely designate the time at 
 which the remainder is to commence in pos- 
 session. The consequence is, that the remainder 
 is vested, since it may take effect on the deter- 
 mination of the particular estate, at whatever 
 time that estate shall determine. But if the 
 limitation over had been introduced by these 
 or the like words : If A shall die without issue 
 in the life-time of B ; or if any other contin- 
 gency had be^n expressed, unconnected with the 
 actual determination of the prior estate, then 
 the remainder would have been contingent. 
 
 In- some instances a limitation over may cause 
 a prior gift to vest the interest, while, without 
 such limitation over, the gift would have given 
 a contingent interest. 
 
 Thus, a gift to A and his heirs, at his age of 
 twenty-one years, or when he shall attain that 
 age, gives a contingent interest. [Grant's case, 
 10 Rep. 50.] 
 
 But a limitation over, or substitution, in case 
 A should die under twenty-one, would give to 
 the former limitation the construction and 
 consequent effect of passing a vested interest, 
 [Edwards v. Hammond, 2 Show. 398. 3 Lev. 132. 
 Doe v. Nowell, 1 Maule and Selwyn, 327. 
 Broonifield v. Crowder, 1 New Rep. 313.] 
 
 In this place also, it is to be observed, that 
 a more remote remainder may be vested, although
 
 FORM OF ABSTRACT. Ill 
 
 a more immediate remainder by way of particular 
 estate is contingent , provided the estate of free- 
 hold on which it is made to depend, is limited 
 by way of present estate, so as to confer a vested 
 interest. 
 
 When a remainder in fee is limited on a con- 
 gency, then all subsequent limitations by way 
 of alternate, or substituted, remainders, must 
 necessarily be contingent. 
 
 So if one limitation is too remote, all other 
 limitations by way of remainder must neces- 
 sarily be too remote. 
 
 But in wills, or conveyances to uses, a subse- 
 quent clause may introduce a vested estate, to 
 fill up the chasm or interval during which there 
 is to be any suspense or abeyance. Residuary 
 clauses in wills frequently give a vested re- 
 mainder, to remain in force, until defeated by 
 the vesting of a contingent remainder in fee ; 
 and it is observable, that this remainder passes 
 to the devisee, and in most instances, under 
 general words, instead of descending to the 
 heir. 
 
 This remainder is immediately expectant on 
 the particular estate ; and yet the contingent 
 limitation operates as a remainder, and may be 
 destroyed ; at least, such is the opinion which 
 obtains in practice, while the residuary devisee 
 has the like interest as the heir would have 
 taken, if this reversionary interest had not been 
 devised. 
 
 This is a peculiarity in law, introduced by
 
 ON TITLES : 
 
 the learning of wills, and of uses ; namely of a 
 particular estate, and a remainder in fee, and 
 the remainder in fee liable to be divested by 
 another estate, though a fee, to operate as a re- 
 mainder. Another peculiarity is, the operation 
 of the contingent interest, as a remainder, and 
 not as a shifting use, or executory devise, and 
 its liability to destruction as a contingent 
 remainder. 
 
 Remainders also may be contingent, because 
 they are limited to a person unborn, as to the 
 first son of A, who has not any son; or because 
 the person is not ascertained as the survivor of 
 several persons; or the heirs, as purchasers, of a 
 person who is in being. 
 
 In short, to simplify the idea of a contin- 
 gent remainder, it is better to say generally, 
 it is a remainder, to take effect on an event 
 which may not happen ; and to add, that a 
 remainder may be contingent from either of two 
 causes : 
 
 1st. Because it is to take effect on an event 
 which is expressed. 
 
 2dly. Because it is to take effect on an event 
 implied by law. 
 
 Under the first class may be ranked all re- 
 mainders which are limited by words of con- 
 tingency; as, 
 
 1st. To A for life; and if he should die 
 under twenty-one, to B. 
 
 2dly. To A till he should return from Rome, 
 and after his return to JB. -
 
 FORM OF ABSTRACT. 113 
 
 By way of contrast to a former case, observe, 
 that the words " till he shall return from Rome/' 
 form the measure of the estate, and not, as in 
 that instance, raise the question, whether the 
 first gift is or is not on a contingency. Thus 
 two cases, apparently similar, are, in reality, 
 different. At the same time it is a notorious 
 fact, that the case of Hammond v. Edwards, and 
 the other decisions of that class, are considered 
 as cases sui generis ; as decisions, w r hich pro- 
 ceeded from refinement, to support gifts, under 
 circumstances of apparent hardship, rather than 
 from established rules. 
 
 Under the second class may be ranked all 
 estates which are limited ; 
 
 1st. To a person not ascertained. 
 
 2dly, To a person not in being. 
 
 3dly, To those who have no present capacity, 
 as a corporation during the vacancy of a mayor, 
 &c. Or which may fail of effect, because the 
 particular estate may determine before the 
 remainder can commence ; as, 
 
 1st. To A for life, and after the death of B 
 toC. 
 
 2dly, To A for life, and after the death of A 
 and B to C. 
 
 Or which are to take place only in case a fee, 
 previously limited on a contingency, shall not 
 vest. 
 
 These observations demonstrate of how much 
 importance it is that the abstract should be full 
 and correct, in stating all words which may 
 
 I 

 
 114 ON TITLES: 
 
 raise tlie question, whether an estate is vested 
 
 or contingent. 
 
 Except in special cases, falling within the 
 scope of the observations already made, the com- 
 mon form of abstracting deeds is sufficiently 
 correct ; thus to A for life, remainder to B 
 in tail. 
 
 Constrasted with remainders, are limitations 
 by shifting use, and some species of executory 
 devise. 
 
 It is the nature and essential property of a 
 remainder, to take effect upon and after the 
 regular and proper determination of a prior 
 particular estate. 
 
 Remainders owe their operation and effect 
 to the rules of the common law. 
 
 A remainder would be void if it aimed at the 
 determination or avoidance of the particular 
 estate, before it had completed the measure of 
 its time. 
 
 So a remainder would be void if it left any 
 interval between the determination of the par- 
 ticular estate, and the commencement of the 
 remainder : as in the example of a gift to A for 
 life, and from and after the death of A and one 
 day, (without limiting any estate for that day), 
 then to B. As jB is to wait for the expiration 
 of the day, the remainder is void. 
 
 But a limitation by executory devise, or by 
 shifting use, may be good, although it is to 
 defeat the particular estate, or a prior fee, wholly 
 or in part ; or is to leave an interval between
 
 FORM OF ABSTRACT. 115 
 
 the determination of the particular estate, and 
 the commencement of the estate which is next 
 limited. 
 
 Clausesybr shifting the estate from one branch 
 of the family to another ; and all conditional 
 limitations by executory devise, and shifting use, 
 and all estates arisino; from the execution of 
 
 O 
 
 powers, operate either by way of executory 
 devise, or of shifting use. 
 
 On these important topics it will be necessary 
 to enlarge in a future page. 
 
 Of the person to whom the limitation is made. 
 
 All that is necessary to be observed on this 
 head is, that the abstract should give the de^ 
 scription of the person in the same terms as thi-s 
 description occurs in the deeds. 
 
 This is more particularly important when the 
 person who is to take is designated by special 
 terms ; as the children of A living at his death, 
 the first-born son of A who shall attain twenty- 
 one, or the like. 
 
 In all these and the like instances, every part 
 of the description is material, and should be 
 given at large ; and the more special the cir- 
 cumstances of description may be, the more in- 
 cumbent it is on the solicitors to take care, and 
 for the conveyancer to require, that the abstract 
 should contain a full and faithful transcript of 
 this part of the deed. 
 
 Sometimes also the construction of the words 
 of express limitation is* influenced by the con- 
 text of the deed or will,, and more particularly 
 
 I 2
 
 116 ON TITLES: 
 
 by the clause introducing the limitation in 
 question, or by the clause which introduces the 
 next estate, or by some proviso of shifting or 
 springing use. .Each such clause, as often as it 
 can materially vary the construction, should 
 also be given at length. 
 
 Of the duration of the estate. 
 
 The duration is marked sometimes by the 
 terms which are descriptive of the persons who 
 are to take as the heirs of the body, when these 
 words are used as words of purchase. At other 
 times by words of superadded limitation-, as to 
 the heirs of the body, and the heirs female of 
 their bodies, or the like, or to the first son, and 
 the heirs mak, or heirs of his body, &c. 
 
 In abstracting words of limitation, marking 
 the duration of the estate, it is very common in 
 practice to give their effect, instead of stating 
 the terms of the deed ; thus, ' to A for life, re- 
 mainder to B in tail ; remainders to the first 
 and other sons of B successively in tail, remain- 
 ders to the daughters of A in tail, with cross r 
 remainders between them in tail, with remainder 
 to A in fee/ 
 
 Nor is there any decisive objection against 
 this practice, when the construction, and conse- 
 quent effect of a deed, are so clear and indisput- 
 able that no doubt can exist on the effect. But 
 when a deed or will is abstracted in this mode, 
 it is particularly incumbent on the solicitor for 
 the purchaser to take care that the effect of the 
 limitation is correctly given in the abstract.
 
 FORM OP ABSTRACT, 117 
 
 And it is always more satisfactory to the con- 
 veyancer to have the words of limitation, that 
 he may judge of their operation, and draw the 
 conclusion for himself: and counsel, however irk- 
 some it may be to him ; and it is truly irksome, 
 should require the language of the deed, will, 
 &c. to be set forth, whenever he has reason from 
 the structure, the form, or the language of the 
 abstract, to suspect the competency of the solir 
 citor to give a correct statement of the effect 
 of the deed or will. 
 
 There are a few points falling under this head 
 which deserve to be particularly noticed, since 
 abstracts are,, in these particulars, frequently 
 made without sufficient attention to accuracy. 
 
 1st, The use, and the estate to serve the use, are 
 sometimes blended by mistake. A conveyance 
 is stated to be ' to and to the use of A in fee, to 
 uses, &c/ while, in fact, the deed is correct, and 
 the conveyance is made to A in fee to uses ; so 
 that the uses are executed by the statute for 
 transferring uses into possession, and not ex- 
 posed to the objection of being uses on an use 
 in A, and, for that reason, trusts in the second 
 degree, on which the statute cannot operate. 
 
 2dly, In abstracting marriage settlements, it 
 is not an uncommon mistake to distribute part 
 of the clause, expressive of the use, to the limi- 
 tation of the legal estate. 
 
 Thus the habendum is stated to be to A and 
 his hdnfrom and after the marriage ; thus in- 
 
 I 3
 
 118 ON TITLES: 
 
 corporating part of the use, limiting the estate 
 to the settler and his heirs till marriage. 
 
 A common law conveyance, which suspended 
 its operation till the marriage, would be void, 
 as limiting an estate of freehold to commence 
 infuturo, and as placing the freehold in abey- 
 ance. [Essay on Estates, ch. Freeholds.] 
 
 This inaccuracy should be avoided ; the form 
 may be to A and his heirs ; To uses, to take 
 effect after the solemnization of the marriage, 
 viz. &c. then stating the uses. 
 
 Even this form would not provoke inquiry, 
 since the limitations would be good, as future 
 springing uses, even though there were an 
 omission of the usual limitation to the settler, 
 and his heirs, or uses to the like effect. 
 
 But as often as the limitation of an use till 
 marriage is inserted, the correct form of the 
 abstract will be, 
 
 To the use ofB and his heirs till the marriage, 
 and after the solemnization of the marriage* 
 
 Then, 
 
 To the use of, &c. &c, 
 
 Some gentlemen state the uses thus ; ' to A, 
 till the marriage, remainder to the use of/ &c. 
 
 Every person understands the sense of the 
 word remainder thus used. It is, however, in a 
 technical sense, inaccurate. For the limitations 
 after marriage are not remainders. They are 
 to operate by way of shifting use, as a substi- 
 tution for the fee limited to the settler till mar- 
 riage, should that fee cease by the marriage.
 
 FORM OF ABSTRACT. 119 
 
 3dly, In various instances, though the will 
 depends on a power which has defeated all the 
 uses and trusts, yet the uses and trusts are 
 stated as if they were relevant to the history 
 and deduction of the title. 
 
 So many of them only as may show the right 
 to exercise the power, are necessarily, or indeed 
 properly, stated, when the title is rested on the 
 power, and the appointment exercising the power. 
 
 But when the sale, or appointment under the 
 power, has been questioned, or its validity is 
 doubtful ; or when there has been a confirma- 
 tion by the persons who would have been en- 
 titled, in the event that the power had not been 
 exercised; then the ulterior uses, as far as they 
 are relevant to the title, are, with great pro- 
 priety, to be inserted in the abstract. 
 
 So when there is a power of appointment, and 
 limitations over in default of appointment, and 
 the title has been completed under the power ; 
 it is not, except under such circumstances as are 
 already noticed, necessary to state more of the 
 ulterior uses, than give estates or interests to the 
 person or persons under whose appointment the 
 title is derived. 
 
 4thly, It is common to say, ' with remainder 
 to trustees for supporting contingent remain- 
 ders ; or remainder to trustees and their heirs 
 for supporting contingent remainders -/ this 
 particularly when the limitations are of legal 
 estates, suggests an inquiry, whether the fee 
 
 14
 
 120 ON TITLES J 
 
 may not be vested in the trustees, See Doe v, 
 Morris, 7 Term Reports. Compere v. Hicks, ib. 
 and .consequently the ulterior interests are not 
 merely equitable, instead of being legal interests* 
 As often as the fact will warrant it, it should 
 be shown that the limitation is to the trustees, 
 and their heirs during the life, fyc. Or, if the 
 omission of the words during life, Sec. be in the 
 deed itself, the abstract should be so given by 
 marks of quotation, or with a marginal obser- 
 vation, showing; that there is such an omission in 
 
 o 
 
 the deed ; or the ulterior limitations should be 
 stated, if there be any, from which it may be 
 collected, that by the context of the instrument, 
 and the construction of law, the former limita- 
 tion is merely for life, as by a repetition of a like 
 limitation to the same trustees, as in Doe v. 
 Hicks, 1 Term Reports 433 ; or by the limitation 
 to them of a term of years, as in Curtis v. Price, 
 12 Vesey, 89- 
 
 In these instances the subsequent limitation 
 showed the intent, so that the former estate 
 must, in order to preserve consistency, be merely 
 for life. See Shapland v. Smith, 1 Bro. C.C. 75. 
 
 5thly. In abstracting the limitation to the 
 first and other sons, &c. or to daughters, the 
 clause is expressed as a limitation to them and 
 their heirs male, or to them and their heirs, 
 when in point of fact, there are, either in terms; 
 or in construction of law, words of procreation, 
 descriptive of the body from which these heirs
 
 *ORM OF ABSTRACT. 
 
 are to proceed so as to convert the words of 
 limitation into an estate tail. 
 
 Such words, whether they are contained in 
 an express limitation, or in words introduced 
 into the limitation over, ought to be stated. 
 On the other hand, if the defect in this particu- 
 lar, exist in the deed, it should be noticed in 
 like manner as in the limitation to trustees for 
 supporting contingent remainders. 
 
 6thly. Even when a, limitation over has spe- 
 cial terms, which have the effect to abridge the 
 import of words of limitation in a former clause ; 
 or to suspend by words of contingency the 
 vesting of the remainder ; it is common, in ab- 
 stracts prepared without sufficient skill, to give 
 the limitation over, by saying ' remainder to;' 
 This is inaccurate, as it does not disclose the real 
 state of the title; either as to the words of qua- 
 lification, or the words of contingency ; and in 
 either case, if the limitation be material to the 
 title, it necessarily leads to an inquiry for a 
 correct statement of the deed, and produces 
 delay, and a great increase of trouble and 
 expense. 
 
 Of the Words of Modification. 
 
 THESE are words which sever the tenancy, 
 by declaring that two or more persons shall 
 hold as tenants in common ; or that several per- 
 sons shall take successively, according to the 
 priority of their births, or, in the order in wkicfi
 
 ON TITLES I 
 
 they are named, or, that daughters or children 
 shall have cross-remainders. 
 
 These clauses should appear on the abstract, 
 so far at least as to show their effect : and as 
 often as the words are special, and may admit 
 of a doubt on their construction, the abstract 
 should be full in this particular. 
 
 Farther observations on words limiting the 
 estate. 
 
 In abstracting deeds and wills, &c. which have 
 a long series of limitations to different persons for 
 their respective lives, with remainder, after the 
 death of each person, to his first and other sons, 
 &c. in tail, several courses are observed. 
 
 Some gentlemen abstract all the limitations, 
 and this is right, as often as the title may be 
 aided under some of the more remote limita- 
 tions ; or it depends on them, by reason of the 
 failure of the prior estates. 
 
 Other gentlemen are content with giving the 
 limitations, as far as they are material, to the 
 title ; and this is the more scientific mode of 
 preparing the abstract. For instance, if A be 
 tenant for life, with remainder to B in tail, 
 with divers remainders over, and the title de- 
 pends on a common recovery, duly suffered by 
 J5, so that he has barred the estate tail, and 
 the remainders dependent on the same, they 
 are satisfied with stating the title, so as to show 
 the creation of this estate tail, and noticing that 
 there were divers remainders over.
 
 FORM OF ABSTRACT. 123 
 
 This mode saves a considerable portion of 
 trouble to the conveyancer, by confining his 
 attention to this estate tail, as the foundation of 
 the subsequent title. 
 
 When a title depends on a very remote estate 
 tail, or a remainder in fee, the abstract is some- 
 times given shortly to this or the like effect, 
 ' after divers particular estates for life, and in 
 tail, which are determined, to A in tail, or to A 
 in fee/ 
 
 There is not any great objection to this form 
 of abstract, when the limitations in question are 
 contained in ancient deeds, and the title has for 
 a long series of years, been held under this re- 
 mote estate tail, or remainder in fee. But in 
 abstracting deeds of a modern date, and all 
 deeds executed within the last sixty years seem, 
 for this purpose, to fall under this description, 
 the prior limitations should be shown, that the 
 purchaser may satisfy himself of the fact, that 
 the estates given by the prior limitations are 
 determined, and that they were determined be- 
 fore such time, as it may be material to con- 
 sider them as determined, namely, before a 
 recovery was suffered, &c. and that no fines 
 were levied, recoveries suffered, or encumbrances 
 created, which can affect the title. 
 
 There is one instance, however, in which all 
 or many of the limitations ought to appear in 
 detail ; and there may be other instances of a 
 similar nature, though they do not occur to the 
 mind at present. The instance in contempla-
 
 ON TITLES : 
 
 tion, is of an act of parliament obtained for the 
 sale of estates, or for their exchange, &c. 
 
 All the limitations should be introduced, or 
 so many at the least as will show the application 
 of the saving clause. 
 
 The recitals in the act of parliament will, in 
 general, afford a clue for deciding on the limi- 
 tations to be abstracted. 
 
 At this point it is in course to consider the 
 difference between limitations in deeds, operat- 
 ing wholly by the rules of the common law, and 
 deeds operating under the learning of uses, or 
 partly under that learning. 
 
 1st, By the rules of the common law every 
 remainder must be preceded by a particular 
 estate. 
 
 2dly, When a contingent remainder is limited, 
 the particular estate must be of freehold at least; 
 or if there be an estate for years, it must be fol- 
 lowed by an estate of freehold; so that such 
 estate of freehold may precede the contingent 
 remainder ; thus, if the intention be to give an 
 estate of freehold or inheritance on an express 
 contingency ; or to a person not in existence ; 
 or to a person not ascertained, it is essentially 
 necessary that there should be a prior limitation 
 to a person who may receive an estate of free- 
 hold as a vested interest. And this rule equally 
 extends to assurances perfected by livery of 
 seisin, and to deeds operating merely as grants. 
 
 These rules proceed from the anxiety of the 
 law to prevent the abeyance of the freehold; and
 
 FORM OF ABSTRACT. 125 
 
 the learning on the subject, with its conse- 
 quences, and the rules deducible from the same 
 learning, will be found in the Essay on Estates, 
 Chapter on Freeholds. 
 These rules are, 
 
 1st, The freehold cannot be in abeyance. 
 
 2dly, The inheritance or an estate of freehold, 
 expectant on an estate of freehold, may be in 
 abeyance. 
 
 3dly, An estate of freehold or of inheritance, 
 limited by way of contingent remainder, must 
 vest during the prior particular estate created 
 by the same instrument, or eo instante that it 
 determines. 
 
 4thly, Such estate must continue either as an 
 estate, or as a right of entry, and not merely as a 
 right of action ; and hence the deductions and 
 consequences that a contingent remainder may 
 be destroyed, unless it vest before the particular 
 estate has been destroyed by tortious alienation, 
 as by feoffment, fine, or recovery ; or before it 
 has been defeated by forfeiture, surrender, or 
 bv merger. 
 
 V 
 
 These rules, however, are applicable only to 
 limitations of the legal estate : for limitations of 
 trust cannot be destroyed by the alienation of 
 the particular tenant, or by the surrender, mer- 
 ger, or determination of his estate. And estates 
 of copyhold tenure cannot be destroyed by any / ^ 
 act of the particular tenant : but the better 
 opinion is, that a contingent remainder of copy- 
 hold lauds may fail of effect, by reason of the
 
 126 ON TITLES : 
 
 determination of the prior particular estates, 
 before the remainder can vest in interest. 
 
 The rule applies to all legal estates bearing 
 the relation to each other of a particular estate, 
 and a remainder, without regarding whether 
 they are created by limitation in deeds operat- 
 ing by the rules of the common law, or by limi- 
 tations of use giving legal remainders ; or by 
 limitations in a will giving remainders of the 
 same description. 
 
 Other propositions flow from the same rules ; 
 , 1st, At the common law a fee cannot be 
 mounted on a fee ; or as the rule is dif- 
 ferently expressed, one fee cannot be limited 
 after and expectant on another fee ; or to take 
 effect, on any event, or condition by which the 
 prior fee is to be determined or defeated ; but 
 even at the common law one fee may be limited 
 as a substitution for another fee, in the event 
 that such remainder should never give a 
 vested interest. Each remainder will, in its 
 inception, be contingent, and as such be liable 
 to destruction. 
 
 52dly, Every remainder must be limited, so 
 that it may have the capacity of taking effect 
 on the determination, whenever that determina- 
 tion may take place, of the prior estates : for, 
 as already noticed, a limitation which is made 
 witk an interval between the particular estate, 
 and the remainder, will be void. 
 
 Thus, a grant to A for life, and from and 
 after the death of A and one dav, one week,
 
 FORM OF ABSTRACT. 127 
 
 and one year, to B, then to C in fee, will not 
 be good, as far as the gift is in favor of B ; 
 since the form of the limitation precludes him 
 from taking the possession immediately on the 
 death of A ; which is the regular and proper 
 determination of the particular estate: but a 
 gift to A for life, and from and after the death 
 of A and B, then to C, is not open to this 
 objection. The remainder is contingent, be- 
 cause it is not necessarily to take effect in pos- 
 session, whenever the possession shall be vacant ; 
 but it is not necessarily void, because by the 
 death of B during the particular estate, it would 
 be capable of taking effect on the regular deter- 
 mination of the particular estate. In the former 
 example, the limitation expressly excludes the 
 remainder-man from enjoyment for a time be- 
 yond the determination of the particular estate, 
 while in the latter instance there is merely a 
 possibility that there may be an interval ; and 
 the law has provided for the case, by treating 
 the remainder as contingent, so that it may vest 
 or fail of effect, as the event may arise. It ex*- 
 eludes the remainder from being vested, since 
 as a vested remainder it would, contrary to the 
 intention of suspending the right to the posses- 
 sion till the death of the survivor of two persons, 
 have the capacity of taking effect in possession 
 on the determination of the prior estate, although 
 that estate should determine while one of these 
 two persons should be alive. 
 
 3dly, A remainder cannot be limited to com-
 
 128 ON TITLES: 
 
 mence on an illegal act y as by murder, &c. 
 And, 
 
 4thly, It is said that a remainder cannot take 
 effect upon what the law calls a double possi- 
 bility ; or a possibility on a possibility. 
 
 The cases given in illustration of this branch 
 are better understood by referring them to some 
 ground which is more intelligible. The exam- 
 ples are of a gift to A for life, with remainder to 
 a corporation, when, in point of fact, no such 
 corporation exists ; or a gift to A for life, re- 
 mainder to the first son of JB, while no such 
 person as B is in existence, or known. 
 
 These cases may be easily accounted for 
 on principles of law, without resorting to the 
 quaint and unintelligible terms of a possibility 
 on a possibility. 
 
 / 
 
 The true ground of these cases seems to be, that, 
 
 1st, The gift to a corporation, while in fact 
 no such corporation exists; or a gift to a person 
 tanquam in esse ; or to the first son of a person 
 tanquam in esse; while in point of fact no such 
 person is in being, is void for want of capacity 
 or uncertainty. 
 
 Suppose the gift to be to A for her life, and 
 after her death then to such son, to be baptized 
 by the name of C, as B shall have by a woman 
 whom he shall marry, and who shall, at her 
 marriage, be called by the name of C : in this 
 instance there is a treble contingency. 
 
 1st, There must be a marriage with a woman 
 of a particular name.
 
 FORM OF ABSTRACT. 129 
 
 2dly, She must have a son of the marriage. 
 
 3dly , The son must be baptized " by a par- 
 ticular name. 
 
 And yet no lawyer would hesitate to admit the 
 validity of a remainder in these terms. 
 
 Of course the cases of possibility on possi- 
 bility must be understood as confined to in- 
 stances in which the remainder is void, either 
 from the uncertainty of the person who is to 
 take, or from the gift being to persons particu- 
 larly designated, while, in point of fact, there 
 is not any person answering that description. 
 
 The rules of tenure do not apply to trusts 
 or equitable estates. For this reason, a par- 
 ticular tenant cannot divest or discontinue the 
 remainders ; nor does the rule respecting 
 the abeyance of the freehold apply in reason, 
 nor is it applicable in practice, to J:he de- 
 termination of the particular estate before the 
 remainder can vest, and, therefore, the remain- 
 <Jer, if good in its creation, may take effect, 
 without regard to any accident which may 
 happen to the particular estate. 
 
 Limitations of future use open a wide field for 
 distinctions. The general proposition applicable 
 to them is, that they are to operate either as 
 springing or shifting uses, or as remainders. 
 
 When they are to operate as remainders, 
 they are subject to the rules which concern 
 remainders ; and therefore the remainder, if 
 contingent, may be destroyed, in the same 
 
 K
 
 130 ON TITLES : 
 
 manner as it might have been destroyed if it 
 had been introduced into a conveyance ope- 
 rating by the rules of the common law. 
 
 It is also a rule, that no limitation shall ope- 
 rate by way of shifting or springing use, or exe- 
 cutory devise, if consistently with the intention 
 of the parties it may operate as a remainder, 
 either vested or contingent. 
 
 It follows, that no limitation in a deed, or 
 even in a will, will be referred to the learning 
 of shifting, or springing uses, or to the learning 
 of executory devises, if it can, by any reason- 
 able construction of the deed or will, take 
 effect as a remainder. 
 
 A few instances will exemplify the distinctions. 
 
 1st. A limitation by will, or a limitation of 
 use to A for his life, and from and after the 
 death of A and B to C in fee; or to a person 
 unborn; or to a person not ascertained, will 
 give to A a vested estate for life, with a con- 
 tingent remainder, expectant on that estate, 
 to C, or other donee of the remainder. But 
 when a gift by will, or limitation of use, is 
 made to A., for years, and after the determi- 
 nation of that term, then to another person on a 
 contingency ; or to a person not in existence ; 
 or to a person not ascertained : or when a de- 
 vise is made to A for her life, and from and 
 after the death of A, and one day, or one year, 
 then to another person, whether ascertained or 
 not ascertained, or whether in existence or not
 
 FORM OF ABSTRACT. 131 
 
 in existence ; in all these instances the limitation 
 over cannot be good, consistently with the law 
 respecting remainders. 
 
 For want of a prior estate of freehold for its 
 support, the gift is capable of validity only by 
 calling in the aid of the law, concerning executory 
 devises, or springing or future uses. 
 
 So if a gift be made by will, or limitation of 
 use, to A, in fee, and upon some event it is 
 directed that the estate of A shall cease, and 
 the land shall remain to B in fee, or to 1$ for 
 life, with limitations over ; resort must be had 
 to the learning of executory devises or shifting 
 uses ; because these limitations over, after a fee, 
 or in derogation, abridgment, or destruction of 
 a prior estate, are repugnant to the rules of the 
 common law. 
 
 These and the like distinctions are relevant to 
 all other interests arising out of wills or limita- 
 tions of uses, in which, either under the learning 
 of powers, or conditional limitations, one estate 
 is to take effect in derogation, or in abridgment, 
 or in exclusion of another estate : but to guard 
 against inconvenience, the law has prescribed, 
 by the rules against perpetuities, the limits 
 within which these gifts by executory devise, 
 shifting or springing use may have effect : and, 
 with the exception of limitations which are to 
 defeat estates tail, and which, by another rule 
 
 / 
 
 of law applicable to estates tail, may be barred 
 by a recovery suffered by the tenant in tail, no 
 limitation by way of shifting, or springing use, 
 
 K2
 
 132 ON TITLES: 
 
 or executory devise, will be good, unless it be 
 so limited, that it must vest or fail of effect, 
 within the period of a life, or lives in being, and 
 twenty-one years beyond the death of the sur- 
 viving life, and the period of gestation : and two 
 periods of gestation are allowed, one for the 
 commencement of the period, and the other for 
 the determination thereof, as in the instance of 
 a gift to a child, with which A is ensient, in fee ; 
 and in case he shall depart this life under the 
 age of twenty-one years, then to his first son in 
 fee ; and in case such first son should die 
 under the age of twenty-one years, then over. 
 
 The doctrine of executory clevises, and shift- 
 ing and springing uses, is bottomed partly on 
 the learning of limitations, and partly on the 
 learning of conditions; and the limitations them- 
 selves are distinguished by the appropriate terms 
 conditional limitations. 
 
 The rules of law respecting conditions, will 
 be found under the division which treats on that 
 subject ; as it is of the first importance to dis- 
 tinguish accurately between rules which govern 
 the limitations of estate by conveyances operat- 
 ing under the rules of the common law ; and 
 limitations of use in conveyances to uses, or by 
 bargain and sale, and covenant to stand seised. 
 
 A general outline of these rules is given in 
 vol. 2, Of the Practice of Conveyancing, p. 194; 
 and though it would be convenient, it is not 
 deemed justifiable, to introduce them in this 
 place.
 
 FORM OF ABSTRACT. 133 
 
 Of the Declaration of Trust. 
 
 TRUSTS are of several descriptions : 
 
 1st, Those which limit estates in a special 
 manner, as to A for life, remainder to his first 
 and other sons in tail, or the like. 
 
 The observations on uses are applicable to 
 trusts of this description; except that contingent 
 remainders of a trust cannot fail of effect by the 
 determination of the particular estate, or any 
 alienation by the owner thereof. Nor is the 
 doctrine of the common law, which imposes the 
 necessity of a prior particular estate, in any 
 manner, or in any instance, applicable. 
 
 2dly, Trusts by way of power ; as upon trust 
 for such persons, c. as A shall appoint, and 
 these trusts fall under the same consideration 
 as powers. 
 
 3dly, Trusts which direct a settlement, &c. a 
 sale, c, an exchange, &c. the payment of debts 
 generally, the payment of scheduled debts ; the 
 payment of portions, of money to be raised by 
 way of mortgage for particular purposes ; vary- 
 ing the mode of trust with all the various exi- 
 gencies of families or individuals. 
 
 Trusts of this description should be abstracted 
 as far as they are material to the title. 
 
 Two objects are to be particularly regarded ; 
 viz. 
 
 To show so much of the trust, as will satisfy 
 the purchaser that the act which was directed to 
 be done, has been duly performed, or has failed 
 
 K 3
 
 134 ON TITLES: 
 
 of effect, as far as it is material to the title ; and 
 if it be incumbent on the purchaser to see that 
 the money arising under the trusts has been 
 duly applied, then the trusts which direct the 
 application should be stated. 
 
 In abstracting the trusts there should be 
 shown the act to be done, as to sell, &c. the 
 exchange, &c. by whom it is to be done ; the 
 time, if any time be pointed out, at or before 
 which the trust is or is not to be performed ; 
 under what circumstances, when any circum- 
 stances are imposed as material ; with whose 
 consent, or at whose request, if any such con- 
 sent or request be made requisite ; the mode by 
 which any act is to be done, if any mode be 
 pointed out, as by deed, &c. by auction, &c. ; 
 the manner in which any act is to be done, as 
 by deed, will, &c. if any mode be prescribed ; 
 the person in whose favor the act is to be done ; 
 as in favor of any particular person, or a class 
 or description of persons; and when the nature 
 of the trust requires it, the purchaser should 
 see that all these requisites have been observed, 
 and the documents which prove the observance 
 of these requisites should be abstracted. 
 
 But in most trust deeds prepared with skill, 
 there are contained provisions, that the receipts 
 of the trustees should be sufficient discharges ; 
 and that the purchasers should not be bound 
 to see to the application of their money : and 
 in some cases the purchaser is exonerated from 
 inquiring whether such sale or mortgage be
 
 FORM OF ABSTRACT. 135 
 
 necessary for the purposes of the trust ; or 
 \vhether any notice required by the terms of 
 the trust has been given. 
 
 In abstracting deeds containing this or the 
 like provision, when the provision has been acted 
 upon by payment of the money pursuant to this 
 provision, then there is not any occasion to state 
 the trust directing the application of the money. 
 
 But if no such provision be contained in the 
 deed or will; or if the parties are dealt with 
 on the foundation of their ownership and bene- 
 ficial interests, independently of this provision; 
 then the trusts which direct the application of 
 the money should be stated, and care should 
 be taken to see that the money has been duly 
 applied according to the trusts. 
 
 This observation is equally applicable to 
 all transactions which have taken place within 
 a reasonable period, say thirty or forty years. 
 
 Trusts are either executed or executory. 
 
 Trusts executed are equitable estates fully 
 and finally limited by the parties. Trusts exe- 
 cutory are trusts which require a settlement to 
 be made for expressing the use or trust in 
 formal and definite terms, 
 
 All trusts are, in some degree, executory; but 
 they are not executory in this sense. See Essay 
 on the Quantity of Estates, introductory chapter, 
 and Succinct View of the Rule in Shelley's Case. 
 
 In regard to trusts, it is therefore necessary 
 to consider whether they are executed or exe- 
 cutory ; for the trusts fully declared, and giving 
 
 K 4
 
 136 ON TITLES I 
 
 equitable interests, are construed by courts of 
 equity in the same manner as the like limitations 
 of the legal ownership would be construed. 
 
 Yet courts of equity adopt a different rule 
 for the construction of executory trusts. These 
 courts look to the object of the instrument, and 
 the intention of the parties, and treat the lan- 
 guage of the trusts as short heads of an agree- 
 ment, to be carried into effect by a more formal 
 settlement, and thus amplify the expressions, 
 and control any legal construction, which does 
 not quadrate with the intention. 
 
 The following note, by Mr. Watkins, will afford 
 ample and very useful information on this head : 
 
 " As in marriage articles, a provision for the 
 issue appears to have been the chief end in view, 
 a court of equity will often consider them as 
 purchasers (IP. Wms. 145, Bale and Colman, 
 ib, 291, Scale and Scale), and decree a strict 
 settlement on the children, in order to prevent 
 one of the parents only from frustrating that 
 intent, by destroying the entail which might 
 otherwise have taken place in the parent accord- 
 ing to its legal construction. 
 
 " And therefore, where there is no danger of 
 such end being so defeated, a court of equity 
 will not interfere, but suffer the words to have 
 their legal operation, and the entail to remain 
 in the parent, as where the wife is made tenant 
 in tail of lands moving from the husband, 
 2 Ves. 358, Howell v. Howell, 2 Atk. 477, in 
 the case of Green v. Ekins, and 1 Fearne 131, 
 162, 2 P. Wms. 356, note. But it seems
 
 FORM OF ABSTRACT. 137 
 
 that this rule will not hold as to copyholds, the 
 statute 11 Hen. VII. c. 20, not extending to 
 them, see 2 Cruise 158, 2 Ves. 358, note. For 
 where the power of altering such trusts has been 
 vested in both parents, the court has refused to 
 interfere, 2 Ves. 358, Whately v. Kemp, cited 
 
 1 Fearne 132, Sec. 
 
 " So where a strict settlement appeared to 
 have been manifestly contrary to the intent of 
 the parties, 2 Ves. 358, 9, 1 Fearne 135. 
 
 " Nor will the court interfere where a settle- 
 ment has been made by the parties subsequently 
 to the articles, but before marriage ; for the 
 settlement will in such case be considered as a 
 new agreement, and to control them, Cas. Temp. 
 Talb. 20, Legg v. Goldmre, 1 Fearne 154, 
 
 2 P. Williams 356, note. 
 
 " Unless such settlement be expressly alleged 
 to have been made in pursuance or performance 
 of the articles, so that the presumption of a new 
 agreement be done away, 1 P. Williams 123, 
 Honor v. Honor, 2 ibid. 349, West v. Erissey 
 356, note, Cas. Temp. Talb. 20, Legg v. Gold- 
 wire, 1 Fearne 138, &c. 
 
 " But where the settlement is made after mar- 
 riage, the court will set up the articles against the 
 settlement, 3 Atk. 37 1, H art v. Middlehurst, Cas. 
 Temp. Talb. 20, Legg v. Goldwire, ibid. 176, 
 Streat field v. Streatfield, 2 Atk. 39, Glanville v. 
 Payne. 
 
 " Yet where other property of a parent is li- 
 mited to any of the issue, and the issue so pro- 
 vided for, bring a bill for carrying the articles
 
 J38 ON TITLES: 
 
 into strict settlement, the person so bringing the 
 bill, shall in many cases be put to election before 
 the court will decree the execution of them, 
 Cas. Temp. Talb. 176; Streatfield v. Strcatfield, 
 see 2 Atk. 39, Glanville v. Payne. 
 
 " But if there were no articles entered into 
 previously to marriage, there can of necessity 
 be none to control a settlement made after- 
 wards, and where there are not articles as well 
 as a settlement, the court will not construe 
 words which make a legal estate tail in the 
 parent to [provide for] the first and other sons, 
 &c. 3 Atk. 294, Warwick v. Warwick, 2 Atk. 
 39, Glanville v. Payne. 
 
 " Unless indeed there is a direct declaration in 
 the recital of the settlement, that it was the in- 
 tention of the parties to make a provision for 
 the issue by securing the premises settled for 
 their benefit, in which case the court will effec- 
 tuate such intention by decreeing a strict 
 settlement, if the words of the deed would 
 otherwise give an estate tail to the parent ; 
 enabling such parent at law to defeat the pro- 
 vision for the issue, contrary to the recited 
 intention. But where the recital is to assure 
 the lands in general terms, or expressly to settle 
 them " to the uses thereinafter mentioned," a 
 court of equity will no interfere, but suffer the 
 words to have their legal effect, see 3 Br. Cha. 
 Cases 27 Doran v. Ross, 1 Ves. jun. 57, S. C. 
 and 170, 1 ; and see 2 Ves. 358, Howell v. 
 Howell, and Antea and Cowp. 12 Moore v. 
 Magrath.
 
 FORM OF ABSTRACT. 
 
 " And note, that in case of articles, it is not 
 enough that they be recited, they must also be 
 produced, Ambler 515, Car dwell v. Makeril, 
 and 1 Fearne 159- 
 
 " Nor will a strict settlement be decreed in 
 favour of collaterals, unless it should be appa- 
 rent from the circumstances of the case, that 
 they were included in the considerations ; for 
 the intention of such articles seems, primd facie, 
 only to provide for the issue of the marriage ; 
 or unless the articles be decreed as to the per- 
 sons first claiming, in which case the court will 
 decree in their favour, as it always executes ar- 
 ticles in toto, or not at all, see 10 Mod. 533, 
 Osgoode v. Strood, 2 P. Wras. 245, S. C. 2 ib. 
 594, I ernon v. Vernon, 1 Ves. 73, Stephens v. 
 Truman, 3 Atk. 186, Goring v. Nash. 
 
 " But as the chief view of the court is to secure 
 
 a provision for the issue, independently of the 
 
 parent, it will decree an execution in favour of 
 
 the children of the party covenanting to convey, 
 
 and for whom that parent was morally obligated 
 
 to provide, although such children be not the 
 
 issue of the very marriage in consideration of 
 
 which the articles were entered into, as those of 
 
 a former or of a future marriage ; or where a 
 
 father covenants to settle lands on the marriage 
 
 of his son, with remainders over to a daughter, 
 
 and the heirs of her body, it will carry the 
 
 articles into execution in favour of the issue of 
 
 the daughter, since the father was morally 
 
 obliged to provide for her also. See the cases 
 
 last cited, and particularly Goring v. Nash,
 
 140 ON TITLES: 
 
 1 Ves. 216, and 1 Atk. 265, Newstead and 
 others against Searlcs et al. Cowp. 710, Doe 
 ex dem. Watson v. Routledge. 
 
 " In cases of wills,* where the claimants are 
 merely volunteers, the court will not aid. See 
 1 Fearne 163. See also 2 P. Wms. 684, n. 
 1 JSarnwell v. Large (cited) 
 
 " Nor will equity decree a strict settlement 
 even in the case of articles against purchasers 
 for a valuable consideration, and without notice, 
 3 Atk. 291 j Warwick v. Warwick, 1 Fearne 
 156. 
 
 " But a settlement, though made after mar- 
 riage by a person not indebted at the time, 
 will be good against subsequent creditors, 1 Atk. 
 15, Russell et al. v. Hammond et al. ib. 265, 
 Newstead v. Searles, 2 Ves. 11, Lord Towmhend 
 v. Windham, 2 Bro. Cha. Cases 90, Stephens v. 
 Olave, Cowp. 705, Doe de Watson v. Rout ledge" 
 
 Again, those trusts which are not executed 
 by the statute are to be carefully distinguished 
 from uses which are executed by the statute. 
 
 1st. They are of chattel interests, for no use 
 can arise under the statute, unless there be a 
 seisin to serve and supply the use. But a term 
 of years in a limitation of uses of the fee, or of 
 an estate of freehold ; or a term of years bar- 
 gained and sold by a person who has a fee, or 
 an estate of freehold, may be executed into 
 estate by the statute. 
 
 But an assignment of a term, or other chattel 
 
 * Except when there are trusts to be executed by a 
 settlement.
 
 FORM OF ABSTRACT. 141 
 
 interest to A, in trust for J3, will leave the legal 
 estate in A. The trust will not be executed by 
 the statute of uses ; on the contrary, it will 
 remain an equitable interest. 
 
 So a demise by a termor, by words of bargain 
 and sale to B, will not operate as a bargain 
 and sale by force of the statute of uses, but 
 merely as a demise at the common law, and be 
 a mere interesse termini till entry. 
 
 2. So there cannot be any use to be executed 
 of copyhold lands, on a surrender of them by 
 the copyholder ; he has no seisin. The uses 
 declared in customary surrenders, confer a legal 
 estate by the rules of the common law. Any 
 uses declared of the estate of the person ad- 
 mitted as copyhold tenant, will be trusts 
 subject to the jurisdiction of a court of equity. 
 
 3. An use on an use will be a mere equitable 
 interest. The first use only, and not the second 
 use, will be executed by the statute. There- 
 fore, on a common law grant from A to B 9 in 
 fee, to the use of B in fee, in trust for D in 
 fee ; or by A to B in fee, to the use of C in 
 fee, in trust for D in fee ; or a bargain and 
 sale, under the statute of uses, to A in fee, to 
 the use of D in fee; or an appointment made 
 under a power in a conveyance to uses, to A in 
 fee, to the use of or in trust for D in fee, will 
 give D an equitable interest only, and not a 
 legal estate. 
 
 In the first case, the use declared in favour of 
 B is void as an use, and though B will be seised
 
 142 ON TITLES : 
 
 by the rules of the common law, that use will 
 in point of legal effect, though not in equity, 
 exclude the use declared in favour of D. The 
 judges presiding in courts of law treat the use 
 declared in favour of D as repugnant to the 
 use declared in favour of B ; but equity treats 
 J5 as a trustee for D ; that B may not retain 
 the beneficial ownership contrary to the declared 
 intention of the parties. 
 
 In the second instance, C ; in the third in- 
 stance, A t the bargainee ; and in the fourth 
 instance, A, the appointee, is the cestui que use ; 
 and the use or trust in favour of D is an use on 
 an use, or an use in the second degree ; and the 
 first use only is regarded by courts of law, while 
 the courts of equity will maintain the second use 
 as a trust. Thus the first use only will be 
 operated on by the statute of uses. 
 
 Distinctions however exist which must be 
 carefully regarded. 
 
 1. A conveyance to A in fee, to the use of 
 A in fee, with a shifting use on some event, to 
 D in fee, will enable the statute to operate on 
 the use to A ; so that he will be seised by force 
 of the statute, and not by the rules of the 
 common law. 
 
 So in this instance, or in any other example 
 of an use, with a like shifting use in favour of 
 JD; the use to D may be executed by the 
 statute, because the use to D is not an use on 
 an use, or an use in the second degree. It is 
 one use substituted for another use; and exempt
 
 PORM OF ABSTRACT. 143 
 
 from the objection which, in other cases, 
 renders the interest of D merely equitable. 
 
 Again, although a bargain and sale of an use 
 to A in fee, will not admit of a declaration of 
 use on the seisin of A, so that the second use 
 may be executed by the statute ; the same 
 reasoning does not apply to a bargain and sale, 
 operating by the rules of the common law ; as 
 in the instance of a bargain and sale by exe- 
 cutors having an authority to sell, or a bargain 
 and sale under the land tax and other like acts. 
 In cases of this sort, a common law seisin will 
 pass to the bargainee, and uses, capable of ex- 
 ecution under the statute, may be declared of 
 this seisin. 
 
 Again, though no use, to be executed: by the 
 statute can be declared of the estate of an ap- 
 pointee of an use, because he himself is merely 
 a cestui que use ; yet an appointee, under a 
 common law authority to sell, would obtain a 
 common law seisin ; and uses to be executed 
 by the statute, may be declared of that seisin. 
 
 Lastly, trusts, which are not uses, as trusts 
 to sell, to raise portions and the like ; and also, 
 trusts which, though they in effect give the use, 
 yet require that the legal estate should remain 
 in the trustees, as trusts for the separate use of 
 a married woman ; trusts to receive and pay, 
 or apply the rents as distinguished from an use; 
 or trusts to permit another person to receive 
 the rents. Burchett v. Durdant, 2 Ventr. 312, 
 Broughton v. Langley, 2 Lord Raym. 873,
 
 144 , ON TITLES : 
 
 Horton v. Horton, 7 T. Rep. 652, Shapland v. 
 Smith, 1 Bro. C. C. 75, Silvester v. Wilson, 
 Williams" note to 2 Saunders, p. 11, and as dis- 
 tinguished from trusts in the alternative, to pay 
 to A J3, or to permit him to receive and take 
 the rents, &c. Doe v. Biggs, 2 Taunton 109, are 
 trusts which remain subject to the jurisdiction 
 of courts of equity, and are not transferred into 
 estate by force of the statute of uses. 
 
 Some of these trusts give mere chattel in- 
 terests, in the nature of personal estate ; others 
 give freehold interests, and even interests of 
 inheritance in equity. Thus there may be 
 equitable estates for years, for life, in tail, and 
 in fee. 
 
 The general rules concerning trusts, or equit- 
 able estates, are, 
 
 1. The cestui que trust is the beneficial owner 
 in equity, and has an equitable estate. 
 
 2. This estate gives the like power of aliena- 
 tion in equity, as may be rightfully exercised 
 at law, by the owner of a like legal estate. 
 
 3. The like limitations may be made of the 
 equitable, as may be made of the legal, ownership. 
 
 4. The limitations of trust, or equitable estates, 
 receive the like construction, as if they were 
 limitations of the legal estate. 
 
 5. Whenever a limitation of an use would be 
 good by the rules of law, a like limitation of the 
 trust or equitable ownership will be valid in 
 equity. 
 
 6. Any limitation which, as tending to a
 
 FORM OF ABSTRACT. 143 
 
 perpetuity, would be void if it were of an use, 
 will be void if it be of the trust or equitable 
 ownership. 
 
 7. Of equitable estates, there cannot, in a 
 technical sense, be any disseisin; and therefore, 
 notwithstanding adverse possession, there may 
 be transfers or dispositions by the equitable 
 owner* either by deed or will. 
 
 In Philips v. Brydges, 3 Ves. 127, Lord Al- 
 vanley stated the rules of equity applicable to 
 trust estates to be, that such equitable estates 
 are to be held perfectly distinct and separate 
 from the legal estate. They are to be enjoyed 
 in the same condition ; entitled to all the same 
 benefits of ownership; disposable, devisable, and 
 barable, exactly as if they were estates executed 
 in the party ; and the persons having them, may 
 without the intervention of the trustees, or the 
 possibility of their preventing them from exer- 
 cising their ownership, act as if no trustees 
 existed ; and this court will give validity to their 
 acts. 
 
 There are some qualities of legal estates,* 
 which are not common to the corresponding 
 interests of the equitable ownership. 
 
 1. A particular tenant of the legal estate, 
 either for life or for years, may forfeit his estate 
 by levying a fine, and other like acts. But no 
 act done by a tenant of a like equitable estate 
 will be a forfeiture of his estate. 
 
 2. A tenant for life of a legal estate may, 
 by feofFment or fine, divest the remainder or 
 
 L
 
 14t) ON TITLES : 
 
 reversion, and turn such reversion or remainder 
 into a right of entry, and acquire a wrongful fee. 
 Goodright v. Forrester, 1 Taunton, 578. No 
 such effect will be produced by any alienation 
 of the equitable owner of a like estate, since there 
 cannot be any disseisin of an equitable estate. 
 
 3. A tenant in tail in possession of the legal 
 estate may discontinue the estate tail, and the 
 reversion and remainder, and turn them into a 
 right of action without barring them. But no 
 alienation by a tenant in tail of an equitable 
 estate tail will operate as a discontinuance. 
 
 4. Contingent remainders of the legal estate 
 may be destroyed by the determination, the 
 tortious alienation, surrender, or merger of the 
 prior particular estate, by which the remainder 
 is supported ; while no such consequence will 
 be induced, as to a contingent remainder of the 
 equitable ownership, by any act proceeding from 
 the tenant of a prior particular estate of the 
 same ownership. 
 
 5. Owners of legal estates cannot convey 
 without certain ceremonies, as livery of seisin ; 
 a lease, or bargain and sale, as a foundation for 
 a release ; enrolment of a bargain and sale, &c. 
 
 & c * ^ ut an e ^H^! e owner ma j convey by 
 any deed which contains evidence of an in- 
 tention to grant his estate. Such equitable 
 grant must, however, have formal words of 
 limitation. 
 
 6. Though it be a rule of law applicable to 
 legal estates, that " quod meum est, sine facto meo
 
 FORM OF ABSTRACT. 147 
 
 (alienation,) sive defectu meo, (forfeiture, &c,) 
 amitti, velin alium transferri nonpotest;" yet an 
 equitable estate may be lost by the alienation 
 of the trustee to a purchaser, for a valuable 
 consideration, and without notice; and it may 
 be lost by escheat from the trustee, as a con- 
 sequence of his attainder, either for treason or 
 felony. 
 
 Some of the consequences attaching on equit- 
 able estates are, 
 
 1. On the failure of heirs of the equitable 
 owner of the fee, there will not be any escheat 
 to the lord. The trustee will have the benefit 
 of the estate. 
 
 2. On the escheat of the legal estate, the lord 
 will hold discharged of the equitable estate. 
 
 3. Equitable estates are subject to curtesy, 
 but they are not subject to dower or freebench. 
 
 4. These estates are, by statute law, subject 
 to executions, for the debts of the cestui que 
 trust; only, however, while the trustee continues 
 seised for the benefit of the debtor. 
 
 5. Equitable estates are descendible in like 
 manner as legal estates ; and there may be a 
 possessio fratris of an equitable seisin. 
 
 Of Conditions ; conditional Limitations ; Clauses 
 
 / 
 
 for Redemption ; and other special Agree^ 
 ments. 
 
 CONDITIONS may defeat the estate; and if 
 they exist, they should be stated fully ; that it 
 
 L2 
 
 -
 
 148 ON TITLES ! 
 
 may appear in what degree, and to what ex-> 
 tent, they may operate, and upon what terms, 
 and by what mode, they may be discharged or 
 avoided ; and if they have been performed, the 
 material circumstances should also be stated, 
 that an opinion may be formed, whether the 
 condition has been discharged. 
 
 This caution is equally necessary in applica- 
 tion to conditional limitations, by way of shift- 
 ing use. 
 
 Of the nature of conditions also are provi- 
 sions introduced into conveyances to uses, and 
 annexed to terms for years, for the purpose 
 of defeating the same. 
 
 In general abstracts are too concise in giving 
 this proviso, in those instances, in which the 
 proviso is relied on as having caused the cesser 
 of the estate. 
 
 The proviso ought to be fully stated, that it 
 may appear, whether the circumstances which 
 have taken place, are such as fall within the 
 scope of the terms of the proviso, so as to be a. 
 performance of the condition. 
 
 It is not sufficient, that the portions have 
 been paid or satisfied to bring the proviso into 
 operation. They must have been paid or satis- 
 fied in the mode, and by the person, and within 
 the time prescribed by the proviso, unless the 
 proviso has words for the cesser of the term, 
 when the trusts thereof have been performed 
 or satisfied, discharged, or become unnecessary, 
 or some such like words.
 
 FORM OF ABSTRACT. 149 
 
 Provisoes for redemption are to be stated 
 shortly or fully, according to circumstances. 
 
 When they contain any special provision, as 
 a settlement of the equity of redemption, such 
 special circumstances should be fully disclosed. 
 With this exception, there is not any neces- 
 sity for detailing more of this proviso than will 
 show by whom the money is to be paid, the 
 sum to be paid, the time of payment, and the 
 rate of interest reserved. 
 
 However, if the mortgage be existing, or if 
 the deed which contains the mortgage be, from 
 the circumstances of the case, such as would 
 be necessary to be recited in the deeds to be 
 prepared from the abstract, then the proviso 
 should be stated as fully as it ought to be 
 introduced into a correct recital of any one of 
 the deeds to be so prepared. 
 
 Other special agreements should be abstract- 
 ed under the like regulations ; and so much of 
 the clause as can materially affect the title 
 should appear on the abstract. 
 
 In detailing the duty of the conveyancer, the 
 general rules of law applicable to these points 
 will be considered. 
 
 Of Powers. 
 
 IN regard to powers, the course to be ob- 
 served must be dictated by circumstances. 
 
 Powers which have been exercised, or which 
 are to be exercised, with a view to complete 
 
 L3
 
 150 ON TITLES : 
 
 the title, should be given almost 'Verbatim from 
 the deeds, will, &c. as far as the powers tre 
 material to the title. 
 
 They should show at least the following cir- 
 cumstances, as far as such circumstances exist, 
 and are expressed in the power ; 
 
 1st, The person or persons by whom the 
 power is to be exercised. 
 
 2dly, The mode of exercising the power, as 
 by deed, will, c. and the circumstances which 
 are to attend such execution, as the attesta- 
 tion, &c. 
 
 3dly, The time at which the power is to be 
 exercised, if any time be prescribed. 
 
 4thly, The consent or request, &c. which are 
 essential to a valid execution of the power ; and 
 the mode in which such consent, request, &c. 
 are to be expressed ; as by deed, &c. to be 
 attested by two witnesses, Sec. 
 
 5thly, The act authorized by the power, as 
 to sell, exchange, &c. together with the circum- 
 stances connected with the mode of executing 
 the power, as to exchange for lands of equal or 
 greater value, or for lands in a given county, or 
 for lands of a given tenure, as freehold, copy- 
 hold, leasehold, or the like. 
 
 6thly, The person or persons in whose favour 
 the power is to be exercised, as children, or a 
 particular child ; or objects of a given descrip- 
 tion, as children living at the death, &c. ; and 
 the estate which may be appointed to them, if 
 any particular estate is mentioned in the power
 
 FORM OF ABSTRACT. 151 
 
 also whether the power is to be executed revo- 
 Cably or irrevocably, or the like. 
 
 And if any particular application of the money 
 be directed, and there is not any provision for 
 indemnifying a purchaser or mortgagee from 
 seeing to the application of his money, the 
 clause which directs the application should be 
 stated fully : that it may appear that the money 
 has been duly applied in the manner in which 
 the same was applicable. 
 
 Such powers as are barred, or released, or 
 extinguished, or become incapable of taking 
 effect; or if they are in their nature immaterial 
 to the title ; as powers of leasing, &c. need 
 not to be stated at large. 
 
 It is sufficient that there be a notice that such 
 a power was contained in the settlement, in these 
 or the like terms, with power to A B to jointure on 
 a second wife; or, with the usual power to sell and 
 exchange and make partition ; or, with a power 
 to raise portions for younger children of a second 
 marriage, or the like. 
 
 When to a power there is annexed an indem- 
 nity to purchasers paying the money, and the 
 power has been exercised, the clause which 
 enables the trustees to give receipts for the 
 purchase money should be added, and, as a 
 general rule, the clauses which contain the 
 direction for the application of the money 
 should be omitted. 
 
 It frequently happens, that a settlement, or 
 other deed of trust, contains a power to change 
 
 L 4
 
 152 ON TITLES: 
 
 trustees, or to add new trustees. When this 
 power has been acted on, and the title is, or 
 is to be, derived through or under the new 
 trustees, and acts done by these trustees, the 
 material parts of the power should be disclosed 
 by the abstract. In other cases it is sufficient 
 that there should be a short reference to powers 
 of this nature. 
 
 Of Covenants. 
 
 IN abstracts of title to leases, all burthen- 
 some covenants which may affect the purchaser 
 at law or in equity, should be stated in the 
 abstract. 
 
 But in abstracts of deeds concerning the in- 
 heritance, there should be a general reference 
 to the covenants in this form, " With the usual 
 covenants for title " or with usual covenants for 
 seisin in fee; good right to convey ; peaceable 
 .enjoyment ; free from encumbrances ; and 
 further assurance. 
 
 Sometimes the covenants are expressed still 
 more fully, by showing the extent of the cove- 
 nant, and consequently introducing the clause 
 ' notwithstanding/ &c. 
 
 That part of the covenant which deserves 
 most attention is, the exception, if any, against 
 encumbrances', such exceptions, as often as there 
 are any, and the encumbrances there noticed, as 
 far as they are material to the title, should be 
 stated in the words of the covenant; or at least
 
 FORM OF ABSTRACT. 153 
 
 so fully as to show the nature and extent of 
 these encumbrances. 
 
 Outstanding terms- also, noticed in the ex- 
 ception, should be expressed in this part of the 
 abstract ; but briefly or fully, according to the 
 circumstances of the case. 
 
 If there be not any other information concern- 
 ing a term, the abstract should adopt the words 
 of exception. But if the term, and all circum- 
 stances belonging to it, have been previously 
 noticed, then the reference to it may be short ; 
 except in those cases in which the evidence of 
 the title to the term appears different in the 
 exception from the state of the evidence in the 
 former part of the abstract ; for instance, if by 
 the for ner deeds it appears that the term was 
 vested in A, but by the exception it appears to 
 be vested in JB ; this circumstance, together 
 with the mode, (if it appear,) by which the title 
 has been thus varied, should be particularly 
 expressed in this clause of the abstract. 
 
 Also, as often as a covenant for the production 
 of title deeds discloses any evidence of the title 
 not contained in a former part of the abstract, 
 it becomes material, and should be noticed. 
 
 The mischief and inconvenience arising from 
 such covenants, and the disclosure they afford, 
 and the notice they give of dormant encum- 
 brances, afford abundant reason for the modern 
 practice of taking such covenant in one or more 
 separate deeds,
 
 154 ON TITLES I 
 
 Of the Execution , $c. 
 
 AT the foot of the abstract of every deed, it 
 should be noticed by whom the deed has been 
 executed, or that it has been executed by all 
 the parties, or by all of them excepting certain 
 persons, naming them. 
 
 And if the deed was executed, in exercise of 
 any power which required a particular mode of 
 execution, it should appear from this part of 
 the abstract that this mode of execution was 
 observed ; for example, if the deed be required 
 to be signed, sealed, and delivered, it should 
 appear to be signed, sealed, and delivered ; and 
 if any given number of witnesses were required 
 to attest the execution, it should be noticed that 
 the deed is attested by this number of wit- 
 nesses, as far at least as respects the persons 
 as to whom such attestation was rendered 
 necessary. 
 
 And if there be a defect in the mode of exe- 
 cution or attestation, sufficient should be stated 
 to raise the question on this defect, that it may 
 be considered whether the want of the pre- 
 scribed mode of execution or attestation affects 
 the validity of the title at law or in equity. 
 
