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Tous les autres exemplaires originaux sont film6o en commenpant par la premidre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la derniftre page qui comporte une telle empreinte. Un des symboles suivants apparaitra sur la dernidre image de cheque microfiche, selon le cas: le symbole — ► signifie "A SUIVRE", le symbole V signifie "FJN". Les cartes, planches, tableaux, etc., peuvent dtre fiimis d des taux de reduction diff^rents. Lorsque le document est trop grarrd pour dtre reproduit en un seul cliche, il est film6 d partir de I'angle sup^rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 1 6 PRINCIPLES OF THE LAW OF REAL PROPERTY, INTENDED AS A. FIRST BOOK lOB THE USE OF STUDENTS IN CONYEYANCING. BT JOSHUA WILLIAMS, Esq., . OF LIJJCOI.Il'B INW, ONK OF BXR MAJBTTY'. C0UK8EI,. ADAPTED TO THE LAWS IN .OHCE IN THE PROVINCE OF ONTARIO, BY ALEXANDER LEITH, 0N« or BEB MAJESTY'S COURSEL IN AND FOR THK DOMWiON OF CANADA. TOKONTO : ROWSELL & HUTCHISON. 1881. 18288 ROWSELL & Ht'TCHISON, I'RIMTERS, TORONfO. Entered according to ihe Act of the Parliament of Canada, in the year' of our Lord one thousand eight hundred and eighty-one, by Alexander Leith, in the Office of the Minister of Agriculture. W^, ■•, -s^f^' PREFACE. The Authcr in adapting the work of Mr, Williams to the laws of Ontario, has attempted nothing beyond that which Mr. Williams produced, namely, a first book for students of the law of Real Property. The Author trusts that to Canadian students his labours may be of service, as not only all that in Ontario is useless has been expunged but the law particular to the Province has been inserted. The fact that this work was written in England, may perhaps be deemed sufficient excuse for the absence of more frequent reference to Canadian cases. London, England, September 30th, 1881. ^m^im TABLE OF CONTENTS. — -« — .... INTRODUCTORY CHAPTER. ^^^^ Of the Classes of Property — • — PART I. OF CORPOREAL HEREDITAMENTS „ CHAP. I. Of Ai-r Estate for Life 14 CHAP. IL Of an Estate Tail 24 CHAP. III. Of an Estate in Fee Simple .... 44 CHAP. IV. Of the Descent of an Estate in Fee Simple gg CHAP. V. The Present Law of Descent 68 CHAP. VL Of the Tenure of an Estate in Fee Simple gg CHAP. VII. Of Joint Tenants and Tenanto in Common gj CHAP. VIIL Of a Feoffment . . . 98 CHAP. IX. Of Uses and Ttusts 109 ^^ CONTENTS. CHAP. X. '**"^ Of A Modern Conveyance J25 CHAP. XI. Of a Will of Lands j .„ CHAP. XII. Of the Mutual Rights of Husband and Wife 159 — • — PART II. OF INCORPOREAL HEREDITAMENTS 175 CHAP. I. Of a Reversion and a Vested Remainder jgQ CHAP. II. Of a Contingent Remainder ,gg CHAP. Ill, Of an Executory Interest „»« iiVsU' Section I. Of the Means by which Executory Interests may be created. . 220 Section 2. Of the Time within which Executory Interest must arise. . . . 239 CHAP. IV. Of Hereditaments purely Incorporeal 242 — * — PART III. OF COPYHOLDS • 256 CONTENTS. vii PAOB PART IV. CHAP. I. Of A Term of Ykabh 259 CHAP. II. Of a Mortoaoe Debt 077 PAET V. OF TITLE 292 Appendix 311 Index 315 1 -m^ms PRINCIPLES OF THE LAW OF KEAL PROPERTY. INTRODUCTORY CHAPTER. OF THE CLASSES OF PROPERTY. .> the early nges cf Europe, property ,ras chieflj )f a sub- Property at stantia* and visible, or what lawyers call, a corporeal Vind «"* chiefly Traae was little practised, and consequently debt were""'""^' seldom incurred. There were no public funds, and of course no funded property. The public wealth consisted pnn- cipally .. land, and the houses and buildings erected upon It, of the cattle in the fields, and the goods in the houses Now and, which is immoveable and indestructible is evidently a different species of property from a cow or a sheep, which may be stolen, killed, and eaten; or from a chair or a table, which may be broken up or burnt. No man, be he ever so feloniously disposed, can run away with an acre of land. The owner may be ejected, but the land remains where it was; and he, who has been wronrfuUy turned out of possession, may be reinstated into the ident- ical portion of land from which he had been removed. Not so with moveable property; the thief may be discovered and punished ; but if he ha. made away with the goods, there m difficulty m procuring restoration of them to their owner. 2 INTRODUCTORY CHAPTER. Moveable and immoveable. The Norman conquest. Introduction of the fendai system. Moveable and immoveable, is then one of the simplest and most natural divisions of property in times of but par- tial civilization. In our law this division has been brought into great prominence by the circumstances of our early history. By the Normar conquest, it is well known a vast num- ber of Norman soldiers settled in this country. The new settlers were encouraged by their king and master ; and whilst the conquered Saxons found no favour at court, they suffered a substantial grievance in the confiscation of the lands of such of them as had opposed the Conqueror. The lands thus confiscated were granted out by the Con- queror to his followers, nor was their rapacity satisfied till the greater part of the lands in the kingdom had been thus dispos' ^ of In these grants the Norman king and his vassals Jowed the custom of their own country, or what is called the feudal system. The lands granted were not given freely and for nothing ; but the^y were given to hold of the king, subject to the performance of certain military duties as the condition of their enjoyment. The king was soill considered as in some sense the proprietor, and was called the lord paramount ; while the services to be rendered were regarded as incident or annexed to the ownership of the land ; in fact, as the rent to be paid for it. This feudal system of tenures, or holding of the king, was soon afterwards applied to all other lands, although they had not been thus granted out, but remained in the hands of their original Saxon owners. How this change was effected is perhaps a matter of doubt. Sir Martin Wright (a), who is followed by Blackstone (6), supposes that the introduction of tenures, as to lands of the Saxons, was accomplished at a stroke by a law (c), of William the Con- queror, by which he required all free men to swear that (a) Wright's Tenures, 64, 65. versum regnum Angliae Wilhelmo (b) 2 Black. Com. 49, C J. regi domino suo fideles esse volunt ; (c) The 52nd. Statuimns ut omnes terras et honores illius omni fideli- liberi homines foedere et sacramento tate ubique servare cum eo et contra affirment, quod intra et extra uni- inimicos et alienigenao defendere. OF THE CLASSES OF PROPERTY. they would be faithful to him as their lord. " The terms of this law," says Sir Martin Wright, " are absolutely feudal and are apt and proper to establish that policy w^ith all its consequences." Mr. Hallam, however, takes a different view of the subject ; for while he considers it certain that the tenures of the feudal system were thoroughly establish- ed in England under the Conquerer (a), he yet remarks that by the transaction in question an oath of fidelity was required, as well from the great landowners themselves as from their tenants, " thus breaking in upon the feudal com- pact in its most essential attribute, the exclusive depend- ence of a vassal upon his lord" (6). The truth appears to be, that Norman customs, and their upholders and inter- preters, Norman lawyers, were the real introducers of the feudal system of tenures into the law of this country. Before the conquest, landowners were subject to militaiy duties ; and to a soldier it would matter little whether he fought by reason of tenure, or for any other reason. The distinction between h's services being annexed to his Imid and their being annexed to the tenure of his land, would not strike him as very important. These matters would be left to those whose biisiness it was to attend to them ; and the lawyers from Normandy, without being particularly crafty, would, in their fondness for their own profession, noturally adhere to the precedents they were used to, and observe the customs and laws of their own country (c). (a) 2 Hallam's Middle Ages, 429. {h) 2 Hallam's Middle Ages, 430. Mr. Hallam refers to tbe Saxon Chronicle, which gives the follow- ing account : — Postea sic itinera disposuit ut pervenerit in festo Primitiarum ad Searebyrig (Sarum), 'abi ei obviam venerunt ejud pro- ceres ; et omnea prasdia tenentes, quot- quot eaaent notce meioris per totani Angliam, hujus viri servi fuerunt, omnesque se illi subdidere, ejusque facti sunt vaaaali, ac ei iidelitatis juramenta praestiterunt se contra alios quoscunque illi fidos futuros. — Sax. Chron. anno 1086. (r) The Norman French was in- troduced by the Conqueror as the regular languap' of the courts of law. See Hunu s History of Eng- land, vol. ii. 115, appendix ii., on