 Of course the memorandum which refers to 
 the execution and attestation should be more or 
 less particular and circumstantial, as the nature 
 of the case may dictate. 
 
 Except in particular cases no more is re- 
 quisite than a clause to this effect : ' executed by 
 
 2
 
 FORM OF ABSTRACT. 155 
 
 A B. and C D, and duly attested ;' or, 'executed 
 by all parties, and duly attested.' And if circum- 
 stances should require, as they frequently do, 
 that the execution, at a time different from the 
 date, should be shown, then the time of exe- 
 cution should be stated ; more especially if the 
 attestation contain, as it ought to do, a speci- 
 fication of the time of execution. For instance, 
 a lease under a power may be good, as a lease 
 in possession, if it be executed after the date ; 
 while it would be void if executed on the day 
 of the date. 
 
 So a will may be operative on the legal 
 estate, because the will was published after 
 the execution of the conveyance ; although the 
 publication took place after the day on which 
 the deed is dated. 
 
 Also, at the foot of the abstract of deeds, in 
 which the purchase money is paid under a 
 special power or direction ; and even at the foot 
 of the abstracts of deeds, (especially those of a 
 modern date,) from a seller to a purchaser, it 
 should appear that a receipt has been given by 
 the person to whom the money is expressed to 
 have been paid, and signed by the persons by 
 whom the same ought to have been signed. 
 Since, in the contemplation of a court of equity, 
 the receipt is the material discharge for the 
 purchase money ; and, except in the instances 
 already noticed, the want of a receipt is implied 
 notice that the purchase money remains un- 
 paid; and that there is, till the contrary be
 
 156 ON TITLES I 
 
 shown, a subsisting lien in the vendor for the 
 purchase money. 
 
 Also, when part of the money secured by a 
 mortgage appears, by a receipt indorsed on the 
 mortgage, to have been paid off, this fact should 
 be noticed in this part of the abstract. 
 
 Also, when a deed requires enrolment, livery 
 of seisin., a memorial, as in case of grants of 
 annuities for a life or lives, or for years deter- 
 minable on a life or lives, or other external act 
 to give it validity, the fact of enrolment, livery 
 of seisin, memorial, &c., and the time when it 
 took place, should be stated. 
 
 Sometimes a feoffment, or a lease for a life 
 or lives, requiring livery of seisin, may be 
 good, because livery was made after the time 
 limited for the commencement of the grant ; 
 while the instrument would be void, as limiting 
 an estate of freehold in futuro> in case livery 
 had been made at the period of the date of the 
 deed of feoffment, or of lease. 
 
 In cases of this sort the evidence of the time 
 of livery, &c. should be added. 
 
 Also, if a deed has been cancelled, the fact 
 should be noticed ; and yet the law is now 
 settled to be, that neither an actual or a vo- 
 luntary cancellation of a deed will restore the 
 estate to the former proprietor. There must 
 be an assignment or surrender of the term, if 
 a term passed ; or a reconveyance of the estate 
 of freehold in case an estate of freehold was 
 conveyed.
 
 FORM OF ABSTRACT. 157 
 
 So if a deed has, since its execution, been 
 altered by erasure or interlineation, that cir- 
 cumstance should be noticed. Fraudulent al- 
 teration by the grantee would vitiate the deed. 
 It was formerly ruled, that an alteration by a 
 stranger, in a material part, would also vitiate 
 the deed. It is now agreed, that no alteration 
 by a stranger will avoid the deed ; but it may 
 be given in evidence, as far as its contents ap- 
 pear ; and extraneous evidence will be admitted, 
 to show the language in those parts which were 
 altered. The old rule is applicable only when, 
 from the want of evidence, or the uncertainty 
 arising out of the evidence, the contents of the 
 deed, as they stood before alteration, cannot 
 be ascertained. 
 
 Also, if there be any explanatory agreement 
 in a memorandum, made on the deed before the 
 execution, such agreement should be added to, 
 and form part of, the abstract, and inserted 
 prior to the notice of the execution. 
 
 And, as to lands in register counties, viz. 
 Middlesex, and East, West and North Ridings 
 of York, it should be shown that the deed has 
 been registered, and in what book and page the 
 registry is to be found. 
 
 As a point of curiosity, rather than utility, it 
 may be noticed, that if an illiterate man, a man 
 who cannot read, require, at the time of his 
 execution of the deed, that the deed should be 
 read to him ; and the deed is read fraudulently,
 
 158 ON TITLES: 
 
 as having other contents than it really has, the 
 deed may be avoided by a plea of that fact. 
 
 Of Fines, Recoveries, $c. 
 
 IN abstracting a fine there should be stated 
 the term of which it is levied, the names of the 
 conusors, the names of the conusees, the parcels, 
 as far as they are material, and the names of 
 the townships and parishes, as far as they are 
 applicable to the lands in question. 
 
 And when a fine is levied to bar an entail, or 
 to strengthen a title by nonclaim, it should be 
 stated that the fine was with proclamations ; 
 and, in strict propriety, it should be shown in 
 what terms, and on what days, the proclama- 
 tions were made, that an opinion may be 
 formed whether the proclamations were duly 
 made. 
 
 And in abstracting common recoveries there 
 should be shown the term in which the recovery 
 was suffered, the names of the demandant, the 
 tenant, the vouchees, including the common 
 vouchee, and the order of voucher, namely, 
 that the first vouchee vouched the common 
 vouchee, or any other mode of voucher ; the 
 parcels which are comprised in the recovery, 
 and the names of the townships and parishes, 
 as far as they are material to the lands in 
 question; and the time at which the writ of 
 seisin was returnable, and seisin delivered. 
 
 The observation recommending an alpha-
 
 FORM OF ABSTRACT. 159 
 
 betical arrangement of the names of townships, 
 parishes, &c. applies, with great propriety, to 
 fines and recoveries. 
 
 The general object of fines and recoveries, it 
 should be remembered, is, 
 
 1st, To convey the estates of freehold or 
 inheritance of married women. 
 
 2dly, With proclamations to operate by 
 estoppel. 
 
 The peculiar operation of a fine is to gain 
 a title by nonclaim, or to bar heirs in tail. 
 
 The peculiar operation of a common reco- 
 very is to bar reversions, and remainders ex- 
 pectant on an estate tail, and conditions and 
 collateral limitations annexed to that estate. 
 
 And as a fine cannot bar by nonclaim, nor 
 can bar heirs in tail, unless the fine be with 
 proclamations, there is a manifest propriety in 
 showing that the fine was with proclamations, 
 when the fine could not have accomplished its 
 object, unless it had been proclaimed. 
 
 Also, as a common recovery will not bar 
 either the estate tail, or ulterior or collateral 
 interests, unless there be a voucher over by the 
 owner under the entail, it is proper to state that 
 there was a voucher of the common vouchee. 
 
 The practice, if it does not promote any other 
 advantage, preserves a remembrance of prin- 
 ciple, and this alone is an object. 
 
 Besides, it is too much to rely on the apology 
 generally made, for the omission ; to state that 
 a fine was with proclamations, or that there was
 
 160 ON TITLES: 
 
 in recovery a voucher of the common vouchee*- 
 namely, that all fines are proclaimed, and that 
 in all recoveries there is a voucher of the com- 
 mon vouchee. It is generally, only, and not 
 universally, true, that fines are proclaimed, and 
 that there is in recoveries a voucher of the 
 common vouchee. 
 
 Let it be observed also, that a fine to bar by 
 nonclaim must be levied by or to a person who 
 has an estate of freehold either in possession, 
 reversion, or remainder, under a title adverse to 
 the rightful owner ; and that a common reco- 
 very, suffered to bar an entail, must be suf- 
 fered by or against a tenant who has the imme- 
 diate freehold ; and that a common recovery 
 will not bind the entail, or the remainders 
 over, c., unless it be suffered by the owner of 
 the entail as vouchee ; except in the single 
 instance of his being the tenant of the estate 
 tail in possession intended to be barred, and 
 his being in that case named as tenant to the 
 writ of entry, and vouching as such tenant. 
 
 Of Acts of Parliament. 
 
 ACTS of parliament are to be considered as 
 private conveyances. They differ however from 
 private conveyances in the circumstance, that 
 the title does not altogether and always depend 
 on the ownership of the parties, and the nature 
 and extent of their interest. Frequently it 
 depends on the extent and operation of the 
 words of the act, qualified or restrained, as they
 
 FORM OF ABSTRACT. l6l 
 
 may be, and generally are, by provisoes and 
 exceptions, introduced into the act. 
 
 Few titles are more perplexed than those 
 which depend on allotments under inclosure 
 acts, and an observation to that effect has gy / 
 already been made. The leading feature of 
 inclosure bills, acts for partition, exchange, fa, 
 &c. must be understood to be, to make the 
 lands which are received upon allotment, ex- 
 change, partition, &c. subject to the same estates *- 
 and uses as the lands, &c. in respect of which the ^^ / 
 allotment, exchange, &c. were made. \-*> 2~i*^+. 
 
 In general, by force of a provision in inclosure 
 acts, the allotted and exchanged lands pass by 
 a will made prior to allotment, as a substitution 
 for, or in addition to, the lands given by the 
 will ; but no provision for that purpose is con- 
 tained in the general inclosure act. 
 
 The local act therefore must be inspected, to 
 see that it contains such provision. 
 
 The difference also between exchanges under 
 inclosure acts, and exchanges under acts for 
 that special purpose, are to be noticed. 
 
 Under inclosure acts the exchange will be 
 absolute ; communicating positively to the lands 
 received in exchange, the title which governed 
 the lands given in exchange; while in exchanges 
 under acts for that special purpose, the eviction 
 clause is generally framed in the same manner 
 as if the exchange were made by mutual grants 
 between the parties ; or would have been im- 
 plied by law on a formal exchange. 
 
 M
 
 ON TITLES : 
 
 The singularity attending the construction 
 of acts of inclosure, and of exchanges of land 
 for land, &c. or common rights for land, under 
 these inclosure acts, may be thus stated. 
 
 There is a change of land, &c. but not a 
 change of title. 
 
 The title which A has to his lands, or common 
 rights, at the time of allotment or exchange, is 
 communicated to the land he receives under 
 the allotments or exchanges; while, under a 
 mere private act of exchange between indi- 
 viduals, each holds the lands under the title 
 which attached to these lands prior to the 
 exchange. He may therefore be evicted, though 
 the title to the lands he gave in exchange may 
 be perfectly good. 
 
 His remedy on eviction is, in this case, to 
 resort to the lands he gave in exchange. But 
 then, as under a common law exchange, the 
 whole exchange, and not a rateable part, must 
 be defeated. And for a long time, say sixty 
 years, after the exchange, he must, for the 
 satisfaction of a purchaser, make out the evi- 
 dence of title, as well to the lands given in 
 exchange, as to those he holds under the 
 exchange. 
 
 Each of these considerations is one of con- 
 siderable difficulty, and frequently of great 
 anxiety and expense. 
 
 In abstracting acts of parliament the clauses 
 to be principally regarded, are, 
 
 1st. The date, or rather time of passing the
 
 FORM OF ABSTRACT. 163 
 
 act, viz. in old acts of parliament the year of the 
 reign in which the act was passed, and in modern 
 acts, which have that fact, the day on which 
 the act received the royal assent. This date is 
 now added to the title, under the provisions of 
 an act of parliament passed for the purpose in 
 the present reign. 
 
 2dly. The title of the act. 
 
 3dly. The recitals of the act, as far as they 
 can throw any light on the state of the title, or 
 lead to the construction of the enacting clauses. 
 
 4thly. The enacting clauses ; and if the act be 
 by way of power, it should show all the circum- 
 stances of the power, in like manner as is recom- 
 mended under the head " powers ;" and when 
 it vests the estate, discharged of uses, &c. the 
 
 7 O 
 
 clause should be abstracted, so as to show the 
 lands which are the subject of the act, as far as 
 it is material to the title in question ; the per- 
 sons in whom the legal estate is vested ; the 
 duration of the estate limited to them ; the 
 time from which the estate is to be vested ; 
 the uses, &c. from which the lands are dis- 
 charged ; the trusts which are to be performed, 
 as to sell and exchange, &c. ; the provision, if 
 any, to indemnify the purchasers from seeing 
 to the application of their money ; and when 
 there is not any such provision, or the title de- 
 pends on the ulterior trusts, then the ulterior 
 trusts, and the mode in which the money is to 
 
 j 
 
 be applied. 
 . To these particulars should be added the 
 
 M <3
 
 164 ON TITLES t 
 
 exception, or saving clause, so as to show whose 
 rights are preserved, and consequently as against 
 whom parliament has left the rights open. 
 
 In general, indeed almost universally, the 
 sole object of an estate bill is to leave the title 
 exactly as it stood under the ownership of the 
 testator or settler, so only as to liberate it from 
 certain uses which he has declared, and to pave 
 the way for a new or more convenient settle- 
 ment, by selling part of the lands to exonerate 
 others, or by selling certain parts of the lands 
 with a view to the purchase of others more con- 
 venient, or to authorize partitions, exchanges, 
 and the like. 
 
 Inclosure acts are seldom abstracted. The 
 person who prepares the abstract contents him- 
 self with stating, that in pursuance of an act 
 passed, &c., intituled, c., A B and C _D, 
 two of the commissioners appointed by the 
 said act, allotted to E F all, &c. in lieu of, 
 c., here stating the lands in lieu of which 
 the allotments were made. 
 
 This practice has arisen from the circum- 
 stance, that all inclosure bills are, in their pro- 
 visions, nearly the same. 
 
 And now the statute of 41 Geo. 3, cap. 109, 
 has, in effect, incorporated into every inclosure 
 bill, various provisions ; being the ordinary regu- 
 lations which were usually introduced into old 
 inclosure acts. 
 
 On the one hand, not to delay the reader, 
 and on the other hand, to afford him a ready
 
 FORM OF ABSTRACT. l6'5 
 
 access to the provisions of this act, an abstract 
 of the act will be added in the Appendix. frt.f. 
 
 Of course, when these provisions are varied 
 by the local or particular act, the variations 
 should be shown ; and if that act contained any 
 special matter which can affect the title, these 
 special provisions should be stated ; and the 
 person by whom the abstract is examined, on 
 behalf of the purchaser, should take especial 
 care to see that the award is warranted by the 
 provisions of the act ; that it is duly made and 
 enrolled, c. as the act requires ; and in parti- 
 cular, within the time, if any, limited by the act. 
 
 It should seem that the enrolment must be on 
 parchment, 1 Inst. 35 b, 36 a, 2 Inst. 673. 
 
 In those parts of the abstract which are sub- 
 sequent to the inclosure acts, the parcels must 
 be abstracted in such terms as will show that 
 the lands received in allotment are compre- 
 hended in the conveyances, assignments of at- 
 tendant terms, and other instruments. 
 
 . . 
 
 In inclosure acts, it is a common provision 
 
 to enable tenants for lives, husbands seised in 
 right of their wives, and other persons having 
 partial interests, to make mortgages by demise, 
 with the consent of the commissioners, for de- 
 fraying the expenses of the inclosure; and it will 
 appear in the appendix that the general act has a 
 similar provision. The effect of this provision is 
 to make the term so created, the prior term in the 
 title, and consequently the term which governs 
 the right to the possession, and to maintain 
 
 M 3 

 
 166 ON TITLES I 
 
 ejectment, &c. For this reason, in the subse- 
 quent deduction of the title, more than ordinary 
 care should be taken, that the assignments of 
 the residue of this term have been regular in 
 point of form, and by persons duly qualified. 
 
 The title, under a term thus created, forms 
 an exception to the rule, qui prior est tempore, 
 potior est jure; and also to the rule which makes 
 the title under derivative estates, and the order 
 in which they are to confer the right to the 
 possession depend on the estate of the person 
 by whom the derivative estate is granted. 
 
 The solution is, that the grant is by way of 
 power under the authority of the act. 
 
 Something of the same nature, though in a 
 more limited degree, takes place when terms 
 are created under powers in settlements, and 
 the terms over-reach and defeat estates limited 
 by the settlements. 
 
 These examples are in semblance, though, 
 
 when well understood, are not in fact, exceptions 
 
 to another rule, viz. qui non habet ilk non dat, 
 
 or, as it is variously expressed, nemo pot est plus 
 
 juris in alium transferre quam ipse habet. 
 
 Leases under powers in Conveyances, wills, 
 _&c. merely confer the right to the possession, 
 as against all persons claiming under the same 
 settlement, &c. without taking precedence or 
 
 ^ - -- - -** -v~ . S- l 
 
 priority over estates of freehold, attendant terms, 
 and other interests, which were, in point of 
 estate, anterior to the estate of the settler, or 
 other author of the power.
 
 FORM OP ABSTRACT. 
 
 Cases of this sort should always receive par- 
 ticular attention, because they are most likely 
 to deceive those best acquainted with the general 
 rules of property. . 
 
 As to Commissions of Bankrupt. 
 
 ALSO, when a title depends on bankruptcy, 
 the commission of bankrupt should be ab- 
 stracted, or should appear in the recital of a 
 bargain and sale from the commissioners to the 
 assignees. 
 
 The material circumstances are, 
 
 The date of the commission : 
 
 The names of the commissioners, with the 
 clause of quorum, a clause seldom added ; so 
 that it may be considered, whether the authority 
 given to the commissioners has been duly 
 exercised. 
 
 In abstracting the bargain and sale, the pro- 
 ceedings are for the most part recited, so as to 
 show, 
 
 The commission ; 
 
 The trading ; 
 
 The petitioning creditor's debt ; 
 
 The act of bankruptcy ; 
 
 The declaration of the commissioners finding 
 the party a bankrupt, and the time, if any, be 
 stated of the act of bankruptcy ; 
 
 The choice of assignees. 
 
 And then the deed states, 
 
 The bargain and sale from the commissioners 
 M 4
 
 168 ON TITLES: 
 
 to the assignees, in trust for themselves and 
 the other creditors of the bankrupt. 
 
 To these particulars should be added, by way 
 of memorandum, either at the foot of the ab- 
 stract of this deed, or as part of the title of the 
 deed, that the bargain and sale has been en- 
 rolled; and regularly the time of the enrolment 
 should be expressed, since, as to freehold and 
 copyhold lands, no estate passes till enrol- 
 ment. 
 
 And the enrolment must be within six lunar 
 
 months, to bar estates tail, and remainders and 
 
 reversions expectant on such estates. 
 
 / &<~+.i^ . While a bargain and sale by the commis- 
 
 **? sioners of bankrupt operates only from the time 
 
 .i/. 7*urtWw. . * 
 
 -_rt or -execution, other bargains and sales operate 
 either in fact, or by relation, from the time of 
 their execution. 
 
 It will be proper to consider the bankrupt 
 laws somewhat more at large. 
 
 1st. The relation of the title of the assignees 
 under a commission of bankrupt, is, generally 
 speaking, to the time at which the act of bank- 
 rupt was committed; and therefore, if a husband 
 commit an act of bankrupt, and afterwards 
 marry, or sell, the dower of the wife, or title 
 of the purchaser, will be defeated ; so if he 
 marry, and then commit an act of bankrupt, 
 and is declared a bankrupt, and afterwards, and 
 before a bargain and sale is executed, he dies, 
 and then a bargain and sale is executed, the 
 title of the assignees will prevail over the title
 
 FORM OF ABSTRACT. 169 
 
 of a woman claiming freebench, on the ground, 
 that by relation, her husband was not tenant 
 at his death. 
 
 For the protection of purchasers, two acts of 
 parliament have been passed. By the statute 
 *bf 21 James I. c. 19, s. 14, it was provided, 
 " That no purchase for good and valuable con- 
 " sideration should be impeached, by virtue of 
 " any act made against bankrupts, unless the 
 " commission to prove him or her a bankrupt 
 " should be sued forth against such bankrupt, 
 " within five years after he or she should become 
 " a bankrupt/' And by the statute of46Geo. 
 III. c 135, s. 1, commonly called Sir Samuel 
 Romilly's act, it was also provided, that in all 
 cases of commissions of bankrupt thereafter to 
 be issued, all conveyances by, all payments by 
 and to, and all contracts and other dealings 
 and transactions by and with any bankrupt, 
 boncijidc made or entered into more than two 
 calendar months before the date of such com- 
 mission, should, notwithstanding any prior act 
 of bankruptcy committed by such bankrupt, be 
 good and effectual to all intents and purposes 
 whatsoever, in like manner, as if no such prior 
 act of bankruptcy had been committed, pro- 
 vided the person or persons so dealing with such 
 bankrupt had not, at the time of such convey- 
 ance, &c. any notice of any prior act of bank- 
 ruptcy, by such bankrupt committed, or that 
 he was insolvent, or had stopped payment. 
 
 But these statutes, as is evident from their
 
 170 ON TITLES : 
 
 language, merely afford a protection to bondjide 
 purchasers ; and the qualifications annexed to 
 these acts, render it extremely difficult to advise 
 a purchaser to accept the title of any trader who 
 is in failing circumstances. 
 
 Notice of an act of bankruptcy, or even o? 
 insolvency, deprives the purchaser of the pro- 
 tection of the latter act. And a commission of 
 bankruptcy within five years, deprives him even 
 of the protection of the former act; and a 
 commission of bankrupt within two calendar 
 months deprives him of the benefit of the lat- 
 ter act. There is this material difference be- 
 tween the former and the latter act ; the former 
 gives protection by a lapse of five years to a 
 bondjide purchaser for a valuable consideration; 
 so that after five years, unless there be a com- 
 mission of bankrupt in the mean time, the pur- 
 chaser acquires a secure title ; but under the 
 latter act, he is not, after two calendar months, 
 subject to the risk of a commission of bankrupt, 
 unless he be a purchaser, with notice of an act 
 of bankruptcy, or of insolvency. 
 
 2dly, Respecting the property which may 
 pass by a bargain and sale under a commission 
 of bankrupt. 
 
 1st, It extends to real and personal estates, 
 offices, &c. powers of appointment, &c. right 
 to the benefit of equities of redemption, con- 
 ditions, &c. and it even extends to rights of 
 action ; thus assignees, under a commission of 
 bankrupt, may maintain a writ of entry sur
 
 FORM OF ABSTRACT. 171 
 
 abatement, and consequently any other real 
 action, Smith v. Coffin, 2 Hen. Black. Rep. 444. 
 
 And the commissioners have power to bar- 
 gain and sell lands acquired even after the com- 
 mission, so as they are acquired before the 
 oankrupt is certificated. But for after-purchased 
 lands there must be a bargain and sale subse- 
 quent to the commencement of the title of the 
 bankrupt. The bargain and sale may also ope- 
 rate on estates for years, for life, in tail, or in 
 fee. Terms for years more commonly pass by 
 the assignment of the goods and chattels ; and as 
 part of them, without any specific words. It 
 was formerly supposed, on the construction of 
 the statute of 13 Eliz. c. 7, 2, that a term for 
 years would not pass from commissioners of 
 bankrupt without a bargain and sale indented 
 and enrolled. The note in the 12 Mod. 3, under 
 the name of Danby v. King, assumed it to be 
 a settled point, that an indenture and enrolment 
 were essential to make a title under a term 
 of years, from commissioners of bankrupt; but 
 it is now understood to be quite clear, that 
 enrolment is not necessary. 
 
 3dly, Estates for life, in tail, or in fee, cannot 
 pass to the assignees, without a deed indented 
 and enrolled ; and as commissioners have an 
 authority only, and not an estate, no estate 
 will vest under the bargain and sale until 
 enrolment. 
 
 With respect to estates for life, and in fee, 
 no time for the enrolment is prescribed ; but it
 
 172 ON TITLES : 
 
 is likely to be decided that the enrolment must 
 take place in the life-time of the assignees, or 
 of one of them. And it is material, that till the 
 assignees have an estate under a deed indented 
 and enrolled, they cannot communicate a legal 
 title to a purchaser. 
 
 In regard to estates tail, the seisin passes 
 under a deed indented and enrolled ; but the 
 estate tail or remainder will not be barred, un- 
 less the bargain and sale be enrolled within six 
 
 o 
 
 lunar months. The right to bar estates tail 
 and remainders, depends on the statute of 21 
 James I, c. 19, 12. The enactments are, " That 
 " the commissioners, or the greater number of 
 " them, shall have power by deed indented and 
 " enrolled, within six months after the making 
 " thereof, in some of his Majesty's courts of 
 " record at Westminster, to grant, bargain, 
 ^ sell, and convey, any manors, lands, tene- 
 " ments or hereditaments, whereof any bank- 
 " rupt is or shall be in any way seised of any 
 " estate in tail, in possession, reversion or re- 
 " mainder, and whereof no reversion or remain- 
 " der is or shall be in the crown, of the gift of 
 " the king, &c. to any person or persons for the 
 " relief of the creditors, &c. ; and that all and 
 " every such grants, bargains, sales, and con- 
 " veyances, shall be good and available in the 
 " law, to such person or persons, and their heirs, 
 " against the said bankrupts, and against all 
 44 and every the issues of the body of such bank- 
 " rupts, and against all and every person and
 
 FORM OF ABSTRACT. 1?3 
 
 " persons claiming any estate, right, title, or 
 " interest, by, from, or under the said bank- 
 " rupts, after such time as such person shall 
 " become bankrupt, and against all and every 
 " other person and persons whatsoever, whom 
 " the said bankrupt, by common recovery, or 
 " other ways or means, might cut off or debar 
 " from any remainder, reversion, rent, profit 
 " title, or possibility into, or out of any the 
 " said manors, lands, tenements or heredita- 
 " ments." 
 
 The principle established by this act, is, that 
 a bargain and sale from the commissioners of a 
 bankrupt tenant in tail, shall have the same 
 effect as any rightful assurance proceeding from 
 the bankrupt would have had. 
 
 Thus when he is tenant in tail in possession, 
 and might have suffered a common recovery, 
 the bargain and sale will have the effect of a 
 common recovery, and will bar the estate tail, 
 and all remainders and reversions, c, expectant 
 on the estate tail. 
 
 So when he is tenant for life, with a remote 
 remainder in tail, and consequently, as having 
 the freehold, and also an estate tail, he might 
 by a common recovery have enlarged his estate 
 tail into a fee-simple, by barring the estate tail, 
 and all remainders expectant on that estate. 
 A bargain and sale from the commissioners, 
 duly enrolled, will have the like effect. 
 
 But when the bankrupt has an estate tail in
 
 174 ON TITLES : 
 
 remainder, expectant on an estate of freehold 
 in some other person, then as the power of the 
 bankrupt was merely to levy a fine with pro- 
 clamations, and bar his estate tail, a bargain 
 and sale from the commissioners will have only 
 the like operation. If the bankrupt had ob- 
 tained the freehold prior to the bargain and 
 sale, then the power of the commissioners would 
 be commensurate with the power of the bank- 
 rupt, and the bargain and sale would operate 
 as a common recovery, instead of operating as 
 a fine with proclamations. 
 
 On this statute several difficulties arise, and 
 the points must be considered as doubtful un- 
 til they shall have been decided. 
 
 1st, Suppose the bankrupt to be tenant in 
 tail in remainder expectant on an estate of free- 
 hold, and the commissioners to execute a bar- 
 gain and sale, while the bankrupt is tenant in 
 tail in remainder, this bargain and sale will 
 operate only as a fine. 
 
 At a future period, the bankrupt or his issue 
 may be qualified to suffer a common recovery, 
 a doubt then arises, whether a subsequent bar- 
 gain and sale by the commissioners will pro- 
 duce the same effect as a common recovery by 
 the bankrupt or his issue would have produced. 
 Under these circumstances, the practice is to 
 require a common recovery from the bankrupt 
 and his issue ; for it is not clear that the com- 
 missioners, who have merely an authority, and
 
 FORM OE 1 ABSTRACT. 175 
 
 have once executed that authority, can, by a 
 second bargain and sale, produce any effect on 
 the title. 
 
 In another case, A was tenant for life, remain- 
 der to B his son in tail ; they were partners, and 
 became bankrupts, and a joint commission of 
 bankrupt was issued against them, and a bar- 
 gain and sale was made by the commissioners 
 to the assignees ; and it was contended, that as 
 the father and the son together might have 
 suffered a common recovery, the bargain and 
 sale from the commissioners should have the 
 like effect as a common recovery. Against this 
 operation it was objected, that the statute of 
 James I. merely adverted to the power of each 
 bankrupt individually ; and that the bargain and 
 sale had not any other effect on either estate than 
 if it had been confined to that estate ; and that 
 the rule juncta juvant did not apply. The case 
 is now under discussion, and to be decided by 
 the chancellor. 
 
 In all these instances it is clear beyond all 
 doubt, that a common recovery suffered by the 
 bankrupt, or by the issue in tail, with the con- 
 currence of the freeholder, would have the same 
 effect in barring the estate tail and remainders, 
 as it would have had in case there had not been 
 any bankruptcy. 
 
 It is also to be remembered, that commissioners 
 have merely an authority, and not any estate. 
 With respect therefore to copyhold lands on 
 which heavy fines of admission are payable, the
 
 176 ON TITLES : 
 
 prudent course is to except the copyhold lands 
 out of the commissioners bargain and sale, and 
 to execute a bargain and sale in the first in- 
 stance, ; n favor of the purchaser, when a, sale 
 shall have been made. 
 
 A bargain and sale to the assignees would 
 lead to their admission and payment of a fine, 
 and another fine be payable on the admission 
 of the purchaser. By making a bargain and sale 
 immediately to the purchaser, one fine would be 
 saved, and this saving is frequently an object. 
 
 All powers which are for the benefit of the 
 bankrupt, and are an interest in him. may be ex- 
 ercised by the commissioners ; but they have not 
 2 fifa an y power over estates of w r hich the bankrupt is a 
 f mere trustee; nor can they execute powers which 
 
 are in the nature of mere naked authorities, to be 
 exercised for the benefit of some third person, as 
 powers of selection, authorities to sell, &c. ; and 
 it is the generally received opinion, that the 
 commissioners cannot execute a power which is 
 limited to be exercised by the bankrupt and 
 his wife jointly, or by the bankrupt and any 
 other person jointly ; for instance> if lands are 
 limited to such uses as the bankrupt and his 
 wife should jointly appoint, and in default of 
 appointment to the bankrupt for his life, with 
 remainder to his wife for life, with remainder to 
 their children as they shall appoint, with re- 
 mainder to their children in strict settlement, as 
 tenants in tail, with remainder or reversion in 
 fee to the bankrupt; the commissioners may, by
 
 FORM OF ABSTRACT. 177 
 
 their bargain and sale, confer a title to the 
 estate for life, and to the remainder in fee, but 
 they cannot execute the first power, because 
 that power was not exercisable by the bankrupt 
 alone ; and they cannot exercise the second 
 power, because that power .was^ a mere au- 
 thority, and not an interest. . 
 
 For the purpose of protecting the interest of 
 the wife, it seems, on a first view, reasonable 
 that the power of the husband and wife should 
 not be suspended as to the estate for life and 
 estate in fee, by reason of the bargain and sale 
 of those estates. 
 
 But on mature consideration, it will appear 
 to be the more sound conclusion ; the conclusion 
 most consistent with the principles of law ; that 
 the bankruptcy is an alienation by the bank- 
 rupt, and, to the extent of his estate for life and 
 the ultimate fee, is a negative on his right to 
 exercise or join in exercising the power, to the 
 prejudice of this alienation; so that the power 
 remains in operation on that part only of the 
 fee simple which is not occupied by the. estate 
 for life, and the ultimate remainder in fee ; in 
 short, the bankrupt is precluded from assisting 
 in any act through the medium of the power ''^* "* 
 which would defeat the alienation through the * J 
 act of bankruptcy. See Goodright v. Cator, 
 2 Douglas 477. 
 
 This observation, negativing the right to ex- 
 ercise powers after bankruptcy? must be con- 
 
 N
 
 178 ON TITLES : 
 
 fined to powers conferring an interest, as dis- 
 tinguished from powers being mere authorities. 
 
 Sometimes a title depends on a choice of new 
 assignees. Such new assignees must be appointed 
 under an order of the chancellor sitting in bank- 
 ruptcy ; and it is not sufficient that there should 
 be an order of removal and an appointment of 
 new assignees ; but there must be a bargain 
 and sale, or a conveyance by lease and release 
 to carry on the title to the legal estate as in 
 ordinary cases. Bloxham and others, assignees 
 of Ward v. Hubbard, 5 East 407. 
 
 By the same case it was decided that the acts 
 requiring registration of bills of sale of ships do 
 not extend to assignments by operation of law, 
 as assignments by commissioners of bankrupt. 
 
 On the transfer to be made on the choice of 
 new assignees in the place of some only of the 
 assignees, it is proper to frame the conveyance 
 so as to make the new assignees and the con- 
 tinuing assignees jointenants. An inaccuracy 
 in this respect would not invalidate the title. 
 A conveyance from those who are assignees, 
 dejure, with a conveyance of the estate from 
 the persons, whoever they may be, in whom the 
 legal estate is vested, would render the title 
 complete. 
 
 Of Wills. 
 
 IN abstracting wills the following particulars 
 should receive attention ;
 
 FORM OF ABSTRACT. 179 
 
 1st, The date : and the date should be taken 
 from the will, and not, as is sometimes done by 
 mistake, from the letters of probate. 
 
 2dly, Any charge imposed for the payment 
 of debts, legacies, or annuities, should be shown; 
 and such annuities, and, in most cases, the 
 legacies, should be enumerated. 
 
 Also if debts are scheduled or specified, they 
 should be disclosed by the abstract; but 
 when there is a trust for payment of debts and 
 legacies, and the debts are not specified or 
 scheduled, and it does not appear that all the 
 debts have been paid, there does not exist any 
 reason for stating the legacies specially, since 
 the purchaser is not under any obligation to see 
 that they are paid. 
 
 But when it appears, either by a recital, by 
 a report of a master in chancery, or from any 
 other authentic document, that all the debts 
 have been paid, and some of the legacies are 
 known to be unpaid ; it seems, from practice, 
 to be the opinion of the profession, that the 
 purchaser is bound to see to the application of 
 his money in the payment of legacies. 
 
 Also if the debts become specified or scheduled 
 by the act of any of the parties interested in the 
 estate, or by the report or decree of a court of 
 equity, and they have not been satisfied in the 
 mode prescribed by the court, nor has the 
 money been applied under the direction of the 
 court, then there exists a necessity of treating 
 these debts as scheduled or specified debts, and 
 
 N 2
 
 ON TITLES : 
 
 they should be stated, inasmuch as the pur- 
 chaser is bound to see to the application of his 
 money. 
 
 Annuities, though for some purposes considered 
 as legacies, are, in regard to the subject now un- 
 der consideration, treated as specific charges ; as 
 gifts of a particular interest in the land ; so that 
 the rule respecting the charge of debts, generally 
 exempting the purchaser from seeing to the 
 application of his money in the payment of 
 debts or legacies, does not extend to annuities. 
 In oilier particulars, the rules prescribed, as 
 proper to be observed in abstracting deeds, are 
 proper to be observed in abstracting wills, ex- 
 cept that a will is, in general, from the ignorance 
 of those by whom it is penned, a more irregular 
 instrument. 
 
 The points to be attended to are to show, to 
 whom the lands are devised ; the words used in 
 description of the lands ; the words of limita- 
 tion by which the estate is devised ; the power, 
 if any, in pursuance of which the devise is 
 made; the words of modification, or of severance 
 of the tenancy, if there be any ; the words of 
 qualification which may abridge or defeat the 
 estate ; the uses and trusts, if any are created; 
 the conditions, or conditional limitations by way 
 of executory devise, or otherwise, annexed to 
 the devise or appointment ; the charges imposed 
 on the devisee ; the indemnity, if any, against 
 seeing to the application of the purchase-money, 
 or mortgage-money ; such powers, if any, as
 
 FORM OP ABSTRACT. 181 
 
 are material to the title : and when leasehold 
 lands are the subject of the title, the appoint- 
 ment of executors. And in abstracting each 
 of these clauses, there should be a close adher- 
 ence to the language of the will, so that a correct 
 opinion may be formed of its construction : and 
 the context should always appear, as far as it 
 may, in any manner, influence the construction* 
 by explaining, enlarging, abridging, or in any 
 other manner affecting the genuine import of 
 the words on which the title more immediately 
 depends. And it is more proper to be diffuse 
 in giving the language of a will, especially one 
 not prepared in technical language, than to at- 
 tempt to reduce the abstract into a narrower 
 compass, and thus withholding information 
 which may be material. 
 
 Indeed, in abstracting wills, it is, from the 
 inaccuracy with which they are frequently pre- 
 pared, and the want of the regular form which 
 is observed in deeds, of the first importance to 
 add all limitations over, and all clauses which 
 can affect the context, or vary the construction. 
 
 How often does it happen, that in wills, words 
 which import an estate in fee simple are, by 
 subsequent expressions, and especially by words 
 of limitation over, qualified into an estate tail, 
 or into a fee determinable by executory devise. 
 And again, words which under the rule in 
 Shelley's case import to create an estate tail, are, 
 from other expressions in the will, expounded to 
 give the property to the heir or heirs of the 
 body as purchasers. 
 
 N 3
 
 182 ON TITLES : 
 
 Variations of this sort are almost infinite. 
 Hence the importance that every clause which 
 can influence the construction should be ab- 
 stracted. In numerous instances, the opinions 
 which counsel give on an abstract are very dif- 
 ferent from the opinions they would have given 
 on a perusal of a full copy or extract of the 
 will. 
 
 At the foot of every will it is proper to show 
 at M hat time the testator departed this life ; the 
 court in which the will was proved, and the 
 time of the probate, as a means, in some degree, 
 of ascertaining the time of death ; and if the 
 lands are in a register county, then the fact, and 
 the time of registration, should be added. 
 
 It rarely happens that the time of the death 
 of the testator is stated. This is material in 
 many cases for the purpose of showing at what 
 time the title of the devisee commenced. 
 
 This fact, however, is of less importance 
 when the will is proved shortly after the death 
 of the testator, or before any act is done, or 
 conveyance made, to occasion any material 
 change in the ownership. 
 
 As to real estate, the probate of the will is 
 given, partly that the inference may be drawn, 
 that the testator was dead before a given time, 
 and partly to direct to the court in which a 
 search may be made for the will ; in case the 
 attorney for the purchaser should think fit to 
 search for the will. 
 
 But as to leasehold estates, the probate of 
 the will is of importance, as a step in the title,
 
 FORM OF ABSTRACT. 183 
 
 since no one can be the executor of an exe- 
 cutor, unless the will has been proved by the 
 first executor, and was proved by him in the 
 proper court : though an executor may assign 
 or surrender before probate, yet to prove that 
 he was executor, the will must be proved either 
 by the executor, or by some^ other person. See 
 Peake's evidence and references^ Nor can any 
 one be an administrator de bonis non of the first 
 testator, otherwise than by taking letters of ad- 
 ministration from the same^court in which the 
 will was proved ; nor then unless the will was 
 proved in the proper court ; with a difference, 
 however, that such administration may be void 
 or voidable according to the circumstances. 
 
 o 
 
 Also, if there be a confirmation of the will by 
 the heir at law, or any conveyance taken 
 from him, or any proceeding had against him 
 to establish the will, or any interest be left 
 undisposed of, which descends to the heir at 
 law ; in all these cases it is material to state 
 who was the heir at law of the testator at his 
 death ; and when the circumstances of the case 
 require it, there should be a deduction of the 
 title from heir to heir, or from heir to devisee, 
 and, in some cases, from heir to executor, as 
 for example, where the land is converted into 
 money (quoad the heir,) as where the heir takes 
 a lapsed legacy, or part of a residue, as lapsed, 
 or undisposed of, or the residue of trust-monies 
 by resulting trust. 
 
 Also, when any devisee, either in fee, or of a 
 N 4
 
 184 ON TITLES : 
 
 particular estate, dies in the life-time of the tes- 
 tator, the fact should be stated. 
 
 Also, when a will is partially or wholly re- 
 voked, or revoked pro tanto in equity, the deeds, 
 &c. which are the cause of revocation, should 
 be stated ; and it is most correct to state the 
 deeds, wills, &c. in the order of their date, and 
 not, as is too frequently the case, according to 
 the order of the times at which they respectively 
 operate ; thus placing the deeds which operate 
 in the life-time of the testator, prior to the will 
 whose operation is suspended till his death. 
 
 Also when the fact warrants it, it is usual 
 to state that the testator died without having 
 altered or revoked his wall ; or without having 
 altered or revoked the same as far as relates to 
 the lands in question ; or except as to some 
 particular legacy, or particular lands. 
 
 Codicils, &c. which revoke a will, should be 
 given according to the order of their dates ; and 
 if they vary the state of the title, they should 
 be stated as separate and independent instru- 
 ments. 
 
 Also, when a codicil republishes a will, the 
 date of the republication should be added ; and 
 it is more proper to add it as a separate and 
 independent fact, according to the order of its 
 date, than by a memorandum at the foot of the 
 will. 
 
 Also, when a will is proved in the court of 
 chancery per testes, that fact should either be 
 noticed generally, as when that was the sole
 
 FORM OF ABSTRACT. 185 
 
 object of the suit; or it should be noticed in 
 abstracting the decree of the court, when that 
 decree may be material to the title on some 
 other account. 
 
 . Also, as to wills and codicils referrible to the 
 "title of real estates, it should be stated either 
 in the introductory part, or at the foot, of the 
 abstract of these instruments, that the same 
 were executed not only in the presence of, but 
 were also attested by, three witnesses. 
 
 Of Probates. 
 
 AT the foot of every will it should be shown 
 in what court, and by whom, the will was 
 proved, and also the date of the letters of 
 probate ; and when a person claims as the exe- 
 cutor of an executor, or the executor of a sur- 
 viving executor, it should be shown that the 
 will was proved by such first executor or sur- 
 viving executor ; and the representation should 
 be carried on by showing probate of the will of 
 the only executor, or the surviving executor, 
 in each gradation of the succession. And 
 when the executor, or surviving executor, dies 
 intestate, there should be an abstract of letters 
 of administration de bonis non, of the first 
 testator. 
 
 To make out a representation by an executor- 
 ship to a surviving executor, the fact of his 
 survivorship should be shown by certificates of 
 burial of his co-executors before his death.
 
 186 ON TITLES I 
 
 But unless the title has been varied by inter- 
 mediate acts, it does not seem to be necessary 
 to show the letters of administration obtained 
 by each successive administrator. 
 
 Mistakes are sometimes made in deducing 
 the title under letters of probate, when there 
 are several executors. It is common for one or 
 more of the executors to renounce the probate, 
 and then the other executors prove, and die 
 in the life-time of the disclaiming executors. 
 In this instance, the disclaiming executors must 
 either prove the will, as they may do, or they 
 must renounce the probate, and if they renounce 
 the probate, administration de bonis non must 
 be granted. 
 
 These observations are dictated by a con- 
 sideration of the following points ; 
 
 1st. No one becomes, till probate in a court 
 of competent jurisdiction, complete executor 
 for transmitting the succession; and consequent* 
 ly, unless he has proved the will, his executor 
 will not be the executor of the first testator ; 
 but there must be an administration generally, 
 unless some executor proved ; and if any exe- 
 cutor proved, then letters of administration de 
 bonis non. 
 
 2dly. A renunciation by all of several execu- 
 tors will make an absolute intestacy ; and letters 
 of administration, with the will annexed, must 
 be granted. If there be several executors, and 
 all prove, the executor of the surviving executor 
 will become the executor of the first testator ;
 
 
 FORM OF ABSTRACT. 187 
 
 with this exception; before the probate of the 
 will of his own testator, not afterwards, he may 
 disclaim to be the executor of the first testator. 
 
 If there be several executors, and some re- 
 nounce, and some prove, those who have re- 
 nounced must, in the event of their being the 
 survivors, prove the will, or renounce ; and till 
 they have renounced, letters of administration, 
 with the will annexed, cannot be granted with 
 effect. 
 
 If the representation is to be carried on by 
 executorship, it must be shown that the executor 
 was appointed by the survivor of the several 
 executors, including those who renounced, as 
 well as those who proved ; and if the surviving 
 executor proved the will, then the gradation is, 
 A and B, executors of C, who proved the will 
 of -D, and was the only executor, or the survivor 
 of the executors named in his will ; and so on 
 progressively through the whole line of suc- 
 cession from executor to executor. 
 
 The letters of probate, if they state the fact, 
 are considered in practice, as evidence of the 
 fact. Even in courts of justice they are full 
 evidence of the facts they state ; but if the facts 
 are mis-stated, or can be controverted, a pur- 
 chaser might make such mistake a ground of 
 objection to the title. 
 
 Letters of probate, &c. do not form any es- 
 sential part of a title to real estate derived 
 under an authority to executors to sell.
 
 188 ON TITLES : 
 
 Of Administrations. 
 
 WHEN the personal representation ^to de- 
 ceased persons is material, as it is in all cases 
 respecting chattels real or personal charges, 
 and the person died, either originally or even- 
 tually intestate, the letters of administration of 
 his effects should be abstracted. They may be 
 general or special, and they should be abstracted 
 accordingly. They should show the date of 
 the letters of administration ; by whom they 
 were obtained ; out of what court, namely, a 
 court of competent jurisdiction ; and the sub- 
 ject of the administration, as, all the goods, 
 chattels, and credits generally, or all the goods, 
 chattels, and credits of A 9 left unadministered 
 by JB; or the goods, chattels and credits of A, 
 as far as relates to a particular term for years. 
 
 Of Decrees, fyc. 
 
 WHEN decrees are material to the title they 
 should be abstracted. Sometimes it is even 
 convenient to abstract the bill on which the 
 decree is founded, so far as it states the facts of 
 the case, and the material parts of the prayer 
 of the bill. 
 
 Sometimes also it is very proper to state some 
 material fact from the answer, as the state of 
 the pedigree, &c. as disclosed by the answer, or 
 some question raised by the defendants. 
 
 The decree itself should be stated so far only
 
 FORM OF ABSTRACT. 189 
 
 as it materially affects the title, as, by declaring 
 the will of real estate duly proved, or the trusts 
 thereof to be performed ; decreeing a redemp- 
 tion ; a foreclosure, or a partition ; or directing 
 a sale in performance of trusts ; or a mortgage 
 to be made ; or portions to be raised ; or com- 
 pelling the defendant to elect; ordering an 
 account to be taken ; new trustees to be 
 appointed, and the former trustees to be dis- 
 charged; and to execute conveyances, &c. &c. 
 
 And as often as there is a direction for the 
 application of the money, the mode in which 
 the money is to be applied under the decree 
 should appear on the abstract. 
 
 To the decree should be added the report of 
 the master, ascertaining any fact under a refe- 
 rence to him ; the purchase at a sale before the 
 master ; the price offered ; the allowance of the 
 master ; and the confirmation by the court of 
 the report ; exceptions to the title ; and the 
 order made on arguing the exceptions. 
 
 So, when the accounts are material, to show 
 the amount of an encumbrance, or the like, the 
 report of the master, ascertaining the state of 
 the account, and the balance, and the order 
 confirming the report, should appear on the 
 abstract. 
 
 In all cases of reports, it should be* shown, 
 that the report was confirmed by order of the 
 court, or over-ruled on exceptions. And such 
 interlocutory orders of the court as direct the
 
 190 O-N TITLES : 
 
 application of the money, are particularly proper 
 to be abstracted. 
 
 And whenever money is paid into court, and 
 it is incumbent to see that it has been so applied, 
 and there is not any subsequent order which 
 recognizes the payment, the fact of payment 
 should be stated from an office-copy of the 
 accountant-general's certificate. 
 
 In short, whatever may elucidate the title, 
 and show the rights or interests of the parties, 
 their encumbrances, and the extent of them, are 
 properly introduced into the abstract, from the 
 proceedings in chancery ; and the more recent 
 the proceedings in chancery, the more import- 
 ant it is that their substance, and the material 
 parts, should be given in such manner that their 
 effect and influence on the title may be fully- 
 comprehended. 
 
 Of Judgments, <fyc. 
 
 WHEN judgments affect the title, or are 
 assigned, and kept on foot to protect the title, 
 they should be noticed on the abstract; and to 
 the judgments, when assigned, should be added 
 the assignment and declaration of trusts* 
 
 It rarely happens that the solicitor for a 
 seller discloses, by the abstract, judgments ob- 
 tained against his client, or any of his ances- 
 tors, or testators, or former proprietors. 
 
 When they are known, or when there is not 
 any outstanding estate by which the purchaser
 
 FORM OF ABSTRACT. 
 
 can be protected from them, under the circum- 
 stance that he is a purchaser for a valuable 
 consideration, and without notice, it is the duty / +* fi* 
 of the vendor's solicitor to furnish the purchaser iff**. 
 with- an abstract of the judgments. 
 
 It is to be remembered, that judgments are / 
 charges by way of lien in equity from the time ^j" ^. 
 at which they are recorded; and at law from j.*?a *,. 
 the time at which they are docketed ; and 
 from that time, or, which last happens, from 
 the time of ownership in the defendant the lien 
 attaches. And as judgments obtained prior to / LJ. 
 the commencement of ownership, affect the 
 seisin when acquired, the search for judgments 
 should sometimes be extended beyond the com- 
 mencement of the ownership. 
 
 The general rule is to search for judgments / .,,/? 
 for ten years; and if any judgment appear with- ;-^ Mti 
 in that time, to search for ten years from the j^ 
 time of the more early judgment ; and in like 
 manner for ten years from each judgment, 
 which shall be found ; stopping, in all cases, at 
 the period when the owner became adult, unless 
 there be reason to suspect there are judgments 
 against him while a minor. 
 
 The result of a judgment is sometimes an 
 execution by elegit as to freehold lands, and an 
 execution and sale as to leasehold lands. Under 
 the execution by elegit there arises an estate, 
 in the nature of a chattel interest, to continue 
 until the debt shall be paid ; and under an exe-
 
 ON TITLES : 
 
 cution and a sale of a term of years, a title will 
 be conferred for the residue of the term. 
 
 Of these subjects, a more enlarged view will 
 be taken in a subsequent part of this work. 
 
 It is also the duty of the solicitor for the pur- 
 chaser, except in the cases which will be noticed 
 in the sequel of these observations, to search for 
 judgments, and to satisfy himself, that there are 
 not any judgments (except those which are dis- 
 closed to him,) which can affect the title. 
 > Of the same description are recognizances, 
 statutes merchant, and of the staple, debts of 
 record, and debts to the crown, by bond or 
 recognizance. : 
 
 In register counties the search should be of 
 the register for encumbrances, by judgments, 
 recognizances, and the like. As to lands in 
 other counties, it is the practice to search the 
 warrant-of-attorney-office for judgments in the 
 common pleas, and the judgment-office for judg- 
 ments in the king's bench; and in the exchequer- 
 office of pleas for judgments in the exchequer ; 
 and the seakoffice for statutes merchant, &c. in 
 chancery ; and with the clerk of the staple, in 
 those cities and towns which have a staple. 
 
 By the statute of 4 and 5 William and Mary, 
 c. 20, it was intended to protect purchasers from 
 judgments, unless they were docketed in the 
 mode prescribed by that statute. 
 
 It was the object of the several register acts, 
 to produce the same benefit in point of security 
 to purchasers of lands in counties having a 

 
 FORM OF ABSTRACT. 193 
 
 register. And at law no judgment is binding 
 on a purchaser unless it be docketed ; and as to 
 lands in register counties, unless the judgment 
 be registered. But as these judgments, &c. 
 are valid against the defendant, whether they 
 are registered or not, or whether they are 
 docketed or not, they are treated by courts of 
 equity as encumbrances against every purchaser 
 who can be affected, by notice before the com- 
 pletion of his purchase, of the lien subsisting 
 under the judgment, &c. See Davis v. the 
 Earl of Strathmore, 16 Ves. 419- 
 
 Crown Debts. 
 
 BY the common law, every debt to the crown 
 on record, becomes from the time at which the 
 debtor is indebted by record, a lien on his 
 real estate, with a relation to the time at which 
 the debt appears on record. The statute of 
 33 Hen. VIII. c. 39, 2, extended the lien of 
 the crown to debts to the king by bond, or 
 other specialty ; but as to leasehold estates, a 
 sale before the teste of the writ of execution 
 will be good against the crown. See Sir Gerard 
 Fleetwood's case, 8 Rep. 91 ; but an atten- 
 dant term, though assigned in trust for the 
 purchaser, will not protect against a debt to 
 the crown. 
 
 By the statute law, the crown has been armed 
 with several privileges for better securing its 
 debts ; and the law on this subject is very 
 
 O
 
 194 ON TITLES : 
 
 material to titles. It is necessary only in this 
 place to state, that in all cases in which a vendor, 
 or a former owner is likely to be, or to have- 
 been, indebted to the crown, there should be 
 a search for crown debts. It often happens, 
 that as sureties, persons are indebted or bound 
 to the crown, on whom suspicion would not 
 readily alight. 
 
 Lands of receivers of the crown, being im- 
 mediate accountants to the crown, (see ISEliz. 
 c. 4,) become, by virtue of their office, and 
 from the time of their appointment to the 
 office, and not merely from the time of their 
 becoming; indebted, liable to a lien of the 
 
 o 
 
 crown ; so that sales by such receivers, before 
 they become indebted, may be defeated by 
 debts subsequently contracted. Acts of par- 
 liament are sometimes found necessary to 
 relieve a title from all lien of the crown, on 
 account of these receivers. 
 
 Of the Circumstances which should le .stated in 
 explanation of the Abstract. 
 
 IT has already been observed, that explana- 
 tions of this sort are generally introduced into 
 the recitals of a subsequent deed, and are to be 
 collected from them. And though these recitals 
 do not keep up the chain of the title, as regu- 
 larly as if the circumstances of the title were 
 stated in the order of their dates, as separate 
 and independent facts ; yet when these facts 
 appear in the recital of a deed of a distant
 
 FORM OF ABSTRACT. 195 
 
 date, and these facts have been acted on, 
 or acquiesced in, they are, in a high degree, 
 satisfactory, since they remove all doubt con- 
 cerning the existence of the fact, or its accuracy. 
 With a view, however, to connect the title, and 
 to preserve a regular chain of its evidence, it 
 seems preferable to give the facts, in the order 
 of their date, or by way of explanation of the 
 facts, &c. to which they relate ; and it may be 
 averred, that these facts appear in the recitals 
 of a certain indenture, bearing date, &c. 
 
 In considering the different parts of the 
 abstract j notice has been taken of several 
 circumstances proper to be noticed by way 
 of explanation. To these should be added, 
 whatever fact may materially vary the state 
 of the title, or show that it has been regularly 
 deduced ; 
 
 Of this description are, 
 
 1st. The death of A 9 who was tenant for 
 life. 
 
 2dly. The death and failure of issue of^, 
 who was tenant in tail. 
 
 3dly. The return of C from Rome, when his 
 estate is to determine, or the estate of another 
 person is to commence on that event. And as 
 often as the time at which the event takes place 
 is material, as it frequently is, with a view to 
 the operation of a common recovery, suffered 
 by a person whose estate commences in posses- 
 sion, by the determination of a prior particular 
 
 O2
 
 196 ON TITLES : 
 
 estate ; or the right of a person taking as heir, 
 devisee, or executor, &c. to make a conveyance 
 or will, levy a fine, suffer a recovery, &c. ; whether 
 clower or curtesy has attached ; or a merger has 
 taken place ; or a contingent remainder has been 
 destroyed ; the time of the determination of the 
 particular estate, or the death of the ancestor, 
 testator, &c. should be expressed. 
 
 Also, to show the application of settlements, 
 wills, &c. in regard to the persons for whom 
 provision is thereby made, the number of the 
 issue, &c. should be mentioned ; so that it may 
 appear what were the interests to which they 
 became entitled under the settlement, will, &c. ; 
 and if their shares or interests have been varied 
 by death, &c. the events which have caused 
 this variation, should be noticed. 
 
 The facts also of survivorship of two or more 
 persons, taking as joint-tenants, either as trus- 
 tees, or beneficially, or as executors, &c. ; or of 
 one of several persons taking under a limitation 
 to the survivor of several persons, being the 
 objects in whom an estate given to a class 
 of persons vested, is a proper subject to be 
 expresed in the abstract. 
 
 In short, every circumstance which may afford 
 any light on the state of the title, or to account 
 for the deduction of the same, ought to appear 
 as part of the history of the title. And on many 
 occasions it is proper that the facts which 
 depend on extraneous circumstances, should 
 be authenticated by certificates, of baptism,
 
 FORM OF ABSTRACT. 197 
 
 burial, marriage, and the like ; or by the affi- 
 davits of persons to whom facts are known, 
 which do not admit of being verified in any 
 other mode ; as identity of persons, and of par- 
 cels, possession, seisin, c. &c. 
 
 Also, in complicated titles, depending on a 
 deduction by descent, from a remote ancestor, 
 there should be a pedigree of the family, as the 
 only means of rendering the state of the title 
 clear and perspicuous. And when the title is 
 derived under a remote remainder or reversion, 
 which was devisable by each successive owner, 
 the time of the birth and death of each person 
 who for the time being was the heir at law, 
 should be stated, as far as it can be ascer- 
 tained. 
 
 Sometimes also, in the abstract of the deed 
 or will itself, it is useful, and of great assistance 
 to the person by whom the abstract is to be 
 perused, and to whom the state of the family 
 cannot otherwise be familiar, to aver the fact, 
 that the contingency did or did not happen, in 
 this or the like form, viz. " In an event which 
 " did not happen, namely, in case A should 
 " die in the life-time of 23, then, &c.;" or, " In 
 " an event which did happen, namely, in case 
 " B should die in the life-time of A.&cc." 
 
 During the continuance of particular estates 
 which are determined, various acts may have 
 taken place, which cease to have any effect after 
 the determination of these estates. The rule 
 is, cessante static primitive, cessat derivativus. 
 
 03
 
 198 ON TITLES : 
 
 - As a general proposition, the conveyances of 
 particular tenants whose estates are determined, 
 may be disregarded and omitted out of the 
 abstract. But there are many instances in 
 which these acts may have an influence on the 
 title to the inheritance ; and so far they are to 
 be added to and form part of the abstract. For 
 example, A is tenant for life, with remainder 
 to B, in tail ; A assigns to C. Suppose A and 
 By or A and C, to suffer a recovery after such 
 assignment, the assignment should be stated ; 
 in the former of these cases, that the defect in 
 the recovery may appear ; and. in the latter 
 instance, the assignment should be stated, to 
 show the competency of C. to assist B in 
 suffering a valid recovery. 
 
 So A may, by feoffment, or fine or recovery, 
 have divested the remainder or reversion ; or a 
 tenant in tail may have discontinued the in- 
 heritance ; each of these acts may materially 
 influence the title to the inheritance; and under 
 these and all other like circumstances, the acts 
 of A should appear on the abstract as con- 
 stituting part of the evidence of title to the in- 
 heritance, even after the determination of the 
 estate of A. 
 
 Experience proves, that a great number of 
 titles are defective, from the circumstance, that 
 a recovery has been suffered, with the assistance 
 of a person as tenant for life, after he had 
 aliened his estate for life, by way of mortgage, 
 or as a security for an annuity ; and conse-
 
 FORM OF ABSTRACT. 199 
 
 quently, after he who remained the apparent 
 owner no longer, had the right to assist in 
 suffering the recovery. 
 
 These are the leading observations to be 
 regarded in preparing abstracts of title ; and 
 these observations, with others which will rea- 
 dily suggest themselves, as the circumstances 
 may dictate, will direct the attention of the 
 gentleman by whom it is to be compared, on 
 the behalf of the purchaser, to take the neces- 
 sary cautions in seeing that the abstract is 
 complete, and in supplying any defects or 
 omissions. 
 
 It is more particularly the duty of the soli- 
 citor of a purchaser, embracing under this term 
 a mortgagee, to see that no fact is stated on 
 light foundation, or without being warranted 
 by some authentic or reasonable evidence. 
 
 It is also his business to take care that, 
 though the abstract be correct, as far as it is 
 stated, no provisions are omitted which may 
 materially vary the state of the title ; and for 
 this purpose, it is his duty, first, to peruse the 
 abstract; and secondly, to peruse the deed or 
 will from which the abstract is prepared. This 
 is a tedious business, and it is too frequently 
 committed to the care of persons who have not 
 sufficient interest to discharge their duty with 
 care, or sufficient information to perform it with 
 judgment. 
 
 In general, every deed, &c. should be read 
 by one person, in comparison with the abstract 
 
 04
 
 200 ON TITLES: 
 
 held by another person ; or the abstract should 
 be read to the person who is perusing the 
 deed, &c. 
 