til's Feudal and Anglo-Norman government and manners. A spe- cimen of this language, which was otten curiously intermixed by our lawyers with scraps of Latin and pure English, will be given in & future note. INTRODUCTORY CHAPTER. Lands, tene- ments, and heredita- ments. Perhaps even they, in the time of the Conqueror, troubled themselves but little about the laws of landed property. The statutes of William are principally criminal, as are the laws of all half-civilized nations. Life and limb are of more importance than property ; and when the former are in danger, the fjecurity of the latter is not much regarded. When the convulsions of the conquest began to subside, the Saxons felt the effects of the Norman Laws, and cried out for the restoration of their own ; but they were the weaker party and could no^. help themselves. Bj' this time the industry of the lawyers had woven a net from which there is no escaping (a). But in what precise manner tenures crept in, was a question perhaps never asked in those days ; and if asked, it could not probably, even then have been minutely answered. The system of tenure could evidently only exist as tO' lands and things immoveable. Cattle and other moveables were things of too perishable and insignificant a nature to be subject to any feudal liabilities, and could therefore only be bestowed as absolute gifts. No duty or service could well be annexed as the condition of their ownership. Hence a superiority became attached to all immoveable property, and the distinction between it and moveables became clearly marked ; so that, whilst larida were the subject of the disquisitions of lawyers, the decisions of the courts of justice, and the intention of the legislature, moveable property passed almost unnoticed (6). Lands, houses, and immoveable property, — things capable of being held in the way above described, — were called tenements or things held. They were also denominated hereditaments, because, on the death of the owner, they devolved by law to his heir. So that the phrase, lands, tenements and hereditaments, was used by the lawyers of those times to express all sorts of property of the first or immoveable class ; and tl;e expression is in use to the present day. (a) 2 Hallam'a Middle Ages, 468. (6) 2 Black. Com. 384 ^mmm^' i**r«g?-' OF THE CLASSES OF PROPERTY. The other, or moveable class of property, was known <^o<>^«a'»d hy the name of goods or chattels. The derivation of the word chattel has not been precisely ascerttiined (a). Both it and the word goods are well known to be still in use as technical terms amongst lawyers. So great was the influence of the feudal system, and so Tenements, important was the tenure or holding of lands, whether by the vassals of the crown, or by the vassals of those vassals, that for a long time immoveible property was known rather bj'^ the name of tenements than by any other term more indicative of its fixed and indestructible nature {6). In time, however, from various causes, the feudal system began to give way. The growth of a commercial spirit, the rising power of towns, and the formation of an influen- tial middle class, combined to render the relation of lord and vassal anything but a reciprocal advantage ; and at the restoration of King Charles II. a final blow wa^ given to the whole system (c). Its form indeed remained, but its spirit was extinguished. The tenures of land then became less burdensome to the owner, and less troublesome to the law student ; and the courts of law, instead of being occupied with disputes between lords and tenants, had their attention more directed to controversies between different owners. It became then more obvious that the essential difference between lands and goods was to be found in the remedies for the deprivation of either ; that land could always be restored, but goods could not. The two great classes of property accordingly began to acquire two other names more characteristic of their difference. The remedies for the recovery of lands had long been called real actions, and the remedies for loss of goods personal actions. But it was not until the feudal sj'^stem had lost Real and its hold, that lands and tenements were called real pro- personal. joerty, and goods and chattels personal property. (a) See 2 Black. Com. 386. Edw. I. c. 1 ; see Co. Litt. 19 b, (6) It is the only word used in (c) By statute 12 Car. II. c. 24. the important statute De Donis, 13 6 INTRODUCTORY CHAPTER. It appears then, that lands and tenements were desig- nated, in later times, real iiroperty, more from the nature of the legal remedy for their recovery than simply because they are real things ; and on the other hand, goods and chattels were called personal property because the remedy for their abstraction was against the person who had taken them away. Pereonal property has been described as that which may attend the owner's person wherever he thinks proper to go (a), but goods and chattels were not usually called things personal till they had become too numerous and important to attend the persons of their owners. The terms real pi^operty and personal property are now more commonly used than the old terms tenements and hereditaments, goods and chattels. The old terms were, indeed, suited only to the feudal times in which they originated; since those times great changes have taken place, commerce has been widely extended, loans of money at interest have become common (6), and the funds have engulfed an immense laass of wealth. Both classes of property have accordingly been increased by fresh additions ; and within the new names of real and personal many kinds of property are now included, to which our forefathers were quite strangers ; so much so that the simple division into immoveable tenements and moveable chattels, is lost in the many exceptions to which time and altered circumstances have given rise. Thus, shares in canals and railway's, which are sufficiently immoveable, are generally personal property; funded property is personal ; whilst a dignity or title of honour, which one would think to be as locomotive as its owner, is not a chattel but a tenement. Canal and railway, shares ' and shares or stocks in most incorporated companies though relating to real estate,' and funded property are made per- sonal by the different acts of parliament under the author- (a) 2 Black. Com. 16, 834; 3 Black. Com. 144. (6) Such loans were formerly con- sidered unchristian. Glanville, lib. 7, c. 16; lib. 10, c. 3; 1 Reeves's History, 119, 262. OF THE CLASSES OF PROPERTY. itv of which they have originated. And titles of honour are real jiroperty, because in ancient times such titles were annexed to the ownership of various lands (a). But the most remarkable exception to the original rule occurs in the case of a lease of lands or houses for a term of years. The interest which the lessee, or person who has taken the lease, possesses, is not his real, but his per- sonal property ; it is but a chattel, though the rent may be only nominal, and the term ninety or even a thousand years. This seeming anomaly is thus explained. In the early times, to which we have before referred, towns and cities were not of any very great and general importance ; their influence was local and partial, and their laws and customs were frequently peculiar to themselves. Agri- culture was then, though sufficiently neglected, yet still of far more importance than commerce; and from the necessities of agi-iculture arose many of our ancient rules of law. That the most ancient leases must have been principally farming leases, is evident from the specimens of which copies still remain, and also from the circumstance that the word fami applies as well to anything let on lease, or let tofai'm, as to a farm house and the lands belonging to it. Thus, we hear of farmers of tolls and taxes, as well as of farmers engaged in agriculture. Farming in those days required but little capital (6),and farmei-s were regarded more as bailiffs or servants, accountable for the profits of the land at an annual sum, than as having any property of their own (c). If the farmer was ejected from his land by any other person than his landlord, he could not, by any legal process, again obtain possession of it. His only remedy was an action for damages against his landlord {d), who was bound to warrant him quiet possession (e). The (a) Hallam'a Middle Ages, 158. (b) See as to the bad state of agriculture, 3 Hallam's Middle Ages, 365; 2 Hume's Hist. Eng. 349. (c) GUb. Tenures, 39, 40 ; Wat- kins on Descents, 108 (11.3, 4th edit.); 2 Black. Com. 141. {d) 3 Black. Com. 157, 158, 200. (e) Bao. Abr. tit. Leases and Terms for Years, and Covenant! (B). 