 The practice in preparing abstracts seems to 
 have taken a turn by no means favorable to the 
 interest of purchasers. The professional emolu- 
 ments arise from preparing the abstract, and 
 not from examining it. It is now prepared by 
 the solicitor for the seller. Formerly it was 
 prepared by the solicitor for the purchaser ; 
 and this, as far as the point of accuracy is in 
 question, is the more eligible mode, since the 
 deeds were left with the purchaser's solicitor, 
 and they were abstracted at leisure, and he had 
 sufficient time to take care that all the material 
 parts were inserted in the abstract. 
 
 It is to be feared that now, in some instances 
 at least, sufficient time is not allowed, or if 
 allowed, cannot be devoted by the solicitor for 
 the purchaser to read over and compare the 
 voluminous deeds constituting the evidence 
 of a title, which has experienced a frequent 
 change of ownership, or been fettered by vari- 
 ous encumbrances. To understand one deed 
 thoroughly, and all its various operations, com- 
 bined as they may be with numerous external 
 circumstances, will sometimes engage the atten- 
 tion of those most skilled in the subject, for the 
 greater portion of a day, and require frequent 
 recurrence to the subject before the contents 
 can be perfectly comprehended. What then 
 can be expected from a person who is at once
 
 FORM OF ABSTRACT. 201 
 
 to wade through deeds, wills, &c. which run to 
 the length of several hundred skins, and a short 
 abstract of which alone comprises from fifty to 
 a hundred pages. 
 
 It is a subject of surprise that more inac- 
 curacies do not occur ; and that more defects 
 than are experienced in titles do not exist. Did 
 clients know the care and attention devoted to 
 their concerns, in the progress of a faithful dis- 
 charge of duty, in the completion of any trans- 
 action of difficulty, connected with a title to 
 real property, they would be more sensible, than 
 they seem to be, of the value of the assistance of 
 those whom they employ. 
 
 The points to which the solicitor for the pur- 
 chaser should also attend with particular care, 
 are, to see that the will, if any, appears to be 
 duly attested ; and that the deed is executed by 
 the persons named in the abstract, as executing 
 the same; and that the execution by them is 
 duly attested according to the general rules of 
 law, unless a particular mode be required ; and 
 then in the mode required ; or is attested in 
 the mode noticed in the abstract ; and that the 
 receipt, if any is indorsed for the consideration 
 money, is duly signed ; and that the deed, if 
 professed to be enrolled, was duly enrolled ; and 
 finally, that the deed was on the proper stamps: 
 a head of investigation which now requires great 
 accuracy, and a minute knowledge of the stamp 
 laws.
 
 202 ON TITLES : 
 
 Of Abstracts of Title to Copyhold Lands. 
 
 
 
 HITHERTO the observations which have been 
 made have been more immediately applied to 
 lands of freehold tenure ; but the general rules 
 are equally applicable to lands of copyhold 
 tenure. 
 
 The deduction, however, of the title to copy- 
 hold lands generally depends on a customary 
 mode of conveyance, and of admittance by 
 the lord. 
 
 These customary conveyances are, 
 
 1st, Surrenders to the use of a purchaser, or 
 surrenders to particular uses, or surrenders to 
 the use of a will, c. and a will made pursuant 
 thereto, and the admittance thereupon. 
 
 In general a copyholder cannot transfer his 
 estate by a common law conveyance, but such 
 common law conveyance, except in the instance 
 of a lease warranted by the custom of the manor, 
 or a lease for one year, which, unless restrained 
 by custom, is warranted by the rules of the com- 
 mon law, will be a forfeiture of the copy hold te .. 
 ment. But there are several instances which may 
 be considered as exceptions to the general rule, 
 and in which a common law conveyance will ope- 
 rate with effect ; thus, one of several joint-tenants 
 may release to the other ; so a person having a 
 mere right, or an inchoate interest as a contin-
 
 J'ORM OF ABSTRACT. 203 
 
 gent remainder, may release to the copyhold 
 tenant, or may release to the lord. 
 
 2dly, An authority to sell, created by a will 
 under a surrender to the use of that will, may 
 be executed by a sale made by a deed, and the 
 bargainee will be entitled to be admitted. 
 
 3dly, Under the statutes relating to bank- 
 rupts, and other special acts of parliament, as 
 the land-tax acts, a bargain and sale enrolled 
 may be the only efficient mode of transferring 
 the copyhold estate. These observations are ap- 
 plicable only to alienations of the legal estate; for 
 the equitable owner of a copyhold interest not 
 being tenant in tail, or a married woman, 
 may bind his or her interest by any deed or 
 contract. 
 
 It is observable also, that entails of copyhold 
 lands, whether they affect the legal or the equit- 
 able ownership, may be barred in the mode 
 prescribed by the custom. They may be barred 
 by a surrender, and even a surrender to the use 
 of a will, unless some other mode, as a customary 
 recovery, or the like, be rendered necessary by 
 the particular custom of the manor. 
 
 It is also to be noticed (though the contrary 
 is to be found in Mr. Ji at kins' s valuable book 
 on copyholds) that there cannot be any entail 
 of the equitable ownership, except in those cases 
 in which the legal ownership of the same lands 
 might be entailed. See Pullen v. Middltton. 
 9 Mod. 494. 
 
 Every abstract relating to copyhold lands
 
 204 ON TITLES ! 
 
 should show the date of each surrender and ad- 
 mittance, the person by whom the surrender 
 was made, the admittance, or the grants by the 
 lord upon forfeitures, &c. and, either by special 
 words, or by reference, the lands which are sur- 
 rendered, or to which admittance is granted. 
 It should also show the admittances of the heir 
 as such; and the proceedings which are had 
 under customary recoveries, to bar legal or 
 equitable entails ; and also all special covenants 
 and agreements, even in deeds and ottoer instru- 
 ments, which may materially affect the equit- 
 able title ; also the surrenders made to the use 
 of wills, and whether they are made to the use 
 of the will generally or specially, as to the use 
 of the will made or to be made. 
 
 It should also state the wills (if any) made in 
 pursuance of such surrender, and when the lands 
 of copyhold tenure are specifically devised under 
 circumstances which will entitle a court of equity 
 to supply the want of a surrender, as in favor of 
 a child., a wife, or a cr 'editor , for it will not supply 
 the want of a surrender in favor of a grandchild, 
 a husband, or a stranger, except so far as he is 
 a creditor, or may raise a question of election, 
 by imposing on the customary heir the obliga- 
 tion in equity, of either giving effect to the dis- 
 position, or waving in favor of the disappointed 
 devisee, the lands which are devised to the heir, 
 such will, &c. should be abstracted. 
 
 Also inclosure acts, which substitute allot- 
 ments of land in lieu of lands formerly of copy-
 
 FORM OF ABSTRACT. 205 
 
 hold tenure, are with propriety introduced into 
 the abstract. 
 
 When freehold and copyhold lands are inter- 
 mixed, or constitute part of the same farm, or 
 are sold together to the same person, the abstract 
 generally shows, in the first place, the state of 
 the title to the freehold lands, with the cove- 
 nants, c. which affect the equitable title to the 
 copyhold lands ; and the legal title to the copy- 
 hold lands is given in a distinct abstract, so as 
 to disclose the transactions which have taken 
 place in the copyhold court. 
 
 When copyhold lands are enfranchised, and 
 the copyhold tenure becomes extinct in the 
 freehold tenure, the evidence of the title should, 
 to be complete, show the state of the title under 
 the copyhold tenure, and also the state of the 
 title under the freehold tenure ; for the copy- 
 hold tenure exists in point of right for the bene- 
 fit of all persons who can make title to the same, 
 or show any encumbrance under this tenure. 
 And as the copyhold tenure is extinguished, the 
 freehold tenure governs the right to the posses- 
 sion ; and the judgments, &c. and other encum- 
 brances of the owner of the freehold tenure may 
 be considered as affecting the actual possession, 
 as far as it is discharged of the copyhold tenure. 
 In this respect there is a great affinity between 
 the learning of merger, by which one estate is 
 absorbed in another, and extinguishment, by 
 which one tenure is annihilated in the other. 
 
 In the observations to be made on the state
 
 . : ON TITLES : 
 
 of the title, as falling within the province of the 
 conveyancer, the different modes which have 
 been adopted to guard against the total annihi- 
 lation of the copyhold tenure, so as to prejudice 
 the title by accelerating the encumbrances of 
 the owner of the freehold tenure, or by blending 
 one title with the other, will be considered. 
 
 It frequently also happens that different copy- 
 hold lands are parcel of different manors ; in 
 this case there should be a distinct abstract of 
 the title to the copyhold lands, held under each 
 distinct manor ; as being the most convenient 
 arrangement that can be made for simplifying 
 the evidence of title. 
 
 This, however, is so universally the practice, 
 that any caution on the subject may appear 
 altogether unnecessary. 
 
 As to Lands of the Tenure of ancient Demesne. 
 
 Very few observations are material to be 
 offered on this head, as the general rule for 
 preparing abstracts of lands held in common 
 socage tenure, are equally applicable to lands of 
 the tenure of ancient demesne, except that it 
 would be proper to notice any acts which have 
 been done by the tenant, with or without the 
 consent of the lord, to render these lands frank- 
 free, viz. common socage tenure ; and also whe- 
 ther the acts so done remain in force, or have 
 been avoided, as they may be, by a writ of de- 
 ceit, when the lord is not bound by these acts,
 
 DUTY OF CONVEYANCER. 207 
 
 The abstract, when it concerns lands and 
 tenements of the tenure of ancient demesne, 
 ought to state that fact in the head or title of 
 
 o 
 
 the abstract, because a fine cannot, at least 
 without an express custom, (Jenk. Cent. 87. 
 Dyer 373,) be levied of lands in ancient de- 
 mesne to bar an estate tail, Hunt v. Bourne, 
 1 Salk. 339. 
 
 It may be frequently necessary, either in 
 judging of a title, or in advising on the means 
 of completing it, to treat a fine as ineffectual, 
 while it would be a sufficient assurance if the 
 lands had not been of the tenure of ancient 
 demesne. 
 
 The principal object of introducing this head 
 into this place, is merely that those points shall 
 be raised by the abstract, which ought to be 
 considered, and will be suggested by the ob- 
 servations to be made on this subject. 
 
 Of the Points to which attention is to be paid 
 in considering the Abstract, and advising on 
 the state of the Title. 
 
 THIS part of the subject includes more im- 
 mediately the duty of the conveyancer or 
 counsel. 
 
 The object, in every abstract of title, should 
 be to show the precise state of ownership, of 
 the persons by whom the sale or mortgage is 
 to be made. 
 
 It ought to disclose the history of the title,
 
 308 ON TITLES ! 
 
 and all material circumstances attending the 
 same, and the charges and encumbrances by 
 which the title is affected. 
 
 This will more particularly appear in the 
 observations which have been suggested on the 
 proper form of the abstract, and on the parti- 
 culars, to which attention is to be paid in pre- 
 paring the abstract. 
 
 It is the duty of the conveyancer to consider 
 the deduction of the title ; the evidence by 
 which it is supported ; the defects, if any, which 
 appear in the title, or in its evidence ; and to 
 call for such information as shall appear neces- 
 sary to elucidate the real state of the facts ; and 
 also for such documents as, in the nature of the 
 case, may exist, although no notice, or only 
 very slight notice, be taken of them in preparing 
 the abstract. 
 
 This may appear to be a duty attended with 
 little or no difficulty ; but it will be found to 
 involve, within its compass, the knowledge of all 
 the rules of real property, and all the niceties 
 with which these rules abound. 
 
 In short, no one ought to deem himself quali- 
 fied to advise on the state of a title, till he has 
 informed himself fully on the doctrine of the law 
 concerning estates, their quantities, as in fee, in 
 tail,&c. &c. ; their qualities, as jointenancy, &c. ; 
 the degrees of ownership they confer, as the right 
 of tenant in tail to bar reversions, and remain- 
 ders, as well as the heirs in tail ; the incidents to 
 which estates are liable, as dower curtesy, &c. :
 
 COURSE OF STUDY. 209 
 
 the modes by which they may be conveyed, 
 determined, forfeited, or extinguished ; the 
 modes by which a title may be changed from 
 one person to another, either by conveyance, 
 (namely, deed or will,) by the act of law, as 
 descent, &c. or by the tortious or wrongful act 
 of a stranger, as disseisin, or of a particular 
 tenant, as wrongful alienation by tenant for life, 
 or discontinuance by tenant in tail. 
 
 He must also be prepared to distinguish with 
 accuracy between legal and equitable estates ; 
 the different modes by which these estates arise 
 or are transferred ; and the distinctions which 
 are allowed in application of the law to one 
 species of interest and the other. 
 
 As a general proposition, it is in vain that he 
 should first read his abstract, and afterwards, 
 except on special points, endeavour to inform 
 himself of the law. In this mode very little 
 progress could be made in the dispatch of busi- 
 ness ; his abstract might remain in his hands 
 for a period which would exhaust the patience 
 of his client. It is not, by this observation, 
 intended to insist, that a conveyancer should 
 be expected to solve every difficulty which may 
 arise, without any recourse to his books. 
 
 All that is intended to be expressed is, that 
 he should be prepared to see the difficulty, to 
 raise the question in his mind, and to refer to 
 the authorities by which that difficulty shall be 
 solved, as far as it admits of solution, or at 
 least to show that the point admits of so much 
 
 p
 
 210 ON TITLES : 
 
 doubt that it does not allow of a decisive 
 opinion. 
 
 In short, no case, except one of extraordinary 
 difficulty, ought to arrest his career in perusing 
 the abstract: combining; its different circum- 
 
 o 
 
 stances ; deciding in his own mind on the opera- 
 tion of each deed as it is perused ; and compre- 
 hending its influence on the state of the title, or 
 at least the doubt to which it exposes the title. 
 
 This degree of skill is to be attained only by 
 an enlarged and extensive course of reading; by 
 digesting, and preparing to apply, the bulk of 
 the laws on real property, and in particular 
 those which concern the ability and capacity, 
 and, in the result, the disability of persons, as 
 infants, married women, &c., and of the re- 
 spective owners of different estates, as tenants 
 in tail, &c., the effect of conveyances by them 
 respectively, and the course of transmission, or 
 succession on the descent, or devolution of the 
 estate. 
 
 The rules for the exposition of deeds and 
 wills, as the technical means by which they 
 are to be construed, and their effect ascer- 
 tained, are also to be studied with particular 
 care. 
 
 It is frequently necessary, first, to decide 
 whether a person be tenant in tail, tenant for 
 life, or in fee ; whether he be a joint-tenant, or 
 tenant in common, or tenant by entireties ; 
 whether he has a vested or contingent remain- 
 der, or an interest by executory devise ; whether
 
 COURSE OF STUDY. 
 
 he has a legal or an equitable estate ; whether he 
 has an estate, or power, or an authority ; before 
 any safe or satisfactory conclusion can be drawn 
 on the subsequent parts of the title. 
 
 Frequently, also, it is necessary to consider 
 whether a person has an estate, or merely a 
 right or title of entry, or of action; conse- 
 quently, whether he is seised, or has been dis- 
 seised ; also, whether an estate which was vested 
 has been divested ; and whether an estate which 
 existed has been discontinued, or turned into 
 a right of entry ; whether a seisin which has 
 been converted into a right or title, has been 
 restored by entry, by action, or by that opera- 
 tion of the law which is called remitter. 
 
 Also, whether a particular estate which ex- 
 isted has been determined by the lapse of 
 time, or by filling the boundary by which it 
 was circumscribed, or measure of time which it 
 was to complete. Also, whether it has been de- 
 termined by surrender, merger, or entry for a 
 forfeiture ; and whether an interest, limited by 
 way of contingent remainder, has been de- 
 stroyed, released or extinguished; and whether 
 a more remote remainder or reversion has been 
 barred under the ownership, which the law 
 confers on the person who has a prior estate ; 
 being a learning peculiar to estates tail. 
 
 This summary will disclose to the reader, that 
 a large field of inquiry is open to his research, 
 and invites his studies ; and that some portion 
 of labour is necessary to enable him to qualify
 
 212 ON TITLES : 
 
 himself to perform his duty with credit to 
 himself, or with justice to his client. 
 
 There was a period when, in some particulars, 
 this duty was attended with more difficulties 
 than at present ; while, on the other hand, 
 the increase, in modern times, of law books, 
 and, in particular, of Reports, has added to 
 the difficulties, by enlarging the field of the 
 student. 
 
 The assistance to be derived from several of 
 the publications of the last thirty years, will not 
 only abridge the labour of the student, but 
 enable him, with reasonable certainty, to attain 
 that correct knowledge of the subject which, 
 without those aids, he could not have attained, 
 at least, in the same space of time, nor with 
 the same degree of certainty ; for without anv 
 imputation on his judgment, he might have 
 adopted many of those errors which are un- 
 avoidable on the part of a person who is 
 studying the law, without any assistance, and 
 without the aid of methodical treatises ; and 
 also without any means of discarding those 
 propositions which were formerly considered 
 as law, but have been over- ruled, explained, 
 or modified by modern decisions. 
 
 The heads of the law to which particular 
 attention is to be paid, are those which will be 
 found in the Commentaries of Blackstone, in the 
 four last chapters of the first volume, the several 
 chapters of the second volume, the 1st, 2nd, 
 10th, llthj & 27th chapters of the third volume,
 
 COURSE OF STUDY. 213 
 
 und the 29th chapter of the fourth volume of 
 that excellent work. The student should take 
 these chapters as a great outline, and fill up 
 that outline by reading the different treatises 
 written on the different subjects of some of these 
 chapters, particularly Fearne on Contingent 
 Remainders and Executory Devises ; Butler's 
 notes on Coke upon Littleton ; Cruise on Fines 
 and Recoveries ; Watkins on Copyholds and 
 Descents; Gilbert's Tenures; Powell on Devises, 
 Powers, Mortgages, and Contracts ; Bacon, Saim- 
 tiers, and Cruise, on Uses; Sugdens Vendors and 
 Purchasers; Sugden on Powers; the Law of Evi- 
 dence (than which no subject is more useful 
 to the conveyancer); Booth on Real Actions; so 
 much of Comyns's Digest as relates to these ac- 
 tions; and finally, the different heads on the 
 different subjects of real property, which are 
 to be found in Comyns's Digest; Sheppard's 
 Abridgment ; Bacoji's Abridgment; and Viner's 
 Abridgment. 
 
 Nor should the student be without Sheppard's 
 Touchstone, a book which of itself is a com- 
 prehensive library of the law on the Assurances 
 of Property, given in clear and perspicuous 
 terms, with comparatively few errors ; a work 
 excellent for its method and arrangement ; and 
 those heads of law which are not embraced in 
 the Touchstone may be supplied from Shep- 
 pard's Abridgment. 
 
 In short, a person intimately acquainted with 
 the contents of Sheppard's Touchstone, and who
 
 ON TITLES I 
 
 has made himself perfectly master of the same, 
 may, with the assistance of some of the modern 
 treatises, congratulate himself on having attained 
 a very large portion of that knowledge which 
 will be useful to him in the exercise of his 
 professional duties. 
 
 In Sheppard's Touchstone, the chapter on the 
 Exposition of Deeds, the chapter on Grants, and 
 the chapter on Testaments, are particularly de- 
 serving of his attention, as containing those 
 rules of construction, without which it is in 
 vain to attempt to go through an abstract of 
 any length, or of any difficulty, with a chance 
 of success. 
 
 The rules of law construction and exposition 
 which are collected in the different books of 
 maxims, and also in Wood's Conveyancing, will 
 be found particularly useful. As a manual, a little 
 "book, intitled, " Prindpia Legis et Mquitatis" 
 (by T. jB?w*c7/e,esq.) contains more law, and more 
 useful matter, than any one book of the same size 
 which can be put into the hands of the student. 
 Mr. Barton's Elements will also be found an 
 useful part of the law-library of a conveyancer. 
 The student, however, will do right to use 
 these, and other works of the like nature, as a 
 species of index, and only as assisting him in 
 his studies. He will always trace the law to 
 its fountain head by reading the Reports and 
 the Text-books, or other authorities from which 
 deductions are drawn. Thus he may satisfy 
 himself that these deductions are correct before
 
 COURSE OP STUDY. 
 
 he implicity relies on them. Any work which is 
 calculated to abridge the labour of the student 
 by bringing the points under each head into one 
 view, and under an arrangement calculated to 
 enable the student to find that of which he is 
 in search, with the least possible delay and loss 
 
 of time, is of more value than can be easily 
 
 j 
 
 conceived by any persons, except those who, 
 from practical experience, have learned its im- 
 portance. 
 
 The observations on the extent of study, 
 necessary to qualify the conveyancing lawyer, 
 are not made for the purpose of damping the 
 ardor of the student, or to overwhelm him with 
 the magnitude, or the difficulty, of the pursuit. 
 
 They are suggested merely to point out the 
 extent to which his researches are to be carried. 
 
 In proportion, however, to the exertions 
 which are made will be the satisfaction to be 
 derived, and the fruits to be reaped, from these 
 exertions. 
 
 It is obvious, that it will require several years 
 to complete a course of reading which shatt 
 embrace all the subjects to which reference is 
 made; and to comprehend and apply the learn- 
 ing involved by these subjects in a scientific 
 manner. 
 
 As it happens, however, to a few only to have 
 their time fully occupied by the duties of the 
 profession, in active practice, at the commence- 
 ment of their career, the young conveyancer 
 has generally sufficient leisure to form his opi- 
 
 p 4
 
 216 ON TITLES: 
 
 nions correctly before they will be called into 
 extensive use. And, in proportion as his busi- 
 ness shall increase, he will, by the assistance qf 
 experience, feel qualified to acquit himself with 
 credit, should the interval be diligently em- 
 ployed ; and at first he will be able, from his 
 abundant leisure, to supply, in a great measure, 
 any want of more extensive knowledge, by 
 minute attention, by reflection, and by inquiry, 
 among more experienced men ; so as to avoid 
 any flagrant errors. 
 
 Still, however, a considerable portion of 
 knowledge should be acquired before any at- 
 tempt be made to apply that knowledge to 
 actual practice ; since an important error com- 
 mitted in the early part of life is not easily 
 forgotten. Besides, irreparable injury may be 
 done to those who have relied on such assistance, 
 and committed their whole fortune, and some- 
 times confided the pledge of their future in- 
 dustry to his judgment. 
 
 The great object of the student should be 
 to employ his time in the most beneficial man- 
 ner; and at first to confine himself to those 
 points which may be of more immediate, use to 
 him ; and to leave abstruse learning, and those 
 heads of the law which are nearly obsolete, and 
 which serve rather for illustration than actual 
 use, till an occasion of practice or leisure may 
 invite his attention to them. 
 
 There is one point, however, to which a per- 
 son thus circumstanced should pay particular
 
 COURSE OF STUDY. 217 
 
 attention. In the early part of his professional 
 career he should consider it not only as his 
 duty, but as his interest, when a question 
 arises in actual practice, which involves any 
 head of learning on which he has not fully 
 informed himself, to consider this as the proper 
 time, as far as his leisure will admit, to study 
 the subject fully, and pursue it through all its 
 distinctions. 
 
 By these means his opinions given on the 
 particular case will, in all probability, be correct; 
 at all events, respectable ; and he will have an 
 opportunity, should he wish it, of treating the 
 subject at least in a masterly manner; and (this 
 is a point of still more importance to himself, with 
 a view to his future success,) he will be better 
 prepared to advise on the same subject, when it 
 bhall again be presented for his consideration. 
 
 With a view to this mode of study, modern 
 treatises are of inestimable value, as containing 
 the recent and ancient authorities on the sub- 
 ject brought into contrast ; also accurate criti- 
 cisms ; and pointing out those distinctions by 
 which cases apparently differing in principle 
 are to be reconciled. 
 
 As aids in the same pursuit, the Digest of Chief 
 Baron Comyns, and the Abridgment of Bacon, 
 will be of considerable use ; but lastly, and 
 finally, the student should always make a point 
 to go to the fountain head, by consulting those 
 authorities which he has discovered in the pro- 
 gress of his studies, and which appear to be
 
 218 ON TITLES : 
 
 more immediatelj applicable to the case on 
 which he is to advise ; for it is a truth ! a 
 lamentable truth ! that few books in the law 
 are so precise as to be positively correct. 
 
 After pursuing this course, a gentleman must 
 have mistaken his talents, and the line of pro- 
 fession in which his exertions may be judiciously 
 employed, or he will be competent to all the 
 duties of his profession. 
 
 All knowledge should be founded on principle; 
 and from first principles, and general rules, the 
 student should descend to particular cases, and 
 to exceptions. 
 
 The student should be particularly careful to 
 select his general rules and first principles from 
 the most approved authorities. He should take 
 care also, and this can be done only by exten- 
 sive study, and close application, to collect the 
 technical sense of these rules; and to understand 
 them, not according to the literal terms, but 
 according to the sense in which they are 
 received by eminent lawyers. He should also 
 be careful not to adopt the opinions of counsel 
 as used in argument, any further than they 
 shall appear to be warranted by the authori- 
 ties to which the counsel refer, or the principles 
 which they state. In short, he must not take 
 any thing upon trust. He must examine every 
 proposition with care, before he suffers it to 
 influence his mind, or to become the rule of 
 his professional conduct. 
 
 It is a misfortune which attends the study of
 
 COURSE OF STUDY. 219 
 
 the law, that few propositions admit of mathe- 
 matical demonstration; and definitions, and legal 
 propositions are expressed, for the most part, 
 in such vague and indefinite terms, or with so 
 little attention to positive accuracy, that a long 
 time must elapse before the student will be 
 prepared to understand many of the best writers 
 in the sense in which they must be understood, 
 to render their propositions correct in law. 
 
 In a regular course of reading, the student 
 should, either in his own mind, or by an actual 
 arrangement, analyze the different legal defini- 
 tions, should show their application, the sense 
 in which they are understood, the exceptions of 
 which they admit, and the distinctions which 
 arise out of modern determinations. 
 
 The mode of doing this is pointed out by 
 Fabyan Phillips, in his little book on the 
 study of the law ; and it will be found an useful 
 exercise for the purpose of information and of 
 study. 
 
 Even to commit to paper, in different lan- 
 guage, the substance of that which has been 
 read, with the distinctions which present them- 
 selves, and the doubts which are suggested in 
 the mind, will also tend greatly to improve- 
 ment. Aiid in reading the Reports on any 
 particular case it would be useful, by a marginal 
 note s to extract, and set down in writing, the 
 precise point of the decision, and the different 
 resolutions to which the court came in forming 
 their judgment.
 
 220 ON TITLES t 
 
 The great object with those who wish to 
 qualify themselves in a short time, to enter into 
 actual practice, is to consider by what means 
 they may with the greatest ease, and at the 
 most early period, attain that portion of know- 
 ledge which will justify them in taking on 
 themselves the active duties, and the responsi- 
 bility, great as it is, of the profession. 
 
 There are scarcely any two persons who will 
 agree on the precise mode of study, which may 
 be pursued with most advantage. 
 
 The opinion formed on the subject, from 
 extensive experience and observation, is, that 
 a person thus circumstanced, should, in the first 
 place, acquire a knowledge of the general heads 
 of the law, their divisions and subdivisions. 
 For this purpose, the Analysis of Blackstone and 
 of Lord Hale are of incomparable value. 
 
 The next point is to fill up this outline, and 
 to dwell with more than ordinary care on those 
 heads which are most useful. This course should 
 lead the student to consider the nature of pro- 
 perty, as divided into real and personal estate; 
 and also the division of real property into corpo- 
 real and incorporeal hereditaments. On this 
 subject the chapter of Blackstone' s Com. vol. "2, 
 c. 2. 3. and the notes of Mr. Powell, in his 
 edition of Wood, will be of great value. 
 
 Mr. Barton has also collected all the principal 
 points on this subject ; but it is not by any 
 means necessary that the student should, for the 
 present, enter into all the detailed learning which
 
 COURSE OF STUDY. 221 
 
 concerns the nature of incorporeal heredita- 
 ments. It is sufficient for his purpose fully to 
 comprehend the different natures of the differ- 
 ent property ; the sense in which the words real 
 and personal estate are used ; the substantial 
 differences between lands, tenements, and here- 
 ditaments ; in other words, corporeal, or in- 
 corporeal hereditaments, so that he may be 
 prepared to understand the application of the 
 rules of law which are founded on the distinct 
 nature of the different properties. 
 
 In this place, also, it may be right to acquire 
 a general knowledge of the doctrine of courts 
 of equity, which, through the medium of trusts, 
 consider lands as converted into money, and 
 money as converted into land, for the benefit 
 of certain persons claiming under a trust de- 
 clared by the owner of the fund. 
 
 On this subject, a chapter in Mr. Bartons 
 Elements may be read with great advantage. 
 
 The doctrine of Tenures will, perhaps, be 
 supposed to fall next in order for consideration. 
 It is an interesting subject; illustrates the laws 
 of real property ; and renders the study of the 
 doctrine, as it respects the nature and incidents 
 of estates, more scientific. But to the practical 
 conveyancer it is of less value than has generally 
 been supposed ; and it may be investigated with 
 more advantage, and with more convenience, 
 after the student has obtained a complete know- 
 ledge of the nature and qualities of estates, and
 
 TITLES: 
 
 the modes by which they may be conveyed, 
 transferred, &c. 
 
 The next subject to which the student should 
 direct his attention is the difference between 
 estates ; as they are of freehold, and not of free- 
 hold ; as they are of inheritance, and not of 
 inheritance. 
 
 The doctrine respecting the freehold is of 
 such infinite importance to the conveyancer; so 
 many cases are referrible to this learning ; it 
 so materially affects the qualities and incidents 
 of estates, the modes by which they are to be 
 recovered, transmitted, and conveyed ; the ef- 
 fects of some assurances, as fines and recoveries ; 
 and the incidents of estates, as dower, curtesy; 
 and the nature and denomination of the injuries 
 to estates, as disseisin, abatement, intrusion, and 
 discontinuance, that too much attention cannot 
 well be bestowed on this subject ; and therefore 
 it is worth the labour to enter fully into this 
 learning; especially as it may be read without 
 any great exertion of the mind, and understood 
 after a few hours, or at the utmost a few days, 
 close investigation. 
 
 For want of any other digested or connected 
 arrangement of the subject, reference is neces- 
 sarily made to the chapter on Freeholds in the 
 Essay on the Quantity of Estates. 
 
 In studying this subject the student should 
 not be content with reading the chapter to which 
 he is referred. He should examine the autho-
 
 COURSE OF STUDY. 223 
 
 rities which are quoted ; and this will not be a 
 waste of time. These authorities are not only 
 relevant to the particular head, but lead him, 
 slightly, at least, to consider other subjects 
 which will occupy his attention in the progress 
 of his studies, and will become useful in opening 
 to his mind the reason of the law, and the policy 
 of our system of tenures. 
 
 The subject which next deserves the attention 
 of the student is the quantity of estates ; the dura- 
 tion of the interests they confer ; the assurances 
 by which they may be created, limited, or 
 transferred, and the words which are necessary 
 to the creation or the limitation of these estates. 
 
 On this subject the student should dwell with 
 particular attention, and make himself com- 
 pletely master of the several heads ; since, in 
 every moment of his professional life, he must 
 have recourse to this learning, and apply it to 
 practice. 
 
 On this subject he should read the first part 
 of the text of Littleton, and commentary 
 of Coke; paying attention more particularly 
 to those parts which are selected in Hawkins's 
 Abridgment of Coke upon Littleton ; since he 
 has selected the parts most material to a modern 
 lawyer. 
 
 And the general principles and leading cases 
 on these subjects will be found in the Essay on 
 the Quantity of Estates. 
 
 Should the student have occasion to extend 
 hi.s researches on this subject, he must consult
 
 $24 ON TITLES i 
 
 Bacons Abridgment, under the heads Estates 
 and Legacies, and Comyns's Digest, and Viner's 
 Abridgment, under the same titles. To these 
 he may add Mr. Cruise's Digest. 
 
 Though this may appear at first to be a sub- 
 ject which would require a long course of read- 
 ing, yet with close application, and with a mind 
 zealous to understand this branch of the law, 
 and carrying in full remembrance the general 
 rules collected in the Essay on the Quantity of 
 Estates ; it will be found, that if the subject 
 be methodically studied, it may be thoroughly 
 understood in a much shorter time than can be 
 easily imagined ; and in pursuing this study 
 there would, at the same time, be acquired, a 
 large portion of useful knowledge ; in short, the 
 great difficulty of studying the law before it 
 was reduced into a methodical arrangement 
 
 o 
 
 will, in effect, have been surmounted. 
 
 The next head of the law to which attention 
 may be paid, is that which concerns the quali- 
 ties of estates, as they are vested or contingent, 
 in possession, reversion, or remainder, executed 
 or executory. 
 
 These heads of the law are fully treated of 
 in Blackstone's Com. vol. 2, ch. 11, and Bacons 
 Abridgment, chap. Remainders; and Mr. 
 Fearne's incomparable Treatise on Contingent 
 Remainders and Executory Devises. 
 
 As preparatory aids in this study, maybe read, 
 with some advantage, that part of the intro- 
 ductory chapter in the Essay on the Quantity of
 
 COURSE OF STUDY. 225 
 
 Estates which treats of this subject. Also the 
 tract on the difference between estates which 
 are executed and executory, and the succinct 
 view of the rule in Shelley 's case. 
 
 As books of reference for particular cases, 
 recourse must also be had to the abridgment 
 of Bacon and Finer, and the Digest of Comyns. 
 
 Having made this progress, the student will 
 find that he has acquired a large portion of use- 
 ful knowledge. He will begin to comprehend 
 the nature of our system of tenures, the reasons 
 on which they depend, and their connection, as 
 part of an excellent system of laws founded 
 on principle, and not depending merely on, 
 or flowing from, arbitrary decision. 
 
 In this course of reading he will necessarily 
 have his attention frequently drawn to the nature 
 and qualities of estates, as held in severally, in 
 jointenancy, in coparcenary, in common, and by 
 entireties ; and as he might fall into important 
 errors if he were not to make himself acquainted 
 with the precise nature of these qualities, and 
 the consequences which flow from them, he 
 should now study this branch of the law with 
 particular care. 
 
 On this head he should read the several 
 chapters of Blackstone on the nature of these 
 tenancies : Littleton, and the Commentary, still 
 taking Hawkins's Abridgment, as his guide to 
 the parts which are most useful; and if he means 
 to enter more deeply into the subject, as he will 
 find it his interest to do, he should read these 
 
 Q
 
 226 ON TITLES : 
 
 heads of the law as they occur in Ctittiyns's 
 Digest, Bacons Abr., and Viner's A^ridgmetit. 
 
 He will find a short summary of the same 
 subject, with some of the more material distinc- 
 tions, in the introductory chap, of the Essay 
 on the Quantity of Estates. 
 
 The synopsis of Littleton, as published in 
 some of the editions of Coke Littleton, is also a 
 work which greatly facilitates the study of the 
 subjects in Littleton, 
 
 The learning on descents, and on titles by 
 succession, marriage, devise, testament, exe- 
 cutorship, administration, bankruptcy, custom, 
 forfeiture, &c. will now invite his attention. 
 
 On the doctrine of descents he should read 
 the chap, on that subject in 2 Blackstone's Com., 
 and next Mr. Watkins's excellent and detailed 
 Treatise on Descents. To these books he should 
 add Robinsons Treatise onGavelkind; as showing 
 the nature and history of customary descents, 
 and the distinctions to which they give rise ; also 
 he will do right to refer to those passages in 
 Coke Litt. which treat of these points ; and he 
 will find the chap. Descents, and Heir and 
 Ancestor, in Bacons Abr. and the titles, Descent, 
 and Heir, in Viner's Abr. ; and the title, Discent, 
 in Comyns's Dig. of considerable use. This sub- 
 ject is of so much importance, as are the other 
 subjects which relate to succession, transmis- 
 sion, &c. ; that it is absolutely necessary to 
 become perfectly familiar with them. 
 
 The great points in successions by descent
 
 COURSE OF STUDY. 
 
 are the possessio fratris ; the difference between 
 actual and legal or constructive seisin ; the 
 question of who shall be deemed the purchasing 
 ancestor ; and the necessity that the person 
 claiming as heir shall be of the blood of the first 
 purchaser, and of the whole blood of the person 
 last seised. 
 
 The system of Blackstone in propounding the 
 rules of descent, and detailing the reasons on 
 which they are founded, and his universal pre- 
 ference, as far as relates to the first purchaser, of 
 the paternal to the maternal line, gives to this 
 subject an interest which will be sensibly felt, 
 and places it on a basis which renders every part 
 of this doctrine consistent in principle and ap- 
 plication ; while the opposite doctrine, which, 
 in some cases, introduces proximity of blood, as 
 entitled to a preference over worthiness of blood, 
 defeats, to that extent, the preference of the 
 paternal to the maternal line ; and destroys the 
 system, by placing it on the foundation of 
 technical reasoning, and the rule of convenience 
 adapted to a particular case, rather than a general 
 plan; while a general plan, having symmetry in 
 all its parts, ought to be the foundation of all 
 laws. 
 
 In tracing the doctrine of descents, even 
 into its most minute parts, no time will be lost. 
 Every part of this subject will be found useful 
 for the purpose of actual practice, for illustra- 
 tion, and to afford a scientific knowledge of the 
 subject ; and it is in this part of the law that
 
 228 ON TITLES: 
 
 the doctrine of tenures, and the connection 
 between our system of laws, and the feudal 
 system, will deserve particular notice. 
 
 All, however, that is necessary for the English 
 lawyer to read, is the chap, in Blackstone on the 
 feudal tenures, Mr. Butler's note on the same 
 subject, Sir Matthew Wright on tenures, and 
 so much of Sullivan's lecture on the feudal law, 
 as more immediately relates to this subject. 
 
 In this place, also, the doctrine of the tenures 
 of this country, and particularly the difference 
 between freehold and copyhold tenures, tenures 
 in ancient demesne, and by custom, and between 
 the ancient and modern tenures, especially the 
 alteration made by the statute of quia cmptores, 
 ISEdw. I. stat. 1, c. 2, and the statute for the 
 abolition of military tenures, except the honorary 
 parts thereof, 12 Cha. II. c. 24, will merit atten- 
 tion. On this subject, should be read Black- 
 stones Com. 2d vol., chap. 5,6; the titles, 
 Tenures, Homage, Seignory, in Comyns's Dig. 
 the introductory chap, of Mr. Watlnm to Gil- 
 bert's Tenures; also part of Gilbert's Tenures; the 
 2nd part of Coke Litt. ; the head Tenures in 
 Bacons Abr. ; and, as greatly helping the me- 
 mory, and also assisting the judgment on this 
 subject, Mr. Fearnes ingenious chart of Landed 
 Property. 
 
 The subject of Copyholds will also merit more 
 close investigation ; and on this branch of the 
 law Mr. Watkins's treatise contains nearly every 
 thing that is useful ; and it is hardly too much
 
 COURSE OF STUDY. 229 
 
 to say of it, that it is one of tbe most useful 
 practical books in the law. 
 
 An useful supplement to that work would be 
 a collection of the points which peculiarly apply 
 to copyholds under customary grants for lives. 
 
 Any further aids which may be wanted will 
 be found in Lord Coke's Copyholder, the Lex 
 Cmtomaria, and the title Copyholds, in Comyns's 
 Dig. and Bacons Abr. Some useful forms will 
 also be found in Fisher's Copyholder, and more 
 in Mr. Scrivens recent publication. 
 
 The title by marriage is the next subject to 
 be studied. This head of the law involves all 
 the learning to be found in the Abridgments 
 and Digests under the title Marriage, and Baron 
 and Feme. 
 
 BlackstoJie, vol. 1. chap. 15, should be read 
 on this subject ; and all the other useful know- 
 ledge will be found in Comyns's Dig. title Baron 
 and Feme ; and in Bridgmans Thesaurus, under 
 the same title. 
 
 To these may be added, wheneyer any exten- 
 sive research may be necessary, the same heads 
 in Bacon and Viner's Abridgment. 
 
 Some useful knowledge on the same subject 
 will be found in Mr. Butler's Annotations on 
 Coke upon Littleton. 
 
 This head of the law, and the relations be- 
 tween husband and wife, are still more fully and 
 amply discussed in a book, intitled, Laws of 
 Women ; a book which seems to have experi- 
 enced a neglect by no means consistent with 
 
 Q3
 
 230 ON TITLES I 
 
 its merit, It is the most comprehensive, and? 
 with reference to any single work, the most 
 useful treatise on this head of the law. In a 
 book, or rather two volumes, published by Mr. 
 Bridgman, under the title Thesaurus Juridicus, 
 there is a very useful collection, in chronological 
 order, of the cases decided in equity, on points 
 arising from the relation of husband and wife. 
 Had that work been completed it would have 
 formed one of the most useful books in the 
 lawyer's library. 
 
 The next head to which attention must be 
 paid is titles by succession to real property by 
 devise, and to personal property by executor- 
 ship, bequest, intestacy, and distribution. Under 
 the same head should be studied the due ad- 
 ministration of assets of a deceased person. 
 
 On devises, as far as respects the external 
 circumstances, and the modes of execution and 
 attestation, the student should read Powell on 
 Devises. As to the exposition or construction 
 of the internal* parts of the will, and the words 
 by which estates may be limited or created, or 
 determined, or defeated as to one person for 
 the benefit of another person, the principal 
 cases will have been read under the doctrine 
 of estates ; also, in the treatises on the learning 
 of contingent remainders and executory devises. 
 
 This subject requires the most minute atten- 
 tion. To go fully into the investigation, the 
 chap. Testament in Sheppard's Touchstone ; the 
 titles Devise and Wills in the Abridgments and
 
 COURSE OF STUDY. 231 
 
 Digests, and Gilbert on Devises, should be read 
 with particular care. 
 
 On the subject of executorship and admi- 
 nistration, every thing which is use.ful will be 
 found in Toller on Executors. Blackstone's Com. 
 vol.2, ch. 32, should also be read. To these add 
 Sheppard's Touch, title Testament, and the head 
 Executor in the Digests and Abridgments, and 
 Mr. Wentwortli's Office of Executors. No branch 
 of the law seems to have merited, or to have 
 received, more attention than the office, duty, 
 and power of executors. The importance and 
 daily occurrence of the subject, called into 
 activity by the death of every person who has 
 any property, has induced professional gentle- 
 men, from time to time, to employ their labours 
 on these heads of the law. 
 
 On administration of assets, the more useful 
 knowledge will be found in the books which 
 treat of executors and administrators. To these 
 add the title Assets and Administration in 
 Comym's Digest; Bacon and Vincr's Abridg- 
 ment ; Bridgman's Thesaurus ; and Lovelace on 
 the Will which the law makes ; also Blackstone's 
 Com. 2d vol. c. 32. 
 
 Some useful cases on the same subject will 
 be found in Comynss Dig. in the different sub- 
 divisions under the title Chancery. 
 
 On bankruptcy, all that is material will be 
 found in Cooke and Cullen. The head Bank- 
 rupt in Bridgman's Thesaur. also deserves to be 
 occasionally consulted. 
 Q 4
 
 232 ON TITLES : 
 
 On title by forfeiture, Blackstone's Com. and 
 Comyns's Digest, under the head Forfeiture, 
 afford all the knowledge which will be requisite 
 in general practice. In Hawkins's Pleas of the 
 Crown., a still more copious discussion on the law 
 and consequences of forfeiture will be found. 
 
 The statutes of limitation, which after certain 
 periods bar the right or some particular re- 
 medy, are also well deserving of particular 
 notice. The statutes should be first read ; next 
 the commentary on them to be found m Black- 
 stone's Commentaries ; the title Temps in Comyns's 
 Digest, and the title Limitations in the Abridg- 
 ments. Mr. Cruise's Essay on Fines, in that 
 chapter which details the decisions on the sta- 
 tute of nonclaim on fines, should also be studied. 
 These statutes may with propriety be consi- 
 dered as part of the same system as the statutes 
 of limitation. 
 
 On the earlier statutes of limitation there 
 are many useful points in Brooke's Reading on 
 the Statute of Limitations. 
 
 The doctrine of uses and trusts should be 
 now studied with particular attention, as giving 
 rise to many of those niceties and distinctions 
 which render the acquisition of legal knowledge 
 difficult to those who have not made themselves 
 acquainted with the differences between con- 
 veyances at the common law, and conveyances 
 to uses ; and those assurances which owe their 
 legal effect to the doctrine of uses. He must 
 also learn to distinguish accurately between
 
 COURSE OF STUDY. 233 
 
 limitations at the common law ; limitations erf 
 use which may be executed into estate by the 
 statute of uses ; and limitations of trusts which 
 remain equitable interests ; and he must learn 
 what conveyances are particularly adapted to 
 these different species of property, as the modes 
 by which they may be transferred. He should 
 first read the Statute of Uses, and afterward 
 Mr. Cruise's Treatise on this subject, or the 
 chapter on the same subject in his Digest ; next 
 the chap, on Uses in Sheppard's Touch.; after- 
 wards Saunders on Uses ; and finally Lord 
 Bacon s reading on this statute ; and Mr. Sug- 
 dejis edit, of Chief Baron Gilbert's Treatise on 
 Uses and Trusts. 
 
 In the progress of studying this abstruse 
 branch of the law, Mr. Butler's notes in Coke 
 upon Littleton, on Uses and Trusts, will be found 
 of inestimable value. To open the learning on the 
 same subject, Blackstones's Com. 2 vol. ch.20; 
 and that part of the introductory chap, of the 
 Treatise on the Quantity of Estates, which gives 
 an outline of the doctrine of uses and trusts, may 
 be read with advantage. The notes in a former 
 part of this volume, and those in the 1st and 
 2nd volumes of the Practice of Conveyancing, 
 to which a reference is made by the index, title 
 Uses, at the end of these volumes, will aid this 
 pursuit. 
 
 As connected with the same subject, and as 
 forming a branch of the law peculiarly appli- 
 cable to this learning, the doctrine on Powers
 
 234 ON TITLES: 
 
 will require a considerable portion of attention; 
 Powell on this subject, and Mr. Butler s notes in 
 Coke upon Littleton:, the title Poiar in Comyns's 
 Dig. and letter 1. 2, 3, 4, 5, in the title Uses, in 
 the same Digest ; and Mr. Sugdens very valua- 
 ble Treatise on Powers, should be read ; and at 
 the same time the doctrine of authorities, arising 
 under particular acts of parliament, as the land- 
 tax acts, and bankrupt laws, and authorities 
 given by will to executors to sell freehold or 
 copyhold lands, should be studied. 
 
 On this subject of powers, and also on uses 
 and trusts in general, there are some useful 
 notes in Mr. Fonblanque 's Treatise on Equity. 
 
 At this period, unless it has been already 
 done, the doctrine of the law respecting perpe- 
 tuities, will merit a full portion of attention. 
 Much useful learning will be found in Mr. 
 Fearne's Treatise on Executory Devises; also in 
 Mr. Hargrave's Annotations in Coke upon Lit- 
 tleton, and in his juridical arguments on the 
 case which arose on Thellusson's will. Mr. 
 ^Butler also has contributed a large portion of 
 information on this subject in his notes on Coke 
 upon Littleton, and his edition (p.o62) ofFearne. 
 
 As connected with this subject, should be 
 read the statute of 39 & 40 Geo. III.; and the 
 note on that statute, written by the author of 
 these observations, and which Mr. Btttler has 
 published in his edition of Fearne's Contingent 
 Remainders, &c. 
 
 The next subject to be considered is the
 
 COURSE OF STUDY. 235 
 
 form of assurances, inter vh-os. These should 
 be divided into assurances of record, and assur- 
 ances not of record. 
 
 Of the former description are fines and 
 recoveries. On these heads of the law, Mr, 
 Cruise's Treatise on Fines and Recoveries, and 
 the chapter on Fines and Recoveries in Shep- 
 pard's Touchstone, are by far the most useful 
 books the student can read. But in searching 
 for particular cases, Viner's Abridgment, and 
 Comym's Dig. title Fines and Recoveries, and 
 Bacon's Abridgment, under the head Fines and 
 Recoveries, must be occasionally consulted. 
 
 On the forms of deeds connected with these 
 assurances, and on some of the purposes to which 
 these assurances are applied, the practical notes 
 on fines and recoveries, which form a part of the 
 Treatise on Conveyancing, may possibly afford 
 some assistance ; and as throwing light on the 
 same subject, as far as respects estates tail, the 
 tract on Alienations by Tenant in Tail will be 
 found useful. Mr. Watkins's Principles, chap, on 
 Fines and Recoveries, will also assist the student 
 in his researches on this abstruse branch of the 
 
 law. 
 
 As to deeds which form so large a portion of 
 the transactions in life ; 
 
 The first object is to consider their external 
 parts or circumstances, viz. the materials on 
 which they are to be written, and the circum- 
 stances of signing when positively required ; 
 and in all cases, sealing and delivering, together
 
 236 ON TITLES I 
 
 with the evidence which must be given in sup- 
 port of the execution of the deed to prove its 
 validity. 
 
 Signature is not essential to a deed, either by 
 the rules of the common law, or the statute of 
 Frauds and Perjuries. 
 
 On these external ceremonies, should be 
 read 2 ]3lacksto?ies Com. chap. 20 ; Sheppard's 
 Touch, chap. 3 ; and Peake's and Gilbert's 
 Treatise on Evidence. 
 
 Should it be necessary, on any particular oc- 
 cision, to extend the inquiry, all the useful 
 knowledge will be found in Comym's Dig. and 
 Viner's Abridgment, title Facts ; and Bacon's 
 Abridgment, titles, Grants and Obligations. 
 
 In the next place, the component parts of 
 a deed should be considered, viz. The names 
 of parties, the recitals, the testatum clause, 
 including the consideration ; the grant, including 
 the words of grant and words of description ; 
 the exception ; the habendum ; the limitation of 
 use; condition; the declaration of trust; the 
 covenants, and the clause of " In Witness," &c. 
 
 All the rules which relate to the greater part 
 of these heads will be found in Sheppard's Touch. 
 Blackstone's Com. and in the Abridgments and 
 Digests, under the title Faits and Grants. 
 
 The head Covenants will generally be found 
 under a distinct title; and it is of infinite im- 
 portance, with a view to preparing deeds, and 
 .sometimes construing them, to be conversant 
 with this head of the law.
 
 COURSE OF STUDY. 237 
 
 The chapter on exposition of deeds will ne- 
 cessarily form a part of the present subject, as 
 showing the rules for construction referrible to 
 deeds, and ascertaining their legal operation. 
 It remains only to consider the different species 
 of assurance by deed. 
 
 They should be divided into, 
 
 1st. Deeds operating solely by the rules of 
 the common law. 
 
 2dly. Deeds operating partly under the rules 
 of the common law, and partly through the 
 medium of the statute of uses ; and, 
 
 3dly. Deeds operating wholly under the doc- 
 trine of uses. 
 
 Of the first description are, 
 
 Feoffments ; 
 
 Grants ; 
 
 Leases ; 
 
 Assignments ; 
 
 Surrenders of particular estates ; 
 
 Surrenders of copyhold lands; 
 
 Bargains and sales in execution of common 
 law authorities ; 
 
 Exchanges ; 
 
 Confirmations, and Releases, either of right, 
 or in enlargement of estate, or by way of extin- 
 guishment. 
 
 Of the second description is the assurance by 
 lease and release, and all conveyances operating 
 by the rules of the common law, with uses 
 superadded, and to be executed into estate, 
 through the medium of the statute of uses.
 
 238 ON TITLES: 
 
 Of the third description are, 
 
 Covenants to stand seised to uses ; 
 
 Bargains and sales of an use ; 
 
 Appointments in exercise of powers contained 
 in conveyances to uses ; and deeds of revocation 
 in exercise of powers for that purpose. 
 
 Declarations of uses of a fine and recovery 
 strictly fall under the second head of division, 
 as forming part of one entire assurance, con- 
 stituted of a conveyance by the fine or recovery, 
 and of the declaration of uses. 
 
 There are some instruments also which may 
 affect the equitable title, though they have not 
 any operation on the legal estate. 
 
 Of this description are articles previous to 
 marriage. In short, all bonds and contracts, 
 and all agreements for a valuable consideration, 
 whether contained in deeds, or in writings 
 merely under hand. 
 
 An equitable title may also arise from pay- 
 ment of purchase-money, or from any other 
 cause which gives to a party the right in equity 
 to call for a conveyance of the estate. 
 
 The title also may be encumbered, or affected 
 by various operations, acts of parties, or of law ; 
 for instance, 
 
 By seisin ; 
 Ouster ; 
 Disseisin; 
 Discontinuance ; 
 Descents which toll entry ; 
 Entry ;
 
 COURSE OF STUDY. 239 
 
 Continual Claim ; 
 
 Warranty ; 
 Merger ; 
 
 Extinguishment ; 
 Remitter. 
 
 And it may be encumbered by various means, 
 as by debts to the king, by ownership, in a per- 
 son being a debtor and accountant to the crown, 
 although no debt exists ; judgments docketed, 
 and in equity, by judgments, of which there is 
 notice, though the judgments are not docketed; 
 by statutes merchant, statute staple ; by decrees 
 in equity ; by a charge created by will for pay- 
 ment of debts, or any particular sum of money ; 
 by liens, or charges in equity, arising from con- 
 tract, as articles to sell, articles to settle. &c. &c. 
 
 And these charges may cease by release, or 
 by satisfaction or compensation, or by waver, 
 or abandonment. 
 
 On the different species of assurance, the 
 20th chapter in 2d vol. of Blackstone, and also 
 Sheppard's Touchstone, should be first read ; 
 afterwards Coke Litt. under the title Release and 
 Confirmation ; and the notes of Mr. Butler in 
 Coke Litt.', and these notes will be found parti- 
 cularly instructive. 
 
 To these annotations should be added Wat- 
 kins 3 s Principles ; the several chapters at the end 
 of Saunders on Uses ; Mr. Cruise's Digest; and 
 the several titles in the Digests and Abridg- 
 ments, under heads expressive of the different 
 assurances.
 
 240 ON TITLES : 
 
 With respect to the particular form of each 
 instrument, and a general outline of its use, the 
 Treatise on Conveyancing will, it is hoped, be 
 found of some value. 
 
 On seisin and disseisin, much valuable learning 
 will be found in different parts of Coke Litt. 
 especially in the chapters on descents, which 
 toll entries, continual claim, discontinuance, 
 and remitter ; also by referring to the index, title 
 Seisin and Disseisin. The index in Hawkins's 
 Abridg. title Seisin and Disseisin, will also be 
 useful ; and Comyns's Dig. title Seisin, will afford 
 considerable assistance to the student. 
 
 The argument in Goodright v. Forrester, 
 I Taunton, 559, contains a general outline of 
 this learning. 
 
 On discontinuance, the chap, on that subject 
 in Coke Litt. and the points collected in Comyns's 
 Dig. under the same head, will afford the in- 
 formation proper to be obtained. The Digest of 
 Comyns should be read as a step preparatory 
 to the study of Coke's Commentary. 
 
 As connected with the same subject, read 
 the chapter in Coke Litt. on Continual Claim, 
 and Remitter, and Descents which toll entry ; 
 also Gilbert's Tenures, and Comyns's Dig. The 
 doctrine of warranty, and statute of limitations, 
 are also relevant to this head of the law ; and the 
 learning on the subject should be extracted 
 from Gilbert's Tenures, Coke upon Littleton, 
 chap. Warranty, and the cases, as they are 
 digested by Comyns, under the title Warranty.
 
 COURSE OF STUDY. 241 
 
 As a directory to the more useful matter in 
 Coke upon Littleton, the abstract of the text 
 by Hawkins will be of great use, and the ana- 
 lytical digest by way of index to that abridg- 
 ment will be found particularly useful. The 
 value, of Co;m/?js's Digest consists, in a great 
 measure, of the arrangement, and for the ready 
 access it affords to Coke upon Littleton, and 
 the Reports, for the point under consideration. 
 
 The like observations apply to the doctrine 
 of remitter, and the mode of studying this head 
 of the la\v. 
 
 As to the king's debt, consult Viner's Abridg- 
 ment, title Prerog., Comyns's Digest, title Debt; 
 and also the statutes by which the common law 
 has been altered. To these books may be added 
 Sheppard's Abridgment, title Prerogative. 
 
 As to judgments, Tidd's Practice affords the 
 most useful information. On statutes merchant, 
 statutes staple, and recognizances, Sheppard's 
 Touchstone contains more information than 
 any other book. 
 
 The different heads on this subject in the 
 Abridgments should also be consulted. 
 
 On charges for payment of debts, &c. the 
 head Trusts in the Abridgments, and the head 
 Charge in Viner's Abridgment ; Mr. Butlers 
 note to Coke Littleton, on Uses and Trusts ; 
 Comyns's Digest, title Chancery, under the sub- 
 divisions^ will be the proper books to be read. 
 
 The more useful learning on the subject is at 
 present scattered in the Reports. 
 
 E
 
 242 ON TITLES : 
 
 To go through this course of reading, to 
 collect all the principles, to understand the dis- 
 tinctions, and Vto discover the exceptions, will 
 require the study and the close application of 
 many years. And to a person who has time 
 before him, that time cannot be more advan- 
 tageously employed than in sifting each head of 
 the law to the bottom, as far at least as it can 
 apply to general practice. Each subject will 
 be found to illustrate another; at least to con- 
 stitute a part of it, and render each successive 
 head of the law more interesting, more familiar, 
 and more easy. 
 
 Bat to a person with whom it is an object 
 to acquire a competent share of knowledge for 
 actual practice, within a short time, as two 
 or three years, the course of study to be re- 
 commended is to read Blackstone's Commen- 
 taries, with a view to general principles, and, 
 which is of infinite importance, the excellent 
 arrangment of that work ; also, all the books to 
 which he refers as authorities, so far only as 
 they are material to the point for which they are 
 quoted ; and at the close of each chapter to read 
 Mr. JVatkms's Principles on the same subject; 
 next Wooddesons Vinerian Lectures on the same 
 head; and finally, the corresponding titles in 
 Comyns's Digest, and Sheppard's Touchstone. 
 
 With proper attention in reading these books, 
 the chances are, that the person who shall pur- 
 sue this course of study, will, at the end of t^ro 
 years, feel himself equal to the general business
 
 COURSE OF STUDY. 243 
 
 of his profession, and capable of forming a sound 
 and correct opinion on the general points which 
 occur in practice. 
 
 But that he may be an accomplished lawyer, 
 and equal to those difficulties which continually 
 present themselves in the course of extensive 
 practice, the more enlarged course of reading 
 which has been recommended will be necessary ; 
 and the leading cases in the Reports should be 
 uniformly consulted, before any decisive opinion 
 shall be formed on any point that appears doubt- 
 ful, or is involved in considerable nicety. In 
 cases of this nature, the Abridgments and Digests 
 should be considered only as indexes to the 
 Reports. And it is of infinite importance that 
 a person in actual practice should be familiar 
 with the decisions which have taken place in the 
 courts of justice, within the last century; and as 
 leisure will admit, research should be extended 
 through the preceding century, so as to carry 
 them back to the time of the Reports ofPlowden, 
 which may be considered as the first book of 
 Reports of any excellence ; and indeed, as the 
 name imports, a very learned commentary in ar- 
 guments by counsel, and judgment of the court, 
 on the several points which came into discussion. 
 
 Indeed, there is contained in the Reports of 
 Plorvden, and of Lord Coke, more sound law 
 and useful matter, at least to the conveyancer, 
 than can be found in the works of any two 
 other reporters to be named ; or perhaps in any 
 two books of the law. 
 
 R 2
 
 ON TITLES: 
 
 In considering the duties of the conveyancer, 
 in regard to abstracts of title, 
 
 1st, The commencement of the title. 
 
 2dly, The progress of it. 
 
 3dly, The evidence by which it is supported. 
 
 4thly, The mode of analyzing the Abstract. 
 
 5thly, The conclusions to be drawn from the 
 whole abstract, are the principal points to be 
 considered. 
 
 In this investigation many repetitions of for- 
 mer observations will occur ; they are permitted 
 to remain rather than interrupt the chain of 
 arrangement. In a book designed for practical 
 use, these repetitions are not only allowable, but 
 are highly useful. 
 
 As to the Commencement of the Title. 
 
 THE general rule is to take care that there 
 is evidence of a title, placed within the power 
 of the purchaser, so as to afford to him a rea- 
 sonable expectation, that he may hold the estate 
 without interruption, and free from all claims 
 which, in the nature of things, can be made. 
 
 The leading points in a title are, that no one 
 can give that which does not belong to him ; 
 in other words, qui non habet Hie non dot ; and 
 the estate granted by every person will deter- 
 mine at the same time as the estate of the 
 grantor will determine. 
 
 This rule is expressed in these terms, cessante 
 statu primitive cessat atque derivativus. The 
 exceptions to this rule create some of the many
 
 COMMENCEMENT OF TITLE. 245 
 
 difficulties which arise in understanding titles ; 
 for instance, tenant in tail may, by a common 
 recovery duly suffered, acquire the fee simple; or 
 by a feoffment or fine, operating by discontinu- 
 ance, he may gain a fee simple, without acquir- 
 ing a good title to such fee simple. 
 