8 INTRODUCTORY CHAPTER. farmer could therefore be scarcely said to be the owner of the land, even for the term of the lease ; for his interest wanted the essential incident of real property, the capa- bility of being restored to its owner. Such an interest in land had, moreover, nothing military or feudal in its nature, and was, consequently, exempt from the feudal rule of descent to the eldest son as heir-at-law. Being thus neither real property, nor feudal tenement, it could be no more than a chatcel ; and when leases became longer, more valuable, and more frequent, no change was made ; but to this day the owner of an estate for a term of years possesses in law merely a chattel. His leasehold estate is only his personal property, however long may be the term of years, or however great the value of the premises comprised in his lease (a). There is now perhaps as much personal property in the country as real ; possibly there may be more. Real property, however, still retains many of its ancient laws, which invest it with an interest and importance to which personal property has no claim. Of these ancient law^s one of the most conspicuous in England is the feudal rule of descent, under which, as partially modified by amending acts (6), real property goes when its owner dies intestate, to the heir, while personal property is distributed, under the same circumstances, amongst the next of kin of an in- testate by an administrator appointed for that purpose by the Court. ' The English rule of. descent which prevailed in Ontario down to 1st January, 1852, was from that day abolished, and as will be subsequently explained, the real property of an intestate will go to his next of kin with no great variance from the mode in which his personalty will be distributed among them.' (a) Qucure, however, whether Lord Coke would have a(;reed that a lease for years is personal property or personal estate, though it is now clearly considered as such ; and see Stuift V. Swift, 1 De Gex, F. & J, 160, 173 ; Bektney v. Belaney, L, E. 2 Ch. Ap. 138. (6) 3 & 4 Will. IV. c. 106, amended by stat. 22 & 23 Vict. c. 35, SB. 19, 20. mum^- OF THE CLASSES OF PROPERTY. 9 Besides the division of property into real and personal, ^'orporeal and there is another classification which deserves to be mentioned, namely, that of coi'poreal and incorporeal. It is evident that all property is either of one of these classes or of the other ; it is either visible and tangible, or it is not. Thus a house is corporeal, but the annual rent pay- able for its occupation is incorporeal. So an annuity is incorporeal ; " for, though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand" (a). Corporeal property, on the other hand, is capable of manual transfer; or, as to such as is immoveable, possession may actually be given up. Frequently the possession of corporeal property necessarily involves the enjoyment of certain incorporeal rights ; thiis the lord of a manor, which is corporeal property, may have the advowson or pei-petual right of presentation to the parish church; and this adowson which being a mere right to present, is an incorporeal kind of property, may be appendant or attached, as it were, to the manor, and constantly belong to every owner. Bat, in many cases, property of an incorporeal nature exists apart from the ownership of anything corporeal, forming a distinct subject of possession ; and, as such, it may frequently be required to be transfeired from one person to another. An instanc 3 of this separate kind of incorporeal property occurs in the case of an advowson or right of presentation to a church, when not appendant to any manor. In the transfer or conveyance of incorporeal The distinc- property, when thus alone and self-existent, formerly laythe°m,^e*of the practical distinction between it and corporeal property, transfer. For, in ancient times, the impossibility of actually deliver- ing up any thing of a separate incdrporeal nature, rendered some other means of conveyance necessary. The most obvious was writing ; which was accordingly always (a) 2 Black. Com. 20. 