 Again, a tenant for life, by a tortious aliena- 
 tion, by feoffment, fine, or recovery : or tenant 
 for years, or for any chattel interest, by feoff- 
 ment, or a stranger by deisseisin, intrusion, or 
 abatement, may acquire a wrongful estate ; thus 
 the estate or seisin ; not merely the possession ; 
 may be in one person, and the right or title 
 of entry, or of action, may be in another person. 
 
 Few points are in modern times more im- 
 portant than to distinguish between those acts 
 which are a mere dispossession, and those which 
 constitute disseisin; very erroneous notions seem 
 to prevail on this subject. 
 
 This wrongful estate may become a good 
 title by the release, including, when circum- 
 stances, as an entail, require it, a fine with pro- 
 clamations, or recovery of the rightful owner; 
 or the seisin may be defeated, and the right of 
 entry may, by entry ; or the right of action, 
 may, by action, judgment and execution, or by 
 remitter, again become the seisin or estate. 
 
 These points must be considered more at 
 large, in observing on that part of the abstract 
 in which the power of the grantor is to be 
 discussed. 
 
 Except in particular cases, in which the want 
 R 3
 
 246 ON TITLES : 
 
 of such evidence may be accounted for, as the 
 destruction of title deeds by fire ; the continu- 
 ance of an estate in the same family for a long 
 series of years, without family settlements or 
 wills ; a purchase made for convenience of a 
 small portion of a large estate ; or the like ; the 
 evidence of the title should commence with the 
 deed of conveyance, will, or settlement, made 
 about the period of sixty years, by the person, 
 who at that time appears to have been the 
 absolute owner. 
 
 To carry back the evidence beyond this 
 period, often occasions an useless investigation, 
 and an unnecessary delay and expense. But 
 there are cases in which it is not only proper, but 
 necessary, that the evidence of the title should 
 be taken up from a more early period. This is 
 particularly the case as often as an entail was 
 created upwards of sixty years since ; and the 
 first deed, falling within that period, relates to 
 the estatejtail. Under these circumstances, the 
 creation of the estate tail, and the existing right 
 to bar the same, should be shown; at least if they 
 be not shown, the counsel for the purchaser 
 should do all in his power to collect the evi- 
 dence of the creation of the estate tail and the 
 right to bar the same. 
 
 At the same time, it should seem, that the 
 want of such evidence does not, of itself, con- 
 stitute an objection to a title, though it certainly 
 renders the title less eligible. 
 
 Also, when a title depends on an estate tail.
 
 COMMENCEMENT OF TITLE. 247 
 
 or a remainder in fee, which was limited or 
 created upwards of sixty years ago, and has 
 fallen into possession within a recent period, it 
 is important to the title that the deed or will 
 by which this estate tail was created, or re- 
 mainder limited, although such deed or will was 
 executed at a distance of more than sixty years, 
 should be abstracted. 
 
 Also in a title depending on heirship to the 
 first purchaser, the evidence of the title of the 
 ancestor who was the first purchaser should be 
 shown, although he became the purchaser up- 
 wards of sixty years since. 
 
 Though there be some convenience in the rule 
 which fixes on sixty years as the period at or 
 about which the commencement of the title 
 should be taken; yet, it is not to be concealed, 
 that many titles which appear to be good, 
 during the period of sixty years, would appear 
 to be defective if the more early evidence of 
 title were_known. This happens more especially 
 in the instances in which there are particular 
 estates with various remainders over, and an 
 entail is barred by fine instead of being barred 
 by recovery ; and also, when there is an estate 
 for years, with remainder or reversion in fee, and 
 a feotfment is made, or fine levied by the termor 
 during the term, and no advantage is taken of 
 the forfeiture. Athird instance is, of estates tail of 
 the gift of the crown, with the reversion in the 
 crown. A fourth instance may be put, of titles 
 subject to implied warranty by exchange, or of 
 
 R 4
 
 248 ON TITLES : 
 
 estates exchanged with ecclesiastical persons, 
 and other persons incapable of making an effec- 
 tual exchange. 
 
 In all these instances, the title may be de- 
 fective, notwithstanding the lapse of the period 
 of sixty years ; and sometimes it will happen, 
 that eviction may take place after peaceable 
 possession for a period of more than sixty years? 
 accompanied with deeds and other documents 
 carrying on the evidence of the title with ap- 
 parent regularity throughout that period. 
 
 The case of a title to an advowson is another 
 instance in which the evidence for a period of 
 more than sixty years may be important ; and 
 when there are attendant terms for years, and 
 they were created at the distance of more than 
 sixty years, it is usual, if circumstances will 
 admit, to deduce the title from the period at 
 which the terms were created. 
 
 This practice is founded in reason, since it is 
 a rule of law, that the possession of the termor 
 is the possession, or rather continuance, of seisin 
 in the owner of the reversion or remainder-man ; 
 for the reversioner or remainder-man cannot 
 be disseised while his tenant continues in pos- 
 session; and even, though the termor be ousted, 
 yet while there is a right of entry, as distin- 
 guished from a right of action in the reversioner 
 or remainder-man, a re-entry by the termor will 
 revest the seisin in the reversioner or remainder- 
 man; but when the reversion or remainder is 
 turned into a right of action, as by a descent
 
 COMMENCEMENT OF TITLE. 249 
 
 cast, or by a discontinuance by tenant in tail, 
 or the like ; then an entry by the termor will 
 not restore the seisin to the reversioner or 
 remainder-man ; for it would be absurd, that 
 the entry of a termor should produce an effect 
 which would not be produced by the entry of 
 the person who has the reversion or remainder. 
 
 So also, when an appointment is made in 
 pursuance of a power, and that power was made 
 to over-reach estates in strict settlement, the 
 deed creating the power, though dated upwards 
 of sixty years since, ought to be abstracted; or if 
 the deed itself cannot be produced, the language 
 of the power should be stated from the recitals; 
 and this is a reason in preparing deeds of ap- 
 pointment, for stating, by way of recital, the 
 creation of the power fully. 
 
 Also, in the deduction of a title to a term of 
 years, created upwards of sixty years since, the 
 deed creating the term ought to be shown, 
 though, as already observed, the want of evi- 
 dence of the creation of such term does not, 
 after a lapse of a long period, afford an objection 
 against the title. 
 
 Also, if the possession has been held by the 
 same person for sixty or even eighty years, as 
 was the case of the commence- 
 ment of her title, and also of the testator, or 
 other person under whom she derived her title, 
 should, if possible, be shown. For if it should 
 turn out, as it did in that case, that such person 
 had only a particular estate, the title would be 
 defective, notwithstanding the period which had
 
 ON TITLES: 
 
 elapsed ; and therefore, more than usual and 
 ordinary evidence may be expected by the 
 purchaser. 
 
 Also, in titles derived from a grant from the 
 crown, the grant should be shown, that it may 
 appear that no reversion was retained by the 
 crown; and also, that the nature of the rents 
 and services which were reserved may appear ; 
 and that the grant was not in tail, and for services 
 performed to the crown ; and consequently, that 
 no impediment arises from a remainder or re- 
 version in the crown. 
 
 And if the first deed in an abstract refer to 
 a person claiming as devisee, inquiry should 
 be made for the will under which he derived his 
 title, unless the will be abstracted. 
 
 The general rule of taking up the commence- 
 ment of the title, at or about the period of sixty 
 years, arises from the circumstance, that sixty 
 years is the extreme period of limitation for 
 bringing a writ of right, which is the remedy of 
 the highest nature, and, in many cases, the last 
 resort. 
 
 The proposition of Blacksto?ie (3 vol. 196,) 
 is, that the possession of lands in fee-simple 
 uninterruptedly for threescore years, is at pre* 
 sent a sufficient title against all the world, and 
 cannot be impeached by any dormant claim 
 whatsoever. 
 
 By possession must be understood adverse pos- 
 session, as distinguished from possession under 
 a term of years, or other particular estate. 
 
 But this proposition is too general, and for
 
 COMMENCEMENT OP TITLE. 251 
 
 that reason not correct ; for a title may be 
 defective after a peaceable possession for sixty, 
 one hundred, or any other number of years, 
 although there has been a seisin by wrong of 
 the fee-simple ; and consequently an adverse 
 
 possession ; for instance, if A be tenant in tail, 
 remainder to B in tail, remainder to C in tail, 
 with divers remainders over, and A make a 
 conveyance by lease and release, or by lease, 
 release, and fine, a possession held under this 
 conveyance will never be adverse to those in 
 remainder as long as there shall be any issue 
 of A, who might have inherited his estate under 
 the form of the gift ; and if at the end of sixty, 
 or any other number of years, there should be 
 a failure of the issue of A 9 the right of B to 
 claim would commence; and he might make 
 his claim at any time before he was barred 
 under the operation of nonclaim on a fine, 
 (if any) or by the statute of limitations of 
 21 James I., which allows him twenty years, 
 from the time when his right commenced ; or 
 if then labouring under disabilities, ten years 
 from the time when these disabilities shall be 
 removed ; and even, if the title of JB, or of his 
 issue, should be barred, either by nonclaim on 
 a fine, or by the statute of limitations of 21 
 James I., the title of C may remain unaffected; 
 and as his right of claiming does not commence 
 till the failure of the several issues of A and jB, 
 he will be allowed a further period for making 
 his claim, after the failure of such issue shall 
 have happened.
 
 ON TITLES: 
 
 Sometimes there is not any direct evidence 
 of title for more than thirty or forty years; but 
 the state of the title during the preceding thirty 
 years is to be collected from the recitals in a 
 former deed, or from a short history of the title, 
 disclosed in the description of the parcels, or 
 from a schedule of title deeds. 
 
 In transactions of small value, which will not 
 bear the expense of nice, critical, and extensive 
 investigation, although the purchase may in- 
 volve all the property of the purchaser, such 
 secondary evidence, if it appear to have passed 
 through the hands of a person conversant with 
 his profession, and on that point an opinion may 
 be formed from the accuracy of the deed in 
 which such secondary evidence is found, such 
 secondary evidence is considered satisfactory. 
 
 But in transactions which will justify the 
 expense, it is proper to call for direct evidence 
 of the deduction of the title ; and the deeds, or 
 at least attested copies of them, should be sought 
 for in the hands of all persons most likely to 
 have the custody of the deed or copies. 
 
 This search should be directed among the 
 papers of persons who are the present owners 
 of lands held under the same title ; also, among 
 papers in the hands of persons who cove- 
 nanted to produce the title deeds, or their 
 representatives, and of solicitors concerned for 
 the successive owners. 
 
 And when an estate has been sold in parcels 
 it has rarely happened that this search has been 
 made in \?ain. The probability is, that attested
 
 COMMENCEMENT OF TITLE. 
 
 copies at least will be found in the custody of 
 some or one of these persons. 
 
 In the case of title to copyhold lands, recourse 
 should be had to the court-rolls ; and as to these 
 lands, there cannot be any pretence for limiting 
 the inquiry for any information which may 
 appear to be material, since ready access may 
 be had to the court-books, unless, and this 
 rarely happens, the court-books have been lost, 
 or destroyed by fire. 
 
 And as to lands in register counties, the 
 advice should be to search the register for the 
 purpose of obtaining a clue to all the information 
 it can afford. 
 
 And as to the estates of Roman catholics, 
 prior to the act of the 31st year of the reign 
 of his present majesty, c. 32, the exact state of 
 their titles may be found enrolled with the clerk 
 of the peace of the Bounty within which the 
 lands are situate, or in one of the courts of 
 Westminster Hall. 
 
 When the part of the evidence of title for the 
 last sixty years depends partly on possession, 
 then the production of leases, and enjoyment 
 under them, as evidence of the possession ; or, 
 if no leases can be found, the production of 
 assessments to the land-tax, rentals, and even 
 maps and parish-rates, should be required as 
 affording reasonable evidence on this point. 
 
 And in this place, it is to be observed, that 
 if the evidence of the title relate to a reversion 
 or remainder expectant on a lease which was 
 made sixty or even one hundred years ago, the
 
 254 ON TITLES : 
 
 evidence of the title should be deduced from 
 the lessor, because it is a rule of law, that the 
 possession of the tenant is the possession of the 
 reversioner; and that the receipt of rent from my 
 tenant does not disturb my title, consequently 
 the possession is never adverse to me while the 
 lease continues, and the possession is held under 
 the lease; except, indeed, that if no rent was 
 received for sixty years, and no act of ownership 
 in cutting timber, &c. had been exercised during 
 that period, a writ of right could not be main- 
 tained by the reversioner, since he had never 
 received what in law are termed the esplees. 
 But though this would be an objection to his 
 maintaining a writ of right, it does not appear 
 to be any bar to his maintaining an ejectment 
 within twenty years after the possession shall 
 fall, or within ten years after the disabilities, 
 if any shall be removed. Hunt v. Bourne -, 
 2 Salk. 422, proves that an ejectment may be 
 maintainable in respect of an estate tail, although 
 the remedy by formedon was barred. 
 
 When a title depends in its more recent 
 stages on descents, an authentication of the 
 pedigree should be required by evidence ; as 
 certificates of baptism, marriage and burial ; and 
 in particular cases there should be affidavits 
 by members of the family, or the persons to 
 whom the family were known, respecting the 
 state of the family, and identity of persons; and 
 in regard to noble families, Collins's Peerage ; 
 and in regard to other families, monumental 
 inscriptions, tomb-stones, and the like, should
 
 COMMENCEMENT OF TITLE. 255 
 
 be examined; and in some cases, local histories, 
 not as direct evidence, but as affording a clue 
 to more material information. 
 
 It is, as already noticed, the better opinion, 
 that a title may be good, even though it de- 
 pend merely on descent from ancestor to heir, 
 and heir to heir, through successive genera- 
 tions, without any will, settlement, or other 
 conveyance appearing ; but such a title should 
 be viewed with particular jealousy, and the 
 courts of record should be searched for fines 
 and recoveries ; and the ecclesiastical courts 
 having jurisdiction over the effects of the res- 
 pective owners, should be searched for wills, 
 letters of administration, and the like; and it is 
 even prudent, that in a case of this sort every 
 aid should be borrowed, for the purpose of 
 guarding the title against latent entails and 
 dormant encumbrances. 
 
 In a case so circumstanced, it was, as already 
 noticed, deemed advisable to have a feoffment 
 from the present possessor, and to take a 
 conveyance by lease and release, a fine with 
 proclamations, and a common recovery, from 
 himself, his brothers and sisters ; and even with 
 these precautions the title was considered by 
 two eminent conveyancers, on a reference to 
 them for that purpose, as worth no more than 
 two third parts of the value of the estate, with 
 complete and full evidence of its deduction. 
 
 No vendor, however, unless in great diffi- 
 culties, cottld be advised to submit to such a
 
 ON TITLES: 
 
 sacrifice, without taking the opinion of a court 
 on the sufficiency of his title. 
 
 Sometimes an objection has been taken to a 
 title, because a person through whom the title 
 is derived was tenant in tail, and apparently, 
 had the remainder or reversion in fee by des- 
 cent ; and he levied a fine, instead of suffering 
 a common recovery. 
 
 The objection proceeds on the ground that 
 the reversion might not have been in him, but 
 might have been aliened or settled. But though 
 these facts certainly call for caution, and should 
 lead to investigation into the title to the rever- 
 sion, as far as it can be traced ; it has been 
 decided (Sperling v. Trevor, 7 Ves. jun. 497 ?> ) 
 that the objection itself shall not prevail. The 
 decision must be understood to contain the 
 qualification, that the purchaser cannot show 
 that there is an outstanding title under the 
 remainder or reversion in fee. 
 
 With this qualification the decision is rea- 
 sonable, and consistent with all those principles 
 of moral certainty which govern the court in 
 deciding on titles. It was founded on the ground 
 that a mere possibility, which in fact may 
 exist, and not be known to either of the parties; 
 and which, in the nature of things cannot be 
 ascertained by either of them, shall not be 
 allowed to operate as an objection to the title. 
 
 Were the vendor in the situation of tenant 
 in tail, with the reversion in fee, by descent, 
 the purchaser might require a recovery to be
 
 COMMENCEMENT OP TITLE. 
 
 suffered, at least, on offering to pay the expense 
 of the recovery. 
 
 And under the covenants for further assurance 
 generally introduced into purchase deeds, settle- 
 ments, &c. the purchaser himself might have 
 obtained, though he might not have had a right 
 to compel the vendor to obtain, a recovery from 
 the tenant in tail, under whom the title was 
 derived. But if the tenant in tail were dead, or 
 under disabilities, this resource would fail. 
 
 It has occurred sometimes, that a title com- 
 menced with a fine levied, and a deed prepared, 
 professedly for barring all estates tail, &c.; and 
 no estate tail has appeared ; and it has been ob- 
 jected, that the title may be bad, because the 
 conusor in the fine might have been merely 
 tenant in tail, and the reversion or remainder 
 might have been in a stranger. But now the pre- 
 vailing opinion is, that this objection, resting 
 simply on these grounds, cannot be supported. 
 Such language is frequently adopted from some 
 ill applied precedent. 
 
 When, however, it is suspected on the behalf 
 of a purchaser, that there is some information in 
 the knowledge of the seller, respecting the state 
 of the title, and which he has not disclosed 
 in the abstract; or that he has withheld some 
 material deeds, the purchaser is entitled to 
 a discovery from the seller of all the information 
 which he can communicate ; and this may be 
 enforced by a bill in equity, or under the usual 
 order of reference, that the parties shall be ex-
 
 258 ON 
 
 amined on interrogatories, and produce all deeds 
 in their custody, power, &c. 
 
 It may also be repeated in this place, that 
 titles are always received by professional men 
 with greater confidence, in proportion as changes 
 in the ownership have taken place, or successive 
 sales among persons resident in the neighbour- 
 hood have been made ; for it is in the neigh- 
 bourhood in which the lands are situate, and 
 among the occupiers, that the rumours or 
 suspicions of defects of title are most likely to 
 be circulated. 
 
 And a subdivision of the parcels among differ- 
 ent purchasers, especially among persons who 
 were tenants, adds still further to the probabi- 
 lity that the title has been closely and minutely 
 investigated, and fully understood. 
 
 On the other hand, there are some exceptions 
 to these reasons for confidence; and it is the 
 knowledge that these exceptions exist which 
 renders it the duty of the conveyancer, not to 
 be satisfied with a title rested on such con- 
 fidence. 
 
 Lands bought or exchanged for convenience, 
 from a large proprietor, whose family have been 
 the owners for a long series of years, will fre- 
 quently be accepted without the production of 
 title. Many such instances exist, especially in 
 manufacturing districts. 
 
 These lands will be improved by building- 
 costly mansion-houses, &c. and these purchases 
 will have been taken from, or exchanges made.
 
 COMMENCEMENT OF TITLE. 25Q 
 
 xyith a gentleman or nobleman, whose property 
 was in strict settlement. 
 
 On minute investigation, the title will be 
 found defective, and unmarketable, without any 
 power from circumstances of minority, &c. to 
 supply the defects in the title. Distress, and 
 sometimes ruin, especially to persons in trade, 
 and who want to sell or to mortgage, to obtain 
 money to answer demands on them, is the 
 immediate or remote consequence. The like 
 occurrence sometimes takes place under build- 
 ing leases accepted without any, or without a 
 sufficient, investigation of title, from persons 
 assuming to be absolute owners in fee-simple, 
 but who have encumbered their property by 
 mortgages, or put it into settlement, or hold it 
 under settlement, or under entails not effectually 
 barred. 
 
 Titles under west-country leases for years 
 determinable on lives, are often in a similar 
 predicament. 
 
 So are leases made in exercise of powers not 
 duly pursued. 
 
 Formerly, it was deemed a breach of honour - 9 
 and a departure from policy, to impeach these 
 leases. Modern notions, and the necessities 
 induced by extravagance, have thrown down this 
 barrier, and confidence is destroyed. Hence the 
 strictness of modern practice compared with the 
 practice of former times. Hence, the import- 
 ance, and even the necessity of having evidence 
 of a good title in all cases of this description. 
 
 s 2
 
 260 ON TITLES: 
 
 But little or no attention should be paid tcr 
 mere rumours of a defect of title, unless these 
 rumours can be traced to some reasonable 
 source. The vulgar notion of heir-land, founded 
 on the doctrine to be found in Glanville, that 
 the person who took as heir could not alien 
 without the consent of the person next in suc- 
 cession ; and the impression which many persons 
 have derived, no doubt from the language of 
 the statute de donis ; and from the effect which 
 that statute obtained, before common reco- 
 veries were introduced into general practice, 
 subject many titles, which are really good, to 
 the imputation, among persons of little or no 
 legal knowledge, of being defective ; and there 
 are always to be found poor relations of an 
 ancient family, to urge their claims, as being 
 the right heirs. The system of strict settlement 
 on the parent for life, with remainder to the 
 first and other sons in succession ; a system which 
 suspends the power of alienation in fee until 
 the concurrence of the eldest son is given, has 
 tended to perpetuate this notion of heir-land 
 among common people. 
 
 No doubt many titles are received as good 
 which would appear to be defective, at least 
 disputable, were the real circumstances of the 
 title fully disclosed, or fully known. 
 
 On the other hand, the evictions which take 
 place in modern times are very few in number; 
 and many good bargains are lost from a 
 scrupulous nicety in the investigation of titles; 
 ending in their rejection.
 
 COMMENCEMENT OF TITLE. 261 
 
 The proper course to be pursued, on the part 
 of counsel in giving his advice, is to point out 
 to the purchaser the degree of risk to be run, 
 and leave it to him to decide for himself on the 
 prudence of running that risk. 
 
 Few purchasers, however, are justified to 
 themselves, or to their families, in accepting a 
 title, unless the title be, or in the compass of a 
 few years will be, in a marketable state, in point 
 of evidence to a future purchaser, or to a 
 mortgagee. 
 
 For want of a marketable title, there is 
 property without the means of converting it 
 into money, or raising money on the security 
 thereof on an emergency. 
 
 In requiring that the evidence of the title 
 should be carried back through the period of 
 sixty years, or even a further period, circum- 
 stances must materially govern the opinion of 
 the conveyancer. 
 
 When, as it has been already observed, there 
 has been a frequent change of ownership from 
 one purchaser to another, and the possession has 
 been uninterrupted, the presumption is very 
 strong in favor of the title, although the evi- 
 dence disclosed by the abstract does not carry 
 back the history of the title for more than forty 
 or fifty years; especially if the want of the 
 earlier deeds can be accounted for in any rea- 
 sonable manner ; as by the circumstance, that 
 the lands in question are part of a larger estate, 
 or that a fire has happened in the family of one 
 
 s 3
 
 ON TITLES : 
 
 of the proprietors, or of a mortgagee, or from 
 any like cause. 
 
 It is in reference to family estates, in other 
 words, lands which have remained in the same 
 family for a long series of years, and have been 
 the subject of different settlements or wills in 
 that family, and have descended from one 
 member of the family to another, in a long 
 succession, that more than ordinary caution 
 is required. Under such circumstances, the 
 evidence of the title should be carried back as 
 far as circumstances will admit; and at least 
 for a period of sixty years, if the ownership of 
 this family commenced at, about, or before that 
 time. This observation is equally relevant, 
 whether the purchase be made immediately from 
 one of the branches of this family, or be derived 
 under a conveyance made by them within the 
 last twenty, or even thirty years. 
 
 In proportion too as the presumption of a good 
 title shall be weakened, from the want of frequent 
 change of ownership ; or, in the case of a purchase 
 of part of a family estate, by the circumstance, 
 that the person of that family who was the 
 vendor lived till a recent period, so that there 
 has not been any great length of adverse pos- 
 session, admitting that he had only a particular 
 estate, should the diligence of the conveyancer 
 be exerted, to ascertain the precise state of the 
 title of the person by whom the sale was made ; 
 for if it should turn out, as in practice it some- 
 times does, that he was only tenant for life, or
 
 COMMENCEMENT Of TITLE. 263 
 
 that he was only tenant in tail, without having 
 barred the entail, or the remainders over, the 
 title will be open to eviction. 
 
 Even the chance that such might have been 
 the condition of the title, suggests the duty of 
 endeavouring to ascertain its precise state ; but 
 if the seller died shortly after the sale, and 
 thirty or forty years have elapsed since the sale 
 was made, and no claim has been asserted, the 
 presumption arising from these facts is highly 
 favorable to the title, and leads to the inference, 
 that the person from whom the sale proceeded 
 was competent to make the conveyance under 
 which the title is deduced from him. 
 
 Also, though the first deed or will in an 
 abstract be dated at the distance of sixty years 
 or upwards, yet if the parcels are granted by a 
 general denomination ; as lands purchased of A, 
 or devised by the will of A> it is the practice to 
 require the production of the deed by which 
 the lands were purchased, or of the will by 
 which the lands were devised ; and yet the sub- 
 sequent evidence may so identify the lands, that 
 BO one can reasonably doubt the fact, that the 
 lands were so purchased or so devised. 
 
 The like observation applies, in a degree, to 
 lands described in a deed or will by the name 
 of the occupier, as an essential part of the 
 description. 
 
 However, it is a general rule, never, except 
 in one case, to suffer a title to lands held in 
 fee, or for lives, and which refers to a z&ill, as 
 
 s 4
 
 264 ON TITLES : 
 
 part of the means of its deduction, to escape 
 the investigation which the will may afford. 
 
 The excepted case is in the instance of a very 
 ancient will; so that if the will were produced, 
 there would be a long chasm in the evidence of 
 title. Under these circumstances, to call for the 
 production of such will, without being able to 
 obtain the evidence of the intermediate steps in 
 the title, might lead to useless anxiety. 
 
 Extraordinary occurrences in the title, as 
 feofFments made, or fines levied, or recoveries 
 suffered, without any apparent reason for these 
 species of assurance, also excite suspicion that 
 there are some material facts in the title, not 
 disclosed by the abstract. Such assurances 
 invite the caution of the conveyancer, and 
 suggest the propriety of a research into the 
 history of the title in every channel through 
 which it can be traced. 
 
 With a view, therefore, to practice, in pre- 
 paring deeds, it is prudent, whenever the cir- 
 cumstances will admit, without injury to the 
 title, to disclose the reason for making a feoff- 
 ment, levying a fine, or suffering a recovery, so 
 as to remove those grounds of suspicion which 
 otherwise might attach; for instance, when a 
 fine is levied, or recovery suffered, merely for 
 caution to/ guard against dormant entails, the 
 motive of levying the fine, or of suffering the 
 recovery, should be stated; and it should be 
 distinctly expressed, that there is not any 
 knowledge of any entail.
 
 COMMENCEMENT OP TITLE. 265 
 
 . Also, when a fine is levied by a husband and 
 mfe, the legal presumption would be that the 
 lands were the inheritance of the wife, unless 
 the contrary appeared. Therefore, in declaring 
 the uses of the fine, or in the deed of covenant 
 for levying the fine, it should be stated that 
 the lands are the inheritance of the husband, 
 when the fact will warrant it, or the recital should 
 be varied so as to be adapted to the fact. 
 
 In deeds dated at the distance of 30, 40, or 
 50 years, there may be found a covenant from 
 a husband and wife, that they would levy a fine. 
 Frequently such fine was requisite only on ac- 
 count of a title of dower in the wife ; and no fine 
 was levied, and the death of the wife has ren- 
 dered it immaterial. But unless the real state 
 of the title appeared, there would be a difficulty 
 in the title, from an apprehension that the lands 
 were the estate of the wife, and that the title 
 may be open to a claim by her heirs ; while if 
 the seisin appeared to have been in the husband, 
 the death of the wife, and the determination of 
 her title of dower, might be proved, or would 
 be presumed, and no difficulty would exist. 
 
 Another case frequently occurs, and deserves 
 attention. 
 
 The abstract commences with a deed, dated 
 above sixty years ago; being a conveyance from 
 husband and wife of lands of which they were 
 
 / 
 
 seised in right of the wife ; and there was a 
 covenant that they should levy. a fine; but on
 
 ON TITLES ! 
 
 the most diligent search no fine by them can 
 be found. 
 
 A title thus circumstanced is frequently ac- 
 cepted on the ground, that as sixty years have 
 elapsed, no writ of right could be maintained 
 by the wife if living, (an event not in any degree 
 probable,) or by her heirs. And in this place 
 it may be observed, that thirty years would 
 bar the wife herself of her writ of right ; and 
 that sixty years are never allowed to any person, 
 except the right is auncestrel, that is, first accrued 
 to an ancestor, and descended from him to an 
 heir ; and that a bar to the ancestor, because 
 thirty years ran in his time, is a bar to the heir 
 claiming in right of the ancestor ; at least there 
 would be an absurdity in the statute of limita- 
 tions, unless this be its true interpretation. On 
 this subject a more ample discussion will be 
 given in a subsequent part of this work. 
 
 But a title of this description is attended with 
 one difficulty. Although there may be a bar to 
 the remedy by writ of right, it does not follow 
 that there is a bar to the remedy by entry, or 
 by writ of entry. 
 
 In the first place, in reference to the right of 
 entry, there is not any adverse possession against 
 the wife during the coverture. For want of a 
 fine from the husband and wife, the alienation 
 is, in substance, by the husband alone ; so that 
 till the determination of the coverture, by the 
 death of the husband or of the wife, the posses-
 
 COMMENCEMENT OF TITLE. 26? 
 
 sion under the conveyance, is under a title pro- 
 ceeding from the husband ; and if the husband 
 was or became entitled to be tenant by the 
 curtesy of England, then the possession under 
 the conveyance is by title, until the death of 
 the husband, although the wife may die in his 
 life-time. 
 
 Thus 20, 30, 40, 50, or even 80 years, may 
 elapse, and the possession be rightful, because 
 the husband lived so long. He may sell at 21, 
 and die at the advanced age of 80, 90, or 100 
 years or upwards. 
 
 The right of possession, unless barred by 
 nonclaim under a fine, may continue for twenty 
 years ; and if the person to whom the right first 
 accrued should be under any disability, the bar 
 may be protracted for an enlarged period, (being 
 ten years) from the time at which the disabili- 
 ties shall cease. 
 
 These observations are added in this place, to 
 show that a title thus circumstanced is not ne- 
 cessarily good, though sixty years have elapsed. 
 For that reason the state of the title under 
 adverse possession, should be investigated, 
 before a purchaser, requiring a secure title, 
 should be advised to complete his purchase. 
 
 Also reputation that a title is bad, or an as- 
 sertion of right by one of the family of a former 
 owner, or the like circumstance, is a ground 
 for the most minute investigation, and for hav- 
 ing every link in the chain of evidence complete ; 
 for it seldom happens that such reputation arises,
 
 268 ON TITLES : 
 
 or such claim is asserted, without some cause, 
 except in the instances which are noticed, as 
 depending on vulgar errors respecting heir- 
 land. 
 
 Conveyancers are frequently censured for 
 making inquiries, which appear unnecessary, 
 and even frivolous, and which often fail of pro- 
 ducing any beneficial result, or useful informa- 
 tion ; and beyond all doubt, the expense which 
 attends these inquiries does, in the aggregate, 
 greatly exceed the value of the information 
 which is obtained. But experience dictates 
 the necessity of these inquiries, and the in- 
 dividual, whose interest is at stake in the 
 particular transaction, is, in point of security, 
 abundantly compensated for the expense which 
 is incurred ; and if the seller has been so un- 
 fortunate, that the necessary inquiries were not 
 made on his part, when the purchase under 
 which his title commenced took place, he has 
 to blame the want of caution in those who were 
 bound to watch over his interest. 
 . The purchaser also must consider, that unless 
 those inquiries are made on the present occasion, 
 they will probably be made on his sale, or on his 
 mortgage, should any take place ; and he will 
 not only sustain the expense and delay of ascer- 
 taining the facts, but may have an objection 
 taken to his title ; and in the mean time be 
 exposed to the danger that the title may turn, 
 out bad, defective, or encumbered ; and may be 
 fettered with great difficulties, from the delay
 
 COMMENCEMENT OF TITLE. 
 
 \vhich may arise in completing the sale, or in 
 obtaining money on a mortgage, at a time 
 when it is of the greatest importance to him to 
 receive the purchase or mortgage-money. 
 
 Property in land, without the means of carry- 
 ing it to market for the purposes of sale, or 
 mortgage, is frequently a snare, rather than a 
 benefit to the owner. He enters into engage- 
 ments, or pledges his credit, or contracts debts, 
 on the faith, that he can convert his land into 
 money whenever he pleases ; and the difficul- 
 ties, and even ruin, to which families are ex- 
 posed, by the discovery of a defect in a title, 
 and the consequent inability to complete sales, 
 or to effect mortgages ; and even the doubts on 
 titles, which render a suit in equity, and conse- 
 quently some delay necessary, cannot be appre- 
 ciated by any persons except those who have 
 had experience on these points. 
 
 In short, any person who buys an estate, 
 (except it consists of a small quantity of land 
 merely for convenience,) and especially those 
 who buy an estate for residence, or with a view 
 to building, or other costly expenditure, should 
 be particularly careful, that the title is not only 
 apparently good, but such as in the technical 
 language of the courts is marketable, so that 
 he may compel an unwilling purchaser to ac- 
 cept the same ; and may also exhibit the title 
 in a state which shall exclude all just grounds 
 for any doubt of its validity. 
 
 One of the great uses of property in land is
 
 TITLES: 
 
 to afford, not only permanent security in enjoy-' 
 ment, but the right to convert it into money, 
 or to raise money on its security, as occasion 
 shall require. To the merchant or trader in 
 particular this is of the highest importance ; 
 and, in every situation of life, the advantage of 
 having a good title, so as to raise money without 
 difficulty or delay, either by sale or by mort- 
 gage, at pleasure, will be sensibly felt. 
 
 Even persons contracting for a lease may 
 now investigate the title of the intended lessor, 
 unless there be a stipulation to exclude such 
 right. 
 
 An estate without a marketable title, though 
 that title be good for the purposes of enjoyment, 
 partakes of the nature of an income rather than 
 of property ; and in the hands of the greater 
 part of mankind is comparatively of little 
 value. 
 
 Even when an estate is purchased with a view 
 to convenience, either for the purpose of ren- 
 dering an estate compact, by buying intermixed 
 grounds; or for extending the family estate: 
 every necessary care, which the circumstances 
 will admit, should be taken, to have the best 
 title and evidence of it, that, in the nature of 
 the case, can be procured. 
 
 The want of such caution, and still more the 
 want of attention, in preparing the particulars 
 of sale, has more than once been the cause of 
 a contract being rescinded, because the title to 
 that part of the estate which, at the time of the
 
 COMMENCEMENT OF TITLE. 
 
 purchase, was particularly eligible for its con- 
 venience ; as a piece of ground in the front of 
 house, or in the garden, or the pleasure grounds ; 
 was defective. 
 
 A material distinction, however, may be safely 
 made in regard to lands professedly purchased 
 with a view to sale, or with the expectation of 
 raising money by mortgage, or for personal oc- 
 cupation, with an intention that the lands shall 
 be converted into money on the death of the 
 purchaser on the one hand, and lands which 
 on the other hand are purchased for the con- 
 venience of the purchaser, either for trade, or 
 for rendering the estate compact, Sec. without 
 regard to remote consequences. 
 
 In the latter instance it may be sufficient that 
 the result of every reasonable inquiry should 
 prove that there is a fair chance of the title 
 being good, and of peaceable enjoyment. 
 
 This, however, must depend on the discretion 
 of the purchaser. In the former instances, it is 
 of the utmost importance that there should be 
 evidence of a good title ; and that the title 
 should be such as is strictly marketable. 
 
 These observations may be considered as 
 forming part of that arrangement of this essay, 
 in which conclusions are to be drawn, from the 
 abstract, on the state of the title ; and in short, 
 it is rather with a view to this conclusion, and 
 as a primary object of it, that attention is in 
 this place, to be paid to the evidence of the 
 commencement of the title.
 
 272 ON- TITLES: 
 
 In those instances, in which it appears on a 
 first view that the evidence is taken up at too 
 modern a period, the best course is at once to 
 return the abstract for the purpose of having 
 the earlier evidence of title supplied. 
 
 Before this head shall be closed, it will be 
 proper to observe that lay corporations are as 
 competent to alien their landed property for 
 corporate purposes, as individuals are to alien 
 their property. But it rarely happens that they 
 can show the commencement of their titles; and 
 leases and rentals are the only evidence of their 
 seisin ; and this evidence must be deemed satis- 
 factory ; and the title may be treated as good 
 under such evidence, unless there be notice that 
 the corporation, as frequently happens, hold the 
 land subject to some trust, and they are not by 
 the trust, or by some act of parliament obtained 
 for the purpose, qualified to make a good title 
 to the exclusion of the trust. 
 
 There is one peculiarity attending corpora- 
 tions. They have a fee simple for the purposes 
 of alienation, although they have only a.deter- 
 minable fee for the purposes of enjoyment. On 
 the dissolution of a corporation, the reverter 
 will be to the original granter, or his heirs, and 
 not to the lord by escheat; and yet this grantor, 
 in the case of a corporation, as well as the lord 
 by escheat, in the case of an individual, may be 
 excluded by an alienation in fee simple. 
 
 By a grant to a bastard, or a denizen in fee, 
 he has a fee simple, for all the purposes of
 
 COMMENCEMENT OF TITLE. 73 
 
 alienation, although there be a right of succes- 
 sion to a limited series of heirs, since none 
 besides descendants can be his heirs. 
 
 Though the succession is by law thus restrict- 
 ed, he is tenant in fee-simple, and not tenant 
 in tail. On the failure of his heirs there will 
 be an escheat to the lord of the fee, and not a 
 reverter to the grantor, or his heirs; while on 
 the dissolution of a corporation, and consequent 
 failure of successors, the lands will revert to the 
 grantors, or their heirs. But there is this simila- 
 rity in the situation of a corporation on the one 
 hand, and of a bastard or denizen on the other 
 hand; either may alien the fee-simple; but there 
 is also this difference ; the grantor to the cor- 
 poration, and his heirs, will have lost all right 
 and chance of reverter, while in the case of a 
 bastard or a denizen, the lord of the seignory 
 will have the chance of escheat on the failure of 
 the inheritable blood of the tenant for the time 
 being of the fee-simple, whoever that tenant 
 may be. 
 
 Cases frequently occur of corporations being 
 dissolved, or ceasing to exist, and of a new 
 incorporation. 
 
 This new incorporation, unless it be by act 
 of parliament, cannot, except as against the 
 crown, nor as against the crown, unless there 
 be a special and express grant for the purpose, 
 revive in the new corporation a title to the 
 lands which belonged to the old corporation. 
 
 T
 
 274? ON TITLES : 
 
 Consequently a title asserted by the new 
 corporation, to lands which belonged to the old 
 corporation, must be minutely considered, and 
 the chance of eviction be weighed. 
 
 But the same corporation may have continu- 
 ance, although there be a change in its name, or 
 in some parts of its constitution ; and it follows, 
 that the title of the corporation to its lands will 
 continue. 
 
 On the commencement of abstracts, as they 
 apply to terms of years, and other minor points, 
 the leading observations proper to direct the 
 attention of the conveyancer, will be found in 
 the division which treats of the form of the 
 abstract. 
 
 Of the Contents and Progress of the Abstract. 
 
 THE abstract of each deed or instrument 
 should in the first place be read. 
 
 It should next be ascertained, that the deed 
 has the circumstances which give to its lan- 
 guage the effect which that language imports 
 to bear ; namely, that it is executed by the 
 material parties, and if any particular mode of 
 execution was required, then, as far as that mode 
 of execution is material, that it was observed. 
 For unless the deed be executed by the persons 
 whose language it imports to express, it is, as 
 far as respects the persons who have omitted to 
 execute the deed, to be considered at law,
 
 EXECUTION OF DEEDS OF ESCROWS. 
 
 whatever equity may arise from particular cir- 
 cumstances, as a dead letter. 
 
 For instance, if a deed import to be the grant 
 of A and of B 9 and it is executed by B only, it 
 must be read and considered as the deed of B ; 
 and as not having any operation whatever 
 against A ; so that the- title must be carried on 
 under this conveyance, as a conveyance by jB 
 alone. This is also a rule as to the declaration 
 of the uses of fines, &c. 
 
 And in regard to deeds delivered as escrows, 
 to be delivered with effect upon conditions to be 
 performed, care should be taken that the condi- 
 tions have been performed, and that the second 
 delivery has taken place; so that the writing has 
 become operative as a deed. 
 
 On this subject, when necessary, the title, 
 faits, eswowj fyc. are the proper heads to be 
 consulted. 
 
 The learning of escrows was fully considered 
 in Jennings v. Bragge, cited 3 Rep. 35, and 
 Perimaris case, 5 Rep. 84, and is collected in 
 Shep. Touch, p. 56, 57. It is a learning which 
 might with great propriety and convenience be 
 applied in practice more frequently than has in 
 modern times been usual. The knowledge that 
 relief may be obtained in equity, when the con- 
 veyance has been executed, but the price has 
 not been paid, or when any other stipulation has 
 not been performed, has- rendered professional 
 gentlemen less solicitous than they otherwise 
 
 T 2
 
 276 ON TITLES : 
 
 would be in allowing deeds to become perfect, 
 while the purchase-money, Sec. remains unpaid, 
 or other stipulation remains unperformed. 
 
 Also, care should be taken that every deed 
 purporting to be executed by a party, is duly 
 attested as to its execution. 
 
 This is particularly important in modern 
 deeds ; and the want of such attestation ought 
 to be considered as rendering it necessary, that 
 there should be a new attestation by the wit- 
 nesses, if living ; and if they be dead, there 
 should be. a further conveyance from the parties, 
 as to whom there is not any attestation, or there 
 is not a sufficient attestation; or by those who 
 represent them. 
 
 But as to ancient deeds, in which the posses- 
 sion has been held, according to the purport 
 of the deed, so that, in the language of the 
 present day, the deed proves itself, or more 
 correctly speaking, possession, according to the 
 import of the deed, is evidence of the due exe- 
 cution of the deed; then the want of such 
 attestation does not raise any objection to the 
 evidence of the title. The execution would be 
 presumed on the evidence of possession. 
 
 Also, in deeds made in pursuance and in 
 exercise of a power, and which, by the terms of 
 the power must be executed in some particular 
 mode, or attested by a given number of wit- 
 nesses, care should be taken that the ceremonies 
 of execution and of attestation were observed. 
 
 In this instance the language of the power
 
 OF ATTESTATION. 
 
 is to be considered as a law, which the parties 
 have prescribed to themselves, and as excluding 
 the application of the general rules of law. 
 
 When a deed is required to be under hand 
 and seal, it is not sufficient that it should be 
 sealed and delivered, as in ordinary cases, but 
 it is requisite that it should be signed by, or 
 in other words be under the hand of, the 
 party. 
 
 This also is the case when the deed, &c. is 
 required to be signed, sealed, and delivered ; it 
 must be signed; also sealed; also delivered. 
 
 And although, by the rules of the common 
 law it is not of the essence of a deed that there 
 should be any subscribing witnesses, and in 
 all ordinary cases of deeds one subscribing 
 witness is sufficient, yet, when a power requires 
 that the execution should be attested by two 
 or more witnesses, there must be an attestation 
 by that number; and if they are required to be 
 of a given description, as peers, or not to be 
 of a given description, as menial servants, these 
 requisites must be complied with, and the fact 
 should be in some mode ascertained, if the 
 transaction be of a recent date. 
 
 In this place also, it may be observed, that 
 it is not sufficient, that the deed itself should 
 internally, and by its own language, express the 
 mode of execution, or the mode of attestation. 
 
 These circumstances of execution and attes- 
 tation, must appear as substantive and external 
 
 T3
 
 273 ON TITLES : 
 
 facts ; and the attestation, and not the deed., 
 must evidence the necessary facts. 
 
 The attestation must also specify the facts 
 required to be atteste,dj namely, signing, seal- 
 ing, or delivery, or all or any two of these facts 
 that the power requires. 
 
 Though the ordinary form of attestation 
 merely contains the words, sealed and delivered 
 by, &c. ; yet, when a power requires that a deed, 
 made in exercise of a power, should be under 
 hand and seal, or be signed, sealed, and de- 
 livered, and be attested by two, or any other 
 given number of witnesses, and the attestation 
 is, in construction, to be applied to the signa- 
 ture, &c. ; the deed cannot be considered as 
 duly attested, unless the attestation express the 
 fact that it was signed, as well as sealed and 
 delivered ; and many titles depending on powers 
 were open to objection in consequence of this 
 omission. 
 
 Before this question was decided, some con- 
 ceived that the fact of signature might be 
 supplied in the attestation by the witnesses at 
 any time ; and the general opinion now is, that 
 this might be done in the life-time of the ap- 
 pointer and appointee ; and before any circum- 
 stance has taken place by which a change has 
 been made in the circumstances of the title ; 
 for instance, before the power has been released, 
 determined, extinguished, or the like. 
 
 For the power is to be considered as not
 
 OF ATTESTATION. 279 
 
 executed till the moment when the attestation 
 is complete. Hawkins and Kemp, 3 East 410, 
 appears to be an authority to warrant this 
 conclusion. 
 
 Some powers merely require the instrument 
 exercising the power to be under hand and seal, 
 or signed, sealed, and delivered, without making 
 attestation an essential ceremony in the exe- 
 cution of the power. 
 
 In a case of this description, the want of 
 attestation is no otherwise material than the want 
 of attestation of any ordinary deed ; but the 
 fact of due execution, when the deed is signed, 
 Sec. may be presumed, as in ordinary cases, 
 from long possession, consistent with the deed. 
 
 It is to a case of this description that lord 
 Eldons observations in M c Queen v. Farquhar, 
 11 Ves. jun. 467, was applied. 
 
 This was admitted by his lordship in the case 
 of Wright v. Wdkeford, 17 Ves. 454. The obser- 
 vation towards the conclusion of the judgment 
 in M c Queen v. Farquhar was too general and 
 incorrect. The chancellor has himself made 
 this criticism on the report. The passage 
 must be read as applicable to the particular 
 case before the court ; a case in which attes- 
 tation was not an essential circumstance to 
 the valid execution of the power, consequently 
 it is not to be applied to those cases in which 
 attestation is necessary to the valid execution 
 of the power. The opinion of Lord Eldon, 
 as collected in the more recent case of Wright 
 
 T 4
 
 280 ON TITLES : 
 
 v. Wakeford, was, that the want of attestation 
 to a deed, made in exercise of a power, 
 requiring to be attested, could not be supplied 
 by any intendment contrary to the evidence 
 of tKe deed, by which it appeared that no 
 attestation of the fact of signature had been 
 made on the deed in the life-time of all the 
 parties. The fact in that case was, that after 
 the death of one of the parties, and after the 
 title had been questioned for want of due 
 attestation, the subscribing witnesses to the 
 deed added a new attestation of the facts ot 
 signing, sealing, and delivery. Lord Eldon's 
 opinion evidently was, that this was not suffi- 
 cient; and he even hinted, that the attestation 
 must be a cotemporaneous act; a proposition 
 which is very questionable. 
 
 It is necessary, however, to add, that the 
 three puisne judges of the common pleas cer- 
 tified to the same effect. Their language is, 
 " And we are further of opinion, that the attes- 
 tation required to constitute a due and effectual 
 execution of the power, ought to make a part 
 of the same transaction with the signing and 
 sealing the writing, testifying the assent and 
 approbation of Thomas Wood and his son ; such 
 being the usual and common way of attesting 
 the execution of all instruments requiring 
 attestation, which, we think, the parties creating 
 the power had in their contemplation, and in- 
 tended, and not an attestation to be written 
 at a distance of time, after all the parties had
 
 OF ATTESTATION. 281 
 
 testiiied their assent and approbation/' While, 
 in Doe v. Beach, % Maule and Selw. 582, lord 
 EllenboroUgh observed, " It is not necessary to 
 enter into the question, at what precise time an 
 attestation must be made." 
 
 The point arising in Wright v. Wakeford was 
 referred to the court of common pleas, and was 
 in that court treated as a point of no difficulty ; 
 and the judges were at first disposed to view the 
 objection to the title as altogether unfounded. 
 After some consideration they began to doubt : 
 In the result, Chief Justice Mansfield certified 
 his opinion in favour of the execution of the 
 power; and the remaining three judges certified 
 their opinion to be, that the power was not 
 duly executed, 4 Taunton 213. 
 
 The chancellor by his decision sustained the 
 objection against the title. 
 
 This decision, and the alarm which it excited 
 in consequence of various titles exposed to the 
 like objection, and the wishes of the profession, 
 led the writer of this essay to propose a bill in 
 parliament, intituled, " An Act to amend the 
 " law respecting the attestation of instruments 
 " of appointment and revocation, made in ex- 
 " ercise of certain powers in deeds, wills, and 
 " other instruments ;" and after various al- 
 terations, it passed into a law, 30th July 1814, 
 being an act of 54 Geo. III. c. 168. 
 
 The act recites, that *' Whereas powers, au- 
 " thorities, and trusts, were in many cases 
 " required to be executed by deeds or instru-
 
 282 ON TITLES : 
 
 " merits, signed by or under the hands of the 
 " persons executing the same, or that persons 
 " consenting to or directing acts respecting 
 " such powers, authorities, and trusts, are fre- 
 " quently required to signify such consent or 
 " direction, by deeds or instruments signed by 
 " them, or under their hands ; and that it had 
 " been the ordinary practice, in the memoran- 
 " dum of attestation of deeds, to express the 
 " facts of sealing and delivery only ; and that 
 " doubts had arisen respecting the validity of 
 " deeds or instruments so attested, and requir- 
 " ing signature, although the same might have 
 " been actually signed by the persons whose 
 " signature was required thereto, and the titles 
 " of many purchasers, and of other persons 
 " claiming under such instruments, might be 
 " defective for want of the insertion of the 
 et word ' signed/ or some word to that effect, 
 " in the memorandum of attestation thereof; 
 " and that it was expedient that the titles of 
 " purchasers and other persons should not be 
 " disturbed merely on account of the omission 
 " to express the fact of signature, in the me- 
 " morandum of attestation of any such deed 
 " or other instrument already made." 
 
 And it was enacted, jirst, that every deed, or 
 other instrument already made, with the inten- 
 tion to exercise any power, authority or trust, 
 or to signify the consent or direction of any 
 person whose consent or direction might be 
 necessary to be so signified, should, (if duly
 
 OF ATTESTATION. 
 
 signed and executed, and, in other respects, 
 duly attested,) be, from the date of that act, 
 and so as to establish derivative titles, if any, 
 of the same validity and effect, and no other, at 
 law and in equity, and proveable in like man- 
 ner, as if a memorandum of attestation of 
 signature, or being under hand, had been sub- 
 scribed by the witness or witnesses thereto ; 
 and the attestation of the witness or witnesses 
 thereto, expressing the fact of sealing, or of 
 sealing and delivery, without expressing the 
 fact of signing, or any other form of attestation, 
 shall not exclude the proof or the presumption 
 of signature. 
 
 2e?fy, That the act should extend and be 
 construed to extend to all deeds, and other in- 
 struments, already made, in exercise of powers, 
 authorities, and trusts of sale, exchange, parti- 
 tion, selection, nomination, discretion, leasing, 
 jointuring, raising portions, and other charges, 
 and for appointing new trustees, and other 
 powers, authorities and trusts whatsoever ; or 
 made for evidencing assent, consent, request, 
 direction, or any other like circumstance, in 
 reference to the execution of any such powers, 
 authorities or trusts : with a proviso, being 3, 
 that this act should not extend nor be con- 
 strued to extend to revive or give effect to any 
 appointment, revocation, or other assurance 
 theretofore made, as far as the same had been ' 
 avoided by entry or claim, or by suit at law, 
 or in equity, or by any other legal or equitable
 
 ON TITLES : 
 
 means whatsoever ; nor should the act affect or 
 prejudice any suit at law or in equity then 
 depending, for avoiding any deed or other in- 
 strument of appointment, revocation, or assur- 
 ance ; and that if any person who had made 
 any such entry or claim, or who had brought 
 any such suit, or had defended any suit for 
 the purpose of avoiding any such appointment, 
 revocation, or other assurance, should release 
 the benefit of the same entry, claim, suit or 
 defence, within six calendar months next after 
 the passing 'of that act, then such entry, or 
 claim, or suit, or defence, should not prejudice 
 or avoid any such appointment, revocation, or 
 other assurance ; but every such appointment, 
 revocation, or other assurance, should be and 
 remain in force under that act, as if no such 
 entry or claim had been made, or suit brought 
 or defended : with a further proviso, being 5, 
 that nothing in that act contained should 
 extend or be construed to extend to affect any 
 question respecting any instrument not within 
 the provisions of that act, and which might want 
 any formality in the attestation of any witness 
 or witnesses thereto ; but such instrument should 
 have the same force and effect as it might have 
 had if that act had not been made. 
 
 It will be observed, 1st, that this act cures 
 no other defect than the want of attestation of 
 signature : 
 
 And 2dly, it is retrospective only, and not 
 in any degree prospective ; thus it has not cured
 
 OF ATTESTATION. 285 
 
 any defect arising from the want of signature, 
 or the want of attestation of any other fact than 
 signing, as the want of attestation of sealing, 
 or of delivering ; nor is it applicable to any 
 deed, or other instrument of a date subsequent 
 to the 30th day of July 1814, being the day 
 from which the act had its operation. 
 
 So that the decision in Wright v. Wakeford is 
 the law of the present day, as applicable to all 
 deeds, Sec. executed under powers which re- 
 quired attestation of signature, and have been 
 executed even by signature, but have omitted 
 a specification of the fact of signature in the 
 attestation. 
 
 The case of Wright v. Wakeford has been 
 followed by the cases of Doe d. Mansfield v. 
 Peach, 2 Maule and Selwyn 276. Doe d. 
 Hotchkiss v. Pope, 2 Marshall 102. 
 
 In all these cases the decision has been uni- 
 form, that the attestation must express the fact, 
 be it signing, sealing, or delivery, which is 
 required to be attested. 
 
 It seems also to follow that the attestation 
 must also specify by whom the deed, &c. made 
 in exercise of such a power, is signed, sealed, 
 or delivered ; since without such specification 
 it would be necessary, contrary to the intention 
 of the author of the power, to resort to extrinsic 
 evidence, to supply the evidence of that fact. 
 
 Titles of this description also admit of many 
 different varieties of circumstances, and conse- 
 quently conclusions.
 
 ON TITLES: 
 
 When attestation is not required, the 
 fact of signature may be proved by the wit- 
 nesses, or it may be proved aliunde ; also, after 
 a great length of time has elapsed, and if the 
 deed appear to have been signed, the presump- 
 tion of signature may be relied on, since a jury 
 ^ould consider the signature as having taken- 
 place at the time of sealing and delivering. 
 
 2dly, In many instances also, even where 
 attestation is required by the power, the deeds 
 may be good in equity, on the ground of con- 
 tract, and of the price paid, although the deeds 
 may be inoperative at law ; but when a married 
 woman attempts to execute a power, requiring 
 attestation, and no attestation exists, doubts may 
 be entertained whether there be any equity in 
 favour even of a purchaser ; since it is difficult 
 to understand how a married woman may be 
 bound, even in equity, by any contract which 
 is deficient in those circumstances by which her 
 power of contracting is created; for she is, even 
 in equity, considered as a feme sole, or person 
 able to contract, so far only as she is qualified 
 bv her power, and she pursues the power. 
 
 In other cases, the deeds made in the exe- 
 cution of the power may be lost, and then the 
 general rules of presumption, and particularly 
 the rule, omnia prcssumuntur, rite and solemniter 
 acta, will, in cases of possession consistent 
 'with the deed, equally apply to deeds prepared 
 under powers as to ordinary deeds; and a jury 
 would, in the absence of all evidence, be
 
 OF ATTESTATION ENROLMENT. 287 
 
 directed to presume, that the deed of appoint- 
 ment, of which secondary evidence is given 
 was duly attested, as well as sealed and de- 
 livered. 
 
 One of the niany objections against a re- 
 liance on abstracts, which take recitals for the 
 evidence of deeds, wills, c. is, that the ex- 
 ternal circumstances of execution and attestation 
 seldom or ever appear by recitals ; and of 
 course it is not certain that the deed or will 
 was duly executed and attested; or, even though 
 the facts should be recited, they are seldom 
 recited in any other manner than as the language 
 of the deed, while the more correct mode would 
 be; and this mode is now becoming general in 
 practice; to give the recital of the execution 
 and attestation as a substantive fact, alleged 
 
 ' O 
 
 from the evidence of the transaction, when the 
 recital is of a deed made in execution of a 
 power. 
 
 Such recital may be to this or the like effect: 
 Whereas, by indenture, $c. bearing date, fyc. 
 made, fyc. and being -under the hand and seal of, 
 SfC. and signed, seakd, and delivered by him, in 
 the presence of two witnesses, and attested by the 
 same witnesses. 
 
 Also when a deed requires enrolment, either 
 by positive statute law, or by the provision of a 
 power, it is the duty of the conveyancer to see, 
 or at least to inquire, whether the deed has been 
 so enrolled, and whether the enrolment was
 
 2SS ON TITLES : 
 
 made in due time, if time be material in refer- 
 ence to the enrolment. 
 
 . Respecting the period within which enrol- 
 ment is to be made, the following observations 
 may be of use ; 
 
 1st, A bargain and sale of an use, under the 
 statute of uses, 27 H. 8. c. 10, must, in conformity 
 with the statute of enrolment, 27 H. 8 c. 16, be 
 enrolled within six lunar months from the date ; 
 and the date is computed from, in other words, 
 exclusive of, the day of the date, and inclusive 
 of the last day of the six months. So that the 
 indenture of bargain and sale must be enrolled 
 
 o 
 
 on or before the l68th day after the day of the 
 date of that indenture. 
 
 By the date must, in this case, be understood 
 the day of the date, and not of the delivery, 
 except a deed has no date ; and in that case 
 the computation must be from the delivery : 
 and although the day of the date of the deed 
 be not taken into the computation of the six 
 months, an enrolment on the day of the date 
 will be good ; and such bargain and sale 
 will be valid, although the enrolment take place 
 after the death of both or either of the parties, 
 provided the indenture be enrolled within the 
 limited time ; and no act done by the bargainer 
 without the concurrence of the bargainee, in the 
 intermediate time between the bargain and sale 
 and the enrolment, will affect or prejudice the 
 interest of the bargainee, so as the deed be 
 enrolled in due time.
 
 ENROLMENT. 
 
 , Bargains and sales of real estate, under 
 the bankrupt laws, must be enrolled ; but as to 
 any other estate or interest of the bankrupt, 
 besides an estate tail, there is not any limited 
 time for the enrolment. It is immaterial whe- 
 ther the ordinary bargain and sale be enrolled 
 before or after the expiration of six months, or 
 in the life-time of the bankrupt, or after his 
 death : but it should seem, that in compliance 
 withthe general principles of law, it must be 
 enrolled in the life-time of the bargainees, or of 
 one of them. 
 
 Under bargains and sale from commissioners 
 of bankrupt, no estate passes till enrolment. 
 The commissioners have only an authority to 
 bargain and sell by deed indented and enrolled. 
 No estate is in them ; and their authority is not 
 exercised till all the circumstances, under which 
 it is to be performed, are complete. 
 
 But by the statute of 21 Ja. I. c. 19, s. 12, 
 bargains and sales of real estate of a bankrupt, 
 of which he is tenant in tail, must, for the pun. 
 pose of barring the heirs in tail, and those in 
 remainder and reversion, be enrolled within six 
 lunar months. 
 
 In this instance also no estate passes till the 
 enrolment. 
 
 Suppose a bargain and sale, and the six 
 months to elapse before enrolment, yet it is rea- 
 sonable to suppose that another bargain and 
 sale by the commissioners, and enrolled within 
 six months, would be effectual to bar" the entail. 
 
 u
 
 ON TITLES: 
 
 This is a point open for decision. Should 
 the bankrupt be dead, then it might reasonably 
 be objected that the authority of the commis- 
 sioners to execute a bargain and sale to bar 
 entails had ceased. 
 
 The observations respecting enrolment in the 
 life-time of the grantee, are applicable to bar- 
 gains and sales under various other acts of 
 parliament ; as the land-tax acts, inclosure acts, 
 &c., in which enrolment is required, as an 
 essential part of the deed by which a power, or 
 rather an authority, is to be exercised. 
 
 And when an enrolment is required to be 
 made within a limited time, the deed will, at 
 least as to its legal, as distinguished from its 
 equitable, operation, be void, unless the enrol- 
 ment take place within that time. 
 
 Also, when a deed is required to be enrolled 
 under the express provision of a power, in a 
 private conveyance, the deed must be enrolled 
 in the mode prescribed by the power, viz. 
 within a given time, if a particular time be 
 limited ; and in a particular court, if any court 
 be prescribed. 
 
 And if a time be limited within which the 
 enrolment shall be made, the enrolment must 
 take place within that time, or be of no avail ; 
 and if no time be limited for the enrolment, the 
 law requires the enrolment to be in the life- 
 time of the parties.; and, it is apprehended, of 
 the appointees as well as of the appointer. 
 Sec Hawkins v. Kemp, 3 East 410.
 
 LIVERY OF SEISIN. 
 
 From the preceding observation* it will be 
 collected that different circumstances impose a 
 different regulation in this particular. 
 
 The case of Hawkins v. Kemp is sometimes 
 considered as turning on the point, that the 
 act of enrolment was in some measure a personal 
 act, to be done by Mr. Hawkins, so far, that it 
 was necessary to take place in his life-time, 
 and did not admit of perfection after his death. 
 
 But it should seem that if the power allow a 
 limited time for the enrolment, the appointment 
 will be sufficient, if the deed be enrolled within 
 that time, notwithstanding the death of the 
 appointer or appointee in the interval between 
 the date of the deed and the enrolment, 
 
 This was the more prevailing opinion in 
 Hawkins v. Kemp. 
 
 It is observable also, that in appointments 
 under powers, except in particular cases, arising 
 from the special language of the power, no 
 estate arises till enrolment. Hawkins v. Kemp. 
 Digge's case, 1 Rep. 123. 
 
 And the appointment may be defeated by 
 an act done by the owner of the power, by 
 which he has extinguished the same, while 
 in fieri. Digge's case. 
 
 Also when livery of seisin is essential to 
 the conveyance, as in the instances of feoff- 
 ments, leases, or other grants at. the common 
 law, of estates of freeholjd, of lands held in 
 possession, (for leases for lives in exercise of 
 powers may be, indeed ought to be, made 
 
 T7 2
 
 292 ON TITLfcS I 
 
 without livery,) it is necessary to see that livery 
 was made in the life-time of the feoffor and of 
 the feoffee, or of the lessor and of the lessee, 
 1 Inst. 
 
 And when livery is made, as it may be, by 
 attorney, then care is to be taken that the at- 
 torney had an authority for the purpose, and 
 that such authority was created by deed, and 
 that it has been duly pursued. 
 
 If livery be made by the feoffor, or to the 
 feoffee in person, it must, ex m termini, be in 
 the life of the person making, or of the person 
 receiving, livery. The cases which suggest in- 
 quiry are those in which livery is made or 
 accepted by attorney, or by or to the heir as 
 such. 
 
 Many nice distinctions arise between livery 
 in person, and livery by attorney ; and the 
 general learning of livery of seisin should be 
 studied under the doctrine of feoffments. 
 
 But in regard to ancient deeds, under which 
 the possession has been held, consistently with 
 the deeds, for thirty or forty years, it is reason- 
 able to presume that livery was made according 
 to the deed, although there be not any direct 
 evidence of the livery. A jury would most 
 unquestionably presume the livery. 1 Vern. 
 195. 
 
 When livery is made or accepted by attor- 
 ney, the instrument which created the authority 
 ought to accompany the title deeds, or be within 
 the power of the purchaser ; and it is to be
 
 LETTER OF ATTORNEY. 293 
 
 shown that the feoffor was living at or after the 
 time of livery by his attorney ; so as to the 
 feoffee, if he accepted livery by attorney. It 
 should be seen that the letter of attorney was 
 by deed, for this is essential, and that it con- 
 tained language which authorized the act which 
 has been done under the power assumed. As 
 an exception to a general rule, an infant may 
 appoint an attorney to receive livery of seisin 
 for him, as feoffee. 1 Roll. Abr. 730, 1. 10. 
 Palfrey man v. Grobie. 
 
 It is also observable, that without express 
 words in a power, the power cannot be executed 
 through the medium of an attorney ; thus an 
 attorney cannot execute a lease under a power 
 to lease ; Combe's case., 9 Rep. 77 ; or give con- 
 sent to a revocation of uses, although no dis- 
 cretion be confided to him, Hawkins v. Kemp, 
 3 East 410 ; nor surrender copyholds under an 
 authority to executors to sell, 9 Rep. 776 ; or 
 surrender copyholds on behalf of a married 
 woman ; still less, except under the provisions 
 of the act of 47 Geo. III. sess. 2, c. 8, suffer a 
 recovery on her behalf. In short, an attorney 
 cannot be appointed to do an act which is 
 personal to the person who assumes to give the 
 authority. 
 
 Deeds to be executed by attorney should be 
 in the name of the principal, (Combe's case, 
 9 Rep. 776,) and not of the attorney. They 
 should be executed as the act and deed of the 
 principal, either in form or in substance. The 
 
 u 3
 
 ON TITLES : 
 
 signature should be with the name of the prin- 
 cipal, rather than with the name of the attorney; 
 but an inaccuracy in the latter particular would 
 not vitiate the deed. The reason is obvious ; 
 signature is not of the essence of the deed. 
 
 While writing these observations, one of those 
 frauds which occur in practice has been under 
 consideration. 
 
 An attorney sold under an authority which 
 conferred a power of leasing, not a power of 
 sale. Several years elapsed before the defect 
 was discovered, and many intermediate con- 
 veyances from purchaser to purchaser had taken 
 place. At last the defect was discovered. 
 
 To give a colour to the title, a formal letter 
 of attorney was prepared to the same person, 
 though he had paid the debt of nature. It was 
 dated prior to the conveyance which the attor- 
 ney had executed, as if the date would give 
 relation to the authority so as to effectuate the 
 conveyance already made. 
 
 But the inaccuracy of the transaction was 
 easily detected ; first, by the stamp to the 
 letter of attorney ; and secondly, by the water- 
 mark on the paper, showing the year of its 
 manufacture ; and each of these circumstances 
 afforded the means of impeaching the internal 
 evidence of the deed. 
 
 It is by attempts of this nature that trans- 
 actions in which similar fraud has not been 
 practised, are scrutinized with a severity which 
 is the only safeguard against fraud.
 
 ATTORNMENT. 2<}5 
 
 Were it not disgusting to detail such trans- 
 actions, another fraud actually committed, and 
 which at this moment is vexatious to a large 
 body of purchasers residing in a village near the 
 metropolis, might be stated as a defence, were 
 any defence necessary, for the strict scrutiny 
 with which titles are investigated. 
 
 Formerly an attornment was essential to the 
 validity of some deeds, as grants of reversion, 
 &c. ; and no estate passed till attornment. The 
 reason assigned by lord Coke is, " Every grant 
 " must take effect as to the substance thereof, 
 " in the life of both the grantor and the 
 " grantee," 1 Inst. 309 a. And he adds, " In 
 " this case, if the grantor dieth before attorn- 
 " ment, the seignory, rent, reversion, or re- 
 " mainder, descend to his heir; and therefore 
 " after his decease the attornment cometh tod 
 " late. So likewise if the grantee dieth before 
 " attornment, an attornment to the heir is 
 " void, for nothing descended to him; and if 
 " he should take, he should take it as a pur- 
 " chaser, where the heirs were added, but as 
 " words of limitation of the estate, and not to 
 u take as purchasers/' 
 
 But unless the attornment was essential to 
 the operation of the grant to pass the estate, 
 and although there could not be itny distress 
 till attornment, (as in the instance of a fine, or 
 bargain and sale by a conusee in a fine, before 
 the conusee had obtained attornment) then the 
 conveyance would remain in operation, notwith- 
 
 u 4
 
 2.Q6 ON TITLES : 
 
 standing the death of the grantor or grantee 
 before attornment, 1 Inst. 309 b. Even in the 
 instance of a manor partly in demesne, and 
 partly in services, and a feoffment of the manor, 
 the services do not pass till attornment ; so that 
 the manor might have been destroyed by a 
 severance of the demesnes from the services, 
 by the death of the grantor or grantee before 
 attornment. This had been a disputed point. 
 1 Inst. 310 b. 
 
 The necessity of attornment is now super- 
 seded by the statute of 4 and 5 Anne, c. 16, 
 for the amendment of the law. 
 
 And as often as any difficulty arises from 
 the absence of direct evidence of livery of 
 seisin, the attention should be directed to con- 
 sider whether the deed might not have operated 
 as a grant of the reversion or remainder, ex- 
 pectant on a term for years, or some other 
 particular estate. Even an estate at will by 
 copyhold tenure will be sufficient to lay a 
 foundation for a deed of grant, as an efficient 
 conveyance at the common law ; and it is 
 obvious, that when there are a lease and release, 
 as parts of the same assurance ; or when the 
 grantee has an estate capable of enlargement, 
 as in the case of every particular tenant, even 
 ofji Jtenant at, will? a copyholder ; or a person 
 holding the possession as a mortgagor, by the 
 permission of the mortgagee ; or as tenant at 
 will to him, the want of evidence of livery of 
 seisin does not afford a solid ground of objection
 
 ENTRY. 297 
 
 against a title, provided the facts admit of 
 proof, or the circumstances of the case afford a 
 presumption supplying the place of proof. 
 Thus, by reason of farm or occupation leases, 
 or of outstanding attendant terms, few titles 
 are defective for want of evidence of livery of 
 seisin, or enrolment of a bargain and sale, 
 or a lease for a year, as part of the assurance 
 by lease and release. 
 
 On a late occasion, a very valuable estate 
 in the neighbourhood of the metropolis was 
 protected from eviction by resorting to the 
 learning of grants. In that case, the issue in 
 tail claimed the inheritance, on the ground that 
 a recovery was defective for want of a good 
 tenant to the writ of entry. The tenant to the 
 writ of entry had been made by a deed in- 
 tended to have been enrolled, and to have ope- 
 rated as a bargain and sale, under the statutes 
 of Hen. VIII.; but by some strange neglect, no 
 enrolment had taken place ; and the title was 
 supported by resort to an outstanding term for 
 years, and to the estates or interests of copy- 
 holders, as the means of enabling the deed to 
 operate as a grant of the remainder or reversion 
 dependant on a particular estate. 
 
 Many useful observations on this point will 
 be found in the chapter on lease and release in 
 the second volume of the practice of convey- 
 ancing. 
 
 In some cases, an entry is necessary to com- 
 plete the title, as in the cases of exchange at
 
 298 ON TITLES : 
 
 the common law, of lands in possession to give 
 an actual seisin, &c.; to convert an interesse 
 termini into an actual term ; and sometimes to 
 revest an estate, or to restore the seisin, as in 
 the case of an entry made after a disseisin, &c. 
 or a condition broken ; and whenever the fact of 
 entry is material to the title, there should either 
 be direct evidence of it, or it should appear to 
 be capable of some proof, to be within the power 
 of the purchaser ; or the circumstances of the 
 title should be such as afford an irresistible 
 presumption that an entry was made. 
 
 It is to be remembered, that a bargain and 
 sale for years gives an estate immediately on 
 the execution of the deed; while a demise at 
 the common law of lands in possession requires 
 an entry to gain a term separated from the 
 inheritance. 
 
 Important consequences used to arise from 
 this distinction. In modern practice, it gene- 
 rally happens that the deed can be used as a 
 bargain and sale for years. 
 
 When the deed appears deficient in any of 
 these circumstances, it becomes material to 
 consider whether it cannot operate in some 
 other mode; for instance, whether it may not 
 operate as a covenant to stand seised to uses, 
 though it cannot have the effect of a feoffment, 
 or grant, or bargain and sale; whether it may 
 not operate as a grant in fee, though it is void 
 as a bargain and sale in fee, or as a feoffment; 
 whether it may not operate under the
 
 RECEIPTS. 299 
 
 ownershsip, though it cannot be supported as 
 an exercise of a power; and whether it may not 
 operate as a bargain and sale for years, though 
 it was inoperative, at least for a time, and in 
 point of estate, as a demise at the common law. 
 
 By giving this application to the evidence of 
 the title, a difficulty which otherwise would 
 have existed will frequently be obviated. On 
 this subject, the case of Roe v. Tranmeri 
 2 Wilson 75 ; Willes 682 ; Shep. Touch, p. 80, 
 deserve to be consulted. 
 
 Also in modern deeds, if a pecuniary or other 
 consideration be the motive for the deed, care 
 should be taken that the receipt has been signed 
 for this consideration. 
 
 The acknowledgment of the receipt in the 
 body of the deed, except in the instance of the- 
 acknowledgment by recital, that the money was ' 
 paid at some former period, will not be deemed 
 sufficient. In equity, the receipt indorsed on 
 the deed is considered, as has already been , 
 observed, to be the material evidence of the ap- 
 plication of the money ; and the want of such a 
 receipt is implied notice that the purchase- 
 money has not been paid ; and in deeds which 
 are questionable on the ground of fraud, the 
 party will be required to prove the actual 
 payment of the consideration. Hence it is, 
 in practice, of advantage to make the payments, 
 as far as circumstances will admit, through the 
 intervention of bankers, since their books will 
 afford evidence of the transaction.
 
 300 ON TITLES : 
 
 Trustees in particular should make all their 
 payments, and accomplish their receipts through 
 the direct agency of bankers. 
 
 Although a bargain and sale of an use cannot 
 be made without a consideration of money, or 
 money's worth, as its foundation, yet on the 
 other hand the payment of a pecuniary consider- 
 ation may be averred and proved, although it be 
 not expressed in the deed. On the other hand, if 
 the consideration be expressed in the deed, then, 
 for this purpose, the fact of payment cannot 
 be controverted. The internal evidence of the 
 deed is conclusive that there was a pecuniary 
 consideration to support the deed as a bargain 
 and sale. 
 
 * The case of the churchwardens of St. Saviour, 
 fyc. 10 Rep. 67 b. treated this point as clearly 
 settled. 
 
 But these authorities do not deny the neces- 
 sity of proving the payment, in order to rebut 
 the equity of a vendor; or when it is necessary 
 to support the deed against an imputation of 
 fraud. 
 
 Also in deeds made in pursuance of powers 
 which require that other lands of equal or 
 greater value should be settled, Sac. as a con- 
 dition, either in law or in equity, precedent to 
 the execution of the power,' care should be 
 taken to see that the settlement required by the 
 power has been made ; and in some cases it 
 will be necessary to go farther, and ascertain 
 the value of the lands; and also, to investigate
 
 EXCHANGES, ENFRANCHISEMENTS, c. 301 
 
 the title to the lands, which have been settled 
 or given in exchange. 
 
 The observations respecting the application 
 of the purchase-money suppose that no pro- 
 vision has been made to dispense -with the 
 necessity of attention to these particulars; or 
 that the lapse of time, or acquiescence by all 
 persons who were beneficially interested, has 
 not superseded the necessity of inquiring into 
 these points. 
 
 Provisions to dispense with inquiry into the 
 fact of application of the purchase-money, are 
 attended with great convenience, and are found 
 in most well-prepared instruments. 
 
 Also in common law exchanges, in which 
 the object is to have the identical lands, it is an 
 incumbent duty to investigate the title to the 
 lands which are purchased, and also to the 
 lands given in exchange ; since a defect of title 
 to either class of parcels, or to any part of the 
 lands of either class, will expose the purchaser 
 to the danger of eviction. 
 
 Also, in titles which were formerly of copy- 
 hold tenure, and which have been converted 
 into freehold tenure by enfranchisement, it is 
 usual to investigate the title under the copyhold, 
 tenure, and also the title of the lord under the 
 freehold tenure ; since a defect in the title under 
 the copyhold tenure would not, as against a 
 stranger, be cured by enfranchisement. 
 
 Where the copyhold tenure is extinguished
 
 302 ON TITLES I 
 
 in the freehold tenure, there is, as principle would 
 suggest, an acceleration of the right of enjoy- 
 ment under the freehold tenure, in the same 
 manner as when a term of years merges in the 
 freehold or inheritance; and the encumbrances 
 on the freehold or inheritance take effect in 
 possession. 
 
 A contrary doctrine has been advanced ; 
 and there is, it is believed, a decision to that 
 effect, though frequent research has not dis- 
 covered the case ; but the principle on which 
 this doctrine is maintained is not easily dis- 
 covered ; for when the. copyhold estate ceases, 
 the estate under the freehold tenure must take 
 effect in possession ; and conveyancers have 
 uniformly acted on such acceleration, and often 
 guard against it by creating a term of years 
 out of the copyhold tenure, prior to the enfran- 
 chisement, that the title to the possession may 
 depend on that tenure. 
 
 Indeed, it is difficult to find any principle of 
 law under which a person whose title to lands, 
 formerly of copyhold tenure, depends on enfran- 
 chisement, could, after an extinguishment of 
 the copyhold tenure, protect himself from 
 charges affecting the freehold tenure. 
 
 There is not any analogy between this case 
 and a release of services by a lord of the manor, 
 or other seignory, to the person who is tenant 
 under the freehold tenure. 
 
 The tenant of the freehold tenure has a
 
 ENFRANCHISEMENT. 303 
 
 fee-simple ; while a copyholder, though he has 
 a fee by custom, is, in respect of the freehold 
 tenure, merely tenant at will. 
 
 So when the lord purchases the copyhold 
 tenure, and that tenure becomes extinct by 
 union with the freehold tenure, it is unques- 
 tionably necessary to investigate the title under 
 the copyhold tenure, as well as under the 
 freehold tenure ; but, in this instance, there is 
 not the same danger that encumbrances affecting 
 the copyhold tenure would be accelerated. 
 
 Also, when the tenant under the freehold 
 tenure obtains a release of the services from 
 the lord, and there is a rent; in this instance 
 the rent will be extinguished ; but as the en- 
 cumbrances of the lord cannot affect more than 
 the rent and services, the title of the lord is 
 not deemed of importance, unless the services 
 be of considerable value, to call for the pro- 
 duction of evidence of the title of the lord. A 
 sound discretion, setting a boundary to inqui- 
 ries of this description, should be used. 
 
 However, when a title to freehold lands is 
 released from a fee farm rent, or rent charge, 
 of considerable amount, it would be extremely 
 imprudent to forego the caution of ascertain- 
 ing that the rent has been released by persons 
 who were competent to release the same. 
 
 Every partition between coparceners implies 
 a warranty corresponding with the warranty on 
 an exchange. This point, duly considered, leads 
 to the conclusions that when a title depends on
 
 304 ON TITLES i 
 
 a partition between coparceners, the title to all 
 the lands comprised in the partition, as well as 
 to the identical lands which are purchased, ought 
 to be taken into consideration, but this is not 
 generally done. 
 
 In this place also, it may be noticed, that if 
 a fine or common recovery be levied in the 
 courts of Westminster-hall, of lands of the 
 tenure of ancient demesne, these lands become, 
 while the fine or recovery remains in force, frank 
 fee; and the title will be involved in considerable 
 difficulties, until the lands are restored to the 
 tenure of ancient demesne, or are discharged 
 by the lord from the services to the court of 
 ancient demesne, and are in point of title, 
 as well as in point of fact, become of the 
 tenure of frank fee ; in other words, of socage 
 tenure. 
 
 In cases of this description it is also expe- 
 dient to investigate the title of the lord of the 
 manor of ancient demesne, before reliance can 
 be placed on a release which imports to have 
 discharged the lands from the tenure of ancient 
 demesne; for it is at least doubtful, whether 
 the lord of the manor can make the lands frank 
 fee in point of title for any longer period than 
 his own estate ; and if he cannot (and it should 
 seem he cannot) then the abstract ought to 
 show a title in the lord to discharge the lands 
 
 from the tenure of ancient demesne. 
 
 % 
 
 These ar& the only observations which are 
 particularly important to be noticed in regard
 
 FORM AND OPERATION OF DEED. 305 
 
 to the external parts of a deed, and the circum- 
 stances arising as incidentally connected with 
 the subject. 
 
 The next object to be attended to is the 
 form and operation of the deed itself. 
 
 Of the Form and Operation of the Deed itself. 
 
 UNDER this head, it will be necessary to 
 consider the act intended to be done, whether 
 that which the deed imports to do is regularly 
 done in point of form ; and whether the parties 
 were competent to do the thing in point of 
 estate, and in point of discretion, freedom from 
 coverture, c. 
 
 The line of conduct to be adopted is to con- 
 sider the particular deed in the first place, per se, 
 and in the second place, relatively to the 
 title. 
 
 The first object is to attend to the form of 
 the deed, and see 
 
 1st. That it is made in the mode proper to 
 attain the end proposed ; for instance, that if a 
 feoffment be requisite, it assumes the form, or 
 has the ceremonies, of afeof/nejit, and conse- 
 quently, that livery of seisin is made. 
 
 2dly. That if it can not operate as a feofF- 
 ment, it may operate as a lease and release, 
 and consequently that there is a lease for a 
 year on which the release is grounded; or, 
 if it cannot operate either as 2^ feoffment, or as 
 g, lease and release, that it may operate as a 
 
 x
 
 306 ON TITLES : 
 
 bargain and sale enrolled, and consequently, 
 that the deed is founded on a consideration of 
 money, or money's worth ; and that it has been 
 enrolled in the proper court, and within the 
 limited time; and that if it cannot operate in 
 either of these modes, it may operate in some 
 other mode, by construction of law, as a cove- 
 nant to stand seised to uses, and consequently 
 that it is founded in the whole, or in part, on 
 the consideration of blood or marriage ; or that 
 it may operate as an appointment; and conse- 
 quently that there was a power as its ground- 
 work. 
 
 These observations apply to lands held for 
 an estate in possession; but if an estate in 
 reversion or remainder in lands be the subject 
 of the deed, then it is to be considered whether 
 the instrument can operate as a grant, and 
 consequently as to estates in remainder or 
 reversion, it is necessary to ascertain that there 
 was a previous subsisting particular estate which 
 conferred a right to the possession, so that there 
 existed an estate in reversion or remainder, 
 divided from, and expectant or depending on, an 
 estate in possession. 
 
 Also, if the conveyance be made to uses, care 
 should be taken to see that the conveyance M'as 
 well made at the common law; and conse- 
 quently that there was a seisin to supply the 
 uses; and when the conveyance is to be sup- 
 ported only as a bargain and sale of the use, or a 
 covenant to stand seised to uses, then the atten-
 
 OPERATION OF DEED. 30? 
 
 tion must be directed to see that the instrument 
 might operate as a bargain and sale, or gift of 
 the use, by force of the statute of uses, under 
 the seisin of the former owner, without any 
 conveyance by him; and, consequently, that in 
 a bargain and sale there is a valuable con- 
 sideration, and in a covenant to stand seised 
 to uses, the consideration of blood or marriage 
 existed. 
 
 Also that the conveyance is such as in its 
 nature admitted of a declaration of uses. 
 
 The following distinctions will deserve atten- 
 tion in this place : 
 
 An use cannot arise out of an use, or in other 
 words, an use declared of a seisin, which arose 
 from an use executed by the statute of uses, 
 will not be executed by that statute. For the 
 statute executes those uses only which are in 
 the first degree, and not uses in the second 
 degree. The latter uses are mere trusts or 
 beneficial interests, and confer equitable estates 
 only. 
 
 The following examples will illustrate and 
 show the application of these observations : 
 
 A bargain and sale to A, to be executed by 
 the statute of uses, gives A an use. Therefore 
 a bargain and sale to A and his heirs, to the use 
 of B and his heirs, gives B merely an equitable 
 estate; for, as the bargain and sale passes an 
 use to A 9 this is the use in the first degree, and 
 be executed by the statute. The ulterior 
 x 2
 
 308 ON TITLES: 
 
 use to jB is an use in the second degree, and 
 therefore a mere trust. 
 
 But a bargain and sale under an authority 
 in a will, or under a power in acts of parliament, 
 as the land-tax acts, &c. passes a common law 
 seisin, and a bargain and sale thus made to A 
 and his heirs, to the use of B and his heirs, 
 passes a seisin to A and his heirs, and the use 
 to B and his heirs will be executed by the 
 statute. In this instance, this is the use in the 
 first degree. 
 
 Also observe, that a conveyance to A and 
 his heirs, to the use of A and his heirs, gives 
 to A a seisin wholly by the rules of the common 
 law ; since A could not prior to the statute be 
 a trustee merely and solely for himself. 
 
 .As the whole scope of the statute was to 
 remit the common law, and never to inter- 
 meddle where the common law executed an 
 .estate, lord Bacon, in his Reading on Uses, 
 (p. 63,) gives this rule, and observes, there- 
 fore, the statute ought to be expounded, 
 that where the party seised to the use, and the 
 cestui que use is one person, he never taketh by 
 the statute, except there be a direct impossibility 
 or im pertinency for the use to take effect by 
 the common law. 
 
 But under a conveyance to A in fee, to the 
 use .of A for life, remainder to B in fee; or to 
 the use of B for life, remainder to the use of A 
 in fee, the use in favpr of B } and also the use in
 
 OF USES. 309 
 
 Favor of A for life, but not the use to A in fee, 
 will be executed by the statute. 
 
 But under a conveyance to A in fee, to the 
 use of A in fee, to the use of B in fee, A will 
 be seised by the rules of the common law, 
 because the express declaration of use in favor 
 of A renders the use declared in favor of _B 
 repugnant; and for that reason the use to jB is 
 considered merely as a trust. 
 
 However, even when a conveyance is made 
 to A in fee, to the use of A in fee; a clause 
 may be introduced which will make the con- 
 veyance operate as to the uses, or at least some 
 of them under the statute of uses ; for instance, 
 if a power be added, that another person may 
 create a jointure, or make leases or sales, ex- 
 changes, &c. such powers will be good; and 
 when they are exercised they will give estates, 
 through the medium of the statute of uses. So 
 if a limitation were introduced to give the 
 grantor an estate for life, either absolutely, or 
 on an event, this addition would render it 
 necessary that the use to the grantor should 
 arise under the statute of uses, King v. Inhabi- 
 tants of Eatington, 4 Term Rep. 177- 
 
 In all those instances in which the uses arise 
 from the common law seisin of A, the uses 
 are to be executed by the statute; and if they 
 are consistent with the use declared to him in 
 fee, he will retain the fee as part of his common 
 law seisin. But when his fee is modified by, or 
 subjected to, any power, or to any shifting or 
 
 x 3
 
 310 ON TITLES: 
 
 springing use, then, on account of this new 
 quality, not warranted by the rules of the com- 
 mon law, even the use limited to A in fee will 
 be subject to the operation of the statute. 
 
 Also, an appointment under a power in and 
 arising under a conveyance to uses, passes the 
 use itself, and not the seisin ; and therefore, 
 under an appointment to A in fee, to the use of 
 13 in fee, or to the use of several persons for 
 particular estates, the statute executes the use 
 in A, and the ulterior uses are merely trusts, in 
 other words, are uses on uses. 
 
 But shifting or substituted uses are not uses 
 on uses, and do not fall within the scope of the 
 observations which are applied to uses bearing 
 that character; for these shifting or substituted 
 uses are merely alternate uses, and not uses 
 upon uses. For this reason, a conveyance to 
 A in fee, to the use of JB in fee; and if C should 
 pay a given sum within a limited time, then to 
 the use of C in fee, gives a common law seisin 
 to A to the use of B; and this use will be 
 executed in JB, by the statute of uses, subject 
 to the shifting use declared in favour of C ; and 
 if the money should be paid within the particular 
 time, this use declared in favor of C, unless 
 defeated in the mean time, will also be executed 
 by the statute of uses, and will over-reach, arid, 
 in effect, determine the estate of jB. 
 
 From a former observation it may be col- 
 lected, that it is immaterial whether the use of 
 substitution be in favor of the grantee of the
 
 OF USES. 311 
 
 seisin, or of a stranger : In either case it may 
 operate with effect. Also, suppose a conveyance 
 to be made to A in fee, to the use of A in fee, 
 with a proviso, that if B should pay a certain 
 sum of money on a given day, then the land 
 shall remain to the use of B in fee. On payment 
 of this money, according to the language of the 
 proviso, the statute of uses would be called into 
 operation, and would vest the fee in B. For 
 that reason, the use to A in fee would be 
 executed under the learning of uses, as the only 
 means by which the proviso could operate; and 
 from the first instant, the conveyance would be, 
 in effect and construction of law, a conveyance 
 to the use of A in fee, liable to be defeated by 
 the shifting use in favor of B in fee. 
 
 Within the whole scope of that learning which 
 is more particularly to be studied by the convey- 
 ancer, there is none more important to be known 
 than that which concerns the doctrine of uses; 
 for there are many things which may be done 
 through the medium of a conveyance to uses, 
 or under the statute of uses, without a convey- 
 ance, which cannot be accomplished by a con- 
 veyance merely and simply at the common law; 
 and consequently, there are many occasions in 
 which it is absolutely necessary to resort to the 
 learning of uses in framing a conveyance, or for 
 giving it effect. 
 
 As the general outline of this learning, and 
 the principal distinctions, are collected in the 
 
 x4
 
 ON TITLES: 
 
 second volume of the Practice of Conveyancing, 
 p. 473, and in this volume, p. 101, it would be 
 mere repetition to add them in this place. 
 
 To return from this digression on uses. But 
 perhaps the deed in question was not intended 
 to operate as a conveyance, but merely as 
 a release of right, or as a confirmation of title. 
 or as a release from one joint- tenant, or copar- 
 cener to his companion in the tenancy ; or, as a 
 release of rent, or common, or of services, or 
 other incoporeal hereditament : or to create an 
 estate, as in the case of a lease, grant of 
 annuity, &c. c. or to determine a particular 
 estate, as in the instance of a surrender; and 
 under all and the like circumstances, the point 
 to be considered is, whether the deed has pro- 
 duced the effect which was contemplated; for, 
 although the instrument may assume the form 
 of a conveyance, or of a release, yet if that form 
 was an inadequate mode of giving effect to the 
 intention, it is next to be considered, whether 
 the deed may not have the effect of that inten- 
 tion by which it was dictated, by some con- 
 struction of law under the rule, " cum quod 
 ago non valet ut ago, valeat quantum valere 
 potest'," or, as the rule is more fully expressed in 
 Sheppard's Touch, chap. Exposition of Deeds, in 
 these terms, " that the construction be such, 
 '* that the whole deed, and every part of it, 
 " may take effect; and as much effect as may 
 " be to that purpose for which it is made ; so 
 " as when the deed cannot take effect, accord-
 
 OPERATION OF DEEDS. 313 
 
 1* ing to the letter, it be construed so as it may 
 " take some effect or other." 
 
 Under this rule, a feoffment, a release, a 
 surrender, a bargain and sale, a grant, or a 
 lease, or rather an instrument in either of these 
 forms, may operate as a covenant to stand seised 
 to uses ; and a lease in the form of a common 
 law demise, may operate as a bargain and sale 
 for years under the statute of uses. 
 
 A lease and release, void as such, because 
 they import to pass an estate of freehold to 
 commence infuturo, may operate as a covenant 
 to stand seised to uses. 
 
 And when a deed may operate in either of 
 several modes ; x for instance, as a lease for a 
 year, by the rules of the common law, or as a 
 bargain and sale for years under the statute of 
 uses, it is in the option of the party to use it in 
 either mode as he thinks fit. 
 
 In forming an opinion of the mode of opera- 
 tion, and effect of a deed, attention must neces- 
 sarily be paid to its constituent parts, and care 
 must be taken that it has all essential circum- 
 stances, and that it is good in point of law to 
 produce a given effect; and if the effect be 
 different at law from what it ought to be in 
 
 o 
 
 equity, then the title must be considered as 
 complete, so far only as respects the legal 
 estate ; and the equitable or beneficial ownership 
 as divided from the legal estate will require a 
 distinct consideration.
 
 314 ON TITLES I 
 
 Sometimes a deed, though defective in legal 
 operation, may, by way of contract, confer a 
 good title in equity. 
 
 In considering the form, combined with the 
 effect, of a deed, the circumstances to which 
 particular attention must be paid, are, 
 
 1st. That there is or are a grantor or 
 grantors. 
 
 2dly. That the grantors were of ability to 
 make the conveyance, in point of age, of dis- 
 cretion, and other personal qualifications; and 
 also, in point of ownership or estate, that is, of 
 title, and that they were competent to make the 
 game by the deed, &c. under consideration. 
 
 3dly. That there is a grantee or grantees, and 
 that the grantee or grantees was or were capable 
 of receiving the benefit of the grant in the mode 
 in which the grant is made. 
 
 4thly. That there are proper, or at least, 
 effectual, words of grant. 
 
 5thly. That there is a subject to be granted, 
 and that such subject is described with sufficient 
 certainty, and that this certainty embraces the 
 lands in question, or some of them, by an 
 accurate, or at least, adequate, description. 
 
 b'thly. That the estate is well limited in point 
 of law, and by technical words; so that the 
 limitation is not void for uncertainty, or as 
 contravening the rules of law, by granting an 
 estate of freehold to commence infuturo, or by 
 granting an estate in remainder, without any
 
 OPERATION OF DEEDS. 315 
 
 particular estate to support it ; or after a par- 
 ticular estate which necessarily must determine 
 before the remainder can commence ; or by 
 granting a contingent remainder, without any 
 prior particular estate of freehold to support the 
 same; or by limiting the estate to arise on an 
 event against law, as on committing murder. 
 
 Tthly. That if the title concern a rent, such 
 rent is well reserved, or was duly created; that 
 if uses are declared, there is a seisin to supply 
 these uses ; or that they may arise from the 
 seisin of a bargainer in a bargain and sale, or 
 of a covenantor in a covenant, to stand seised 
 to uses; that these uses are warranted by the 
 rules of law, and not too remote, as tending to 
 a perpetuity; and that such uses, as far as 
 respects the legal estate, are not open to 
 objection, as being uses upon an use; and that 
 if trusts are declared, there is an estate in 
 trustees to support these trusts, or a contract, 
 which, in equity, will be binding on the owner- 
 ship of the beneficial proprietor of the estate. 
 
 These are the leading points to be considered. 
 They branch themselves into a great variety of 
 learning, and involve all the niceties of the law 
 
 O 7 
 
 which will have occurred in the progress of that 
 course of study which has been recommended. 
 An attempt to give even a summary view of this 
 learning will be attended with considerable 
 difficulty. On the one hand, to go through 
 the subject, fully, would be to write a compre- 
 hensive treatise on all the various learning on
 
 316 ON TITLES *. 
 
 real property; on the other hand, to give merely 
 a summary view of the subject, \vill render it 
 still necessary that the student should extend 
 his researches into books which treat of the 
 subject at large. 
 
 Still, however, it will be right to give a short 
 intimation of the leading points which present 
 themselves more immediately in practice under 
 these different heads ; and to refer to the books 
 from which more full information may be 
 obtained. 
 
 1st. That there must be a grantor, and that 
 he must be able to do the act in point of 
 estate, and of ownership, and also in point of 
 discretion. 
 
 This leads to the consideration of the abilities 
 of persons, and also the nature and extent of 
 the ownership conferred by particular estates. 
 
 Respecting the ability of persons ; 
 
 All persons are, in point of discretion, &c. 
 able to grant, unless they are disqualified by 
 the circumstances of infancy, lunacy, idiotcy, 
 duress, coverture ; and even some of these 
 persons may grant in some mode, and to a 
 certain extent, although they are incapable to 
 grant in a different mode, or to a greater 
 extent. 
 
 So as to estates; all owners of vested estates, 
 except incapacitated by one of the disabilities 
 which have been mentioned, may grant the 
 whole of their ownership under that estate, or 
 create any particular estate or interest out of
 
 ABILITY OF PERSONS, &C. 317 
 
 the same ; for Cm licet quod magis non debet 
 non licere quod minus ; also, cujus est dare, ejus 
 est disponere ; and tenants in tail may, by a 
 particular mode of assurance, as by common 
 recovery, bar the estates limited after and ex- 
 pectant on the estate tail, and enlarge their 
 particular estate into a fee-simple. 
 
 Some owners of estates also are allowed the 
 power of divesting the estates of other persons, 
 so as to turn these estates into a right of entry, 
 or into a right of action. And this right of 
 entry, or of action, may be ultimately barred 
 by the statutes of limitation, or by nonclaim on 
 a fine, so as to give a good title in fee-simple. 
 But in the mean time, till this bar is perfect, 
 or the right is released, the title will be de- 
 fective. Such alienations are wrongful, and 
 operate by way of disseisin. 
 
 So also an estate vested in one person may, 
 by disseisin, abatement, or intrusion, become 
 vested or placed in the seisin of another 
 person. 
 
 At first such title will be defeasible ; but 
 eventually by release, bar by nonclaim on fine, 
 or by one of the statutes of limitation, such 
 estate may become indefeasible. 
 
 Also an estate may be defeasible by con- 
 dition, but may become absolute, either by a 
 performance of the condition, or by a release 
 of the condition before it be broken, or of the 
 right of entry, or of action after such right 
 has accrued. Also an estate may be deter- 
 minable, from the circumstance that it is
 
 318 ON TITLES: 
 
 derived out of a particular estate, for cessante 
 statuprimitivoj cessat derivations; or defeasible, 
 because it is founded on a defective title in 
 the person by whom the particular estate was 
 granted ; and such defective or defeasible title 
 may become complete and indefeasible by the 
 release or confirmation of the person in whom 
 the right resides. 
 
 The general and leading rule as to alienations 
 and forfeitures is, quod meum est sine facto mco 
 vel defectu meo, amitti vel in alium transferre 
 iwn potest ; on the other hand, in favor of 
 alienation, the rule is, nihil tarn convenient; ext 
 natarali cEquitati, quam voluntatem domini rem 
 suam in alium tramferri ratam liabere. 
 
 But in considering titles another rule must 
 be carried in the memory, quod semel (Anglice 
 already) meum est, amplius meum esse non potest, 
 1 Inst. 49- Hence a demise of the fee to an 
 heir does not make him a purchaser ; and hence 
 a conveyance to a person who already is the 
 owner, must operate as a release of right, or 
 a confirmation. It may improve, but cannot 
 change, the title. 
 
 1st, As to infants. 
 
 Conveyances made by them by matter of 
 record, as fine or recovery, are voidable, and 
 not void ; and they must be avoided during 
 their minority, or at least their infancy must 
 be tried by the court, by their own inspection 
 of the infant, Inst. 131 a. 380 b. Styles 472, 
 12 Rep. 123 ; and such inspection must take 
 place during minority. Evidence is received
 
 OF INFANTS. 319 
 
 by the court, to assist them in the conclusion 
 they are to form respecting the age. 
 
 And as to common recoveries, there is a dif- 
 ference whether they be suffered by the infant 
 in person, or by attorney. 
 
 When suffered in person, they are voidable 
 only by trial, viz. inspection during the period 
 of minority. When f suffered by attorney, the 
 recovery may be avoided by writ of error, as 
 well after the infant shall be adult, as during 
 his minority. 
 
 The prominent ground of this distinction is, 
 an infant cannot appoint an attorney. 
 
 But an effectual recovery might be suffered 
 by an infant under a writ of privy seal ; but 
 such practice is now obsolete, and the place of 
 writs of privy seal is supplied by applications 
 to parliament for private acts, enabling infants 
 to settle, or to enter into articles for a settle- 
 ment, on their marriage. 
 
 At this day few or no attempts are made to 
 obtain fines or recoveries from infants, since 
 the rules of the court of Common Pleas require 
 an affidavit by one of the commissioners that 
 he knows the parties, and that they are of full 
 age, arid competent understanding. 
 
 All conveyances by infants, except convey- 
 ances made in performance of a condition, or 
 in pursuance of a custom, as of gavelkind, 
 lands, or the custom of some particular towns, 
 &c. are voidable at least. 
 
 And it is in every day's experience, that
 
 320 ON TITLES : 
 
 infants make conveyances as mortgagees or trus- 
 tees under the provisions of the Act of 7 Anne, 
 c, 19? intituled, " An Act to enable infants 
 " who are seised or possessed of estates in fee, 
 * 6 in trust, or by way of mortgage, to make 
 " conveyances of such estates." 
 
 That act extends to copyhold as well as to 
 freehold lands, [order by Court of Exchequer, 
 26 June 1768. 7 Term Rep. 103. Watkinss 
 Copyhold, 63 ;] to lands out of England as well 
 as land in England ; therefore an infant was 
 ordered in one instance to convey lands in a 
 West India island, ex parte Anderson, 5 Ves. 
 240. 3 Bro. C. C. 324, and in another in- 
 stance, Evelyn v. Forster, 8 Ves. 96, lands in 
 Ireland. It also extends to infants, although 
 they be married women, but then a fine, or, 
 according to the circumstances, a recovery must 
 be suffered, Lombe v. Lowbe, Barnes 217. ex 
 parte Bowes, 3 Atk.l64. ex parte Smith, Ambler 
 624. ex parte Johnson, 3Atk. 559; and the 
 court of Common Pleas must dispense with its 
 rules respecting the affidavit against infancy, 
 coverture, &c. But the act does not extend to 
 any case in which the ijifant has any beneficial 
 interest in the property of which he has the legal 
 estate, as a mortgagee or trustee. Ex parte 
 Sergison, 4 Ves. Jun. 147. 
 
 Nor does it extend to any case in which there 
 are trusts to be performed, requiring a discretion 
 on the part of the infant; but in modern prac- 
 tice the latter rule has been relaxed ; for if all
 
 Of INFANTS. 321 
 
 the persons beneficially interested under the 
 trusts to be performed are adult, and free from 
 disabilities, and will petition the court for a 
 conveyance to their nominee, the court will treat 
 the infant as a mortgagee or trustee within the 
 act. 
 
 In regard to trust estates, it is necessary 
 that the trust should be declared by writing, 
 or established by decree, (ex parte Vernon, 
 .2 P. W. 549,) and not depend wholly on the 
 learning of resulting trusts, or trusts by impli- 
 cation ; and therefore an infant is not a trustee 
 by means of a contract to sell, so as to be au- 
 thorized or enabled to convey under the statute. 
 But in ex parte Crowther > the only evidence of 
 a trust of some copyhold lands purchased by 
 the corporation of London in the name of Mr. 
 Crowther their comptroller, was to be collected 
 from a receipt for the consideration money in a 
 separate instrument. The receipt imported that 
 the money had been paid by the corporation of 
 London, by the hands of Mr. Crowther ; and 
 on this evidence Master Steele, after some 
 hesitation, reported the infant to be a trustee, 
 and an order was obtained, directing the infant to 
 convey, or rather, the lands being of copyhold 
 tenure, to surrender. It ought however to be 
 noticed, as highly probable, that the case passed 
 before the court without having its particular 
 attention drawn to it ; and of course it has not 
 the authority which would be allowed to a case 
 
 %/ 
 
 fully argued and decided on the point. 
 
 Y
 
 322 ox TITLES: 
 
 It is also to be observed, that if the legal 
 estate in the infant be entailed, the proper 
 means for barring an entail must be observed. 
 Ex parte Johnson, 3 Atk. 559- From the lan- 
 guage, also, of 2 P. Wms. 549, it is probable, 
 that after a decree by the court, establishing a 
 trust against an infant under the learning of 
 resulting trusts, or trusts by implication, the 
 court would treat the infant as a trustee within 
 the meaning of this act. In Goodwyn v. Lister, 
 3 P. Wms. 387, it was held, that the statute 
 extends only to cases of express trusts, and not 
 to such as are implied or constructive only. 
 
 In that case, the application was for a con- 
 veyance from the heir of a man who had entered 
 into a contract for sale, and the object was to ob- 
 tain a conveyance in performance of the contract; 
 but the court would not make a decree against 
 the infant for an immediate conveyance. Slices 
 v. Lister, 5 Vin. Abr. 541 ; nor can any order 
 be made under the act, unless the petitioners 
 have the absolute right, ex parte Anderson, 
 5 Ves. 240; and the infant will not be ordered, at 
 least upon petition, to convey to another trustee 
 to execute the same trusts ; but perhaps he 
 would be ordered upon a bill, praying the ap- 
 pointment of a new trustee, and a conveyance ; 
 and when all the creditors petition, an order 
 may be made for a conveyance to them, or as 
 they shall direct ; ex parte Anderson, 5 Ves. 240. 
 So an infant, being' one of two executors, and 
 interested as such, may be ordered to convey
 
 OF INFANTS. 323 
 
 tifter payment to the other executor, V. 
 
 Handcock, 17 Ves. 384. So an infant will be 
 ordered to convey, though he be beneficially 
 interested in the assets to be administered by 
 the executor, ex parte Bellamy, % Cox Rep. 
 424. And an infant must convey, though he 
 be a trustee for a charity; Attorney General v. 
 Pomfret, % Cox 221, unless the heir be to do 
 something besides the mere act of conveyance. 
 And the appointment of new trustees puts an 
 end to his duty as trustee, ibid. 
 
 Also, by statute 29 Geo. II. c. 31, infants, 
 although the beneficial owners, are enabled to 
 surrender leases for the purpose of renewal. 
 
 A distinction has always been made by 
 sound lawyers between different acts of an in- 
 fant ; some were considered as void ; others 
 as voidable. 
 
 For instance, a feoffment by an infant in 
 person was voidable only, and not void, while 
 the feoffment of an infant made by attorney 
 was considered as actually void. 
 
 / 
 
 The reason of this distinction was, that the 
 infant could not appoint an attorney ; in more 
 correct terms, he could not make a deed ; and an 
 attorney, who is, as such, to make livery, or to 
 execute a conveyance, cannot be appointed 
 without deed. 
 
 Also a lease made by an infant, with a re- 
 servation of rent, was considered as voidable 
 onlv, not as void. For it was the interest of 
 
 Y 2
 
 324 ON TITLES : 
 
 the infant to be able to lease his lands, that he 
 might obtain a rent. 
 
 But a lease made by an infant, without any 
 reservation of rent, except for the purpose of 
 trying the title in ejectment, in other words, as 
 a mere form, as it is manifestly to his prejudice, 
 so it is considered as actually void. 
 
 On the same principle, a single bill, a bond 
 without any penalty, by an infant for neces- 
 saries, was good ; while a bond with a penalty, 
 and conditioned for the payment of the sum laid 
 out in necessaries, was considered as bad, at 
 least as voidable, by plea of infancy. For It 
 would be to the prejudice of an infant to be 
 able to subject himself to a penalty. 
 
 Every grant by an infant which necessarily 
 required a deed, was considered as actually void, 
 and therefore he could not grant, or transfer a 
 
 O ' 
 
 rent, nor grant a reversion or remainder, or 
 make an attorney, or as a consequence execute 
 a conveyance by lease and release, since a 
 deed is essential to the validity of a release. 
 
 This distinction was disregarded in Zouch v. 
 Parsons, 3 Burr. 1794 ; and in that case a con- 
 veyance by an infant trustee, under the direc- 
 tion of his cestui que trust, was considered as ; 
 voidable only, and not void. 
 
 This case has never been acted on in general 
 practice ; and the decision is so objectionable in 
 its principle, and appears so irreconcileable with 
 the former determinations, or the policy, of the
 
 OP INFANTS. 325 
 
 law ; and the reasons assigned in support of the 
 decision are so sophisticated that its authority 
 is highly questionable, and it has more than 
 once been questioned ; and it is reasonable to 
 suppose that it would not be followed as a pre- 
 cedent for decision, except in a case exactly the 
 same in specie and in circumstances. Indeed 
 it would be difficult to support it even to this 
 extent. No experienced conveyancer will accept 
 a title under the authority of this decision. 
 
 In this place it is to be observed, that if a 
 fine be levied, or recovery suffered by an infant, 
 and such fine or recovery be voidable only, and 
 not void, the deed of an infant declaring the uses 
 of the fine or recovery will be good so long as 
 the fine or recovery remains in force. For as the 
 fine or recovery is the principal, and the uses 
 only the accessary ; or rather as the uses are to 
 arise from the seisin of the conusee in the fine, 
 or recoveror in the recovery, the law which 
 supports the principal, also supports the uses as 
 the accessary. See Mansfield's case, 12 Rep. 
 323; HughLewings case, 10, Rep. 42; 2 Rep. 
 58 a; Ann Hungate's case, 12 Rep. 122. 
 
 In many cases however, a court of equity will, 
 under equitable circumstances, interpose its 
 jurisdiction, and treat a conveyance, obtained 
 from an infant, as subject to a trust for his 
 benefit, and decree a reconveyance. 
 
 It is also observable, that an infant may 
 execute an authority not coupled with any in- 
 terest ; thus he may be an attorney. 
 
 Y 3
 
 325 ON TITLES: 
 
 He may also execute a power coupled with 
 an interest, if his infancy be dispensed with; or 
 if from the nature of the power it be evident 
 that it was in the contemplation of the author of 
 the power that it should be exercised during 
 minority. 
 
 A power, however, given to an infant will 
 not be considered as authorizing an exercise 
 during his minority, except the minority be 
 expressly dispensed with, or there be some 
 circumstance which discloses an intention that 
 the power may be exercised during minority, 
 Ilearle v. Greenbank, 3 Atk. 69-5. 
 
 And if coverture be expressly dispensed with, 
 and the power be silent as to minority, the dis- 
 pensation with coverture affords a conclusion 
 against, rather than in favor of, a dispensation 
 with the disability of minority. 
 
 When a conveyance made by an infant is 
 actually void, the entry of the intended grantee 
 will, in many, and indeed in most, cases, gain the 
 fee to him, by wrong, by way of disseisin. 
 
 Of course the infant will have only a right of 
 entry, and that right must be pursued by him 
 or his heirs within the limited periods pre- 
 scribed as bars against dormant titles. 
 
 So conveyances which are voidable may be 
 avoided by the infant, or by his heirs. 
 
 On the other hand, a right of entry may be 
 barred, as to all or sorne of the lands by release, 
 or the title may be confirmed, in the whole or 
 in part, by the infant when adult, or by his 
 heir.
 
 OF IDIOTS. 327 
 
 111 some cases, as in the instance of leases 
 reserving a rent, or the like, the title may be 
 confirmed by acceptance of rent by the infant, 
 after the age of majority, or by the heir, or it 
 may be confirmed by any other act which 
 recognizes the title of the grantee. 
 
 And a confirmation or release by the infant 
 when adult will be binding on his heirs, or other 
 representatives. 
 
 It is true, an estate which is void does not 
 admit of confirmation. Still, however, an estate 
 gained by disseisin is unquestionably such a 
 title as admits of being established and ren- 
 dered indefeasible, by a confirmation. 
 
 Infants are also protected from injurious 
 bargains; since, when adult, or in the event of 
 their death, while minors, or before agreement 
 their heirs may disaffirm, and by disagreement 
 annul conveyances, leases, &c. made to them 
 while infants. 1 Inst. 380 b. Comyns's Dig. 
 Enfant, c. 9- 
 
 As to Idiots. 
 
 THESE persons are considered as not having 
 any sense whatever ; yet it is been said, that 
 their grants are voidable only, and not void. 
 But in Thompson v. Leach, 3 Mod. 296, 2 Vent. 
 198, a surrender by a lunatic was considered 
 as actually void, and not merely voidable; and 
 this seems most reconcileable with reason and 
 principle ; and the point must be equally appli- 
 
 y 4
 
 ON TITLES : 
 
 cable to every species of grant by deed, as 
 distinguished from grants by matter of record. 
 It is said an idiot may execute a naked autho- 
 rity; but surely that doctrine cannot in good 
 reason be applied to any case in which discretion 
 is to be exercised- How can an idiot even 
 deliver a deed as the act of the person in whose 
 mame he is to officiate ? 
 
 Of the same description with idiots are 
 persons born deaf, dumb, and blind, since they 
 have not any means of receiving information, 
 or of communicating their thoughts. 
 
 Persons who are blind, or deaf, or dumb, or 
 who at the same time labor under two only of 
 these infirmities, may levy fines, if it appear that 
 notwithstanding these disabilities they are 
 capable of comprehending the nature and con- 
 sequences of a fine; and can express their 
 meaning by writing or signs, and there are 
 three instances of persons born deaf and dumb ; 
 'Elliott 's case, Carter 53; Griffin v. Ferrers, 
 Barnes's Cases of Pract. IQ ; Keys v. Bull, id. 23, 
 who were notwithstanding permitted to levy 
 fines, 1 Cru. 103. Persons so circumstanced can 
 of course make any other species of assurance. 
 
 A person deaf, dumb, and blind, cannot 
 make a deed, or pass an estate by feoffment or 
 demise. As to feoffment and demise, for these 
 reasons ; a feoffment or demise is to be made 
 either in person or by attorney. When made in 
 person, it is by a corporeal investiture of the 
 land, by delivering over the seisin or possession
 
 OF IDIOTS. 329 
 
 of some part of the land, or some other article 
 in the name of seisin, and accompanying the 
 act of livery with words declaratory of the act, 
 or by some means referring to a charter as 
 containing a declaration of the intent with which 
 the livery or investiture is made; and neither 
 of these acts can be done by a person who is 
 deaf, dumb, and blind; for though a person so 
 afflicted may make livery of a clod of earth, or 
 a twig, or any other article, being a substantial 
 object, yet, first, being dumb, he is deprived 
 of the power of utterance, and consequently of 
 declaring by words proceeding from his mouth, 
 the intent and object of that act, or, in other 
 words, the quo animo, it is done; secondly, 
 being deaf, he is incapable of understanding 
 any expression which may be addressed to him, 
 in order to his doing some act, or making some 
 sign to denote, either affirmatively or negatively, 
 whether the act of livery which he has made is 
 to have the effect of a legal and formal transfer 
 of his estate in the lands ; and thirdly, being 
 blind, and also deaf and dumb, it is morally 
 impossible that he should have any such idea 
 of characters, and the power of communicating 
 their import, as will render them intelligible to 
 any one. That the use of characters might give 
 him the ability to pass his estate, they must be 
 intelligible to others as well as to himself. 
 
 And when livery of seisin is made by an 
 attorney constituted for that purpose, the power, 
 as being necessarily delegated by a writing
 
 330 ON TITLES: 
 
 under seal, and delivered, falls within the 
 consideration of his inability to make a deed. 
 And a man deaf, dumb, and blind, cannot make 
 a deed, for a deed cannot be made except on 
 an intention; an actual, or what in law is the 
 same, a supposed, agreement to do or omit that 
 which is to be done or omitted, and to grant 
 or transfer that which is to be granted or trans- 
 ferred. And for the reasons already stated, it 
 is altogether impossible that a person deaf, 
 dumb, and blind, should so far understand any 
 proposition, or the contents of a deed, as to 
 agree to its subject matter ; for he cannot 
 read it himself, and if it be read to him, he, as 
 being deaf, cannot understand it ; and many 
 other reasons deducible, from the incidental 
 circumstances of scaling and delivery, and which 
 the judgment of the reader will readily suggest 
 to him, when he comprehends the purpose for 
 which these ceremonies are required to the 
 authenticity, or the essence and perfection of a 
 deed, might be insisted on. 
 
 Of Lunatics. 
 
 LUNATICS, while they continue in a state 
 of lunacy, are in the same predicament with 
 idiots ; but during their lucid intervals they 
 are competent to do any act like other 
 persons. 
 
 But a title derived through a lunatic is always 
 to be received with great caution, because the
 
 OF LUNATICS. 331 
 
 validity of the deed depends on extraneous 
 evidence; and if a habit of lunacy should be 
 established by evidence on the part of the person 
 who wishes to impeach the title, it will be incum- 
 bent on the person claiming under the deed to 
 prove that it was executed during a lucid 
 interval. Attorney General v. Parnther, 3 Bro. 
 C. C. 441. 
 
 And if fines are levied, or recoveries suffered, 
 by an idiot or lunatic, and such recoveries are 
 suffered by the idiot, &c. in person, they cannot 
 be impeached. Mansfield's case, 12 Rep, 124; 
 Hugh Letting' s case, 10 Rep. 42. 
 
 To the disabilities of idiots and lunatics 
 there are some exceptions. By statute 4 Geo. II. 
 c. 10, they are enabled to make conveyances of 
 estates of which they are mortgagees or trus- 
 tees; and under the statute of 43 Geo. III. 
 c. 75, sales, mortgages, or leases, may be made 
 of the freehold and leasehold estates of idiots, 
 &c. for the purpose of payment of debts, &c. ; 
 and under the provisions of 29 Geo. II. c. 31, 
 they are enabled to make surrenders of leases 
 for the purpose of renewing the same. 
 
 Before these acts can be called into operative 
 force there must be a commission of lunacy, 
 &c. 2 Ves. jun. 583 ; and a person found a 
 lunatic by the laws of a foreign state is not a 
 lunatic within this act, 8 Ves. jun. 316; and 
 under the provisions of 36 Geo. III. c.90, stocks 
 standing in the names of lunatic trustees may be 
 transferred. In these instances, the acts are
 
 332 OK TITLES: 
 
 in substance performed by the committee, 
 though they are done in the name and on the 
 behalf of the lunatic, &c. 
 
 As to Married Women ; and therein of 
 Husbands and Wives. 
 
 THE maxims which belongto this division are, 
 
 1st. Husband and wife are, for many pur- 
 poses, one person. [~Du& animce in carne una, 
 6 Rep. 4.] 
 
 2d. The wife is of the same condition with her 
 husband; hence she becomes noble by marriage 
 with a peer of the realm. , 
 
 3d. They cannot, at law, sue one another; 
 nor can they, at law, make any grant one to the 
 other, or the like. 
 
 4th. Upon a joint purchase, during the cover- 
 ture, either of them taketh the whole ; viz. they 
 are seised or possessed by entireties. 
 
 5th. The husband is the woman's head. 
 
 6th. All she hath is her husband's. 
 
 7th. Her will ought to become his will, and 
 to be subject unto it. 
 
 See Wingates, Maxims, 308, 309, 310, 311, 
 312, 313, 314. 
 
 On account of the unity of the persons of 
 husband and wife, a husband cannot grant to 
 his wife, Litt. 168, 291. 1 Inst. 112; nor 
 covenant with her so as to create a legal 
 obligation, 1 Inst. 112 a ; nor covenant with her 
 to stand seised to uses, ibid. Wing. Max, 210 ;
 
 OF HUSBANDS AND WIVES. 333 
 
 and being lord of a manor he cannot make a 
 copyhold grant to her, Firebrass v. Penant, 
 % Wils. 254. But a copyholder may surrender 
 to the use of his wife, 1 Watk. Copyh. 65. 
 Bunting's case, 4 Rep. 29 b. Wing. Max. 
 210. 
 
 Nor can the wife on account of her coverture 
 grant to her husband, 1 Inst. 187- 
 
 But a husband may devise to his wife, 1 Inst. 
 112 a. Litt. 168. Wing. Max. 214. But ex- 
 cept under a power or authority, &c. she cannot 
 devise to her husband, ib. 
 
 And a husband may by a conveyance to 
 uses, or upon trusts, create a use or a trust in 
 favor of his wife, 1 Inst. 112 a. 
 
 And equity will decree performance of a con- 
 tract by her husband with her for her benefit, 
 Moore v. Ellis, Bunb. 205. 
 
 And a wife may, by a fine or recovery, and a 
 declaration of the uses thereof, declare a use 
 for her husband's benefit. 
 
 And a husband or wife may act as attorney, 
 in doing an act for the other in exercise of the 
 authority ; or one may execute a power, being a 
 mere authority, in favor of the other. 
 
 Wives may alien their estates of freehold, or 
 of inheritance, or extinguish their titles of dower, 
 and all other rights and interests, jointly with 
 their husbands, by fine or recovery, or as to 
 lands of copyhold tenure by surrender. 
 
 Their interest in chattels real, except such 
 interest as the wife hath by the provision or
 
 334 ON TITLES : 
 
 consent of the husband, by way of settlement, 
 (Sir Edward Turner's case, 1 Vern. 7 j) and also 
 her personal chattels (except personal chattels 
 settled for her separate use) may be aliened by 
 her husband alone, either wholly or partially, 
 1 Inst. 351, or forfeited by his outlawry or 
 attainder. The forfeiture of the husband will 
 attach on a term which he and his wife have 
 jointly, Hales and Petit, Plowd. Com. 257. 
 
 On this subject, the Abridgments of Viner 
 and Bacon, and Comynss Digest, title Baron 
 and Feme, and Mr. Butler's notes on Coke on 
 Littleton, Toller s Executors, and the treatise 
 intitled, Laws of Women, are particularly de- 
 serving of attention ; and as a large propor- 
 tion of the concerns of mankind respecting 
 property depend on the transactions of husbands 
 and wives, this subject should be thoroughly 
 investigated. And the differences which are 
 
 o 
 
 taken between the freehold, and chattel real 
 property of the wife, and between her personal 
 chattels, and her choses in action, should be 
 most diligently studied. 
 
 The following is a short and general sum- 
 mary of this comprehensive title of the law. 
 
 As to freehold lands, held either in fee sim- 
 ple, in fee tail, or for life, thcjiusband and wife 
 are seised in right of the wife, Polyblank v. 
 Hawkins, Doug. Rep. 329. 
 