10 INTRODUCTORY CHAPTER. employed for the purpose, and was considered indispensable to the separate transfer of every thing incorporeal ; whilst the transfer of corporeal property, together with such in- corporeal rights as its possession involved, was long per- mitted to take place without any written document. In- corporeal property, in our present highly artificial state of society, occupies an important position ; and such kinds of incorporeal property as are of a real nature will hereafter be spoken of more at large. But for the present, let us give our undivided attention to property of a corporeal kind ; and as to this, the scope of our work embraces one branch only, namely, that which is real, and which, as we have seen, being descendible to heirs, is known in law by the name . of Iiereditaments. Estates or interests in corporeal hereditaments, or what is commonly called landed property, will accordingly form our next subject for consideration. ■^;3.;"»Ks- (11 ) PART I OF CORPOREAL HEREDITAMENTS. . Before proceeding to consider the estates which may be Terms of the hold in coiporeal hereditaments or landed property it is **"^' desirable that the legal terms made use of to designate such property should be understood ; for the nomenclature of the law differs in some respects from that which is ordin- arily employed. Thus a house is, by lawyers in England, generally called a messuage ; and the term mesmage was A messuage, formerly considered as of more extensive import than tlie word house {a\ But such a distinction is not now to be relied on (6). Both the term messuage and house will comprise adjoining outbuildings, the orchard, and curtilage, or court yard, and, according to the better opinion, these terms will include the garden also (c). The word tenement Tenement, is often used in law as in ordinary language, to signify a house : it is indeed the regular synonyme which follows the term messuage ; a house being usually described in deeds as " all that messuage or tenement." But the more com- prehensive meaning of the word tenement, to which we have before adverted, is still attached to it in legal inter- pretation, whenever the sense requires (cZ). Again, the word (a) Thomas v. Lane, 3 Cha. Ca, 26 ; Keilw. 67. (b) Doe d. Clements v. Collins, 2 T. Eep. 489, 502; 1 Jarman on WiUs, 709, Ist ed. ; 666, 2nd ed. ; 740, 3rd ed. (c) Shep. Touch 94; Co. Litt. 5 b, n. (1) ; Smithson v. Cage, Cro. Jac. 526 ; Lord Orosoenor v. Hamp- stead Junction Jiailway Company, 1 De Gex & Jones, 446; Cole v. West London and Crystal Palace Raihoay Company, 27 Beav. 242. (d) 2 Black. Com. 16. 17, 59. 12 Land. Mines. Chambers. Premiaes. OF CORPOREAL HEREDITAMENTS. larul comprehends in law any ground, .soil, or earth what- soever (a) ; but its strict and primary import is arable land {b). It will, however, include castles, houses, and out- buildings of all kinds ; for the ownership of land carries with it everything both above and below the surface, the maxim l)eing cujua est solum, ejus est usque ad ccdum. A pond of water is accordingly described as land covered with water (c) ; and a grant of land includes all mines and minerals under the surface {d). This extensive signification of the word land may, however, be controlled by the con- text ; as where land is spoken of in plain contradistinction to houses, it will not be held to comprise them (e). So mines lying under a piece of land may be excepted out of a conveyance of such land, and they will then remain the corporeal property of the grantor, with such incidental powers as are necessary to work them (/), and subject to the incidental duty of leaving a sufficient support to the surface to keep it securely at its ancient and natural level {(j). In the same manner, chambers may be the subjects of conveyance as coi'poreal property, independently of the floors above or below them (h). The word 'premises is fre- quently used in law in its proper etymological sense of that which has been before mentioned. Thus, after a re- cital of various facts in a deed, it frequently proceeds " in consideration of the premises" meaning in consideration of the facts before mentioned ; and property is seldom spoken of as premises, unless a description of it is contain- (a) Co. Litt. 4 a; Shep. Touch. 92 ; 2 Black. Com. 17 ; Cooke, dem. 4 Bing. 90. (b) Shep. Touch. 92. (c) Co. Litt. 4 b. (rf) 2 Black. Com. 18. (e) 1 Jarman on Wills, 707, 1st ed. ; 664, 2ud ed. ; 738, 3rd ed. (/) Earl of Cardigan \. Armitage, 2 Barn. & Cress. 