 His alienation would be good as against him- 
 self; and, from the authorities, when closely 
 examined, it seems that he has the power to
 
 OF HUSBANDS AND WIVES." 335 
 
 transfer the whole estate of his wife, subject 
 only, at this day, to the right of entry of the 
 wife, or her heirs ; for even when he discontinues 
 the estate of his wife, the injury may be re- 
 dressed, and the estate revested by the entry 
 of the wife, or of her heirs. In the mean time 
 however, the estate of the wife will be in the 
 alienee of the husband ; for the statute of 32 
 Hen. VIII. c. 28, 6, did not restrain the extent 
 of the power of alienation by the husband. It 
 merely changed the remedy from an action to 
 an entry. Hence the wife may be barred by 
 the husband's fine and non-claim, 1 Inst. 326 a. 
 
 According to some authorities, a grant by 
 him alone, not creating a discontinuance, wi\l 
 determine on his death, and unless lie be enti- 
 tled to be tenant by the courtesy of England, 
 even on the death of his wife. 
 
 But there are other authorities which treat 
 the alienation of the husband alone as void- 
 able, and not void, so that the wife or her heirs 
 must enter to defeat the estate which he had 
 granted : and it is clearly law, that a lease by 
 
 O -,_ .. - /. , - . J 
 
 the_ husband ..alone, by indenture or deed-poll of 
 the lands which he holds in right of his wife, is 
 voidable_pnly, andjnpt void, and will therefore 
 continue after the death of the husband, until 
 entry or avoidance by the wife, or her heirs. 
 Bacon's Abr. Leases.* 
 
 And when it is remembered, that prior to the 
 
 * Sec Due v . Butcher, Dougl. 50, and the nates ; they seem 
 authorities for a contrary doctrine.
 
 336 ON TITLES ! 
 
 statute of 32 Hen. VIII. c. 28, 6, the husband 
 might have discontinued the inheritance of the 
 wife by his alienation, so as to have put her or 
 his heirs to her remedy by action, 1 Inst. 326 a, 
 the more reasonable opinion seems to be, that 
 an estate conveyed by the husband alone will 
 continue till defeated by the entry of the wife, 
 or of her heirs ; and there are some strong expres- 
 sions in the books which favor this opinion. 
 
 To bind the wife there must, as to lands of 
 freehold tenure, be a fine or recovery by her ; 
 except as to some leases; and these leases must be 
 made pursuant to the statute of 32 Hen. VIII. 
 c. 28, and have the various requisites prescribed 
 by that statute. 
 
 By the custom of some cities and boroughs, 
 as London, Norwich, &c. &c. the wife's estate 
 may be conveyed without fine or recovery, by 
 a bargain and sale, acknowledged and enrolled 
 according to the custom of the city or borough. 
 
 There is an equal inability in the husband, or 
 in the husband and wife, to defeat the wife's 
 interest in a freehold lease by surrender, with- 
 out some assurance by record ; with the ex- 
 ception, that the husband and wife are, by the 
 statute of 29 Geo. III. c. 31, enabled to sur- 
 render the leases of the wife for the purpose of 
 renewal. 
 
 However, it is to be observed, that if a mar- 
 ried woman levy a fine, as a feme sole, this fine 
 will be good against the wife and her heirs, 
 unless it should be avoided by the husband
 
 OF HUSBANDS AND WIVES. 337 
 
 chifin the coverture ; and it is agreed that he 
 
 ^5 -^ 
 
 may avoid the fine for the benefit of the wife as 
 well as of himself. 
 
 And if a lease, or other estate, granted by 
 the husband, or by the husband and wife, be 
 voidable only, it may be confirmed by the 
 wife after the death of the husband, or after 
 the death of the wife by her heirs ; or it may 
 be confirmed by the wife during the coverture, 
 by a fine to be levied, or recovery to be suffered, 
 by her and her husband. A void lease cannot 
 be confirmed. 
 
 To these general observations there is one 
 exception, she may convey in performance of a 
 condition; and for the same reason it was argued, 
 that she might convey an estate of freehold which 
 
 she had as trustee. But as the law docs not take 
 
 i 
 
 any notice, of trusts, the better opinion, sanctioned 
 by uniform practice, is, that, as to the estates of 
 freehold, which a married woman has as trustee, 
 no effectual conveyance can be made by her with- 
 out a Jine or common recovery. 
 
 The distinction between conditions and trusts 
 is obvious ; the one is of a legal, the other is 
 merely of equitable, cognizance. The law takes 
 no notice of trusts. But in conveying accord- 
 ing to a condition, the wife is preserving the 
 estate according to the proper state of the title. 
 But if a farm called A were conveyed to her in 
 fee, upon condition that she should convey a 
 farm called JB, in a particular manner, she 
 could not, it is apprehended, make an effectual
 
 33S ON TITLES : 
 
 conveyance of the farm JB without a fine, &c. 
 Also if husband and wife levy a fine, or suffer a 
 common recovery, a declaration of the uses by 
 the husband alone will bind the wife and her 
 heirs, unless the wife disagree to these uses. 
 Beckwith's case, 2 Rep. 24. 
 
 And if the husband and wife do not agree in 
 declaring all the uses, then the uses will be 
 good so far as the husband and wife agree, and 
 void so far as they disagree, in declaring the 
 uses. Ibid. 
 
 This subject, with its distinctions, is fully 
 discussed in the 1st vol. of the Practice of 
 Conveyancing. 
 
 And if they sell the land for money, and 
 then levy a fine to the vendee, without declaring 
 any uses of the fine, the fine will bind the wife, 
 and confirm the title of the purchaser, although 
 the sale was not at first binding on the wife. 
 2 Rep. 24. 
 
 In Swanton v. Raven, 3 Atk. 105, the husband 
 and wife levied a fine, and the husband alone 
 declared the uses in favor of a purchaser ; a 
 court of equity would not afford relief to the 
 wife after an acquiescence for fifteen years from 
 her husband's death. 
 
 Also a married woman may execute an au- 
 thority or power simply collateral, without the 
 concurrence of her husband ; and she may even 
 exercise such power or authority in his favor ; 
 1 Inst. 112 a. b. Equity would however view a 
 sale to a husband by a wife under an authority,
 
 OF HUSBANDS AND WIVES. 339 
 
 being a trust, with great suspicion, and perhaps 
 treat it as a nullity. 
 
 it 
 
 She may also exercise a power coupled with 
 an interest, if the disability of coverture be in 
 express terms dispensed with, or if from the 
 nature of the power it can be collected that the 
 power is exerciseable during coverture ; and 
 if a power be given to a woman to be exercised 
 at any time, and from time to time, notwith- 
 standing her coverture, these words, " notwith- 
 standing her coverture/' are a dispensation with 
 the disability of coverture ; and the power may 
 be exercised as well after as during the continu- 
 ance of the coverture. Doe v. Wetter, 7 Term 
 Rep. 478. 
 
 In cases of copyhold lands, the surrender, and 
 of freehold lands the conveyance, should be 
 to such uses as she, whether covert or sole, and 
 notwithstanding her coverture, shall appoint. 
 
 But if a power be given, which, in sound 
 construction, is to be exercised during cover- 
 ture, as by a woman, being sole, (Lord Antrim v. 
 Duke of Buckingham, Sugden 134,) the cover- 
 ture will be a limited period, within which the 
 power may be exercised, and the existence of 
 the coverture will be essential to the valid exer- 
 cise of the power. 
 
 The opinion which prevails at present is, that 
 a power coupled with an interest, and vested 
 in a married woman, may be executed by her 
 during coverture. Lord Hardwicke, 3 Atk.71U 
 refers to the case of Beaumont v. Rich, 3 Bfo. 
 
 z 2
 
 cm TITLES : 
 
 Parl. Cases 308, as having decided this point. 
 He also refers to the case of Lady Travel ; and 
 Mr. Sugden, in his valuable Essay on Powers., 
 p. 134, has quoted a long list of cases in support 
 of a like doctrine. The case of Lady Travel has 
 not been found ; and the case of Beaumont v. 
 Rich, instead of having decided the point, left 
 it, as far as an opinion can be formed from the 
 Reports, in doubt ; and all the other cases 
 are instances of powers to lease ; and such 
 powers are, from their nature, to be exercised 
 during coverture; since it is manifestly for the 
 benefit of the married woman, and of the 
 persons in remainder or reversion, that the pro- 
 perty should be duly and properly tenanted. 
 It is too much then to consider it to be clear, 
 that a power given to a woman by way of 
 interest is without a dispensation, in terms or 
 by circumstances, with the disability of cover- 
 ture, exerciseable with effect, while she is under 
 coverture. 
 
 As to rights and titles, as well as to estates, 
 as far as they respect interests of freehold of the 
 wife, she cannot be bound without a fine levied, 
 or recovery suffered, by her ; or, which is equi- 
 valent, by the decree of a court of equity. 
 
 As to copyhold lands, however, the wife may, 
 as to any estate, orany future interest, though 
 contingent, or right or title, be bound by a 
 customary surrender, on which she is to be 
 solely and secretly examined according to the 
 custom of the manor.
 
 OF HUSBANDS AND WIVES. 341 
 
 A surrender, however, will not operate by 
 way of estoppel, (Goodtitle v. Morse, 3 Term 
 Rep. 365 ; 1 Anstr. 1 1 ,) so as to bind any interest, 
 which, if of freehold tenure, could not be bound 
 by release ; as an expectancy of an heir, a con- 
 tingent remainder to a person not ascertained ; 
 as the survivor of husband and wife, or a class of 
 persons who are to answer a given description, 
 as children of A, who shall survive 13, who is 
 still alive. 
 
 She may also, as to estates and interests, 
 though future, be bound by a customary reco- 
 very ; and such customary recovery, or other 
 customary mode of barring entails, should be 
 observed when the wife has an estate tail, or an 
 interest by way of right or title to an estate tail 
 in copyhold lands. 
 
 And according to the opinion of lord Hard- 
 wicke, in Pullen v. Middleton, (9 Mod. 483,) a 
 fine levied or recovery suffered in the King's 
 court at Westminster, would be an effectual 
 alienation of the trust of a wife in customary 
 lands, held by her and her husband for an 
 estate in fee-simple. 
 
 But the entail of the trust of copyhold lands 
 cannot, except in particular cases, be barred, 
 without pursuing the customary mode of barr- 
 ing entails in the lands themselves. 
 
 When a husband and wife, in right of the 
 wife, have a contingent interest in fee in copy- 
 hold lands, it should seem that their customary 
 surrender will operate as an effectual release; 
 
 z 3
 
 342 OK TITLES: 
 
 but when they have a contingent remainder* in 
 tail, it seems extremely difficult to discover 
 any legal mode by which the title to the entail 
 may be extinguished. The only mode which is- 
 feasible, and can be relied on, is by a decree 
 in equity obtained on a bill for the purpose. 
 
 Before such assurances shall be acted upon 
 decisively, the law on this subject should be 
 closely investigated. 
 
 When a woman has a trust of freehold lands 
 by way of separate estate, she has, so far as she 
 is by the nature of the trust treated as a feme 
 sole, the complete dominion over that estate, 
 and may transfer the same; and her conveyance 
 of the freehold to the tenant to the writ of entry 
 for suffering a common recovery, will, cateris 
 paribus, support that recovery, Burnaby v. 
 Griffin, 3 Ves. jun. 266. 
 
 This was a decision of Lord Alvanley, and 
 it is founded in principle ; and though it was 
 contrary to the opinion of the bar, and of some 
 gentlemen of eminence in the conveyancing 
 branch of the profession, very little doubt can 
 be entertained of this decision being followed 
 as a precedent. 
 
 As to Leases for Years, or other C halt el 
 Interests. 
 
 THE husbandand wife are possessed in right 
 of the wife, and, except as to estates or inter- 
 ests settled by the husband, or by the husband
 
 OF HUSBANDS AND WIVES. 343 
 
 and wife on their marriage, by way of provision 
 for her, and whether such interests be legal, or 
 as it should seem equitable, the husband alone 
 may bind the interest of his wife by lease, 
 assignment, or surrender', by reference to arbi- 
 tration, and an award thereon, by forfeiture; 
 by bankruptcy ; or by judgment and execution 
 against him. But he cannot dispose of her 
 chattels real by will or testamentary disposi- 
 tion ; nor bind his wife's interest by a mere 
 charge, as an annuity, &c. 1 Inst. 351 b. or by 
 a judgment without execution; but his contract 
 to sell will be an equitable alienation, Stead v. 
 Cragh, 9 Mod. 42. And if the wife should 
 survive the husband, the term, so far as it shall 
 not have been aliened or forfeited by the husband, 
 will remain with the wife, 1 Inst. 351 a ; but if the 
 husband should survive, it will, whether legal 
 or equitable, remain with him, jure mariti, and 
 consequently without letters of administration 
 to be obtained of her effects. Alleyn 15 ; 1 Roll. 
 Abr. 345, 1. 40. 
 
 It is observable, however, that if the wife 
 have a possibility of a term, (Wing. Max. 213, 
 pi. 13; 10 Rep. 51 a; 1 Inst. 46 b. 351 a; 
 9 Mod. 104,) which cannot by any means ve,st 
 in the husband during coverture, the husband's 
 release, or other disposition, will not affect her ; 
 but he and his wife together may bind this 
 possibility by a fine, sur concesserunt. Nor can 
 he alone alien a term settled for the separate 
 use of the wife, or a term which is settled on 
 
 z 4
 
 344 ON TITLES: 
 
 their marriage as a provision for her, as dis- 
 tinguished from a settlement by a former 
 husband. Sir Edward Turners case, 1 Vern. 7 ; 
 Wit ham's case, 1 Inst. 350 b. 
 
 On the contrary, she may act on a term 
 settled for her separate use, as if she were a 
 feme sole, as far as she is made a feme sole by 
 the trusts declared in her favor; and she jointly 
 with her husbarid may by a fine alien a term 
 settled for her benefit on her marriage. 
 
 Lord Alvanley doubted whether the husband 
 could dispose of the trust of a term which he 
 had in right of his wife; but the authorities, 
 as far as there is any decision on the point, 
 are in favor of the husband, with the exceptions 
 already noticed. 
 
 Chattel interests by extent, by elegit, and 
 similar interests, fall under the like consideration 
 as terms of years, and are equally at the disposal 
 of the husband as terms for years. 1 Inst. 351. 
 
 When a woman at her marriage has the right 
 only to a term, the right will not survive to the 
 husband, but belong to her representatives, 
 1 Inst. 35 la. 
 
 So a lease by the husband alone, when he 
 has a term in right of his wife, will bind the 
 -wife, Young v. Radford, Hob. 3 ; 1 Inst. 46 b. 
 Wingates Max. 213, pi. 13. 
 
 The rent, if any be reserved by him, will 
 belong to him and his executors or administra- 
 tors, 1 Inst. 46 b. ; and if he die in the life- time 
 the wife, without any further disposition of the
 
 OF HUSBANDS AND WIVES. 345 
 
 term, the rent will belong to his representatives, 
 and the reversion expectant on the under lease 
 will belong to the surviving wife, ibid. IVingates 
 Maxims, 213, pi. 12. 
 
 Had the husband and wife joined in the lease, 
 then the rent would have been incident to the 
 reversion, as well after the death as during the 
 
 o 
 
 life of the husband, and would have belonged 
 to the wife, ibid. pi. 15. 
 
 Suppose the husband to mortgage the term 
 of the wife, these distinctions arise : 
 
 1st. If the equity of redemption be reserved 
 to the husband and wife, the equity would 
 belong to them. 
 
 o 
 
 2d. If they joined in the mortgage, the 
 equity of redemption would then also belong 
 to them. 
 
 But if the husband alone make the mortgage, 
 and reserve the equity of redemption to himself, 
 then the wife will be excluded ; sed qucere. 
 
 Also, if the husband alone assign the term, 
 subject to a condition, and enter for the con- 
 dition broken during the coverture, the husband 
 will be again possessed in right of his wife as 
 before ; and the wife being the survivor may 
 be entitled, 1 Roll. Abridg. 340, 1. 4550. 
 
 But if the husband die before the condition 
 is broken, his executors, &c. must enter for 
 breach of the condition, and will hold dis- 
 charged of the title of the wife. Wingate's 
 Maxims 213, pi. 13.
 
 346 
 
 In this case the law is different as to freehold 
 estates, in reference to the learning of discon- 
 tinuance, 1 Inst. 336 b ; Litt. sect. 632. 
 
 And if the husband alone, or the husband 
 and wife, mortgage the whole term, and the 
 husband take back the term to himself alone, 
 by re-assignment, the state of the title will be 
 altered at law, and the wife cannot, either at 
 law or in equity, assert a title to the term, even 
 though she should be the survivor. 
 
 When the husband regains the term by force 
 of a condition, his old title revives, Young v. 
 Radford, Hob. 3 ; while a re-assignment gives 
 him the term at law under a new title ; and the 
 wife cannot assert any equity to control the 
 legal title. 
 
 These distinctions, though drawn on very 
 mature consideration, are to be received with 
 great caution. 
 
 Another exception is to be noticed ; the term 
 of a wife will not vest in a husband, being an 
 alien, so as to forfeit to the crown, Theobald v. 
 Duffy, 9 Mod. 102, yet the crown will, it is 
 apprehended, be entitled to the pernancy of the 
 profits during the coverture. 1 Inst. 351 a. 
 
 In short, the act of law does not vest any 
 real property in an alien ; and therefore an alien 
 cannot be tenant in dower, or by the curtesy, 
 or become possessed of a term in right of the 
 wife. 1 Ventr. 417 Actus legis mmini fadt 
 injuriam, is the maxim. 
 
 *
 
 OF HUSBANDS AND WIVES. 347 
 
 As to personal Chattels and Choses in Action. 
 
 PERSONAL chattels in the possession of the 
 wife become the absolute property of the hus- 
 band on the marriage, or as soon afterwards 
 as the property in them is acquired, and that 
 property is accompanied by possession. 1 Inst. 
 351 a. ' 
 
 Corn sown by the husband on the lands of 
 the wife, whether freehold, copyhold, or chat- 
 ties real, which he has in her right, will belong 
 to the surviving husband; or if he die in her 
 life-time, to his personal representatives. 
 
 This proposition seems to flow from the law 
 respecting emblements. 
 
 But if the husband and wife are joint-tenants, 
 or tenants by entireties of the lands, then the 
 corn growing on the land at his death will 
 belong to the survivor of the husband and wife. 
 JFingate's Maxims 211, pi. 1. The rule in this 
 instance is, ccedit solo. 
 
 Choses in action, as legacies, money due 011 
 bond, judgment, and the like, must be sued 
 for in the joint names of the husband and wife, 
 unless the bond be given to the wife during 
 coverture, or to the husband and wife jointly. 
 In the excepted cases, the husband may dis- 
 affirm the contract as far as it is in favor of the 
 wife, and bring the action ijn his own name. 
 Beavor v. Lane, 2 Mod. 217; 4 Term Rep. 617; 
 and cases there cited.
 
 348 ON TITLES ! 
 
 The case in Levinz, part 3, 403, Howell v. 
 Maine, which assumes that the husband alone 
 may bring an action on the bond given to his 
 wife alone, seems to be a solitary case ; and 
 it is difficult to understand the principle on 
 which it was decided ; for how can a hus- 
 band, consistently with any principle of law, 
 disaffirm the contract, and at the same time 
 maintain an action upon it. He could not 
 treat a grant to his wife as a grant to him- 
 self ; and there is the same reason against 
 his treating a bond to his wife as a bond to 
 himself. To justify the decision, the principle 
 must be carried to the extent that the husband 
 can by law derive a title to sue in his own 
 name under a bond to his wife, and must 
 agree to the bond, as the means of supporting 
 the title in himself to the benefit of the bond. 
 Then this case will stand on the ground 
 of acceptance, or agreement, while the case of 
 a bond to the husband and wife during cover- 
 ture is sustainable, on the ground, that the 
 husband may disagree to the bond as far as it 
 is in favor of the wife, and accept it as far as 
 it is a bond to himself, and may declare upon 
 the instrument as a bond to himself alone, 
 Anker stein v. Clarke, 4 Term Rep. 6 16. 
 
 Even choses an action, &c. may be released 
 by the husband alone, and a payment to him 
 will be a good discharge. Nor is it incumbent 
 on the husband, when he has a legal remedy for 
 the debt, to make any settlement or provision
 
 OP HUSBANDS AND WIVES. 349 
 
 on the wife ; but unless the money shall be 
 released by the husband, or paid to him, or 
 unless the right shall be changed, (as in the 
 case of an award, ordering the money to be 
 paid to the husband, or judgment recovered by 
 him alone,) the interest of the husband, as hus- 
 band, will determine on his death ; or if his 
 wife die in his life-time, then on her death ; and 
 if the wife survive the husband, the choses in 
 action will belong to her, and will be sueable 
 for by her alone. 
 
 If the husband survive the wife, then these 
 
 S S2*J 
 
 choses in action will belong to her personal re- /- x 
 presentative, and the husband may take them ^ j 6 
 as such ; but then they must be applied in a due 
 course of administration, and consequently in 
 discharge "of the debts, if any, owing by the 
 wife, under contracts made by her while sole. 
 
 This is universally the rule as to the legal 
 right ; but the equitable right may be varied by 
 contract ; and for this reason, if the husband 
 make a settlement on his wife, in consideration 
 of her portion, and the husband or wife die, 
 before the portion is reduced into possession, 
 this agreement will give to the husband's repre- 
 sentatives a right in equity to receive the wife's 
 portion ; Adams v. Cole, Cases T. Talb. 168. So 
 also, if the. wife have a separate estate in these 
 choses in action she will be considered as a feme 
 sole, as far as she is made -A feme sole by the 
 term or nature of the trust in her favor ; and 
 though the husband may release a chose in
 
 350 ON TITLES ; 
 
 action of his wife, or the money due to her may 
 be safely paid to him, neither he, nor any person 
 claiming under him by actual assignment, nor 
 by operation of law, as assignees under a com- 
 mission of bankrupt, can compel the payment 
 of the wife's portion from trustees, except in the 
 case in which the husband is a purchaser of his 
 wife's portion, without making a settlement on 
 his wife by way of portion for her. 
 
 This head of equitable jurisdiction is now 
 branched into a great variety of distinctions, 
 and the learning on the subject will be found in 
 Bridg. Thes. title Baron and Feme ; Mr. Cox's 
 notes to P. Wms. and Fonblanques Treatise of 
 Equity. On the same subject there are several 
 important cases in the Reports of Mr. Vesey. 
 
 The preceding observations have been applied 
 to chattels, &c. belonging to the wife in her 
 own right ; but she may have chattels, &c. in 
 her character of executrix or administratrix. 
 These chattels, while they remain in specie, and 
 also choses in action of the deceased, will be- 
 long to the wife if she survive ; and if she die 
 in the life-time of her husband, to the personal 
 representatives of the person to whom she is ex- 
 ecutrix or administratrix ; but during the cover- 
 ture the husband alone may assign or surrender 
 the term which the wife hath as executrix, &c. 
 or may release or receive money due on choses 
 in action of the person whom she represents. 
 
 As to attainted persons, aliens and others, 
 who are under similar disabilities, and as to
 
 OF TENANTS FOR LIFE. 351 
 
 bankrupts, &c* the more convenient arrange- 
 ment will be to consider their condition, and 
 connection with titles, in a subsequent part of 
 the work. To discuss the subjects fully or use- 
 fully in this place, would interrupt that investi- 
 gation of title which is the immediate object of 
 this part of the work. 
 
 It is necessary only to observe in this place, 
 that a defect may exist in the title, because it 
 is derived under a person attainted, an alien, a 
 bankrupt, Sec. 
 
 The nature and extent of that defect will be 
 a subject for future discussion. 
 
 These disabilities may be considered as per- 
 sonal, or in respect of the person, or of crime, 
 or of forfeiture. 
 
 Of Tenants for Life. 
 
 OTHER disabilities, or, more correctly, the 
 want of ability, may arise from the nature and 
 extent of the estate of the party. 
 
 The rules are nemo potest plus juris in alium, 
 transferre quam ipse habet. Qui non habet Hit 
 non dat. 
 
 Therefore, if A be a tenant for life he can- 
 not, at least rightfully, convey any greater 
 interest than for his life. 
 
 Acts done under powers or authorities are 
 governed by other rules. 
 
 He may also devest the estates in remainder 
 or reversion by a tortious alienation, and incur 
 a forfeiture of his estate.
 
 352 ON TITLES : 
 
 This may be done by a feoffment, fine or 
 recovery, of tenant for life in possession, that is, 
 having the immediate freehold. 
 
 But such feoffment, c. is considered as a 
 tortious alienation, and not as a conveyance. 
 Litt. sect. 611; 1 Inst. 330 b. 
 
 On alienations by tenants for life, various and 
 important distinctions necessary to be under- 
 stood in the investigation of titles, will be found 
 in books of approved authority. 
 
 1st. A grant by tenant for life passes no 
 more than his own estate for life, although the 
 deed import by its language to give a larger 
 estate, as in fee, Litt. sect. 609 5 610 ; and if he 
 grant to a man and the heirs, or heirs male of 
 his body, the grantee will have a mere estate of 
 freehold, transmissible to the heirs of that de- 
 scription, as special occupants, and the grantor 
 will retain a reversion. 
 
 2dly. A feoffment by tenant for life passes 
 the fee-simple, namely, it passes more than was 
 vested in the tenant for life ; and the feoffment 
 will have this effect, although it proceed from a 
 tenant for life, with a remainder to him in tail, 
 as often as there is a mesne estate : Litt. 611, 
 415, 416; 1 Inst. 251 and 302 b ; Bro. Abr. 
 Descent, pi. 2 ; Chudleigh's case, 1 Rep. 120; 
 a.nd Bredon's case, 1 Rep. p. 76. 
 
 It is also to be observed, that some assurances 
 by tenant for life do, and others do not, devest 
 the seisin of the entire fee-simple ; Litt. sect. 
 415, 410'; 1 Inst. 251 b, and 330 b.
 
 OP TENANT FOR LIFE. 353 
 
 That an assurance devests the seisin is a 
 consequence of its passing a fee-simple ; for 
 there cannot be two fee-simples in one and the 
 same land. One fee-simple necessarily excludes 
 the other ; Litt. sect. 620 ; Bro. Abr. Descent, 
 pi. 64 ; therefore, whenever tenant for his own 
 life passes more than an estate for his life, and 
 conveys less than the fee, he gains a new re- 
 version, Litt. 620, iRoll. Abr. 676; Finch's 
 Law 135. 
 
 A feofFment, a fine, or recovery by tenant 
 for life, is the only conveyance which will, by its 
 own operation, devestan estate. 1 Inst. 251. 
 
 A warranty by tenant for life never produces 
 the effect of devesting, though in some cases 
 a warranty may create or enlarge a discon- 
 tinuance. 
 
 The alienation must be to a stranger, or 
 to some one not having the next or immediate 
 estate of freehold or inheritance ; Litt. 625, 
 626. For when the feofFment is to the next 
 remainder-man, whether tenant for life or in 
 tail, it will amount to a surrender ; 1 Inst. 42 a, 
 252 a, 335 a; 1 Rep. 76 b. But a feoffment 
 by two persons who are successive tenants 
 for life will devest the inheritance for the 
 entirety, although one of them be seised of an 
 estate of inheritance in remainder expectant 
 on a mesne estate of inheritance ; Bredons case, 
 1 Rep. 76, and Dyer, 229, 334; 1 Inst. 251. 
 On the same ground it was decided in 
 A A
 
 354 ON TITLES : 
 
 Pelhams case, 1 Rep. 14, that a recovery suffered 
 by a person who had an estate for life, with re- 
 mainder to him in tail, after interposed estates 
 of inheritance, was a forfeiture. The contrary, 
 however, was held in Smith v. Clifford, 4 Term 
 Rep. p 738; but it is very questionable whether 
 the last case will be followed. 
 
 Also a feofFment, or fine, by a tenant for life, 
 will amount to a forfeiture of his life estate, 
 although he has a remainder in tail or in fee, 
 as often as there are interposed estates between 
 the estate for life and estate of inheritance of 
 the grantor. Pelham's case, 1 Rep. 14. 
 
 When tenant for life, and the owner of the 
 first estate of inheritance, join in a feofFment, 
 fine, or recovery, this feofFment, &c. will be a 
 rightful assurance. It will operate merely to 
 pass the several estates of the respective gran- 
 tors, under the former title. It will not give a 
 new title depending on a new seisin ; 1 Inst. 
 302 a; Bredons case, 1 Rep. 76 ; Bro. Abr. 
 Descent, pi. 64 ; and the like doctrine extends 
 to husband and wife, when the wife is tenant 
 for life, and the husband is tenant in tail of the 
 the first estate in remainder ; Peck v. Channel, 
 Cro. Ehz. 827. 
 
 Even when a tenant for life enfeofFs a person 
 who has a remainder, after a mesne estate of 
 inheritance, this feofFment will devest the an- 
 cient seisin, and give a fee-simple, depending 
 on a new seisin ; (first resolution in Chiidleigh's
 
 OF TENANT FOR LIFE. 355 
 
 case, 1 Rep. 140 ;) and even \vhen tenant for 
 life, and the owner under such remote remainder 
 expectant on prior estates of inheritance, join in 
 a feoflfment, this feoffment will pass a fee- 
 simple, by devesting the seisin, as it depends on 
 the former estate. 
 
 The effect of a feoffment by tenant for life 
 is to give a fee to his alienee. The fee, how- 
 ever, never was in him. For that reason his 
 widow cannot be dowable even of the seisin 
 acquired by the feoffment, 1 Roll. Abr. 676. In 
 this particular there is a distinction between 
 tenant for life on the one hand, and tenant for 
 years, and tenant at will. On the other hand, 
 the points are to be adduced for the sake of the 
 distinction; for when tenant for years, or at will, 
 makes a feoffment, and thereby passes a fee, the 
 feoffee is by estoppel precluded from denying 
 the title of the wife of the feoffor to be endowed. 
 See 3 Hen. IV. 6 a ; 1 Inst. 31 b ; and Kale's 
 note, ibid. Mosdy v. Taylor, sir Wm. Jones, 317; 
 and Bro. Abr. Disseisin, pi. 76. The distinctions 
 are collected in the Essay on Estates, chap. 
 Dower, p. 555. 
 
 This learning is more important, and for that 
 reason has invited more discussion, because 
 many titles proceed from a person who supposes 
 himself to be tenant in tail, while in point of 
 fact and of law he is merely tenant for life ; 
 and a title thus circumstanced, is to be con- 
 sidered as a defective title, until all persons 
 
 A A 2
 
 356 ON TITLES: 
 
 who are concerned in interest have released or 
 confirmed the title, or are barred by the statute 
 of limitations, or by nonclaim on a fine with 
 proclamations. This is one of the many in- 
 stances in which the title will be defective, 
 although the deeds appear to carry on the 
 evidence of the title with ease, or without 
 
 difficulty. 
 
 
 
 The consequence of this species of disseisin is, 
 that the former fee-simple, including the several 
 estates derived out of the same, is changed into 
 a right of entry, and there is a new estate under 
 a new title. Thus, the remainder-men or re- 
 versioners, instead of having a seisin or estate, 
 will not have any other interest than a right of 
 entry, which eventually may be turned into a 
 right of action, either by the statutes of limita- 
 tion, or by a descent which tolls the entry, or 
 by warranty ; and these remainder-men or rever- 
 sioners, until they have restored their seisin, 
 cannot either grant or convey to a stranger, or 
 make a will under their ownership ; though they 
 may bind themselves by estoppel, or may release 
 to the terre-tenant ; being either the freeholder 
 or any person who has an estate in remainder 
 or reversion, or may confirm his title ; and various 
 other consequences will be induced, as will ap- 
 pear from the general learning advanced on this 
 subject in the argument ofGoodright v. Forrester, 
 1 Taunton, p. 578. Other observations will be 
 added on this point in considering the several
 
 UNDER TENANTS IN FEE-SIMPLE. 35? 
 
 species of disseisin, and the consequences fol- 
 lowing the disseisin. 
 
 And when a tenant in tail conveys by lease 
 and release, bargain and sale, grant, or any 
 other mode, not operating as a discontinuance, 
 or as a bar, his assignee will have merely an 
 estate to continue as long as there shall be 
 issue inheritable to the estate tail, Machel v. 
 Clarke, 2 Lord Raym. 778. 
 
 So when the estate of a person is defeasible 
 by a condition, or determinable by a collateral 
 limitation, the estate of his assignee will be 
 determinable in like manner till his estate is 
 by release, confirmation, or some other mode, 
 discharged from the defeasible or determinable 
 quality. 
 
 But tenant in fee-simple has an unlimited 
 power of alienation, except in particular cases, 
 referrible to the person, as ecclesiastics seised 
 in right of their church, cScc. And as an ex- 
 ception, or as seeming to be an exception, to 
 the rule already noticed, it is to be observed, 
 that tenant in tail, having the immediate free- 
 hold, or with the concurrence of the freeholder, 
 may, by a common recovery, alien his estate 
 tail in the same manner as if he were seised of 
 the estate in fee out of which his estate tail is 
 derived. 
 
 So that if the person who created the estate 
 tail was seised in fee-simple, the tenant in tail 
 may convey the fee-simple; and if the person wha 
 created the estate tail had a determinable fee, 
 
 A A 3
 
 OS* TITLES : 
 
 or a fee subject to a condition, he may convey 
 the fee, subject to the like determinate or 
 defeasible quality. See first volume of Practice 
 of Convey 'anting , p. 2. 
 
 In this place also it may be observed, that 
 if to the estate tail itself there are annexed any 
 collateral determinations or conditions, the 
 tenant in tail may, by a common recovery, dis- 
 charge his estate from these collateral qualities. 
 See Benson v. Scott, I Mod. 108 ; Page v. Hay- 
 ward, 2 Salk. 570; Driver v. Edgar, Cowp.379; 
 Gulliver v. Ashby, 1 Burr. 1929- 
 
 Another rule flowing as a deduction from the 
 qne already noticed, is, with the exception* 
 which have been stated, cessante statu priml- 
 tivo cessat atque derivations. 
 
 Therefore, if A be tenant for life, and he 
 demise for ninety -nine years, this estate, unless- 
 confirmed by the person in remainder or rever- 
 sion, will determine on the death of A. 
 
 The like observation is applicable to a lease 
 or any other estate granted by a person having 
 a particular or defeasible estate. Therefore, 
 if tenant for years grant a rent charge to A for 
 life, A will have a chattel interest for so many 
 years as he shall live. 
 
 So if tenant for life grant to another, and 
 the heirs of his body, the grantee will have an 
 estate of freehold, and not of inheritance ; and 
 the heirs of the body will be special occupants, 
 and not within the protection of the statute, 
 de donis.
 
 UNDER DERIVATIVE ESTATES. 359 
 
 But the rule is applicable only to the deter- 
 mination of the original estate, by its regular 
 and proper expiration ; for the derivative estate 
 will not be defeated by the surrender or for- 
 feiture of the original estate. 
 
 But when the original estate determines 
 according to the terms or nature of its limita- 
 tion, or is defeated by a condition, in conse- 
 quence of the act oftlie party, the determination 
 of the original estate will involve in it the 
 determination of the derivative estate. 
 
 Thus, if A be tenant during her widowhood, 
 her estate, and consequently the estate of her 
 lessee, will determine by her marriage. 
 
 This is equally the case, if she be tenant for 
 life, with a condition to defeat her estate on 
 marriage, and she marry, and advantage is 
 taken of the condition. 
 
 Also, if A be parson of a church, and lease 
 the glebe or tithes, the estate of his lessee will 
 be determined by his resignation, cession, or 
 any other cause, by which he ceases to be 
 parson, as well as by his death. 
 
 It is observable also, that when a person 
 has several estates, and makes a lease, or grants 
 an estate, or executes a conveyance, the lease 
 or estate so granted will be derived out of the 
 several estates; so that the estate granted by 
 this lease or conveyance may cease as to one 
 estate, and continue as to another estate. Thus 
 A is tenant for life, remainder to B in tail, 
 remainder to A in fee, and A leases for one 
 
 A A 4
 
 360 ON TITLES ! 
 
 thousand years ; this lease will be derived 
 out of the estate for life, and estate in fee ; and 
 when A dies the lease will be determined in 
 respect of the estate for life, and the lease will, 
 in respect of the fee, commence in possession on 
 the death of tenant in tail without issue ; but 
 in the mean time the remainder in fee, and con- 
 consequently the term for years derived out 
 of this estate in fee, may be defeated by a 
 common recovery suffered by tenant in tail. 
 
 And although A and B had suffered a common 
 recovery in A's life-time, the term wfruld have 
 been barred, so far as it depended on the 
 remainder in fee. 
 
 So if A had been the owner of the estate tail, 
 the lease M'ould have been good as against the 
 tenant in tail during his seisin, but voidable by 
 the issue in tail, unless barred. And though the 
 lease had been avoided by the issue in tail, it 
 would have remained good as to the remainder 
 in fee, unless or until it was barred. 
 
 So a derivative estate, as a lease, or even a 
 conveyance, may be good as to one person, and 
 void or voidable as to another person. - Of this 
 the instances already given may be propounded 
 as examples. 
 
 So also if A being married to a woman who 
 has a title of dower, make a lease or conveyance, 
 such lease or conveyance is good as against 
 him and his heirs, but is voidable as against 
 the wife ; and if she, in respect of her dower, 
 avoid the lease or the conveyance, she suspends
 
 UNDEK TENANTS IN TAIL. 
 
 the operation of the lease or conveyance in point 
 of enjoyment, during the continuance of her 
 estate in dower, and not wholly defeat it. 
 
 For the lease or conveyance will continue, in 
 point of estate, even as to the third part, or the 
 particular lands of which the wife is endowed; 
 and the right of possession will be revived on 
 the determination of the estate of the wife. 
 
 These and the like points will be found par- 
 ticularly useful in applying the law to actual 
 practice in considering the state of titles. 
 
 Of Tenants in Tail. 
 
 IN regard to tenants in tail, there is the 
 peculiarity, that by a common recovery duly 
 suffered a tenant in tail may enlarge his estate 
 tail into a fee-simple, provided the donor of the 
 estate tail had a fee-simple. See first volume of 
 Practice of Conveyancing, p. 1, and by that 
 means give certainty of duration to an estate 
 previously uncertain in that particular ; and 
 render absolute, and indefinite, an estate which 
 was determmable. 
 
 This learning is of infinite importance. Oc- 
 casions involving its application are of daily 
 occurrence. It is the subject of all others of 
 most general utility, because involved in the 
 greatest nicety. Some of the many distinctions 
 \vhich most frequently demand attention in the 
 consideration of titles may with propriety be 
 noticed in this place.
 
 362 ON TITLES I 
 
 The tracts formerly published on cross re- 
 mainders, and alienations by tenants in tail, 
 (tracts which will be re-published in the intended 
 edition of the Essay on the Quantity of Estates,) 
 will materially assist the study of the subject 
 to be now discussed. 
 
 Conveyances by tenants in tail must be 
 divided into, 
 
 1st. Conveyances which are rightful, and 
 conveyances which are tortious or wrongful. 
 
 2dly. Conveyances which do, and convey- 
 ances which do not, bar the issue in tail, and 
 
 3dly. Conveyances which do, and convey- 
 ances which do not, bar the persons having 
 estates in remainder, or reversion expectant on 
 an estate tail, and conditions and collateral 
 limitations annexed to the estate tail. 
 
 Innocent or rightful conveyances by a tenant 
 in tail are good as against himself. In some 
 cases they are good against his issue; in other 
 instances they are voidable by the issue in 
 tail. Leases for years, conveyances by lease 
 and release, or by grant, or by bargain and 
 sale, or by release or confirmation in enlarg- 
 ment of an estate, are rightful conveyances, 
 except when a warranty is annexed to the con- 
 veyance ; and a discontinuance is effected by 
 reason of the warranty, as the means of render- 
 ing the warranty efficient. 
 
 But a lease for years, granted by tenant in 
 tail, or a conveyance from him, by lease and
 
 UNDER TENANTS IN TAIL. 363 
 
 release, bargain and sale, by grant or con- 
 firmation, will determine with the estate tail, 
 whenever that estate shall determine. 
 
 But if the estate tail become a fee-simple, 
 then these leases and other conveyances will 
 receive extension or confirmation by the change 
 in the quality, or by the extension, of the estate 
 tail into a fee-simple. 
 
 In the invaluable book on Tenures, Littleton 
 supposed that a tenant in tail was, for all the 
 purposes of alienation, merely a tenant for life; 
 ad that the grantee of tenant in tail would 
 have merely an estate of freehold for the life of 
 tenant in tail, and not an estate of inheritance. 
 Littleton, sec. 612, 613, 650. 
 
 This is one of the very few errors to be found 
 in that book which deservedly acquired so high 
 a degree of reputation. This error was adopted 
 and followed in the case of Tooke v. Glasscock, 
 iSand. Rep. 250. 
 
 It is rather extraordinary that the judges 
 who decided Tooke v. Glasscock had not brought 
 the real point of Seymour's case, (10 Rep. 95,) to 
 their recollection. In Seymour's case, one of the 
 resolutions was, that the wife of a bargainee of 
 tenant in tail was dowable. Hence it is obvious 
 then, that the court considered the bargainee to 
 have an estate of inheritance, and not a mere 
 estate of freehold. For a woman is not dowable 
 of an estate for life or lives, though it be trans- 
 missible by special occupancy to heirs, or heirs 
 of the body.
 
 364 OK TITLES J 
 
 The profession, however, ought to rejoice at 
 the decision in Glasscock v. Tooke, since it led 
 to the discussion which took place in Mache.ll 
 v. Clarke, 2LordRaym.778, and called forth the 
 elaborate judgment pronounced by Lord Chief 
 Justice Holt in that case; a case which is now 
 the leading and prominent authority in questions 
 of this nature. 
 
 The result is, that every conveyance by a 
 tenant in tail, either by bargain and sale, grant 
 or release, gives a base fee commensurate with 
 the estate tail, Litt. 6 18, 1 Inst. 332 a. And 
 every lease, or other partial interest, being an 
 estate in the land, or other subject of entail, 
 granted by tenant in tail, and which gives an 
 interest derived out of the estate tail, will be 
 good against the issue in tail, or voidable by 
 them, according to circumstances. 
 
 When tenant in tail conveys by a wrongful 
 or tortious alienation, he does not convey by 
 virtue of his ownership as tenant in tail, but he 
 conveys by virtue of a power confided to him 
 by law. His tortious alienation is termed a 
 discontinuance ; and this word " discontinuance" 
 emphatically describes the effect which is pro- 
 duced by this species of alienation. A discon- 
 tinuance is the cesser of the title under the 
 estate tail, and the commencement of a title 
 under a new and wrongful seisin. It causes a 
 suspension of the title under the estate tail, 
 and gives a new estate by force of the alienation. 
 In short, it produces an estate depending on a
 
 UNDER TENANT IN TAIL. 365 
 
 aew title ; discontinues the estate under the 
 ancient title, and gives commencement to a 
 new title; by creating a new estate in fee-simple. 
 The consequences produced by a discontinuance 
 will illustrate these observations- 
 
 If tenant in tail lease for his own life, or if 
 he make a grant by deed of grant, or by lease 
 and release, or by bargain and sale, for the life 
 of another person, he still retains his old estate 
 tail, and has a reversion in respect of that 
 estate, 1 Inst. 332 a. b. 
 
 So when he makes a lease by virtue of a 
 power, or by virtue of the enabling statute of 
 32 Hen. VIII. c. 28, for three lives, he still re- 
 tains a reversion by force of his estate tail. 
 
 But when he discontinues, by making a lease 
 with livery for the life of a stranger, or for three 
 lives ; or when he discontinues by making a gift 
 in tail by livery or by fine, he acquires a new 
 reversion by force of the discontinuance. He 
 will be seised of this reversion, as under a new 
 title, and not under his seisin of the estate 
 tail. 
 
 So if he take back an estate tail to himself 
 under the discontinuance, either by means of 
 a conveyance to uses, or by means of a convey- 
 ance and reconveyance, this will be an estate 
 tail depending on a new title, and not the 
 ancient estate tail. 
 
 Hence many of the decisions in the old books 
 arising from the difference between a common 
 recovery suffered with a single or with a double
 
 366 ON TITLES : 
 
 voucher ; and hence, in part, the reason for 
 which, in modern practice, recoveries with 
 double voucher are preferred to recoveries with 
 single voucher ; for when a man comes in on 
 the voucher, in a common recovery, he is sup- 
 posed to come in by virtue of all estates of 
 which he is, or of which he and his ancestors 
 ever were, seised ; and therefore a dormant en- 
 tail will be barred by the voucher of the person 
 entitled under that entail. But when a man 
 comes in as tenant in a recovery, and vouches 
 over, no estate tail will be barred, except that 
 identical estate of which he is actually seised at 
 the time when the recovery was suffered against 
 him as tenant. 
 
 Hence another difference ; a recovery in 
 which tenant in tail is vouched, and vouches 
 over, will be a bar to all estates of which he is 
 seised in reversion, or remainder, or which he 
 hath in point of right or title : while a recovery 
 suffered against tenant in tail, as tenant to the 
 writ of entry ) will not bar any estate tail, except 
 the identical estate tail of which he is actually 
 seised, and which confers the right to the im- 
 mediate freehold. It will not even bar an estate 
 tail of which he is seised in remainder expectant 
 in a remote degree on his own estate of freehold. 
 If he had the estate tail immediately expectant, 
 on his estate for life, then the life estate would 
 have ceased by merger, and he would be seised 
 of the freehold by force of his estate tail, and 
 be competent to suffer a recovery even as tenant,
 
 UNDER TENANTS IN TAIL. 36? 
 
 so as to bar the estate tail and remainders by 
 his voucher as tenant. 
 
 It is also to be observed, that a discontinuance 
 cannot be made by any person in respect of an 
 estate tail, unless he be seised, in fact or in law, 
 by force of the estate tail; nor unless the estate 
 tail confer the right to the immediate freehold. 
 
 A person who has an estate tail in remainder 
 or reversion, after an estate of freehold, or 
 a right to an. estate tail, cannot discontinue 
 the tail. Litt. sect. 618 ; 1 Inst. 332 a. But a 
 person who has a reversion of lands expectant on 
 a lease for years may discontinue, 1 Inst. 332 b. 
 
 The consequence of a discontinuance, while it 
 continues in force, is, that the issue in tail, or 
 the reversioner or remainder-man, cannot, unless 
 remitted, make an actual entry, or maintain an 
 ejectment ; nor can, while the discontinuance 
 remains in operation, make any grant, transfer, 
 or disposition by deed or will. The person 
 who has the right must proceed by formedon, 
 which is the real action, and emphatically termed 
 the writ of right of those who claim under an 
 estate tail, or a reversion or remainder ex- 
 pectant on an estate tail ; or he must release his 
 interest to the person who has the seisin or 
 estate, or bind it by estoppel. 
 
 To constitute a discontinuance there must 
 be a wrongful act, and the Abridgments and 
 Digests which contain the head Discontinuance, 
 should be consulted for the purpose of learning 
 those distinctions by which a wrongful, may be
 
 368 ON TITLES: 
 
 distinguished from a rightful, alienation by 
 tenant in tail. 
 
 The chap. Discontinuance, in Coke Litt. will 
 also be highly useful to the complete under- 
 standing of this learning ; and to read the 
 chapter on Remitter in Coke on Littleton will 
 greatly conduce to enlarge the fund of useful 
 knowledge, and to show the instances in which 
 the mere act of law will redress the wrong ; and 
 by its operation revive the seisin under the 
 estate tail. 
 
 To enlarge on all these niceties w r ould require 
 a volume instead of a few short observations. 
 
 A feoffment; a fine with or without proclama- 
 tions ; a common recovery, not duly suffered, 
 as distinguished from a recovery duly suffered, 
 and operating as a bar ; and also a warranty 
 annexed to some particular species of convey- 
 ance, are the wrongful assurances by which 
 discontinuances may be affected. 
 
 A lease and release, and a fine as parts of the 
 same assurance, may also create a discontinu- 
 ance. Doe ex dem. Odiarne v. Whitehead, 2 Burr. 
 704. But a lease and release, as a distinct con- 
 veyance, and a subsequent fine by way of 
 further assurance, will not cause a discontinu- 
 ance. Seymours case, 10 Rep. 25. 
 
 It is also worthy of notice, that when the dis- 
 continuance is effected by a particular estate, 
 as by a lease for lives, this discontinuance may 
 be enlarged ; but unless it be enlarged, either 
 in fee or in tail, to the same or to another
 
 UNDER TENANTS IN TAIL. 36'9 
 
 person, the discontinuance will cease with the 
 determination of the particular estate which was 
 the cause of the discontinuance, though it be 
 after the death of the tenant in tail ; and the 
 title under the estate tail will be immediately 
 revived. Litt. sect. 632 ; 1 Inst. 333 a; Gilb. 
 Ten. 121. 
 
 On the other hand, a discontinuance by a 
 particular estate may be enlarged by a grant 
 of the new reversion, Litt. 629, 630, either 
 in tail or in fee. Ibid. 
 
 Fines with proclamations, and common reco- 
 veries duly suffered, are the ordinary means 
 by which the issue in tail may be barred. They 
 may also be barred by the provisions of particu- 
 lar acts of parliament ; as by bargain and sale 
 under the land-tax acts, and by statutes con- 
 cerning bankrupts. 
 
 They may also be barred by the lineal 
 warranty, with assets of tenant in tail in pos- 
 session, or by 'the collateral warranty of tenant 
 in tail in possession, with Or without assets. 
 Formerly they might have been barred by 
 lineal or collateral warranty, although the tenant 
 in tail had not been the tenant in tail in pos- 
 session, i. e. having the immediate freehold by 
 force of the estate tail. 
 
 It is by force of the statute of 4 and 5 Ann. 
 c, 16,^/br the amendment of the law, that tenants 
 in tail are restrained from barring the issue in 
 tail by collateral warranty, except when they are 
 tenants of an estate in tail in possession; and 
 
 B B
 
 370 ON TITLES : 
 
 consequently competent to suffer a valid 
 recovery. 
 
 The issue in tail may also be bound by 
 leases, jointures, and other estates, &c. granted 
 by force of a power in the deed creating the 
 entail. They may also be bound by leases 
 made pursuant to the provisions of the enabling 
 statute of 32 Hen. VIII. c. 28. 
 
 In all cases of powers duly pursued, the inhe- 
 ritance may descend to the issue, subject to the 
 estates and charges created under the power, 
 and the issue will be entitled to the rents 
 reserved by such leases, &c. 
 
 Unless the issue are bound or barred by the 
 assurances of tenant in tail, it will be to be 
 considered^ whether the assurance be void or 
 voidable only, as against the heirs in tail. 
 
 Most assurances are voidable onlv, and of 
 
 ^ * 
 
 course, the issue must enter, or claim, to avoid 
 such assurances. For when the assurances are 
 voidable only, each succeeding heir in tail, 
 under the entail, may give confirmation to the 
 assurance as against himself. 
 
 A title which is defective, or voidable as 
 against the issue in tail, may also become good 
 against all the heirs in tail by a fine with procla- 
 mations duly levied ; and against them, and the 
 persons entitled in reversion and remainder, by 
 a common recovery, duly suffered, by the tenant 
 in tail, or heir in tail for the time being. 
 
 If tenant in tail make a lease for years, or for 
 lives, without being warranted by any power,
 
 UNDER TENANTS IN TAIL. 
 
 or make a settlement by lease and release, 
 without fine or common recovery, this lease or 
 settlement will be voidable by his issue ; but if 
 afterwards a fine be levied, with proclamations, 
 or a common recovery be duly suffered, either 
 by the lessor or settler, or even by the heir in 
 tail, before he has avoided the lease or settle- 
 ment, the lease or settlement will be affirmed, 
 even although there was not any intention to 
 give validity to the same. See Cheney v. Hall, 
 Ambl. Rep. 526 ; Stapelton v. Stapclton, 1 Atk. 2 ; 
 and Doe dem. Shilston v. Mead, 3 Burr. 1703. 
 
 All these cases, and many others of the same 
 class, proceed on the ground that the estate 
 granted by the lease, or the estate limited by 
 the settlement, is derived out of the estate 
 tail ; and as soon as the estate tail is dis- 
 charged from the rights of the issue under the 
 statute de donis, the lessee, or person claiming 
 under the settlement, will have a good title 
 against the issue. And, notwithstanding the 
 rule cessante statu primitive, fyc. and notwith- 
 standing a grant by a tenant in tail, by lease 
 and release, passes only a base fee, yet this 
 base fee may be converted into a fee-simple, 
 by a common recovery afterwards suffered by 
 the donee, or by the heir, when heir under the 
 entail. 
 
 Beaumont's case, 9 Rep. 138, and Baker v. 
 Willis, Cro.Car. 476, are cases of importance 
 to the subject now under consideration ; and 
 when properly understood, will illustrate the 
 
 u B 2
 
 372 N TITLES : 
 
 learning respecting the bar of issue under an 
 
 entail. 
 
 In this instance, (for both cases arose on the 
 same gift in different stages of the title,) the gift 
 was to two persons, and the heirs of their bodies, 
 and a fine with proclamations was levied by 
 one of them ; and it was declared that the fine 
 barred the issue in tail ; and yet it left to the 
 other ancestor her full ownership. 
 
 But this ownership was, by the operation of 
 the fine, changed from an estate tail into a base 
 fee, descendible to the heirs general in exclusion 
 of the heirs in tail; and yet it should seem that 
 the donee under the entail retained the power 
 of suffering a common recovery, and of barring 
 the remainder or reversion expectant on the 
 estate tail. See Errington v. Errington, 2 
 Bulstr. 42. 
 
 It was agreed that the issue might take by 
 descent, under the rules of the common law, 
 although they were by the operation of the fine 
 excluded from taking per formam donl under 
 the entail. 
 
 As a caution against mistake, it is to be 
 observed, that the gift was to two persons 
 (being husband and wife,) and the heirs of 
 their bodies, and they took by entireties ; 
 so that they were neither joint-tenants, nor 
 tenants in common; and neither of them could 
 alien to the prejudice of the other of them : and 
 yet, under the comprehensive terms of the 
 statute of proclamations of fines, 4 Hen. VII.
 
 UNDER ESTATES TAIL. 373 
 
 c. 24, one of them might alien by fine with 
 proclamations, so as to bar the heirs under 
 the entail. 
 
 In examining the effect of fines with pro- 
 clamations, with reference to the issue in tail, 
 the language of the statutes of 4 Hen. VII. c. 24, 
 and 32 Hen. VIII. c. 36, must be consulted. 
 
 The rules of the common law are not of 
 any avail, as a guide to ascertain the effect of 
 assurances bv persons claiming under gifts in 
 tail, and levying fines with proclamations. The 
 cases which have received the determination 
 under these statutes are the only authorities 
 which can be safely relied on for understanding 
 the effect of these statutes. 
 
 Sheppard's Touchstone, chap. Fines ; Cruises 
 Essay on Fines, chap. 10: and the Treatise 
 on Conveyancing, Vol. I. p. 220, will afford to 
 the student a general outline of the cases which 
 have been decided under the construction of 
 these statutes. 
 
 All grants, or innocent conveyances from tenant 
 in tail, will pass estates to determine on the 
 death of tenant in tail, and the failure of his 
 issue inheritable under the entail. 
 
 As against the persons in remainder or re- 
 version, assurances of this description will not 
 produce any effect whatever. 
 
 The remainder-man or reversioner will con- 
 tinue in the seisin of his reversion or remainder ; 
 and on the determination of his estate tail, 
 and consequently in the absence of a common 
 
 B B 3
 
 374 ON TITLES : 
 
 recovery, the person having the reversion or 
 remainder will be entitled to enter into, and to 
 take the possession of, the lands. 
 
 And even a lease for lives, under the enabling 
 statute of 32 Hen.VIII. c. 28, is to be considered 
 as derived out of the estate tail, and it will deter- 
 mine as soon as the estate tail shall determine. 
 
 But an estate derived under a power, in a 
 settlement by the owner of the fee-simple, and 
 given to tenant in tail, will, unless the contrary 
 be stipulated, continue after the determination 
 of the estate tail. Still, however, the remainder 
 or reversion will be a continuing seisin or estate, 
 subject to and expectant on the estate tail 
 while it continues ; and afterwards subject to 
 and expectant on the particular estate granted 
 by virtue of the power; and in reference to the 
 estate created by virtue of the power, will be, 
 or be of the nature of, a reversion. 
 
 And in this place it may again be noticed, 
 that a lease for lives, granted by tenant in tail, 
 and warranted by the statute of 32 Hen. VIII. 
 c. 28, will not be a discontinuance, so as to 
 devest or discontinue the estate tail, or the 
 remainder or reversion, 1 Inst. 333 a. 
 
 On the other hand, when tenant in tail, seised 
 of the freehold by force of the entail, does, by 
 lease with livery of seisin, or by feoffinent or 
 fine, with or without proclamations, or common 
 recovery, grant an estate to continue beyond 
 his own life, this conveyance will have the 
 effect of discontinuing the reversion or re-
 
 UNDER TENANTS IN TAIL. 375 
 
 mainder, and turning such reversion or remain- 
 der into a right of action ; and this is a wrong 
 which cannot be redressed merely by entry. It 
 must be remedied either under the learning of 
 remitter, or bv the cesser of the discontinuance: 
 
 / 
 
 or must, after the determination of the estate 
 tail, be redressed by judgment in an action of 
 formedon. 
 
 And while the remainder-man or reversioner 
 has merely a right of action, he is precluded 
 from all power of alienation to a stranger, 
 except so far as he may bind his interest by 
 estoppel ; and it should seem that every estoppel, 
 except it be for years, will, instead of benefiting 
 the donee or grantee in the instrument, operat- 
 ing by way of estoppel, be beneficial to the 
 terre-tenant or wrongful owner, and have the 
 effect of giving confirmation and stability to his 
 title. See Weak v. Lower , Pollexf. 54; 1st Vol. 
 of Practice of Conveyancing) 208. 
 
 Every discontinuance is not a bar. 
 
 The estate of the remainder-man or rever- 
 sioner may be converted into a mere right of 
 action ; and yet that right may ultimately be 
 redressed by the operation of law, or by the 
 action of the party. 
 
 The right, however, may be barred by non- 
 claim, on a fine with proclamations, or by the 
 statute of limitations of 21 James I. c. 20. 
 
 The more general and more important point 
 is, that by a common recovery, duly suffered 
 by the donee in tail, or by the heir in tail,
 
 376 ON TITLES : 
 
 provided the entail ever gave a vested interest, 
 may, by a common recovery duly suffered, 
 and adapted to the particular circumstances of 
 the case, bar the right under the remainder 
 or reversion, although it has not any continuance 
 as a seisin, or as a right. 
 
 The extent of the power of alienation by 
 tenant in tail, &c. is a subject of frequent recur- 
 rence, and of great importance to titles. The 
 learning forms a large and comprehensive branch 
 in the law; and the numerous points of dis- 
 tinction, and the exceptions which this learning 
 involves, will be found in Sheppard's Touch- 
 stone, chap. Recoveries; Mr. Cruises Essay on 
 Recoveries; and the first chapter of the Prac- 
 tice of Conveyancing ; and Tracts on Alienations 
 by Tenants in Tail. 
 
 Of the Degrees of Ownership conferred by 
 different Estates. 
 
 THE degrees of ownership conferred by dif- 
 ferent estates, and such practical observations 
 as arise with reference to the different estates, 
 or the alienation by persons being the owners 
 under or through the medium of these estates, 
 will next be considered. 
 
 In the Essay on the Learning of the Merger 
 of Estates, 3d Vol. of Practice of Conveyancing, 
 p. 108, there is an examination of the gradation 
 of estates, or of their relative measure or ex- 
 tent, on a comparison of different estates with 
 each other. The study of this subject will be 
 found highly interesting, and useful in practice.
 
 UNDER TENANTS IN FEE. 577 
 
 As to Tenants of Estates in Fee-simple. 
 
 A tenant in fee-simple may grant any less 
 estate, or charge his estate in any manner he 
 thinks fit, or annex to it any conditions he 
 pleases; so as such conditions be not repugnant 
 to the rules of law; and so as they do not 
 contravene the law against perpetuities. 
 
 And the owner of this estate may either 
 transfer the entire fee, or he may divide it into 
 portions, or particular interests ; as to A for 
 years, remainder to JB for life, remainder to C 
 in tail, remainder to D in fee, with or without 
 charges by way of rent to other persons. The 
 maxims are, Cujus est dare cjus est disporiere, 
 2 Rep. 71 Cm licet quod majus non debet quod 
 minus non licere, 4 Rep. 23. 
 
 And he may make a conveyance to uses, so 
 as to raise uses on the seisin of his assignee; or 
 he may covenant to stand seised to uses; or may 
 make a bargain and sale ; so as to raise uses on 
 his own seisin. 
 
 Of the nature and qualities and extent of 
 this estate, see Essay on Estates, chap. Fee- 
 simple. 
 
 As to Tenants of base and determinate Fees. 
 
 THE like observations are applicable to the 
 owners of estates of this description, with the 
 exception, that, while the estate continues de- 
 terminable, an estate derived out of this deter-
 
 378 ON TITLES : 
 
 minable estate will be subject to the same 
 collateral determination. 
 
 The rule in this instance also is cessante 
 statu primitive, fyc. But when the estate shall 
 no longer be determinable, then the estates 
 derived out of this fee will, as far as respects 
 such determinable quality, become absolute. 
 
 These observations are equally applicable to 
 the tenants of those estates in fee, which are 
 subject to a condition, mutatis mutandis, merely 
 substituting the word defeasible, as more ap- 
 propriate than the term determinable. 
 
 As to Tenants of Conditional Fees. 
 
 These tenants are to be distinguished from 
 the tenants of estates in fee, subject to a 
 condition. The law applicable to these con- 
 ditional fees does not seem to be precisely 
 defined. 
 
 As against himself and his heirs, the aliena- 
 tion of the tenant of this estate will be good 
 even before issue had. 
 
 But according to the more prevailing autho- 
 rities, the tenant of a conditional fee cannot 
 alien so as to defeat the condition of the donor, 
 unless he have issue before or after the 
 alienation. 
 
 On this subject, a detailed discussion will be 
 found in the chapter on conditional fees in the 
 Essay on the Quantity of Estates. 
 
 At this day there cannot be a conditional 
 fee in any property except copyhold lands, not
 
 UNDER TENANTS IN TAIL. 379 
 
 admitting of entails; and in such hereditaments 
 as are of a personal nature, and not charged 
 upon or issuing out of real estate. Of this de- 
 scription are annuities, not being rent-charges; 
 annuities chargeable on the post-office duty, 
 and the like annuities, are examples, Earl Staf- 
 ford v. Bulkley, 1 Ves. 171. 
 
 Lord Hardwicke seems to have been sur- 
 prised into a mistake, when he supposed that 
 there could not have been any remainder at the 
 common law after a gift to a man and the heirs 
 of his body. 
 
 As to Tenants in Tail. 
 
 THIS is a copious head, and of the first 
 importance in the deduction of titles : since a 
 title is more likely to be defective, from some 
 cause relating to estates tail, than for any 
 other reason, and indeed for all causes what- 
 ever. 
 
 The power of alienation of tenant in tail may 
 be considered, 
 
 1st. With reference to himself. 
 
 2dly. With reference to his issue. 
 
 Sdly. With reference to those in reversion 
 or remainder, and persons having interests by 
 executory devise. 
 
 4thly. In reference to estoppels. 
 
 And it will be proper to sum up to the dif- 
 ferent effects of deeds, fines, recoveries, discon- 
 tinuances^ and warranties by tenant in tail. 
 
 All alienations, and all charges by a tenant 
 in tail, will be good against himself, ex-
 
 380 ON TITLES t 
 
 actly in the same manner, except as to the 
 extent and degree of interest, as if he were 
 seised in fee-simple; and if he should acquire 
 the fee-simple by means of his estate tail, then 
 as if he had, really and in truth, been seised in 
 fee-simple. 
 
 For many purposes he is to be considered 
 as tenant in fee-simple ; since he may acquire 
 that estate by suffering a common recovery; 
 alone when he has the freehold ; and when the 
 freehold is in any other person, then with the 
 concurrence of the person in whom the freehold 
 is vested. 
 
 The right, however, of suffering a common 
 recovery, is a privilege personal to the tenant 
 in tail, or to the person on whom the right of 
 entail shall for the time being have deyolved 
 as heir to the entail, or the person on whom 
 the entail if existing would have devolved. 
 
 For all the purposes of the following obser- 
 vations, the issue in tail, when they become 
 the heirs in tail, are to be considered in the 
 same predicament, and as having the same 
 powers as tenants in tail. 
 
 A lease, or grant by tenant in tail, will bind 
 himself, and will continue in force till avoided, 
 when it is voidable by the entry, or action of 
 the issue, or till the determination of the estate 
 tail out of which it is derived. 
 
 Some conveyances, as feoffments, fines, and 
 also releases or confirmations with warranty,, 
 by tenants in tail, create a discontinuance. 
 
 Other assurances operate as conveyances,.
 
 UNDER TENANTS IN TAIL. 381 
 
 and pass merely an estate or iaterest, derived 
 out of the estate of tenant in tail; and conse- 
 quently are de terminable, and will determine 
 when that estate shall have filled the measure 
 of its duration. 
 
 A common recovery, when it is duly suffered, 
 is rather a conveyance by tenant in tail, than 
 a discontinuance ; and yet it is generally treated 
 as a discontinuance. 
 
 A recovery operates, in a proper sense, as a 
 discontinuance only when it passes a fee-simple, 
 without barring the issue, or, as a consequence, 
 the reversion or remainder; as in the instance of 
 a recovery, in which there is not any voucher 
 over by the tenant in tail. 
 
 When a discontinuance is made, the fee- 
 simple passes, and cannot be restored without 
 action, or remitter. 
 
 When a conveyance is made, the estate will 
 be good against the tenant in tail, but (unless 
 the issue shall be barred,) by the original, or by 
 some subsequent assurance, will be voidable by 
 them ; and unless the persons in reversion or 
 remainder shall in like manner be barred, the 
 conveyance, will be actually void against them, 
 under the rule cessante statu primitivo, &c. 
 
 But when a discontinuance is effected, the 
 estate of tenant in tail, and of those who had 
 the reversion or remainder, will be turned into 
 a right of action ; and while the discontinuance 
 remains in force, the new estate will subsist 
 until avoided by the action of the issue in tail, 
 or of the persons in reversion or remainder;
 
 382 ON TITLES : 
 
 or until the remitter of the issue in tail, or of 
 the persons in reversion or remainder, or the 
 determination of the discontinuance, 
 
 An estate granted by a tenant in tail may 
 at different times have different qualities, par- 
 taking of the qualities of the estate out of which 
 it is derived. 
 
 For example, if A^ being tenant in tail, lease 
 for 1,000 years, A will have an estate for that 
 term, determinable when the estate tail shall 
 cease. 
 
 When therefore this tenant in tail dies without 
 issue inheritable under the entail, and without 
 having barred the estate tail, the term will 
 determine. It will determine, because by the 
 failure of the issue inheritable to the estate tail 
 there is an end to the ownership under the 
 estate tail. 
 
 This is equally true of a conveyance in 
 fee by tenant in tail, either by grant, lease and 
 release, bargain and sale, or covenant to stand 
 seised to uses. 
 
 All such conveyances are also voidable by 
 the issue in tail, unless their right of succession 
 shall be barred. 
 
 But if the issue should be barred by a fine 
 with proclamations, or bound by a warranty, 
 or by a common recovery, the conveyance will 
 be good as against the issue ; and after a com- 
 mon recovery shall be duly suffered, the con- 
 veyance will be good against the issue in tail, 
 and those in reversion and remainder. 
 
 Thus an estate, which originally was voidable.
 
 UNDER TENANTS IN TAIL. 383 
 
 may become indefeasible ; and an estate which 
 originally was determinable, may eventually 
 become absolute. 
 
 It may also, by means of a fine with proclama- 
 tions, become valid against the heirs in tail. It 
 may afterwards, by means of a common re- 
 covery, become effectual against those in 
 remainder and reversion. 
 
 Formerly the alienation of tenant in tail by 
 grant, c. was considered as good only during 
 his life. In short, the interest which passed by 
 his conveyance was considered as determinable 
 on his death, so that it would then ipso facto 
 determine. 
 
 The language of that excellent text writer, 
 Litt. 612, is, 
 
 "Also, if tenant in tail grant his land to another 
 for term of the life of the said tenant in tail, 
 and deliver to him seisin, &c. ; and after by his 
 deed he releaseth to the tenant and to his heirs 
 all the right which he hath in the same land, 
 in this case the estate of the tenant of the land 
 is not enlarged by force of such release ; for that 
 when the tenant had the estate in the land for 
 term of the life of the tenant in tail, he had 
 then all the right which tenant in tail could 
 rightfully grant or release ; so as by this release 
 no right passeth, inasmuch as his right was gone 
 before." 
 
 And in 613 ; 
 
 " Also, if tenant in tail by his deed grant to 
 another all his estate, which he hath in the 
 tenements to him entailed, to have and to hold
 
 384 ON TJTLBS : 
 
 all his estate to the other and to his heirs for 
 ever, and deliver to him seisin accordingly ; in 
 this case the tenant to whom the alienation was 
 made hath no other estate but for term of the 
 life of tenant in tail. And so it may be well 
 proved that tenant in tail cannot grant nor alien, 
 nor make any rightful estate of freehold to 
 another person, but for term of his own life 
 only/1 
 
 And in 650 ; 
 
 " In the same manner it is where tenant in tail 
 grant all his estate to another ; in this case the 
 grantee has no estate but for term of life of the 
 tenant in tail ; and the reversion of the tail is 
 not in the tenant in tail, because he hath granted 
 all his estate, and his right, &c. And if the 
 tenant to whom the grant was made, make 
 waste, the tenant in tail shall not have a writ of 
 waste, for that no reversion is in him. But the 
 reversion and inheritance of the tail, during the 
 life of the tenant in tail, is in abeiance, that is to 
 say, only in the remembrance, consideration, 
 and intelligence of the law/' 
 
 Lord Coke adopted rather than dissented 
 from this doctrine. 
 
 But in Seymours case, 10 Rep. it was deter- 
 mined that the bargainee of a tenant in tail had 
 an estate of which his wife might have dower ; 
 consequently the bargainee must have had an 
 estate of inheritance, and not merely an estate 
 for the life of the tenant in tail. 
 
 But even the report of Seymours case is 
 calculated to mislead, since it treats the bar-
 
 UNDER TENANTS IN TAIL. 385 
 
 gainee as having had an estate descendible to his 
 heirs, determinate by the death of tenant in tail. 
 
 The language of the report led to the mistake 
 in Took v. Glasscock, 1 Saund. 250, in which the 
 court held, that the bargainee of tenant in tail 
 has merely an estate pur autre vie, and that 
 the heirs were to take as special occupants ; so 
 that at that period, viz. before the law was 
 altered by the statute of Frauds and Perjuries, 
 29 Car. 2, c. 3, the bargainee had not any 
 devisable estate. 
 
 But in Machell v. Clarke, 2 Lord Raymond, 
 778, (a case deserving particular attention, as 
 elucidating the law on this point, with all its 
 numerous distinctions,) Lord Holt declared the 
 law on this subject ; and it was finally settled 
 that the bargainee of tenant in tail has an estate 
 of inheritance, which will continue as long; as 
 
 c* 
 
 the estate tail shall continue, or till it shall be 
 avoided by those who have a right to avoid the 
 same. Butler's Co, Litt. 331. 
 
 The material 'observations of lord Holt, and 
 the distinctions which he took, were, that though 
 there are many authorities in the point, yet the 
 reason given in the reports of them is not clear, 
 and therefore he would give at large the reason 
 of his present opinion ; and he observed, " it 
 " has been made a question, if tenant in tail 
 " bargains and sells, or leases, and releases, or 
 " covenants to stand seised of the lands entailed 
 
 " to another in fee, whether the estate conveyed 
 
 j 
 
 ' by the said conveyances determines by the 
 " death of the tenant in tail, or whether it con- 
 
 c c
 
 386 ON TITLES I 
 
 " tinues until the actual entry of the issue in 
 " tail." And he held that such estate continues 
 until the actual entry of the issue in tail for 
 these reasons ; 
 
 " 1st. Because tenant in tail himself has an 
 estate of inheritance in him ; and before the 
 statute de donis, Westm.2, 13 Edw. I. c. i, it 
 was held, that such estate was a fee-simple con- 
 ditional ; then the statute made no alteration as 
 to the tenant in tail himself, but only makes 
 provision, that the issue in tail shall not be dis- 
 inherited by the alienation of his ancestors; and 
 by Coke Litt. 18 a, it appears, that a base fee 
 may be created out of an estate tail ; where it 
 is said, that if a gift in tail be made to a villein, 
 and the lord enters, he hath a base fee. Then 
 if a base fee may be created out of an estate 
 tail, there is great reason that the bargainee, 
 &c. of tenant in tail should have it. 
 
 " 2dly. The tenant in tail has the whole estate 
 in him ; and therefore there is no reason why 
 he cannot devest himself of it by grant, bargain 
 and sale, &c. since the power of disposition is 
 incident to the property of every one. 
 
 " Sdly. It is no prejudice to the issue in tail, 
 and therefore no breach of the statute de donis. 
 Indeed there are strong words in the act for 
 restraining alienations to the prejudice of the 
 issue in tail, where it says, quod finis ipso jure 
 sit nullus, &c. ; yet the construction of the said 
 words hath always been that the entry of the 
 issue is tolled by such fine, and he is driven to 
 hisformedon; therefore, if an act which drives
 
 UNDER TENANTS IN TAIL. 387 
 
 the issue in tail to his formedon will not be a 
 breach of the statute, much less will it be a 
 breach of the statute to drive the issue in tail 
 to enter, to avoid a bargain and sale by his 
 ancestor. 
 
 " As to authorities, 10 Co. 95, Seymours case, 
 is in point ; where it is held, that the bargainee 
 of tenant in tail has a descendible estate, of 
 which his wife shall be endowed ; and that a 
 fine afterwards levied by tenant in tail barred 
 the issue in tail, but did not enlarge the estate 
 
 7 o 
 
 of the bargainee ; the estate tail being before 
 converted into a base fee by the bargain and 
 sale. And if the fine there had enlarged the 
 estate it would have created a discontinuance, 
 and then the collateral warranty had been a 
 bar to him in remainder. 
 
 " In 3 Coke 84, in the case of fines, the case of 
 Lift. sec. 613, is put and considered; and there 
 it is held, that the words ought not to be 
 literally understood, but in another sense. The 
 words of Littleton are, [N. B. the quotation is 
 erroneous] " That if tenant in tail grants totum 
 statum suum to I. S. and his heirs, aftd makes 
 a livery of seisin to /. S. yet the estate of I. S. 
 is determined by the death of the tenant in 
 tail." But this ought to be understood, that it 
 is no discontinuance, but will drive the issue in 
 tail to enter to avoid it. Tenant in tail of a 
 rent or common grants it in fee, the grant does 
 not determine by his death, but at the election 
 
 c c 2
 
 388 ON TITLES ! 
 
 of the issue in tail; and therefore, according to 
 the case put in the case of fines, if a warranty 
 be annexed to the grant, and the issue in tail 
 brings a formedon, the warranty will bar him, 
 Winch 5. Tenant in tail bargains and sells his 
 
 o 
 
 land to 7. S. in fee; I. S. sells to the issue in 
 tail, being of full age, then tenant in tail dies, 
 and the question was, whether the issue in tail 
 was remitted ? and Hobart held that he was ; 
 Hut ton and Warburton held the contrary. But 
 the question supposes that the estate of I. S. 
 continued after the death of the tenant in tail, 
 Bridgm. 92, accord. If tenant in tail makes 
 a leaseybr years, not warranted by 32 Hen. VIII. 
 c. 28, the issue in tail must enter to avoid it; 
 and if he accepts rent become due afterwards, 
 that will make the lease good as to him, which 
 could not be if the lease was actually deter- 
 mined by the death of tenant in tail. In cases 
 of exchange, the estates exchanged must be 
 equal in quality ; and yet tenant in tail may 
 exchange his lands with tenant in fee of other 
 lands, and it will be a good exchange till it 
 be avoided by the issue in tail, Coke Litt. 51 a. 
 And in the said case, the tenant in tail passes a 
 fee by the word exchange, without livery of 
 seisin, and it does not amount to a discon- 
 tinuance, Coke Litt. 332 a, but it passes only a 
 base fee ; and if the heir in tail will avoid it, 
 he must wave the lands given in exchange ; for 
 if he occupies them he will be bound for his
 
 UNDER TENANTS IN TAIL. 389 
 
 lite. For, if he had not a fee the exchange 
 had not been good, because the estates had not 
 been equal. 
 
 " 2. Though tenant in tail, by bargain and 
 sale, lease and release, or covenant to stand 
 seised, may create a base fee, yet in this case 
 [of Machel v. Clarke^] the tenant in tail did not 
 create a base fee by his covenant to stand 
 seised, because an estate made by tenant in tail, 
 which will not take effect till after his death, is 
 wid. If tenant in tail make a lease for years, 
 to commence after his death, it is void in its 
 creation, Dier. 279, pi. 7. ; Cro. Ja. 455, Lady 
 Griffin v. Stanhope. 
 
 Objection. He has here made himself tenant 
 for life. 
 
 Answer. That will not alter his estate, unless 
 for the sake of the remainders; as, if tenant 
 in fee covenants to stand seised to the use of 
 himself for life, it is void ; but a covenant to 
 stand seised to the use of himself for life, 
 remainder to I. S. ; or to the use of himself in 
 tail, will be good for the sake of the entail, 
 or of the remainder. But here the remainder 
 is ipso facto void *, and therefore will not 
 make the estate for life good, which otherwise 
 would be void also. The reason why an estate 
 made by tenant in tail, to commence after his 
 death, is void, is, because then the issue has a 
 
 * Because it was to commence after the death of tenant in 
 tail, and no previous estate was limited for his life* 
 
 c c 3
 
 390 ON TITLES : 
 
 right paramount, per formam doni. There is 
 express authority in this case, 2 Coke 52 ; Cro, 
 Eliz. 279 ; Yehert. 51 ; Moor 883 ; i Leon 110; 
 1 Anders. 291 ; 3 Leon. 291 ; Cro. Eliz. 895, 
 Beddingfield's case. Which last book seems 
 to give the true reason, viz. because the estate 
 there was to commence after the death of the 
 tenant in tail : But an estate granted by tenant 
 in tail, which must, or which by possibility may, 
 commence in the life of the tenant in tail, is 
 good. He said further, that the case of fines, 
 (3 Coke 84,) supported him in maintenance of 
 this opinion against Littleton ; and Hob. 399? 
 says that Littleton was confounded in himself 
 when he held, that a grant of tot us status suus 
 by tenant in tail, put the tail in abeyance ; all 
 the books agree that the inheritance is out of the 
 tenant in tail; and in the same place Hobart 
 says that the law abhors abeyance; therefore 
 the inheritance must be rather in the releasee 
 than in abeyance. 
 
 Objection. 1 Saund. 260, Tooke v. Glasscock, 
 it is held, that if tenant in tail bargains and 
 sells his land in fee, the bargainee has an estate 
 but for the life of tenant in tail ; for a devise by 
 him is adjudged void, because tenant pur auter 
 vie cannot devise by the statute of Hen. VIIL 
 of wills. 
 
 Answer. The case of Tooke v. Glasscock i 
 not law ; for there the tenant in tail, after the 
 bargain and sale, and the death of the bar- 
 gainee, levied a fine to a s-tranger; and it is
 
 UNDER TENANTS IN TAIL. 391 
 
 held there, that the fine enured to the benefit 
 of the heir of the bargainee; but that is impos- 
 sible ; for if tenant in tail bargains and sells to 
 I. S. in fee, and thereby an estate pur autre 
 vie only passes, viz. for the life of the tenant in 
 tail, and that descends to the heir of the bar- 
 gainee, but as special occupant, the fine levied 
 to a stranger cannot change his estate pur auter 
 vie into an estate of inheritance ; for there is 
 no instance in the law, that a fine levied to a 
 stranger can increase, but it may extinguish, a 
 right; therefore the case of Tooke v. Glasscock 
 is contradictory in itself, and hath no reason to 
 support the resolution given. 
 
 Upon the whole matter he held, 
 
 " 1st. That if tenant in tail conveys the lands 
 entailed by bargain and sale, lease and release, 
 or covenant to stand seised to the use of another 
 in fee, and dies, a base fee passes by the con- 
 veyance, and the estate continues until it be 
 avoided by the issue in tail by entry. 
 
 " 2dly. That if tenant in tail covenants to 
 stand seised to the use of the covenantee for life, 
 remainder to I. S. in fee, or to the use of 1". S. 
 for life, remainder to I. N. in fee, the remainder 
 is good till avoided by the entry of the issue 
 in tail ; although tenant in tail dies before the 
 remainder takes effect, because the estate for 
 life takes effect immediately, and the remainder 
 might, by possibility, have taken effect in the 
 life of the tenant in tail. 
 
 " 3dly. If tenant in tail leases and releases to 
 c c 4
 
 392 ON TITLES : 
 
 I. S. in fee, to the use of himself for life, 
 remainder to I. N. in fee after his death; this 
 remainder is good, though it is to commence 
 after the death of the tenant in tail, because it 
 arises out of the estate of the releasee, which 
 estate would have been good till avoided by 
 the entry of the issue in tail.* 
 
 " 4thly. That in this case, the estate being 
 raised by the covenant to stand seised without 
 transmutation of the possession, or any altera- 
 tion of the estate made, except the remainder, 
 ivhich is void, [it being a covenant by tenant 
 in tail to stand seised to the use of himself for 
 his own life, with remainders over,] and there- 
 fore works no alteration of the estate tail, the 
 recovery was good, and docked the entail, and 
 the new uses limited upon it well arose ; and 
 therefore that the judgment of the Common 
 Pleas ought to be affirmed." 
 
 From the observations already offered to the 
 reader, it will be collected, that an alienation 
 by tenant in tail, though originally voidable, 
 may eventually become absolute, either against 
 his issue, or, according to the nature of the 
 conveyance, against those in reversion or re- 
 mainder. 
 
 Thus, if tenant in tail make a lease or settle- 
 ment, and afterwards levy a fine with procla- 
 mations, the lease or conveyance will become 
 good as against his issue; and if he suffer a 
 
 * The limitation would also be good, although no estate OK 
 life were limited.
 
 UNDER TENANTS IN TAIL. 393 
 
 Common recovery (and he may suffer a com- 
 mon recovery if the freehold be in him as it 
 was in the case of Goodright v. Mead ; Machel 
 v. Clarke, 2 Lord Raym, 778; 3 Burr. p. 1703; 
 or 'if he obtain the concurrence of the free- 
 holder,) the lease or settlement will become 
 good against those in reversion or remainder. 
 
 It is observable, however, that a common 
 recovery of a tenant in tail will not be effectual 
 against any persons in reversion or remainder, 
 except those who claim under the estate out 
 of which the entail itself was derived. 
 
 To elucidate these observations ; suppose -A 
 to be tenant in fee-simple, and to create an 
 estate tail with divers remainders over, with 
 or without leaving the reversion in the settler : 
 as the tenant in tail has an estate derived out 
 of the fee-simple, his common recovery will 
 enlarge his estate into a fee-simple. 
 
 But if the estate tail had been derived out 
 of a determinable fee, or a fee subject to a 
 condition, or out of an estate tail, never 
 effectually barred, so as to enlarge the original 
 estate tail into a fee-simple, a recovery by 
 the owner of this derivative estate tail will not, 
 in right of such derivative estate tail, have 
 any other effect than to bar the reversion, or 
 remainder in fee, of the person by whom the 
 estate tail was created, and of all persons claim- 
 ing under him. 
 
 But even as against the issue of the doaor. 
 unless barred, the estate gained by such com- 
 mon recovery will be voidable in the same
 
 394 ON TITLES : 
 
 manner as the derivative estate tail itself was 
 voidable. 
 
 On this point, see Tracts on Alienations by 
 Tenant in Tail, and vol. I. of Practice of Con- 
 vey anting. 
 
 With this qualification, the operation of a 
 common recovery by tenant in tail is to bar 
 the estate tail, and all conditions and collateral 
 limitations annexed to that estate, and to enlarge 
 the same into a fee-simple. 
 
 The right, however, of suffering a common 
 recovery is, as already noticed, a privilege per- 
 sonal to the donee in tail, and his heir in tail, 
 when heir. 
 
 A recovery may be suffered by a tenant in tail, 
 either in possession, reversion, or remainder ; 
 and in each instance it will have the effect of 
 converting the estate tail into a fee-simple, or 
 rather into a fee commensurate with the estate 
 of the person by whom the entail was created. 
 
 It may even leave intermediate estates, 
 namely, subsequent to the estate of freehold, 
 and prior to the estate of the tenant in tail, by 
 whom the recovery is suffered, in the same con- 
 dition as if no recovery had been suffered. 
 
 And the fee acquired by such recovery may 
 be barred by a recovery afterwards suffered by 
 the tenant of a prior estate tail. 
 
 And a recovery suffered by a person who has 
 the right of an estate tail once vested, and which 
 has been devested or discontinued^; and, (ac- 
 cording to the opinion now universally adopted,) 
 even by the heir in tail, after the estate tail has
 
 UNDER TENANTS IN TAIL. 39-3 
 
 been barred by fine, or the heirs are bound by 
 warranty, will have the effect of completing 
 the title as against the issue in tail, and all 
 persons in reversion or remainder. An ample 
 discussion on this point will be found in Fearnes 
 Post. Works, p. 442. 
 
 But a person who has a contingent interest in 
 tail, or an interest by way of entail in an exe- 
 cutory state, as under an executory devise, or a 
 springing or shifting use; cannot suffer a common 
 recovery with effect, so as to bar either the issue 
 in tail, or those in remainder or reversion. 
 
 Nor will a recovery by the heir apparent, 
 or a presumptive heir within the line of entail, 
 or by the person who may afterwards become 
 the heir in tail, have any effect by means of a 
 common recovery, to bar the issue in tail, or 
 the reversioner or remainder-man. 
 
 Nor can the bargainee or feoffee, or other 
 assignee of a tenant in tail, bar the estate tail, 
 or the reversion or remainder, by suffering a 
 common recovery. 
 
 Nor will the recovery of a grantee of the 
 crown, having the ownership under an estate tail, 
 by reason of forfeiture for treason bar the rever- 
 sion or remainder expectant on the estate tail. 
 
 To these general observations there is an 
 exception under the bankrupt laws ; for a bar- 
 gain and sale by commissioners of bankrupt, 
 enrolled within six lunar months, will have pre- 
 cisely the same effect on the estate tail, re- 
 mainders or reversions, as a fine levied, or
 
 396 ON TITLES: 
 
 recovery suffered by tenant in tail would have 
 had. 
 
 It follows, that when tenant in tail has only 
 an estate tail in reversion or remainder, after 
 an estate of freehold, a bargain and sale will 
 have the like effect only as a fine. 
 
 That the bargain and sale of the commis- 
 sioners may enlarge the estate tail into a fee- 
 simple, the tenant in tail must not only have 
 an estate tail; he must also have the immediate 
 freehold, either distinct from or as part of his 
 estate tail. 
 
 It is agreed, that when the bankrupt has the 
 immediate freehold, and also a remote remain- 
 der or reversion in tail, then as he might 
 have suffered an effectual recovery, a bargain 
 and sale by the commisioners will have the 
 effect of a common recovery. 
 
 So if the bargain and sale be deferred until 
 the estate of the bankrupt confer a right to the 
 immediate freehold, no doubt is entertained 
 respecting the operation of the bargain and sale 
 to pass the entire fee-simple, as a recovery 
 suffered at that time would have done. 
 
 But if a bargain and sale be made, and it 
 operate as a fine, doubts are entertained whether 
 a subsequent bargain and sale, when the tenant 
 in tail might have suffered a recovery with 
 effect, will have the operation of a recovery. 
 
 The point also, whether a bargain and sale, 
 under a joint commission against the father, 
 tenant for life, with remainder to the son in tail,
 
 UNDER TENANTS IN TAIL. 397 
 
 have the effect of a common recovery, is 
 now depending for decision. 
 
 These several points are more fully discussed 
 in a former page. 
 
 It is also to be observed, that a recovery 
 suffered by tenant in tail will not bar any leases, 
 charges, or encumbrances affecting the estate 
 tail itself; (Capel's case, 1 Rep. 66 a.) It will 
 however bar all conditions and collateral limi- 
 tations annexed to the estate tail, and all charges 
 which partake of the nature of collateral limi- 
 tations, and also also all charges derived out of 
 the reversion or remainder. 
 
 To distinguish, with accuracy, such charges 
 as may be, from those which may not be, so 
 barred, is extremely difficult. 
 
 On this head, the following observations may 
 be useful: 
 
 1st. When a gift is to A, and the heirs of his 
 body tenants of the manor of Dale ; or, 
 
 To A and the heirs of his body, while a tree 
 shall stand ; or, 
 
 To a man and the heirs of his body, provided 
 and upon condition that he shall marry a woman 
 of a particular name, or a particular woman ; or, 
 
 Tfl a man and the heirs of his body, with a 
 conditional limitation to shift the estate, unless he 
 take the name or bear the arms of the testator ; 
 in all these and the like instances a recovery 
 duly suffered by the tenant in tail will bar the 
 condition or collateral, limitation. See Benson
 
 398 ON TITLES : 
 
 v. Hodson, I Mod. 108; Page v. Hay ward, 
 2 Salk. 570 ; Driver v. Edgar, Cowp. 379 ; 
 Gulliver v. Ashby, Burr. 1929. 
 
 The cases which afford a doubt are of this 
 description ; viz. they give rise to a question, 
 whether there is a charge affecting the estate 
 tail, or whether the charge is collateral or sub- 
 sequent to the estate tail. 
 
 The recovery is an acknowledged bar to the 
 charge, when it is subsequent to the estate tail, 
 or collateral to it ; while the charge, if it en- 
 cumbers the estate tail, will remain, notwith- 
 standing the recovery. 
 
 Some cases which invite the discussion of this 
 point, are so nicely balanced, that in the ab- 
 sence of decision, it is impossible to state the 
 application of the law to these cases. 
 
 An instance of doubtful solution may be 
 exemplified by a gift to A. for his life, with 
 remainder to such of his children as he shall 
 appoint, and in default of appointment to his 
 first and other sons in tail. 
 
 It is agreed that the estate tail becomes 
 vested, and that it remains subject to the power 
 of appointment till that power is exercised. 
 
 The difficulty is to decide whether the power, 
 and the estates to arise under the exercise of 
 the power, are a charge on the estate tail, or 
 whether the power is subsequent and collateral 
 to the estate tail. 
 
 Hence the difficulty in deciding on the effect
 
 UNDER TENANTS IN TAIL. 399 
 
 of a recovery by tenant in tail, as against the 
 power. 
 
 The point depends on the question, whether 
 the power is collateral to the estate tail, and in 
 some degree subsequent to it; or whether it is 
 a charge on the estate tail itself, and concurrent 
 with the same ; or, in other words, runs with the 
 estate tail ; and though it is agreed that a re- 
 covery will bar all remainders and reversions 
 dependant on an estate tail ; Capel's case, 
 1 Rep. 61 b ; Cholmley's case, 2 Rep. 52 ; and 
 all conditions subsequent, and collateral limita- 
 tions annexed to the same, yet as it has been 
 shown, it will not bar any estate prior to or 
 derived out of the estate tail, or any charge 
 affecting that estate. 
 
 Now, whether this power be of the former or 
 of the latter description is not quite settled ; 
 and gentlemen, whose experience and informa- 
 tion cannot be too highly valued, differ on this 
 question. 
 
 Some class the power under the former 
 description ; others refer it to the latter de- 
 scription. 
 
 The gentlemen who support the former of 
 these opinions contend, that the estate tail is 
 vested, subject only to be de vested by an 
 exercise of the power : they therefore con- 
 clude that the power is subsequent, and colla- 
 teral to the estate tail, and not a charge on 
 that estate. They further urge, that this, if 
 a charge, is no otherwise a charge than any 
 other limitation which is to defeat the estate
 
 400 ON TITLES t 
 
 tail, or than any condition which is annexed to 
 the estate tail; and there is so much legal 
 reasoning in these arguments, that they are 
 unquestionably entitled to considerable weight ;' 
 but the Profession are not generally convinced 
 by this reasoning ; and many gentlemen still 
 contend, that the court would treat the power 
 as a charge on the ownership of the estate tail 
 as a charge or power which runs with the estate, 
 see Ambl. 328; Capel's case, 1 Rep. 66 a ; so 
 as to place it beyond the power of the tenant in 
 tail to bar the same. 
 
 Indeed, the more prevailing opinion now is, 
 that the estate tail is charged with the power, 
 and with the estates to arise under the execution 
 ,of the power ; and that the power while in fieri 
 cannot be barred by the recovery of the owner 
 of the estate tail. Estates arising under the 
 execution of the power would certainly have 
 priority over the estate tail, or be substituted 
 for it ; but that argument is not conclusive. 
 
 The right of taking under the power may 
 be released, or may be barred by the fine 
 of the persons who are the objects of the 
 power. 
 
 From Pells v. Brown, Cro. Jac. 590, it is 
 sometimes inferred that no estate which is to 
 commence by executory devise can be barred 
 by common recovery. 
 
 The point of that case is only, that tenant in 
 fee subject to an executory devise cannot bar 
 the executory devise by a common recovery, 
 or by any other means.
 
 UNDER TENANTS IN TAIL. 401 
 
 An estate tail may be subject to an executory 
 devise, as in the instance of a gift to A and 
 the heirs of his body ; and if, without providing 
 for. the failure of his issue, he should depart 
 this life under the age of twenty-five years, 
 then his estate to cease, and the lands to remain 
 to .B and the heirs of his body, or to B for 
 years, for life, or in fee. A recovery suffered 
 by A while tenant in tail, viz. before twenty- 
 five, would bar the executory devise, so as to 
 complete the title, although he should not 
 attain twenty-five; for, as already noticed, it 
 is a principle, that the recovery of a tenant in 
 tail will bar all conditions and collateral limita- 
 tions annexed to his estate tail ; and these 
 interests, by executory devise, are of that 
 description. 
 
 In short, all conditional limitations in wills, 
 which are to take effect in derogation or in 
 abridgment of a prior estate tail, are either 
 executory devises, or, if there be a devise to uses, 
 (for such uses, are, precisely for this purpose, of 
 the same description,) shifting uses. 
 
 In Driver v. Edgar, Cowp. 579> it was 
 argued, that there could not be any executory 
 devise after an estate tail. This proposition, 
 however, is not warranted by principle, and it 
 is contrary to the decision in Stevens v. Stevens, 
 Cas. T. Talb. 228. 
 
 In short, every limitation in a will giving 
 a future interest, which cannot operate as 
 a remainder, and still is effectual, must of 
 
 D D
 
 402 ON TITLES: 
 
 necessity be supported under the doctrine of 
 executory devises, or future springing uses, or 
 shifting uses. 
 
 That a recovery may be effectual as a bar, 
 to the extent and in the manner which has 
 been assumed, there must be, 
 
 1st. A good tenant to the precipe or writ of 
 entry : 
 
 2dly. The tenant in tail must vouch over the 
 common vouchee : 
 
 3dly. In some cases he himself must be 
 vouched. 
 
 And in investigating titles by means of ab- 
 stracts, care must be taken that all these cir- 
 cumstances concur, before a title derived from 
 tenant in tail is considered as a good title to 
 the fee-simple. 
 
 Piggott and Cruise on Recoveries ; Comym's 
 Digest, title Estates; and the 1st volume of the 
 Practice of Conveyancing, chap. 1, will afford 
 all the information necessary for understanding 
 the general outline of this highly useful, and 
 at the same time intricate, head of the law. 
 
 As to Fines. 
 
 THAT a fine by tenant in tail may be good 
 as against his issue, it must be with procla- 
 mations. 
 
 The fine of a donee in tail with proclamations 
 will bar his issue, whether he has an actual 
 and vested estate tail, so that he is seised of
 
 UNDER TENANTS IN TAIL. 403 
 
 the same, OF he has a contingent, future, or 
 executory interest in tail. 
 
 And even a fine by the issue in tail, in the 
 life-time of the ancestor, will extinguish the 
 estate tail quoad the person levying the fine, 
 and all the descendants', being the issue in tail 
 of that person. 
 
 And if the entail devolve on him, or any 
 of his issue, the fine will bar all the issue in 
 tail, claiming under the gift in tail, although 
 they are collateral to the person by whom the 
 fine was levied, M'Williams's case, Hob. 333. 
 Grant's case, 10 Rep. 50 a. 
 
 But if an heir in tail who levies a fine die, 
 and his descendants fail, before the entail 
 descend on him, or on his issue, a fine levied 
 under these circumstances will not bar any of 
 the collateral issue. 
 
 For example : If A be tenant in tail, and has 
 issue B, C and D, and B in the life-time of 
 his father levy a fine with proclamations, this 
 fine will bar B, and all his issue. It will even 
 bar all the heirs in tail, even C and D, and 
 their issue, provided B, or any of his descend- 
 ants inheritable under the estate tail, shall be 
 living at the death of A. 
 
 But if B should die, and his descendants 
 inheritable under the entail should fail in the 
 life-time of A, then the fine of B will not have 
 any effect as against C and D, and their 
 issue ; for in the latter case they arc not 
 D D 2
 
 404 ON TITLES : 
 
 either parties or privies to 12, by whom the fine 
 is levied. 
 
 But in the former case, since the right of 
 entail devolved on his descendants, JB or his 
 issue must be named in deriving a title to the 
 estate tail; and this makes C and D, and their 
 issue, privy to B or his issue, and brings them 
 within the influence and operation of the 
 statutes of 4 Hen. VII. c. 24, and 32 Hen. VIII. 
 c. 36. 
 
 Although the entail be extinguished by a fine 
 levied under these circumstances, the estate in 
 the lands may descend to the issue as general 
 heirs, Baker v. Willis, Cro.Car.476'. But it will 
 descend us a determinable fee; not as an estate 
 tail; so that the common-law heir will take in 
 exclusion of the special heir. 
 
 And a common recovery suffered by the heir 
 in tail, when he has fulfilled in his person the 
 character of heir under the entail, would bar 
 the remainders and reversions expectant on the 
 estate tail. 
 
 These points are extremely nice, and were 
 considered in Beaumont's case, 9 Rep. 138, and 
 were reconsidered in Baker v. Willis, Cro. Car. 
 476. 
 
 But an estate tail thus extinguished may be 
 revived by confirmation, or rather a new estate 
 tail created. 
 
 And it should seem (for no decision warrant- 
 ing the conclusion has been found,) that if A,
 
 UNDER TENANTS IN TAIL. 405 
 
 feeing tenant in tail, convey to B and his heirs, 
 and B were to reconvey to A and the heirs of 
 his body, this would be the old and not a new 
 estate tail. It would have been otherwise if 
 there had been a discontinuance,. 
 
 Under less favorable circumstances the point 
 was examined; and Lord Chief Justice Hobart 
 was of opinion there was a remitter ; and Hut' 
 ton and Warburton were of a contrary opinion. 
 See Winch 5 ; 2 Lord Raymond 780, supra, 
 p. 388. 
 
 A fine levied by a person who has a contin- 
 gent or executory interest in tail, or merely a 
 right to an estate tail, will have the effect to 
 extinguish the entail; so that no interest could 
 exist under that entail, except the fine import 
 to be a grant for years only ; and in that case 
 it will, during the term of years, bind the 
 estate tail when vested, and the issue by 
 estoppel. 
 
 Such estoppel operates, in some degree, in 
 like manner as the common-law estoppel. 
 
 And such extinguishment partakes of the 
 nature of the common-law extinguishment of 
 rights and titles ; and is an estoppel against all 
 persons claiming under the entail, through or 
 under the person levying the fine. 
 
 It differs materially from a fine levied by 
 the issue in tail, in the life-time of the ancestor. 
 A fine so levied has merely the effect quoad 
 the issue, to take from the estate the inheritable 
 
 D D 3
 
 406 ON TITLES ! 
 
 and other collateral qualities annexed to it as 
 an estate tail. 
 
 It has already been observed, that deeds of 
 mere grant pass an estate which is voidable by 
 the issue, but not actually void, Madid v. Clarke, 
 2 Lord Raym. 778, with the exception of a 
 covenant by a tenant in tail to stand seised to 
 the use of himself, for his own life, with re- 
 mainders over ; or to uses, to commence after 
 his death, ibid, and Beding field's case, Cro. 
 Eliz. 895 ; or a lease to commence after his 
 death, Lady Griffin v. Stanhope, Cro. Jac. 455; 
 so that the title of the issue commences before 
 any seisin can arise under the uses, or any estate 
 can vest under the lease, Machell v. Clarke, 
 2 Lord Raym. 778 ; Bedingjield's case, Cro. 
 Eliz. 895. 
 
 In the excepted cases, the title of the issue will 
 be preferred under that principle of law which 
 avoids circuity of action, or other remedy. 
 
 It is observable also, that the contract of the 
 tenant in tail, either for the sale of the lands, 
 or to charge the same with any encumbrance, 
 Ross v. Ross, 1 Ch. Cas. 171 ; Herbert v. Fream, 
 2 Eq. Abr. 28, pi. 34, will not be enforced 
 specifically against his issue, though it is a con- 
 tract which was binding on the tenant in tail, 
 and would have bound the common-law heir, if 
 the ancestor had been seised in fee^simple. 
 
 But in some cases, a decree in equity, 
 (1 Fonbl. 292> note to Bacons Abrid. Agree- 
 ments, A.) partakes of the nature of a judg-
 
 UNDER TENANTS IN TAIL. 407 
 
 ment ; and if pronounced against tenant in 
 
 tail, will bind him and his issue, and a decree 
 
 against the first tenant in tail, upon an adverse 
 
 title, or in ordinary suits, to which the tenant 
 
 in tail is a party, will bind the tenant in tail, 
 
 and his issue, and all persons in reversion or 
 
 remainder, Heynoldson v. Perkin, Ambler 564. 
 
 This is analagous to the rule of law, that a 
 
 tenant in tail may join the mise in a writ of 
 
 right. In short, in all adverse actions in the 
 
 realty, he supports the rights and interests 
 
 which relate to the inheritance, and defends for 
 
 those in reversion or remainder, as well as for 
 
 the interest of himself and of his issue. 
 
 It remains to be observed, that tenant in 
 tail may exchange with tenant in fee-simple, 
 Machell v. Clarke, 2 Lord Raym. 778, subject 
 however to the right of the issue in tail to 
 avoid the exchange. 
 
 The exchange is voidable only, and not void, 
 as against the issue ; but such exchange will 
 
 o o 
 
 be actually void against those in reversion or 
 remainder, except it be made by some act 
 which creates a discontinuance, or they are 
 barred by a common recovery. 
 
 Tenant in tail, as such, has no devisable estate, 
 nor can the estate of tenant in tail merge while 
 in his tenancy; and it retains the qualities of 
 an estate tail, Wiscot's case, 2 Rep. 60 b. 
 
 But in the tenancy of every other person, or 
 even in the tenancy of the donee or heir in tail, 
 
 D D 4- i
 
 408 ON TITLES ! 
 
 after the qualities of the estate tail are destroyed, 
 this estate may, like all other particular estates, 
 merge. 
 
 Though the contrary may be inferred from 
 some books, it should seem that tenant in tail 
 may quoad himself, and quoad his issue, sub- 
 ject to the right of entry by the issue, surrender 
 his estate. 
 
 The charges of a tenant in tail, as annuities, 
 and judgments and crown debts, are good 
 against himself. But annuities, or judgments, 
 or other like encumbrance, will not by the rules 
 of the common law, be binding against the 
 issue claiming under the entail, 
 
 But by the statute 33 Hen. VIII. c. 39, 
 sec. 75, the lands of tenant in tail are charged 
 with payment of debts due to the king, by 
 record or special contract. 
 
 And by the bankrupt laws, the commissioners 
 may, by the means already mentioned, bar the 
 entail. 
 
 In respect to grants by tenants in tail, and 
 also by tenants for life, it is a rule not to 
 construe them to operate wrongfully, when by 
 a reasonable interpretation they may operate 
 rightfully. 
 
 Therefore if tenant in tail, or for life, grant by 
 deed to another, even by livery of seisin, without 
 any words marking the duration of the estate, 
 although in an ordinary case, 1 Inst. 43 a. the 
 grantee would be entitled to hold for his own
 
 UNDER TENANTS IN TAIL. 409 
 
 life, yet to avoid a wrong, and because the 
 law prefers a less estate by right to a larger 
 estate by wrong, the grantee will be deemed 
 tenant for the life of the tenant in tail, or of 
 the tenant for life. In the case of a tenant 
 for life, it is even more advantageous to have 
 an estate for the life of the grantor than of the 
 grantee ; since, if the grant enured to the 
 grantee for his own life, a reversion would be 
 left in the grantor, and the estate of the 
 grantee would be determinable, as well by his 
 own death as by the death of the grantor, which 
 ever of the events should first happen. Essay 
 on the Quantity of Estate, chap. Life, p. 434. 
 
 The rule, expressio facit cessare taciturn, will 
 of course decide the construction, when there 
 are express words of limitation defining the 
 quantity of estate which is granted. 
 
 As to Warranties. 
 
 WARRANTIES are distinguished into, 
 
 1. Lineal : 
 
 2. Collateral : 
 
 3. Commencing by disseisin. 
 
 Warranty commencing by disseisin may be 
 disposed of by the observation, that a warranty 
 so created is a fraud ; and though warranties are 
 favored, while estoppels are odious in law, yet a 
 warranty commencing with a disseisin, (a wrong) 
 or annexed to an estate gained by disseisin, 
 abatement, or intrusion, with an intent to create
 
 410 ON r TITLES : 
 
 the warranty, is of no avail to bar persons 
 injured by the disseisin. 
 
 But though an estate be turned to a right by 
 disseisin, yet a warranty annexed to that estate 
 on an alienation, or on a release, or confirmation 
 of title by any other person than him who 
 committed the disseisin ; or even by the dis- 
 seisor, if the disseisin was without an intention 
 to create the warranty, will be free from the 
 objection of being a warranty commencing by 
 disseisin, Litt. 697. 
 
 And as between the parties and their heirs, 
 the warranty is good, 1 Inst. 36? a. though it 
 would not be of avail against those who are 
 injured by the disseisin. 
 
 Lineal warranty is when the warranty de- 
 volves, and the right descends, on the same 
 person; so that the party has the right as heir, 
 and is also the heir within the scope of the 
 warranty. The warranty may descend on the 
 lineal or collateral heir, viz. son or nephew, 
 who by possibility might have claimed the 
 land as heir, from the person who made the 
 warranty, 1 Inst. 370 a. 
 
 A collateral warranty is a warranty collateral 
 to the title to the land, 1 Inst. 370 a; and is, when 
 the party has a right to the land, in some other 
 character, or under some other circumstances 
 than those in which the warranty devolves on 
 him; for instance, A tenant in tail discontinues, 
 leaving B his heir, and also his issue in tail ; 
 in this instance, the warranty is lineal, because
 
 UNDER TENANTS IN TAIL. 411 
 
 the lien of the warranty, and the title, come 
 through the same ancestor, in the same line of 
 descent. 
 
 Thus, if an elder brother, tenant in tail, 
 discontinue with warranty, and die, leaving his 
 brother his general heir, and also the heir in 
 tail, the warranty is lineal, because the right 
 arises in the same line as the lien or obligation 
 of the warranty descended. 
 
 But if a discontinuance be made by A, tenant 
 in tail male, with warranty, and he die, leaving 
 J3, a daughter, or his brother, his heir, and 
 such daughter or brother is entitled to the land 
 under a remainder as a purchaser ; or by descent 
 from a different ancestor; in this case the 
 warranty is collateral, because the lien of the 
 warranty, and the title to the lands, are derived 
 in different lines. So if a son be disseised by 
 his father, and the father alien with warranty, 
 and die, leaving the son his heir, this is a 
 collateral warranty, Lift. 704. 
 
 In short, no warranty is lineal unless the 
 party who is the heir is to take after, and by 
 descent, or quasi by descent, from the person 
 who created the warranty ; so that at the same 
 time that he is heir to the land, he is heir to, 
 that is, bound by, the warranty, and must 
 name the person creating the warranty in 
 making out his pedigree, lAtt. 706, and in 
 deducing a title to the land. 
 
 Litt. 705, gives the reason and the descrip- 
 tion of collateral warranty, in application to the
 
 412 ON TITLES ! 
 
 example in 704, of a disseisin by a father of his 
 son, and alienation with warranty by the father, 
 and a descent of the warranty on the son, in these 
 terms, "because if no such deed with warranty 
 " had been made, the son in no manner could 
 " convey the title which he has to the tene- 
 " ments from his father unto him, inasmuch as 
 " his father had no estate or right in the lands ;" 
 and he concludes, " Wherefore such warranty 
 u is called collateral warranty, inasmuch as he 
 " who maketh the warranty is collateral to the 
 " title of the tenements ; and this is as much 
 '* as to say, as he to whom the warranty 
 " descendeth could not convey to him the title 
 " which he hath in the tenements by him that 
 " made the warranty, in case that no such 
 " warranty were made/' 
 
 And a warranty may be collateral, although 
 the blood be lineal; and the warranty may be 
 lineal, albeit the blood be collateral, 1 Inst. 376. 
 Thus Littleton in 716, observeth, 
 " Also, if a man hath issue, three sons, and 
 giveth land to the eldest son, to have and to 
 hold to him and his heirs of his body begotten, 
 and for default of such issue the remainder to 
 the middle son, to him and to the heirs of his 
 body begotten, and for default of such issue of 
 the middle son, the remainder to the youngest 
 son, and to the heirs of his body begotten ; in 
 this case, if the eldest discontinue the tail in 
 fee, and bind him and his heirs to warranty, 
 and dieth without issue, this is a collateral
 
 UNDER TENANTS IN TAIL. 413 
 
 warranty to the middle son, and shall be a 
 bar to demand the same land by force of the 
 remainder; for that the remainder is his title, 
 and his elder brother is collateral to this title, 
 which commenceth by force of the remainder. 
 In the same manner it is, if the middle son 
 hath the same land by force of the remainder; 
 because his eldest brother made no discon- 
 tinuance, but died without issue of his body; 
 and after the middle made a discontinuance, 
 with warranty, &c. and dieth without issue, this 
 is a collateral warranty to the youngest son. 
 And also, in this case, if any of the said sons 
 be disseised, and the father that made the 
 gift, &c. releaseth to the disseisor all his right, 
 with warranty, this is a collateral warranty to 
 that son upon whom the warranty descendeth, 
 Causa qua supra ." 
 
 The learning of warranty, emphatically de- 
 nominated a curious and cunning learning, 
 1 Inst. 366 a. is collected and well arranged 
 in Sheppard's Touchstone; Chief Baron Comynss 
 Digest; and Coke on Littleton. 
 
 It should be read first in Comyns's Digest ; 
 secondly, in Sheppard's Touchstone ; thirdly, 
 in Coke on Lift. ch. Warranty, with Mr. Butler's 
 Annotations. 
 
 The leading points are, 
 
 1st. A warranty may be lineal as to one 
 person, and collateral as to another person ; for 
 instance, A is tenant in tail, with remainder to
 
 414 ON TITLES . 
 
 B, his brother in tail; he discontinues with 
 warranty, and dies, leaving C his issue in tail, 
 this warranty is lineal as to C, and collateral 
 as to B. 
 
 2dly. The same warranty may, as to the 
 same person, be lineal as to one estate, and 
 collateral as to another estate : as, if A be 
 tenant in tail male, remainder to B his son, in 
 tail general, and A discontinue, leaving B his 
 son, his heir at law, this warranty is lineal as 
 to jB, in respect of his estate in tail male, and 
 collateral as to his estate in tail general. There- 
 fore if jB die without issue male, leaving C his 
 daughter, his issue in tail, the warranty is col- 
 lateral as to C. 
 
 3dly. The same warranty may be lineal as to 
 one moiety of the land, and collateral as the 
 other moiety. 
 
 " As, if (Litt. 710.) the tenant in tail hath 
 isstie two daughters, and dieth, and the elder 
 entereth into the whole, and thereof maketh a 
 feoffment in fee with warranty, &c. ; and after 
 the elder daughter dieth without issue ; in this 
 case, the younger daughter is barred as to the 
 one moiety, arid as to the other moiety she is 
 not barred. For as to the moiety which be- 
 longeth to the younger daughter, she is barred ; 
 because, as to this part, she cannot convey the 
 descent by means of her elder sister ; and 
 therefore as to this moiety this is a collateral 
 warranty. But as to the other moiety which
 
 UNDER TENANTS IN TAIL. 415 
 
 belongeth to her elder sister, the warranty is 
 no bar to the younger sister, because she may 
 convey her descent as to that moiety which 
 belongeth to her elder sister, by the same elder 
 sister; so as to this moiety which belongeth to 
 the elder sister, the warranty is lineal to the 
 younger sister." 
 
 If A, being tenant in tail, discontinue with 
 warranty, leaving three children J3, C, and D, 
 the warranty is lineal to all the children, and 
 will not bind the entail without assets. C, one 
 of the children, releases with warranty, and 
 dies without issue; on his death this warranty 
 descends. It is collateral as to B, if heir, lineal 
 as to D, if heir. If B 9 not having assets from 
 his father, claimed in the life-time of C, there 
 would be no impediment to his recovery, be- 
 cause at that time the warranty of C had not 
 descended on him ; and the warranty of A was 
 lineal, and there were not any assets. 
 
 If he claimed after the death of C, then, as 
 the collateral warranty had descended on him, 
 the warranty would be an impediment to him, 
 as the law would presume that he had had, or 
 would have, assets from A by descent. 
 
 The like observation applies to the issue of 
 J$ ; and if B die without issue, then D would be 
 heir of C ; and as to him, the warranty of C 
 would be lineal, and no bar without assets. 
 Litt. sec. 708. 
 
 4thly. A warranty may be a bar at one time, and 
 not at another time. This point is illustrated bj
 
 416 ON TITLES: 
 
 Litt. 708 ; a section which also proves some oi' 
 the propositions formerly advanced. That section 
 is in these terms ; " Also if tenant in tail hath 
 " issue three sons, and discontinue the tail in fee, 
 is and the middle son release by his deed to the 
 " discontinuee, and bind him and his heirs to 
 " warranty, &c. ; and after the tenant in tail 
 " dieth, and the middle son dieth without issue; 
 " now the eldest son is barred to have any re- 
 " covery by writ of formedon, because the 
 " warranty of the middle brother is collateral 
 " to him, inasmuch as he can by no means 
 " convey to him by force of the tail any descent 
 " by the middle, and therefore this a collateral 
 " warranty. But in this case, if the eldest son 
 " die without issue, now the youngest brother 
 " may well have a writ of formedon in the 
 " descender, and shall recover the same land, 
 " because the warranty of the middle is lineal 
 " to the youngest brother ; for that it might 
 " be, that by possibility the middle might be 
 " seised by force of the tail after the death of 
 " his elder brother, and then the youngest 
 u brother might convey his title of descent by 
 " the middle brother." 
 
 The material distinction at the common law, 
 between lineal and collateral warranty, was, that 
 lineal warranty was binding with assets, while 
 collateral warranty was binding with or without 
 assets. 
 
 But now, by the enactments of the statute 
 of 4th and 5th Anne, c. 16', even collateral
 
 UNDER TENANTS IN TAIL. 41? 
 
 warranty is not binding without assets, except in 
 the particular case of a warranty by tenant in 
 tail in possession, and consequently by a per- 
 son who could bar the remainder by suffering 
 a common recovery. 
 
 It is observable that a warranty does not confer 
 any estate ; it does not give any title ; (1 Inst. 
 372 a.) it is merely a protection to a title ; a 
 shield or defence as against those who are bound 
 by the warranty, while they are bound. No 
 positive bar to the entail is created. In the 
 pithy language of Lord Coke (1 Inst. 372 a), 
 " it doth not give a right, but bindeth only a 
 " right, so long as the same"" [the obligation, 
 it is apprehended] " continueth." 
 
 On these grounds it seems to follow, that a 
 title depending on warranty is not a title strictly 
 marketable. 
 
 Besides, if it should happen that the warranty 
 should descend on one person, and the right 
 under the entail on another person, the title 
 under the entail might, c&teris paribus., be en- 
 forced, since, when the action is brought, there 
 does not exist any available defence, by force 
 of the warranty, which can be pleaded by way 
 of bar to the demand ; and in the nature of 
 tilings it may happen that the warranty may 
 descend on one person, and the right to the 
 estate tail on another person ; for instance, if a 
 person entitled under an estate tail should be 
 attainted of felony or treason, and die, leaving 
 issue, the blood of his issue would be corrupted, 
 
 E E
 
 418 ON TITLES : 
 
 and the attainder and subsequent corruption of 
 the inheritable blood, would, even as to lands 
 not forfeited by the treason, interrupt the 
 descent, and thus the issue might claim, under 
 the estate tail, and consequently would be pro- 
 tected by the warranty from any bar ; so that 
 the warranty would be extinct, although the 
 right under the estate tail existed ; and hence, 
 in continuation of the passage which has been 
 cited, lord Coke observes, " if the collateral 
 warranty be determined, removed, or defeated, 
 the right is revived/' 
 
 It may happen from other causes, as well as 
 corruption of blood, that the warranty, though 
 binding for a time, may cease to operate. 
 
 It is also to be observed, that no warranty 
 will be binding unless it be annexed to an es- 
 tate which is previously discontinued, or turned 
 to a right of action, or unless a discontinuance 
 be effected by the operation of the warranty. 
 
 A warranty will not bind a mere right of 
 entry ; consequently it will not bar a title 
 under a term of years, or other chattel interest, 
 1 Inst. 389 ; since the only remedy of a termor 
 is by entry, and ejectment which assumes an 
 entry. 
 
 Nor will it bar a mere and naked title by force 
 of a condition, with a clause of re-entry, or of 
 exchange, mortmain, consent to the ravisher, 
 or the like, nor a writ of dower, though it be 
 an action, 1 Inst. 389- Lord Coke has assigned 
 the reason of all the examples except the case.
 
 UNDER TENANTS IN TAIL. 419 
 
 of dower, in these terms, " because that for 
 these no action doth lye ; and if no action can be 
 brought, there can be neither voucher, writ of 
 zvarrantia carta* nor rebutter, and they con- 
 tinue in such plight and essence as they were 
 by their original creation, and by no act can 
 be displaced or devested out of their original 
 essence, and therefore cannot be bound by 
 any warranty. And as to dower, the assigned 
 reason is, " because her title of dower cannot be 
 devested out of the original essence" ; 1 Inst. 
 389 a. 
 
 So it is of a feoffment, causa matrimonii 
 pr<zlocuti, ibid. : and it may be added that the 
 like rule applies to titles by devise, and in par- 
 ticular by an executory devise in derogation 
 and abridgment of a prior fee. 
 
 All these interests may be barred by non- 
 claim on a fine with proclamations, levied after 
 the possession is adverse. 
 
 In one case dower was held to be barred by 
 non-claim on a fine levied before the possession 
 was adverse to the title of dower ; Menvill's 
 case, 13 Rep. 19- 
 
 Of Estoppels. 
 
 EVEN at the common law estoppels are 
 odious, while warranties, as a species of as- 
 surance, are favored. 
 
 Estoppels do not give an estate ; they do not 
 devest any interest ; they merely bind the in- 
 
 E E 2
 
 420 ON TITLES I 
 
 terest by conclusion, precluding the parties as 
 between themselves from asserting or denying 
 this state of title. 
 
 In consequence of the statute de donis no 
 estoppels of a donee or heir in tail will be 
 binding on the succeeding heir in tail merely 
 as estoppels. 
 
 But the statutes of 4 Hen. VII. c. 24, and 
 32 Hen. VIII. c. 36, gave to fines with procla- 
 mations, even when they were to operate by 
 estoppel, a far more extensive operation than 
 even the like estoppels had at the common 
 law against general heirs. 
 
 Subject to this statutable exception to the 
 prejudice of the issue, there seem to flow two 
 distinct propositions ; 
 
 1. All assurances by or from a tenant in 
 tail, though operative only by estoppel, will 
 have the like operation and effect, as against 
 him, as they would have had against him if 
 they had proceeded from a tenant in fee- 
 simple ; for he himself is in the same condition 
 since the statute de donis, as if that statute 
 had not passed. 
 
 2. No estoppel by or against a tenant in 
 tail, or an heir of entail, will have any effect 
 as against the next successor in tail. 
 
 Between estoppel and evidence there seems 
 to be a wide difference ; since acts which are 
 to operate by way of evidence, are quite dis- 
 tinct from acts which are to operate by way of 
 estoppel.
 
 UNDER TENANTS IN TAIL. 421 
 
 Estoppels are received as conclusive, and 
 preclude the investigation of the real merits of 
 the title ; while evidence is merely the medium 
 of establishing facts which do exist, or have 
 existed. 
 
 Thus> a recital of a lease for a year, as being 
 evidence against a grantor tenant in tail, may, 
 it is apprehended, be evidence against all per- 
 sons connected with him in privity, as the issue 
 in tail, the persons in reversion and remainder, 
 &c. While an estoppel, though it would pre- 
 clude the grantor being tenant in tail, would 
 not be binding merely as an estoppel against 
 the heirs in tail. These distinctions are ex- 
 amined ; and the cases which prove that con- 
 veyances which are informal, as recoveries 
 without a tenant of the freehold, are convey- 
 ances complete and binding against the tenant 
 in tail, and pass the estate defeasibly as against 
 the heirs in tail, although they are not valid 
 against or binding on these heirs, for want of 
 a tenant to the writ of entry ; and the effect 
 of recitals by tenants in tail is examined and 
 discussed in the Treatise on the Practice of 
 Conveyancing, 2 Vol. p. 453. 
 
 It follows that the recoveror himself cannot 
 falsify a recovery; so that an erroneous reco- 
 very is good till reversed, and amounts to a 
 conveyance as between the parties, when one 
 of them has a seisin ; and as an extinguishment 
 by estoppel, when there is merely a right of 
 action or of entry. 
 
 E E 3
 
 ON TITLES: 
 
 And the recovery has its operation against 
 him by estoppel and conclusion, which shall 
 not bind the issue in tail who claim perfor'jnam 
 doni, Marquis of Winchester's case, 3 Rep. 1. 
 
 So in Owen v. Morgan, cited 3 Rep. 5, the 
 case was supposed to be the same as if the 
 husband had had a remainder in tail expectant 
 on an estate for life, in which case the book 
 continues : " A common recovery had against 
 him shall not bind, because he was not tenant 
 of the precipe, nor seised by force of the tail ; 
 but the recovery as to the estate of the husband 
 took its effect by estoppel and conclusion, and 
 therewith agreeth, 12 Edw. IV. c. 14. That 
 against a common recovery against the ancestor 
 in tail the issue may say that the ancestor was 
 not tenant, " tempore brevis;" thus, both these 
 cases suppose the recovery to be good between 
 the parties, and consequently they must ope- 
 rate as a conveyance, and the issue in tail, and 
 those in remainder, are driven to their writ of 
 error to avoid the recovery; and it would be 
 highly inconvenient that the tenant in tail 
 should continue seised contrary to his own 
 solemn act, or that the person to whom he 
 conveys, and who is named tenant in the pro- 
 ceedings towards the recovery, should be at 
 liberty to defend himself, and consequently 
 retain the estate, by alleging the incapacity 
 of the tenant in tail to suffer a recovery, which 
 will not be binding against his issue and those 
 in remainder; and it cannot be supposed, that
 
 UNDER TENANTS IN TAIL. 423 
 
 if the demandant acquire aseisin, either in fact 
 or in law, he can claim to be exempt from the 
 uses declared of his estate. 
 
 In Bennett and others v, Fade, 9 Mod. 314, 
 the chancellor treats a recovery by tenant in 
 fee-simple as good to bind him and his heirs 
 by estoppel, although there is not any tenant 
 to the precipe; and adds, " the reason why 
 there is no want of a tenant to the precipe in a 
 recovery by tenant in fee, is this, that if such 
 precipe is brought against a stranger who is not 
 tenant, and he vouch the tenant of the lands, 
 and he enters into warranty, by that he admits 
 the stranger to be tenant of the lands, and so 
 binds himself and his heirs by estoppel." He 
 proceeds to observe, " But if he had been 
 tenant in tail, this would not have estopped his 
 issue, because he claims by a superior gift, 
 per formam doni, and not through or by his 
 ancestor ;" and in the case before the court, he 
 said, " These recoveries have revoked the will ; 
 and Sir John Leigh has by them acquired a 
 new estate to the purpose of revoking the will, 
 although it be an old one." In short, the 
 recovery had the effect of passing the inheritance 
 to the demandant; and for want of an express 
 declaration of uses (for so the case appeared 
 upon the facts) the use resulted. This resolu- 
 tion then is an admission, that in the case of 
 a tenant in fee suffering a common recovery, 
 without a good tenant to the pre'cipe, the seisin 
 passes to the demandant, and the uses arise on 
 
 E E 4
 
 424 ON TITLES : 
 
 his own seisin, as expressly declared, or result 
 by operation of law. 
 
 Also, in Duke and Smith's case, 4 Leon 238, 
 it was agreed, that if he in reversion suffer a 
 common recovery to uses, his heir cannot plead 
 that his father had not any thing at the time 
 of the recovery, for he is estopped to say, that 
 his father was not tenant to the precipe; and 
 therefore it is a good recovery against him by 
 way of estoppel. 
 
 And in Lord Say and Seal's case, 10 Mod, 
 45, the language of the court is, that common 
 recoveries, although there are no tenants to the 
 precipes, are good, by way of estoppel against 
 the parties who suffer them, though not against 
 the remainder-man, stranger, &c. 
 
 Though the authorities are for the most part 
 applied to the case of a tenant in fee, who 
 suffers a common recovery, yet there is every 
 reason to believe that tenant in tail is precisely 
 in the same predicament, for this purpose, as 
 tenant in fee ; with the difference only, that in 
 the case of a tenant in fee the recovery never 
 can be avoided; while in the case of a tenant 
 in tail, the recovery may be avoided by the 
 issue in tail, or those in reversion or remainder; 
 but the recovery will remain in force till 
 avoided ; and when the principles on which 
 recoveries are founded are traced through all 
 
 o 
 
 their circumstances; when we follow the just 
 conclusion, " That the recovery would certainly 
 estop the tenant and his heirs from alleging
 
 UNDEll TENANTS IN TAIL. 425 
 
 any thing contrary to it;" when we also con- 
 sider that the parties to the judgment of a 
 court of competent jurisdiction are bound by 
 it, and that if the seisin do not pass to the 
 demandant, it must remain in the tenant, and 
 that the tenant or his heirs cannot after judg- 
 ment aver that he was not tenant, though he 
 might in the first instance have pleaded non- 
 tenure ; and that the vouchee cannot, after the 
 recovery suffered, object that the recovery is 
 inoperative ; so that the parties to the judgment 
 can never avoid it, except for error apparent 
 on the record, and not for an extraneous 
 fact, as non-tenure, &c. ; we may satisfy our- 
 selves that the seisin which vests in the 
 tenant is drawn out of him by the operation 
 of the recovery, and passes to the demandant 
 in the recovery, and supplies a seisin to the 
 uses, and consequently confers a title to the 
 freehold, under which the recovery, though 
 defective against the issue, reversioner and 
 remainder-man, may be supported as a con- 
 veyance, fully operative against the tenant in 
 tail. 
 
 If this opinion be well founded on the autho- 
 rities, and it certainly is warranted by them 
 as far as they go, there is more caution than 
 necessity in considering a recovery without a 
 good tenant to the writ of entry as absolutely 
 void, instead of being voidable only; and the 
 practice of requiring, for the purpose of suffer- 
 ing another recovery, that the person to whom
 
 426 OK TITLES J 
 
 the freehold was conveyed by the former 
 recovery deeds should be the tenant to the new 
 writ of entry, or join in making the tenant to 
 that writ, is not well founded. 
 
 When this point shall be established and 
 placed beyond a doubt, either by a decision, or 
 by the concurrent opinion of gentlemen of the 
 most distinguished eminence, the practice of 
 insisting on the concurrence of the former 
 tenant, or his representative, in future convey- 
 ances, will be relieved from a considerable 
 difficulty. 
 
 It remains to be added, that terms of years, 
 and other like interests, which commence in 
 interest by estoppel, are, with the exceptions 
 already noticed, binding on all persons who by 
 descent, by gift, or by purchase, become seised 
 of the estate which is to feed the estoppel. 
 
 As to Tenants for Life. 
 
 Under this division may be ranked the 
 estates of persons who are merely tenants for 
 their lives, by grant or devise; and also of 
 persons who have estates for life, by operation 
 of law, as tenants by the curtesy, and in dower, 
 or from an estate tail changed by the impossi- 
 bility of issue, into an estate tail after possibility 
 of issue extinct; also of persons who have estates 
 for several lives, or who have estates for the life 
 of another person, or the lives of several other 
 persons, and who are therefore called tenants 
 pur autre vie.
 
 UNDER TENANTS FOR LIFE. 427 
 
 There may also be estates for life, though 
 they are determinable by marriage, or other 
 like events, connected with life. 
 
 The learning on estates for life, and the 
 modes and the terms by which they are 
 granted or created, and the degrees of owner- 
 ship conferred by different estates for life, 
 are considered in the Essay on the Quantity 
 of Estates, under the chapter Estates for Life, 
 Curtesy, and Dower. 
 
 Of the circumstances which must concur, 
 in order to the existence of a title by curtesy^ 
 or in dower, some further observations will be 
 introduced in the progress of this work. 
 
 In this place it will be sufficient to observe, 
 that tenant for life has only a particular estate. 
 He may transfer that estate ; or he may create 
 any underlease to be derived out of his 
 estate. All estates he shall grant will, as far 
 as they are derived out of his ownership, and 
 depend for effect on his estate, without the 
 intervention of any power, determine when 
 his estate shall have filled the measure of its 
 duration. 
 
 And if the estate be determinable on some 
 collateral event, as marriage, such event, when 
 it happens, will induce the determination of 
 the underlease, or derivative estate. 
 
 But by a tortious alienation, and which 
 necessarily amounts to a forfeiture of his estate, 
 a subject which will be more discussed in a 
 subsequent page, he may convey the fee by
 
 ON TITLES i 
 
 wrong, or tortious alienation, as by making a 
 feoflfment, &c. He may also commit a for- 
 feiture by such feoffment, or by levying a fine, 
 which asserts a title to the fee, or by suffering 
 a common recovery ; except indeed he joins 
 with the tenant in tail in suffering the recovery, 
 under such circumstances, even though the 
 estate be held under a remote remainder, the 
 recovery will not, according to the case of 
 Smith and Clifford, 2 T. Rep. 738, amount to a 
 forfeiture of his estate ; but see Pelham's case, 
 1 Rep. 14 b. which is an authority for the con- 
 trary position, when the estate tail is held 
 under a remote remainder. 
 
 He may also forfeit his estate by joining the 
 mise in a writ of right, or by accepting a fine 
 from another, who asserts by the fine a title 
 to the fee. 
 
 But it is easy for a tenant for life to assist 
 a tenant in tail in suffering a recovery, without 
 incurring the forfeiture of his estate for life. 
 
 This may be done either by the 100,000 L 
 clause, 1 Vol. of Practice of Conveyancing, 
 p. 480, or by keeping a reversion, or by limiting 
 uses, which shall give him an estate interposed 
 between the estate of the tenant to the writ of 
 entry, and the remainder or reversion. 
 
 An estate for life may be surrendered, or 
 may merge ; but neither the surrender or 
 merger will have any effect to defeat or deter- 
 mine any underleases granted, or charges 
 created, by the tenant for life, prior to the
 
 UNDER TENANTS FOR LIFE. 429 
 
 merger or surrender. Nor will a forfeiture by 
 tenant for life, by tortious alienation, involve 
 or prejudice the interests of his tenants, or 
 those who have charges under him. 
 
 As in other instances, the estate for life must 
 determine by force of its limitation, or must be 
 defeated by a condition, in order to involve the 
 interests of under-tenants, in the consequences of 
 the determination of the estate of tenant for life. 
 
 Hence Lord Coke, 1 Inst. 233 b, has draVn 
 these distinctions : " And it is to be observed, 
 " that a condition in law, by force of a statute 
 " which giveth a recovery, is in some cases 
 " more strong than a condition in law without 
 " a recovery. For if lessee for life make a lease 
 " for years, and after enter into the land and 
 " make waste, and the lessor recover in an 
 " action of waste, he shall avoid the lease 
 " made before the waste done. But if the 
 " lessee for life make a lease for years, and 
 " after enter upon him, and make a feoffment 
 " in fee, this forfeiture shall not avoid the lease 
 " for years. Nor, in any of the said cases a 
 " precedent rent granted out of the land shall 
 " be avoided. For if lessee for life grant a rent 
 " charge, and after doth waste, and the lessor 
 " recovereth in an action of waste, he shall hold 
 " the land charged during the life of the tenant 
 " for life ; but if the rent were granted after 
 " the waste done, the lessor shall avoid it. 
 
 " And the reason wherefore the lease for 
 a years in the case aforesaid shall be avoided is,
 
 430 ON TITLES ! 
 
 " because of necessity the action of waste must 
 " be brought against the lessee for life, which 
 " in that case must bind the lessee for years, 
 " or else by the act of the lessee for life the 
 " lessor should be barred to recover locum 
 " vastatum, which the statute giveth. 
 
 " If a man hath an office for life, which re- 
 " quireth skill and confidence, to which office 
 " he hath a house belonging, and chargeth the 
 " house with a rent during his life, and after 
 " commit a forfeiture of his office, the rent 
 " charge shall not be avoided during his life ; 
 " for regularly a man that taketh advantage 
 " of a condition in law, shall take the land with 
 " such charge as he finds it. And therefore 
 " Littleton is here to be understood, that a 
 " condition in law is as strong as a condition in 
 " deed, as to avoid the estate or interest itself, 
 te but not to avoid precedent charges, but in 
 " some particular cases, as by that which hath 
 " been said appeareth." 
 
 In investigating a title, it frequently, and 
 particularly in the construction of wills, is 
 necessary, to consider whether an estate for 
 life, an estate in tail, or in fee, has been limited. 
 
 The greater part of the difficulties which 
 occur on this subject are considered in the 
 Essay on the Quantity of Estates, chapter 
 Estates, Fee, in Tail, and for Life ; and in re- 
 ference to the important rule in Shelley's case, 
 in Fearne on Contingent Remainders, and in the 
 Succinct view of the rule in Shelley's case ; a rule
 
 UNDER TENANTS FOR LIFE. 431 
 
 which governs so large a portion of the transac- 
 tions of mankind. This rule ; s expressed in these 
 terms byMr..Feame,Conting.Rem. 4th edit. 30. 
 " Where the ancestor takes an estate of freehold, 
 by any gift or conveyance, and in the same gift 
 or conveyance there is a limitation, mediate or 
 immediate, to his heirs, or heirs of his body, 
 the word ' heirs' is a word of limitation of the 
 estate, and not of purchase/' 
 
 By Mr. Serjeant Glynn in Perrin v. Blake, 
 MS. Reports, " In any instrument, if a freehold 
 be limited to the ancestor for life, and the in- 
 heritance to his heirs, either mediately or imme- 
 diately, the first taker takes the whole estate ; 
 if it be limited to the heirs of the body, he takes 
 
 V * 
 
 a fee-tail ; if to his heirs, a fee-simple/' 
 
 And by lord Coke, \ Inst. 376 b. in these 
 terms ; " Whensoever the ancestor taketh any 
 estate of freehold, a limitation after in the same 
 conveyance to any of his heirs, are words of 
 limitation, and not of purchase, albeit in words 
 it be limited by way of remainder ;" Lift. 719. 
 If any further information be wanted on the 
 subject of this rule, or the case is to be governed 
 by any particular decision, recourse must be 
 had to the Abridgments and Digests, under the 
 title Devises, Remainders, Estates; and to the 
 Reports, and the Indexes to the Reports. 
 
 Also it is frequently important to consider 
 whether an estate for life is determined ; whether 
 it was duly surrendered ; or whether it has been 
 determined by merger. In many cases it will 
 also be important to ascertain, that the estate
 
 432 ON TITLES: 
 
 for life was so defeated, surrendered, merged, 
 or determined before a given time. 
 
 This is more particularly important when the 
 question arises, whether an ancestor was actually 
 seised, so as to become the stock of a new 
 succession ; whether a contingent remainder 
 has been defeated by the destruction or deter- 
 mination of the particular estate, before the 
 remainder could commence in possession ; or 
 whether a recovery was duly suffered, and 
 consequently the freehold was in the person 
 against whom the writ of entry was brought ; 
 also, whether an estate in remainder has become 
 an estate in possession, so as to warrant the 
 exercise of certain powers given to tenants for 
 life, when in possession, &c. or to confer a title 
 by dower or by curtesy. 
 
 These points should be very attentively con- 
 sidered, as often as they may have any influence 
 on the title. 
 
 In many instances also, it is essential to the 
 title to consider and decide whether trustees 
 have merely an estate for life, or an estate in fee. 
 This point arose in the cases of Bagshaw v. 
 Spencer, 2 Atk. 246 ; Smith v. Shapland, 1 Bro. 
 Ch. Cas. 75 ; Venables v. Morris, 1 Term Rep. 
 342 ; Do ed. Compere v. Hicks, 7, Term Rep. 
 433; Curtis v. Price, 12 Ves. 89; and was 
 much discussed in the late case of Wykham v. 
 Wykham, 11 East 458, 3 Taunt. 316; 8 Ves. 
 395 ; Jones v. Say & Sele, 3 Bro. Ch. Cas. 458. 
 
 When trustees have the fee, all the subse- 
 quent limitations will be mere trusts, and a
 
 UNDER TENANTS i'UK LITE. 433 
 
 common recovery duly suffered will be good in 
 equity, without the concurrence of the trustees ; 
 but when the trustees have the legal estate of 
 freehold for the life of A or of JB, and the re- 
 mainders are of the legal estate, it is impossible 
 to suffer a valid recovery to bar the estate tail 
 and re-mainders without the concurrence of the 
 trustee as having the freehold ; 1 Vol. of the 
 Practice of Conveyancing, 24, 166. 
 
 In some cases also, a question arises, whether 
 the trustee who has the freehold can, without the 
 direction of a court of equity, assist the first 
 tenant in tail of the legal estate, in suffering a 
 recovery. 
 
 It is agreed that such recovery will be good 
 at law. 
 
 The only doubt is, whether a court of equity 
 would restrain its operation by treating the con- 
 currence as a breach of trust ; Moody v. Walter^ 
 16 Ves. 283, and the parties as in the same con- 
 dition as if no recovery had been suffered. 
 
 Estates for the life of the tenant himself will 
 necessarily determine with his death, and of 
 course no right by succession arise from his 
 tenancy ; but estates for several lives, or even 
 for the life of a stranger, or an estate to a man 
 for his own life, which becomes vested in another 
 as his assignee, in other words ; estates pur 
 autre me, may devolve from the tenant to certain 
 persons as his successors. 
 
 This M as formerly considered as a title in 
 some cases by special, and in other cases by 
 
 F r
 
 ON TITLES: 
 
 general occupancy, a subject well illustrated 
 by Blackstone in his Commentaries, 2 Vol. 
 chap. 16. 
 
 The title by general occupancy has ceased ; 
 and the estate will belong to the heirs, or heirs 
 of the body of the tenant, if they be named as 
 specia loccupants, otherwise to the executors or 
 administrators ; as substituted in the place of 
 general occupants. On this subject see Essay 
 on the Quantity of Estates, chap. Estates for 
 Life. 
 
 Such estates, when transmissible to heirs 
 generally, are now devisable by a will attested 
 by three witnesses ; and when the lands are 
 devised, the devisee will take, as, or in the 
 nature of, an occupant. 
 
 It is clear that if the lands are descendible 
 to the heirs, the right of the heir cannot be 
 defeated by a will, unless such will be attested 
 by three witnesses. 
 
 The statute had also been applied in practice 
 by some gentlemen, to devises of lands in which 
 the executors, &c. took as executors for want 
 of a special occupant. 
 
 It has always been the opinion of the writer 
 of these observations, that though the executor 
 might have a legal title against a devisee, for 
 want of an attestation of the will by three 
 witnesses, yet the executor, taking as such, 
 must be bound in equity at least, by all the 
 dispositions of the testator's will, and conse- 
 quently the legatee will have the benefifof the
 
 UNDER QUASI TENANTS IN TAIL. 435 
 
 disposition in his favor in equity, if not at law ; 
 and it should seem in equity only ; for it would 
 be strange that the freehold should be changed 
 by mere assent without a conveyance. 
 
 It is now decided by Ripley v. Waterworth, 
 7 Ves. 425, that the executor is a trustee for 
 the legatee, although the will be not attested 
 by three witnesses. 
 
 An opinion also has been sometimes given 
 that when a feme executrix has an estate pur 
 autre tie, in her character of executrix, the 
 estate may be aliened by her and her husband 
 without a fine. 
 
 This opinion is questionable at least ; and it 
 is not by any means safe to act on it. The 
 better conclusion is, that no alteration is made 
 by the statute law in the mode of alienation : 
 and a confident opinion is entertained, that there 
 cannot be any alienation binding on the wife 
 without a fine, or other assurance of record. 
 
 The rules and principles of tenure require 
 that there should be a fine, &c. An estate 
 of freehold cannot pass from a married woman 
 without a fine, or some other assurance by 
 record ; 1 Scholcs and Lefroy 290. 
 
 So copyholds for life in trustees for a woman 
 are frequently considered as her personal estate; 
 and it is contended, that she and her husband, 
 and the argument must go the length, that the 
 husband alone, may alien these copyholds by 
 deed. But it should seem that unless there 
 
 r F 2
 
 436 ON TITLES: 
 
 be an express trust, converting the realty into 
 personalty, a married woman has an interest in 
 the copyhold itself by way of realty, which 
 cannot be barred or aliened by the act of her 
 husband, or of the husband and wife, except in 
 the same mode in which they might have trans- 
 ferred a legal estate in the same tenement. 
 
 In all cases of alienation of life estates, simply 
 and alone, the fine sur concessit is proper to be 
 adopted, and it should be a fine for the life 
 or lives. 
 
 A fine which imported to pass the fee ; and 
 even a fine sur concessit, amounting to a grant 
 in fee, would be a forfeiture if the parties had 
 the legal estate ; for no alienation, by the 
 equitable owners, will be a forfeiture of an 
 equitable estate. 
 
 Estates for a life or lives, though limited to 
 heirs of the body, are mere estates of freehold, 
 and not of inheritance. 
 
 Therefore no dower or curtesy can arise from 
 the seisin of an estate of this description ; Grey 
 v. Manock, cited 6 Term Rep. 292 ; Blake v. 
 Blake in the Exchequer, 1786. 
 
 Nor is an estate tail created. There is merely 
 an estate in the nature of an estate tail ; a quasi 
 entail ; Low v. Burron, 3 P. Will. 262 ; Grey 
 v. Manock, 6 Term Rep. 292. 
 
 This quasi entail is not within the protection 
 of the statute de donis ; per lord Northington in 
 Grey v. Manock, ibid.
 
 UNDBR QUASI TENANTS NI TAIL. 437 
 
 As a quasi entail may be created, so re- 
 mainders after or expectant on a quasi estate 
 tail may be limited. For this species of estate 
 admits of limitations by way of strict settlement; 
 as to one for life, remainder to another, as quasi 
 tenant in tail, with limitations over. 
 
 Unless there be an alienation by the quasi 
 tenant in tail, there will be a devolution, or 
 quasi descent, to his heirs, heirs of the body, 
 or heirs male, or heirs female of the body, 
 according to the form of the gift. 
 
 And on failure of special heirs, when the gift 
 is to them, the limitations over may have effect 
 in like manner, as in the regular order and 
 course of remainders, after an actual estate tail. 
 See Fearnes Executory Devises, 586; Low v. 
 Burron, 3 P. Wil. 362 ; Doe v. Luxton, 6 Term 
 Rep. 293; Cooper 178. 
 
 The persons entitled under the limitations 
 over, take by way of remainder, as special 
 occupants, as answering a description of who 
 should take as special occupants during the 
 continuance of the lease for a life or lives, or 
 the copyhold grant for a life or lives ; for the 
 doctrine extends to copyholds for lives. 
 
 As an estate for lives cannot transgress the 
 rule against perpetuities, no limitation of an 
 estate for lives can be too remote and void on 
 that account ; King v. Cotton, 2 P. Wil. 608 ; 
 Low v. Burron, 3 P. Wil. 262. 
 
 In Mogg v. Mogg, 1 Merivale 654, the Court 
 F F 3
 
 438 ON TITLES : 
 
 of King's Bench considered this point to be so 
 clear that it did not admit of argument. 
 
 1st. It is clear that a person who has an estate 
 as quasi tenant for life, (Dillon v. Dillon, 1 Ball 
 and Beatty 77 ; Low v. Burron, 3 P. Wil. 262.) 
 or even a donee of a contingent interest by way 
 of entail, cannot bar the limitations over. The 
 former may convey his own estate ; and the 
 latter may make a release, binding as against 
 himself and his issue. 
 
 2dly. If there be a limitation to one and his 
 heirs, and not to the heirs of his body, with a 
 limitation over by way of executory devise, or 
 shifting use, this limitation over cannot, it 
 should seem, be barred by the first taker. 
 
 The donee of this estate, or owner for the 
 time being, and being quasi tenant in tail of a 
 vested estate, may in any case, and under any 
 circumstances, whether he be tenant in posses- 
 sion, reversion or remainder, convey so as to 
 disappoint his issue the quasi heirs in tail. 
 
 He may surrender the lease (Low v, Burron 9 
 S P. Wil. 362 ; Baker v. Bayley, 2 Vern. 225 ; 
 Doe v. Luxton, or Blake v. Blake, Cox's 
 Rep. 266 ; Cooper 178 ; 6 Term Rep. 293,) 
 convey by lease and release, or other proper 
 mode of grant, or by fine sur concessit ; but a 
 fine is necessary only on account of coverture ; 
 (per lord Kenyan, 6 Term Rep. 299;) and it has 
 not any other effect than an act inter vivo 
 (per lord Hardwicke) ; or he may bind the
 
 UNDER QUASI TENANTS IN TAIL. 439 
 
 issue by contract to sell, or article to settle ; 
 (Wasteneys v. C/iappell, 1 Bro. Parl. Cas. 457 ;) 
 or it should seem by will. 
 
 At first it was supposed that these limitations 
 over by way of remainder could not be barred ; 
 Low v. Burron, 3 P. Wil. 362 ; but in duke of 
 Grafton v. Hanmer, 3 P. Wil. 266, it was de- 
 cided that the quasi remainders may be barred 
 by the person who was the quasi tenant in tail 
 in possession, though the legal estate was in 
 trustees, and though the quasi tenant in tail was 
 a feme covert: ; the alienation having been by 
 her and her husband by fine sur concesserunt. 
 And in Doe v. Luxton, 6 Term. Rep. 299, lord 
 Kenyon observed, " I am rather inclined to 
 think that the first taker may bar the remainders 
 over by his will alone. He may certainly do 
 so by any conveyance in his life-time, by 
 livery of seisin, covenant to stand seised to 
 uses, bargain and sale, &c. 
 
 It was in equity, and on account of the 
 doctrine of tenant right attaching on leases 
 obtained under renewals, that the power of 
 barring the limitations over was allowed to the 
 quasi tenant in tail. 
 
 This right of alienation is sometimes supposed 
 to exist in analogy to the right of alienation 
 under gifts of conditional fees. 
 
 But the analogy fails, inasmuch as the right 
 of alienation does not in any manner depend 
 on the birth of issue. 
 
 F F 4
 
 440 ON TITLES: 
 
 Thus it is clear that these limitations over 
 may be barred by the alienation of quasi tenant 
 in tail, when he has the quasi estate tail as the 
 first or immediate estate; or he has the con- 
 currence of the tenant of the prior life estate, 
 Forster v. Forster, 2 Atk.259; though such prior 
 life interest be clothed with a trust, Orbrey 
 v. Bury, I Ball and Beatty 53 ; and he may 
 bar by surrender or conveyance, (lord K enyon 
 in Doe v. Luxton, 6 Term Rep. 292 ;) and it 
 should seem they may be bound by articles or 
 contract, and even by will. 
 
 Some of these propositions rest on opinion, 
 and not on decision. 
 
 The effect of a will in particular is doubtful. 
 
 Lord Kenyon was, as already stated, of 
 opinion, that a will was sufficient ; while in 
 Dillon v Dillon, 1 Ball and Beatty 77, lord 
 Manners ruled, that the will of a quasi tenant 
 in tail, who died without issue, did not bar the 
 the limitations over ; and lord Redesdale, in 
 Campbell v , Sandys, 1 Scholes and Lefroy 295, 
 questioned the power of alienation by will. 
 
 And though the quasi tenant in tail may bar 
 his heirs or issue, even though he has an estate 
 in remainder, or reversion expectant on the 
 estate of a prior tenant for life, yet it is not 
 decided that he can, unless he be the first 
 taker, or a quasi tenant in tail in possession, 
 or obtains the concurrence of the owner of the 
 prior life interest, bar the limitation over by
 
 UNDER QUASI TENANTS IN TAIL. 441 
 
 way of remainder or reversion. A trust by 
 way of chattel interest is not an impediment ; 
 Blake v. Luxton, Cooper 178. 
 
 The judicial opinions, however, are in favor 
 of his power of alienation to the exclusion of 
 those in remainder, &c. Doe v. Luxton, 6 Term 
 Rep. 292. 
 
 But if the author of this quasi entail should 
 retain the reversion of an estate for lives, by 
 creating a partial interest ; by grant of that in- 
 terest only ; as in the case of a gift by a tenant 
 for life to another, and the heirs of his body, 
 without any further disposition; it is, on prin- 
 ciple, questionable whether this reversion could 
 be defeated by the quasi tenant in tail. 
 
 On principle, it should seem that his interest 
 could not be affected by any act of his under 
 tenant ; for that is the situation in which this 
 tenant of the quasi entail would stand. The 
 equitable quasi tenant in tail has the like power 
 of alienation as the quasi tenant in tail of a 
 legal estate, Blake v. Blake, Excheq. 1786; 
 3 Cox's P. Wms. 10, n. 1 ; and 1 Cox's Rep. 
 266, Cooper 178. 
 
 Limitations of freehold leases, &c. are by 
 analogy within the influence of the rule in 
 Shelley's case, ex parte Sterne, 6 Ves. jun. 156 ; 
 Forster v. Forster, 2 Atk. 256 ; and Dillon v. 
 Dillon, 1 Ball and Beatty 77. 
 
 And limitations, which in reference to an 
 estate of inheritance, would create an estate
 
 442 ON TITLES : 
 
 tail, would give a corresponding interest ui a 
 freehold or copyhold for lives, so as to confer 
 a, corresponding power of alienation, ibid. 
 
 But all the interest held under a freehold 
 lease for lives may pass without any words of 
 gift to the heirs, Windham v. Jekyl, 2 Ves. sen. 
 681 ; and therefore, no words of limitation are 
 of absolute necessity in the transfer of an estate 
 under a lease for lives. 
 
 And it should seem that contingent re- 
 mainders of a legal estate under a lease for 
 lives, are, like other contingent remainders, 
 liable to destruction. 
 
 For all the purposes of tenure, and alienation, 
 and the right of voting at elections for knights 
 of the shire, leases for lives at reserved rents, 
 are considered as leases conferring a title to the 
 freehold ; and by the common law no recovery 
 could be suffered of a particular farm so in 
 lease, without the concurrence of the person 
 in whom the freehold was vested under the 
 lease. 
 
 But in this particular the common law is 
 altered by the statute of 14 Geo. II. c. 20. 
 
 Even at the common law, in the case of 
 a manor, and a lease of part of the demesnes- 
 of the manor for lives, a recovery suffered of 
 the manor would have been good, so as to bar 
 the estate tail in the demesnes, as well as the 
 other parts of the manor, notwithstanding the 
 demesnes were in lease, and the lessee, or the
 
 UNDER TENANTS FOR LIFE. 443 
 
 person having his estate, did not join in making 
 a tenant to the writ of entry ; Johnson v. Earl 
 of Derby, Pigot on Recoveries 201. 
 
 This case depends on its particular circum- 
 stances. The manor is an entire thing, con- 
 sisting of the demesnes and services. The 
 
 o 
 
 reversion expectant on the lease remained 
 parcel of the manor, and passed inclusively, by 
 the recovery suffered of the manor. 
 
 The statute in question, after reciting that 
 several leases had been theretofore, and were 
 thereafter, likely to be made of honors, castles, 
 manors, lands, tenements, and hereditaments, 
 for one or more life or lives, under particular 
 rents thereby reserved and to be reserved ; 
 and that procuring surrenders of such freehold 
 leases, or the tenants thereof to join in order 
 to make tenants to the writs of entry or other 
 writs, for suffering common recoveries, fre- 
 quently occasioned great trouble, difficulty and 
 expense to tenants in tail; and the same could 
 not, in many cases, be obtained by reason of 
 the uncertainty in whom the legal estate of 
 freehold under such leases were vested: and 
 also by reason of the disabilities and incapa- 
 bilities of such lessees, or persons claiming under 
 them, by means whereof purchasers and family 
 settlements were often delayed, and might be 
 in great danger of being defeated, if some 
 proper remedy were not provided. 
 
 The act enacts, for remedy thereof, " That all
 
 444 ON TITLES ! 
 
 common recoveries, suffered or to be suffered 
 in his Majesty's court of Common Pleas at 
 Westminster, or in any other court of Record, 
 in the Principality of Wales, or in any of the 
 counties palatine, or in any other court having 
 jurisdiction of the same, of any honors, castles, 
 manors, lands, tenements, or hereditaments, 
 without any surrender or surrenders of such 
 lease or leases, or without the concurrence, or 
 any conveyance or assurance, from such lessee 
 or lessees, or other person or persons, claiming 
 under such lessee or lessees, in order to make 
 good tenants to the writs of entry or other 
 writs, whereupon such recoveries had been or 
 should be had or suffered, should be as valid 
 and effectual in law, to all intents and purposes 
 whatsoever, as if such lessee or lessees, or any 
 other person or persons claiming under him, 
 her, or them, had conveyed, or joined in con- 
 veying, or should convey, or join in conveying, 
 a good estate of freehold to such person or 
 persons as had been or should become tenant 
 or tenants to such writs of entry or other writs, 
 whereupon such common recoveries had been 
 or should be suffered. 
 
 And it is provided, that nothing in that act 
 contained should extend or be construed to 
 extend to make any common recoveries valid 
 and effectual in law, unless the person or persons 
 entitled to the first estate for life, or other 
 greater estate (in case there be no such estate
 
 UNDER TENANTS FOR LIFE. 445 
 
 for life in being) in reversion or remainder 
 ext after the expiration of such leases, had by 
 some lawful act or means, conveyed or assured, 
 or joined in conveying or assuring, or should by 
 some lawful act or means convey or assure, or 
 join in conveying or assuring, an estate for life, 
 at the least, to such person or persons as had 
 been or should become tenant or tenants to 
 the writs of entry, or other writs, whereupon 
 such common recoveries had been or should 
 be suffered. 
 
 Sometimes, to support a title under a common 
 recovery, it is necessary to consider whether 
 a surrender by tenant for life may not be 
 presumed. 
 
 Such presumption must be grounded on some 
 fact, as possession in the person having the 
 remainder or reversion, &c. and enjoyment 
 without any claim, &c. 1 Vol. of Practice of 
 Conveyancing, 81 ; for if the possession can be 
 explained as held under a defective deed, the 
 possession is accounted for, and the presumption 
 rebutted. 
 
 Particular circumstances may justify a jury 
 to form the presumption, and draw the con- 
 clusion, that a surrender has been made. 
 
 But a conveyancer, in advising on a title on 
 behalf of a purchaser or mortgagee, cannot, 
 except in very particular circumstances, such as 
 possession for sixty or seventy years under the 
 recovery, safely presume that a surrender was 
 made.
 
 446 ON TITLES : 
 
 Care must be taken in all cases which con- 
 cern the operation of recoveries, titles by 
 curtesy, dower, &c. descents, &c. not to con- 
 found estates for life with estates for years 
 determinable on a life. 
 
 Estates of the former description are of 
 freehold interest. Those of the latter descrip- 
 tion are strictly leasehold, and chattel-real 
 property, Dormer v. Parkhurst, 3 Atk. 135 ; 
 Willess Rep. 327. 
 
 Estates for life may be encumbered by 
 judgment, in like manner as estates in fee- 
 simple, with the difference only which arises 
 from the extent and duration of the several 
 estates. 
 
 Uses may also be declared on an assignment 
 of lands, or other real property held for a life 
 or lives. 
 
 Annuities by way of rent-charge are fre- 
 quently granted to a person and his heirs for a 
 life or lives, instead of being granted for years, 
 determinable with the decease of a person, or 
 the decease of the survivor of several persons. 
 ^ When such annuity is derived out of, and 
 ^** fin, depends on a freehold interest, the annuity will, 
 
 on intestacy, be transmissible, and belong to 
 ^ heirs, and not to executors or administrators: 
 
 I V JC It ' 
 
 y/^^at least such is the opinion, entertained on 
 i*~<y mature deliberation. But every annuity granted 
 ^ out of a chattel interest will be a chattel interest, 
 
 although it be limited to the grantee and lib 
 
 heirs for a life or lives.
 
 UNDER TENANTS IN TAIL AFTER, &C. 447 
 
 An interest which in its nature is a chattel 
 real cannot be rendered transmissible to heirs, 
 Litt. 740. 
 
 An estate in special tail may resolve itself, 
 by failure of the issue inheritable to the entail, 
 into an estate, which, in point of duration, will 
 be merely for life. This estate is termed an 
 estate tail, after possibility of issue extinct. 
 
 For all the purposes of alienation, title, and 
 forfeiture, it is merely an estate for life. There 
 are qualities which it retains, of an estate of in- 
 heritance, 1 Inst. 27 b : and a common recovery 
 duly suffered before the failure of issue, would 
 enlarge the estate into a fee-simple; and the 
 estate thus enlarged, and its qualities altered, 
 would not be abridged in consequence of a 
 subsequent failure of issue. 
 
 As connected with estates for life, it may be 
 observed, that women seised in special tail ex 
 provisione viri, are, for some purposes, considered, 
 with reference to their power of alienation, as 
 tenants for life. They cannot bar the entail 
 without the concurrence of the issue, or the 
 person in reversion or remainder. 
 
 This subject is examined in the- first volume 
 of the Practice of Conveyancing, p. 20. 
 
 The restraint is confined to those cases in 
 which the gift is by the husband, or some of his 
 ancestors ; or is by the provision of the hus- 
 band, or his ancestors. 
 
 It does not extend to those cases in which 
 the entail is created by the wife, or any of her
 
 448 ON TITLES : 
 
 ancestors, or is given to her by any stranger; 
 nor to any case in which the wife has a general 
 estate tail, and the remainder is limited to a 
 stranger. 
 
 In Foster v. Pitfal, Cro. Eliz. 2, the wife 
 had an estate in tail general, ex provisioni viri, 
 \vith remainder to a stranger in fee ; and it was 
 determined that this case was not within the 
 statute. The case seems to have turned on the 
 grounds that the remainder was limited to a 
 stranger, and that the entail was general. 
 
 And if husband and wife be joint-tenants in 
 fee, and create an estate tail, so as to bring 1 
 the case within the statute, this entail will, as 
 to one moiety (since each had the power of 
 settling his or her moiety,) be considered as ex 
 provisioni viri, but as to the other moiety, it 
 will not. 
 
 In the same case, on a question, whether an 
 estate in fee was within the statute of 11 Hen. 
 VII. c. 20, it was held by all the judges that it 
 was not ; and even a woman seised in special tail 
 may alien jointly with her husband the donor, or 
 with the consent of the next heir in tail; or if 
 none, the person next in reversion or remainder. 
 Such consent of the issue in tail, or person next 
 in reversion or remainder, must appear on 
 record, or be enrolled ; and consequently they 
 ought to be parties to the fine or recovery by 
 which the entail is barred, or to a deed 
 enrolled. 
 
 The language of the statute is, " Provided
 
 UNDER TENANTS IN TAIL AFTER, &C. 449 
 
 " also, that this act extend not to any such 
 " recovery or discontinuance to be had, where 
 " the heirs next inheritable to the said woman, 
 " or he or they that next after the death of 
 " the same woman, should have estates of in- 
 " heritance in the same manors, &c. be assent- 
 " ing or agreeable to the said recoveries, where 
 " the same assent or agreement is of record 
 " or enrolled" 
 
 Tenant in Tail after Possibility of Issue 
 extinct. 
 
 FOR all the purposes of alienation tenant 
 in tail, after possibility of issue extinct, is 
 considered only as tenant for life. 
 
 In Lynch v. Spencer, Cro. Eliz. 513, the 
 tenant in tail, whose issue had in her life-time 
 levied a fine with proclamations, and thus taken 
 from the estate tail its descendible qualities, 
 was, by some accountable mistake, considered 
 as tenant, after possibility of issue extinct. 
 
 But in a case of this description, the tenant 
 in tail retains the right of alienating the fee- 
 simple by common recovery. See Beaumont's 
 case, 9 Rep. 138 ; and Baker and Willis, Cro. 
 Car. 476. And on the principle established 
 by Mr. Fearne's opinion, in his posthumous 
 works, p. 442, it should seem that a common 
 recovery suffered by the heir in tail, after 
 the death of the ancestor, would bar any rever- 
 sions or remainders expectant on the estate 
 tail. 
 
 G G
 
 450 ON TITLES: 
 
 In Sir George Browns case, 3 Rep. 50, the 
 wife was tenant in tail, ex provisione viri. The 
 heir in tail having also the reversion in fee, 
 levied a fine with proclamations, and the wife 
 afterwards aliened so as to commit a forfeiture 
 under the statute of 11 Hen. VII. c. 20; and it 
 was held, that the right of entry for the for- 
 feiture was in the reversioner ; the conusee of 
 the fine levied by the isssue in tail by virtue of 
 the reversion, and not of the entail ; for it was 
 admitted that the estate tail was barred by the 
 fine, and that the issue, being by his fine 
 disabled to enter, the right of entry devolved 
 on the person having the reversion under the 
 heir in tail, in right of his reversion. 
 
 Tenants in tail of the gift of the crown, for 
 services performed, are, in respect of their 
 power of alienation, while the reversion is re- 
 tained by the crown, on the same footing with 
 tenants for life, except that they do not forfeit 
 by claiming the fee, &c. 
 
 The reversion of the crown puts it beyond 
 their power to devest the remainder or rever- 
 sion, or the estate tail. 
 
 So under several acts of parliament, for 
 instance, the acts rewarding the duke of Marl- 
 borough, the duke of Wellington, lord Chatham-, 
 and also under settlements made by acts of par- 
 liament of the estates of some noble families; the 
 tenants in tail are, for the purposes of ownership, 
 in the same condition with tenants for life,
 
 UNDER TENANTS IN TAIL AFTER, &C. 451 
 
 except so far as they may by force of the acts 
 have powers of leasing and of jointuring. 
 
 And they are, in equity, when they pay off 
 encumbrances treated as tenants for life, namely 
 as presumable encumbrancers, in the place of 
 these creditors whose encumbrances they have 
 discharged, Countess of Shrewsbury v. Earl of 
 Shrewsbury, 1 Ves. jun. 227. 
 
 The points on alienation by tenant for life, 
 which are collected in a former part of this work, 
 should be reconsidered in this place. 
 
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 Lee ; the Zend A vesta ; the Laws of Solon j the Twelve Tables of Rome ; the Laws of the 
 Barbarians ; the Assizes of Jerusalem, and the Koran. By Bryant Barrett, Esq., of Gray's 
 Inn; iu 2 Vols. 8vo. 1J. 12s. boards. 
 
 12. LAW OF EVIDENCE. A Compendium of the Law of Evidence; fourth edition, with 
 considerable Additions. By T. Peake, Esq., Barrister at Law. 1 Vol. 8vo. 16s. boards, 
 
 13. REPORTS IN THE COMMON PLEAS. Reports of Cases argued and determined in the 
 Court of Common Pleas, containing Cases iu the 54th and 55ih Geo. 3., from Michaelmas 
 Term, 181.3, to Michaelmas Term, 1816, both inclusive. By Charles Marshall, Esq., of 
 the Inner Temple, M. A. 2 Vols. Royal 8vo. boards. 21. 13s. 6d. 
 
 JV. B. These Reports will be continued by J. B. Moore, Esq., Editor of the Analytical Digested Index 
 to the Term Reports, and fi/rwarded on the Day of Publication to any Gentleman, on leaving his order 
 at 26, Bell-Yard, Lincoln's-Inn. 
 
 14. REPORTS IN THE KING'S BENCH. Reports of Cases argued and determined in the 
 Court of King's Bench, in the 19th, 20th, and 2lst Years of Geo. 3. By the Right Hon. 
 Sylvester Douglas, (Baron Glenbervie); fourth edition. By William Frere, Esq., Serjeant 
 at Law. 2 Yols. Royal 8vo. '21. boards. The Third Volume is in the Press. 
 
 15. REPORTS OF CASES IN BANKRUPTCY. By George Rose, Esq., of the Inner- 
 Temple, Barrister at Law. 2 Vols. 8vo. 21. 7s. boards. 
 
 16. ORDERS IN CHANCERY. The General Orders of the High Court of Chancery, from 
 the Year 1600, to the present Period, collated with the Register's Book, &c. By John 
 Bcames, Esq., of Lincoln'* Inn, Barrister at Law, to which are added Practical Notes. 
 8vo 16s. boards. 
 
 17. WRIT NE EXEAT REGNO. A Brief View of the Writ Ne. Exeat Regno, with Practical 
 Remarks upon it, as an equitable Process. By John Bcames, Esq., of Lincoln's-Inn, 
 Barrister at Law, Translator of Glanville, Sec. 8vo. 5s. boards. 
 
 18. GLANVILLE, BY BEAMES. A Translation of Glanville. By John Beanies, Esq., of 
 Lincoln's-Inn, Barrister at Law, to which are added Notes. 1 Vol. 8vo. 13*. boards. 
 
 19. Considerations on the Rate of Interest, Redeemable Annuities, and Foreign Loans. 
 By E. B. Sugden, Esq. 3d edit, sewed. Is. 
 
 20. SPECIAL PLEADING. A Practical Treatise on Special Pleading. By Joseph Chitty, 
 Esq. 2d edit, enlarged and improved. 2 Vols. Royal 8vo. 3/. 3s. boards. 
 
 21. PRECEDENTS OF PLEADING. A Supplement to the Treatise on Pleading, being 
 Vol. 3d, containing a copious. Collection of Practical Precedents of Pleadings and Pro- 
 ceedings, in personal, real, and mixed Actions. By J. Chitty, Esq., Barrister at Law. 
 1 Vol. Royal 8vo., 1816, 11. 11s. 6d. boards. 
 
 22. BILLS OF EXCHANGE. A Treatise on Bills of Exchange, Promissory Notes, Bank 
 Notes, and Cheques on Bankers, with the Law of Bankruptcy, as it affects those Instru- 
 ments. By Joseph Chitty, Esq. 4th edit. 1 Vol. 8vo. 15s. boards. 
 
 23. GAME LAWS. A Treatise on the Game Laws. By Joseph Chitty, Esq. 2 Vols 8vo. 
 12. I Is. (in 1 , boards. 
 
 24. Precedents and Practical Forms relative to Game and Fish, being the 3d vol. to the 
 above. 1 Vol. 8vo., 1816, 9*. boards. 
 
 25. CRIMINAL LAW. A Practical Treatise on the Criminal Law,Jcomprisingthe Practice, 
 Proceedings and Evidence which occur in the Course of Criminal Prosecutions, with 
 Precedents, Practical Forms, Notes, &c. By Joseph Chitty, Esq. 4 Vols. large 8vo., 1816, 
 51. 5s. boards. 
 
 26. TREATISE OF POWERS. A Practical Treatise of Powers. By Edward Burtenshaw 
 Sugden, Esq. of Linooln'S-Inn, Barrister at Law, 2d edit. Royal 8vo. 11. 2s. boards. 
 
 '27. ESTATES, SALE, PURCHASE, &c. A Series of Letters to a Man of Properly, on the 
 Sale, Purchase, Lease, Settlement, and Devise of Estates. By E. B. Sugden, Esq., 8.vo, 
 yd edit. 5s. boards.
 
 LAW BOOKS lately published t l>y C. Hunter, 26, Bell-yard. 
 
 28. LAW OF USES AND TRUSTS. The Law of Uses and Trusts, by the late Lord Chief 
 Baron Gilbert, with Notes and References, an Introduction, &c. By Edward Burtenshaw 
 Susrden, Esq. of Liucoln's-Inn, Barrister at Law- 3d edit. 1 Vol. Royal 8vo. 19s. boards. 
 
 5!). PLEADING IN ASSUMPSIT. A Practical Treatise on Pleading in Assumpsit. By 
 Edward Lawes, Esq , of the Inner Temple, Barrister at Law. 1 Vol. Royal Svo. I/. 11s. 6rf. 
 boards. 
 
 30. CHARTER PARTIES. A Practical Treatise on Charter Parlies of Affreightment, 
 Bills of Lading, and Stoppage in Transitu, with an Appendix of Precedents. By Edward 
 Lawes, Esq. I Vol. Royal 8vo. I/. Is. boards. 
 
 31. CONTINGENT REMAINDERS. An Essay on the Learning of Contingent Remainders 
 and Executory Devices. By Charles Fearne, Esq., a New Edition, being the (ith, with 
 Notes and an Analytical Index. By Charles .Butler, Esq. 1 Vol. Royal 8 vo. M Is boards. 
 
 32. PLOWDEN'S REPORTS. The Commentaries or Reports of Edmund Plowden, Esq., 
 containing Cases determined in the Reigns of Edward 6th, Mary, Philip and Mary, and 
 Elizabeth, with the Quseries of Mr. Plowden; reprinted in <2 Vols. Royal bvo. 21. '2s. boards. 
 
 3:i. REPORTS TEMP. HARDWJCKE. Reports of Cases determined in the Court of King's 
 Bench, in the 7th, 8th, 9th, and 10th, of Geo. 2., during the Presidency of Lord Chief 
 Justice Ilardwieke, with some by the" late Lord Chief Justice Lee, and Two Equity Cases, 
 by Lord Chancellor Hardwicke, 2d edit., with Notes, Table, &c. By Thomas Lee, Ejsq., 
 of Gray's-Inn, M. \s. boards. 
 
 34. PENAL STATUTES. The l.an. and 7-Vacfice of Summary Convictions on Penal Statutes, 
 by Justices of the Peace, including the Preliminary and Subsequent Proceedings, with an 
 Appendix of Practical Forms and Precedents of Convictions. By W. Paley, Esq. Barrister 
 at Law. 1 Vol. Svo. 14s. boards. 
 
 35. LAW of LUNACY AND IDIOTCY. A Treatise on the Law concerning Idiots, Lunacies, 
 and other Persons, non camp, mentis, in Two Parts, with an Appendix, containing the Statutes 
 relating to Lunatics, the Practice on Proceedings in Lunacy, and a Collection of Lunatic 
 Petitions, with the Orders of the Chancellor thereon. By George Dale Collinson, A. M. 
 of Lincoln's-Inn, Barrister at Law. 2 Vols. Svo. 11. 16s. boards. 
 
 36. DICTIONARY OF PRACTICE, K. B. & C. P. A Dictionary of the Practice in Civil 
 Actions in the Courts of King's Bench and Common Pleas, together with Practical 
 Directions and Forms, distinctly arranged under each Head. By Thomas Lee, Esq. of 
 Gray's Inn, Barrister at Law. 2 Vols. 2i. 4s. boards. 
 
 37. PRACTICAL UNDER SHERIFF. The Complete Practical Under Sheriff, comprehending 
 the Duties of the Office, as exercised by the Sheriff in Person, or by his Under Sheriff, from 
 his first coming into Office to the passing of his Accounts, and obtaining his Quietus, in a 
 regular and progressive Way as the Subjects arise ; being a correct Epitome of the Practice 
 of the Under Sheriff, in the various Stages of his Duty throughout the Year, with full 
 Instructions as to the Eleclion of Members ofParliumcnt,Coroncrs, and Verderers of Forests, 
 Precedents of Returns of Writs, &c. intended as a Guide, not only to the Under Sheriff, 
 but to the Profession in general. By George Skirrow, Esq., of Gray's-Inn. 1 Vol. Svo. 
 12$. boards. 
 
 38. OPINIONS CONCERNING THE COLONIES, &c. Opinions of Eminent Lawyers on various 
 Points of English Jurisprudence, chielly concerning the Colonies, Fisheries, and Commerce of 
 Great Britain, collected and digested from the Originals in the Board of Trade, and other 
 Depositories. By George Chalmers, Esq. F. R. S.and S. A. 2 Vols. Svo. I/. 4s. boards. 
 
 39. INSOLVENT COURT PRACTICE. A Practical Summary and Review of the Statutes 53 
 Geo. 3. cap. 102, or Law for the Surrender of Effects, and for the Personal Liberation of 
 Prisoners for Debt, with Forms of Proceeding in the Court for Relief of Insolvent Debtors, 
 By J. P. Smith, Esq., of Gray's-Inn, Barrister at Law. 1 Vol. Svo. 7s. boards. 
 
 40. CROWN CIRCUIT COMPANION. The Crown Circuit Companion, (eighth edition) into 
 which has been incorporated the Work, formerly published under the Nairie of " The 
 Crown Circuit Assistant:" both Works have been carefully revised, and such Additions 
 made thereto as modern Statutes and Decisions rendered necessary. 1 Vol. Rftyal Svo. I/. Is. 
 boards. 
 
 41. LAW OF WILLS AND TESTAMENTS. The Law's disposal of a Person's Estate who 
 dies without Will or Testament, shewing in a plain, clear, easy, and familiar Manner, bow 
 a Man's Family or Relations will be entitled to his Real and Personal Estate, by the Laws 
 of England and Province of York, to which is added, the Disposal of a Person's Estate, 
 by Will or Testament, with Instructions and Forms, whereby a Person may make, alter, 
 and republish his own Will, with Instructions for Executors, containing an Explanation 
 of the Mortmain Act. By Peter Lovelass, of the Inner Temple. Tenth Edition, with Cor- 
 rections and Additions to the present Time. 1 Vol. Svo. 9s. boards. 
 
 42. PRECEDENTS IN CONVEYANCING. A Collection of Precedents, designed as a Supple- 
 ment to Mr. Barton's Precedents in Conveyancing; containing such Forms of Assurances as 
 are of a miscellaneous Nature, and not comprised in that Work. By S. F. T. Wilde, Esq. 
 of the Inner Temple, Barrister at Law. Volume the first, Royal Svo. IBs. boards. 
 
 43. EPITOME OF CONVEYANCING. The Attorney's and Solicitor's New Pocket-Book, 
 and Conveyancer's Assistant, containing a Collection of the most common and approved 
 Precedents, with Practical Remarks; the whole forming a very useful Epitome of Convey- 
 ancing ; by the late F. C. Jones, of Gray's-Inn : the third edition, with many material Cor- 
 rections, and additional Moderb Precedents, By A. Highmore, Esq. 2 Vols. I2mo. 12s. 6</. 
 I oards.
 
 LAW BOOKS lately published, by C. Hunter, 26, Bell-yard. 
 
 44. RIGHTS OF MARRIEO WOMEN. An Essay on the Equitable Rights, Duties, and 
 Disabilities of Married Women, wilh respect to their separate Property, and also on their 
 Claim loa Provision, called the' Wife's Equity,' in which the Judgment of Lord Thurlow, 
 in Ifnlme and Tenant, and of Sir Pepper Arden, in Socket anil It'i-nii, are considered and 
 discussed. By James Clancy, Esq., Barrister at L\v. 1 Vol. 8vo. 8s. boards. 
 
 45r SUPPLEMENT TO VINEK. Supplement to Viner's Abridgment of the Law, containing 
 the modem .Determinations in the Courts of Law and Equity, to the End ofthe Year 1806. 
 6 Vols. Royal 8vo. u/. !>s. boards. 
 
 46. BiBLioTiiEtfA LKGUM. A Supplement to " Bibliotheca Nova Legum Angliae," 
 compiled by W. Reed. Price 6d. Also the above Catalogue, Price 7s. boards. This Cata- 
 logue, with the Supplement, will be found to contain an accurate Account of more Works 
 than any other. 
 
 47. ATTORNEY'S PRACTICE, K. B. & C. P. Attorney's Practice Epitomized, or the Me- 
 thods, Times, and Expences of Proceedings in the Courts of'Kiiig-'s Bench and Common 
 Pleas. I Vol. 8vo., halt-bound, interleaved, .5s. 
 
 48. STATUTES AT LARGE, (quarto.) The Stiitutes at Large, .06 Oeo. 3., (being Vol. 6. 
 Part 2.) By John Raithby, Esq. 1 Vol. 4to. I/. Us. 6d. boards. 
 
 49. STATUTES AT LARGE, (octavo). -The Statutes at Large, 56 CJeo. 3., being the 14th vol. 
 since the Union. By John Raithby, Esq. 1 Vol. 8vo. li. 4s. (jd. boards. 
 
 A Nezo Part is published shortly after the Close of each .Session, which will be forwarded to any 
 Gentleman, on the Day of Publication, on Lei tig favoured with his Order, addressed to 26, Bell-Yard. 
 
 50. INDEX TO THK STATUTES. An Index to the Statutes at Large, fro m- Magna Charta, 
 to 49 Geo. 3., inclusive. By John Raithby, Esq., 3 vols. 8vo. 31. 6s. boards. 
 
 51. PRECEDENTS IN EQUITY DRAWING. The Equity Draftsman, being a Collectioa of 
 Precedents, drawn by some of the Leading Men at the Equity Bar, arranged as a Com- 
 panion to Mitford's Pleadings, with a Digested Index; by F. Van Heythuysen, Esq., Barrister 
 at Law, nnd Equity Draftsman. 1 Vol. Royal 8vo. I/. 4s. boards. 
 
 52. SUIT IN CHANCERY. An Analytical Chart of the Practice incident to a Suit in 
 Chancery, exhibiting the Practice in the most simplified Form. By F. Van Heythuysen, 
 Esq., Barrister at Law ; on a Sheet, coloured, 4s. 
 
 53. AN ELUCIDATION of the English Ancient Statute Laws that award the Penalty of. 
 Death, sans Clergy, from the Accession of Edw/ITI. to the Demise of Quc.cn Ann, with 
 copious historical and legal Notes, connected wilh the most material Points of each Act. 
 By Thos. Molt, Esq., Solicitor, (Cambridge). 8vo. 3s. Gd. 
 
 LAW WORKS IN THE PRESS. 
 
 1. Reports of Cases argued and determined in the High Court of Chancery, from 1757 
 to 1766, from the Original Manuscripts of Lord Chancellor Norl!>ington, collected and 
 arranged, with Notes and References to former and subsequent Determinations, and 
 to the Register's Book. By the Hon. R. Henley Eden, of Lincoln's-Inn, Barrister at Law. 
 
 Any Gentlemen, who happen to possess MSS. Nutes of Cases determined by Lord Chancellor Nor- 
 thington, would confer n greatfavor upon the Editor, by permitting him to inspect them for the Purport, 
 of' Collation. , 
 
 2. A Collection of Precedents in Conveyancing, designed as a Supplement to Mr. Barton's 
 Precedents, containing such Forms of Assurances as are of a miscellaneous Nature, and 
 not comprized in that Work : to which will be added a Complete Index, as well to Mr. 
 Barton's as to the present Volumes. By S.F. T. Wilde, Esq., of the Inner Temple, Barrister 
 at Law. Volume the Second, (nearly reailt;.) 
 
 3. Douglas's (Lord Glenbervie) Reports of Cases in the Court of King's Bench, the third 
 Volume; containing (in Addition to the Two which have been already published) Cases in 
 the 22d, 23d, 24th, and 25th Years ofthe King, and which will supply the chasm between 
 the 1st and 2d volumes of these Reports, and those of Durnford and East, (nearly ready.') 
 
 4. Wood's Conveyancing, (a new Edition), in 6 Vols. Royal Svo. 
 
 5. Bacon's Abridgment, (a new Edition). By Sir H. Gwillim. 
 
 6. Coniyn's Digest, (a new Edition.) 
 
 I. Parts 5, 4, and 5, of the Practical Treatise on the Laws of Elections, comprising the 
 Proceedings upon Trials of controverted Elections, the Qualifications and Disqualifications 
 of Electors, and the Law of Bribery and Treating. By W. T. Roe, Esq. 
 
 8. Also a Supplement to the Parts of the Law of Election, already published, containing 
 the Alterations of the Law by the Acts of Parliament subsequently passed. By W. T.Roe,Esq. 
 
 9. The Judgment of J. Henry, Esq., President of the Court of Criminal and Civil 
 Justice of Demarara and Essequibo, in the Case of Odwin and others, v. Forbes, with 
 Notes, and an Appendix, wherein is considered the Effect of the Certificate, under an 
 English Commission of Bankruptcy, when pleaded in Bar in a Foreign Jurisdiction, 
 and the Foreign and English Bankrupt Laws are compared, with a Review of the leading 
 Cases and Opinions, both English and Foreign, on the Doctrine of Cession and Discharge. 
 
 10. Coke's First Institutes, (the 17th edition,) with Hargrave and Butler's Notes and 
 Corrections, to the present Time ; in 3 Vols. Royal 8vo, (nearly ready.) 
 
 II. Reports of Cases in the Common Pleas and Exchequer Chamber. By J, B. Mowe, 
 Esq. Vol. 1. Part 2. These Reports are iu continuation of Mr. Marshall's. 
 
 T. Davison, Lombard-street
 
 LAW LIBRARY 
 
 UNIVERSITY OF C^LH 
 
 T.OS ANOELRS
 
 490 6