197, 211. (g) Humphries v. Brogden, 12 Q. B. 739; Smart v. Morton, 5 E. & B. 30; Rogers v. Taylor, 2 H. & N. 828 ; Rowbotham v. WtUon, 8 E. & B. 123, affirmed 8 H. of L Cas. 348 ; Bonomi v. Backhouse, E. B. & E. 622, affirmed 9 H. of L. Cas. 503 ; Dugdale v. Robertson, 3 Kay & J. 695 ; Stroyan V. Knowle^, 6 H. & N. 454 ; Smith V. Darby, L. R., 7 Q. B. 716. (h) Co. Litt. 48 b ; Shep. Touch, 206. See 12 Q. B. 757. OF COBPOREAL HEUEDITAMENTS. ed in some prior part of the deed. Most of the words used in the description of property have however no special technical meaning, but are construed according to their usual sense (a) ; and as to such words as have a tech- nical import more comprehensive than their ordinary mean- ing, it is very seldom that such extensive import is alone relied on ; but the mcLiing of the parties is generally ex- plained by the additional use of ordinary words. (a) As farm, meadow, pasture, &c. ; Shep. Touch. 93, 94. 13 14 OF CORPOREAL nEREDTTAMENTS. CHAPTER I. OF AN ESTATE FOR LIFE. ' It .seldom happens that any subject is brought frequently to a person's notice without his forming concerning it opin- ions of some kind. And such opinion-s carelessly picked up are often carefully retained, though in many cases wrong and in most inadequate. The subject of property is so generally interesting, that few persons are without some notions as to the legal rights appertaining to its possession. These notions, however, as entertained by unprofessional persons are mostly of a wrong kind. They consider that what is a man's own is what he may do what he likes with ; and with this broad principle they generally set out on such legal adventures as may happen to lie before them. They begin at a point at which the lawyer stops, or at which indeed the law has not yet arrived, nor ever will ; but to which it is still continually approximating. Now the .student of law must forget for a time that, if he has land, he may let it, or leave it by his will, or mortgage it, or sell it, or settle it. He must humble himself to believe that he knows as yet nothing about it : and he will find that the attainment of the ample power, which is now possessed over real property, has been the work of a long period of time ; and that even now a common purchase deed of a piece of freehold land cannot be explained without going back to the reign of Henry VIII. (a), or an ordinary set- tlement of land without recourse to the law^s of Edward I. (6). That such should be the case is certainly a matter of (a) Stat. 29 Hen. Vin. c, 10, the Donia Conclitionalibus, to which Statute of Uses. estates tail owe their origin. (6) Statute 13 Edw. I. c. 1, De sUv^df*-^' OF AN ESTATE FOR LIFE. 15 life. regret. History and antiquities are, no doubt, interesting and delightful studies in their place ; but their perpetual intrusion into modem practice, and tlie absolute necess'ty of some acquaiutanco with them, give rise to nuich of the difficulty experienced in the study of the law, and to many of the errors of its less studious practitioners. The first thing then the student has to do is, to get rid Absolute of the idea of absolute ownership. Such an idea is (juite "^"®''" P- unknown to the Engli.sh law. No man is in law the absolute owner of lands. He can only hold an estate in them. The most interesting, and perhaps the most ancient of An estate for estates, is an estate for life ; and with this we :.hall begin. Soon after the commencement of the feudal system, to which, as we have seen, our laws of real property owe so much of their character, an estate for life seems to have been the smallest estate in conquered lands which the military tenant was disposed to accept (a). This estate was inalienable, unless his lord's consent could be obtained (b). A grant of lands to A. B. was then a grant to him as long as he could hold them, that is, during his life and no longer : for feudal donations were not extended beyond the precise terms of the gift by any presumed intent, but were taken strictly (c) ; and, on the tenant's death, the lands reverted to the lord or grantor. If it was intended that the descendants of the tenant should, at his decease, succeed him in the tenancy, this intention was expressed by additional words of grant ; he took every thing from the grantor, nothing from his ancestor. So (a) Watk. Descents, 107 (113, 4th ed.); Hallam's Middle Ages, 160. There seems no good reason to suppose that feuds were at any time held at will, as stated by Blackstone (2 Black. Com. 55) and by Butler (Co. Litt 191 a, n, (1), vi. 4. (6) 2 Black. Com. 57. (c) Blackstone's reasons for the estate being for life — that it shall be construed to be as large an estate as the donation of will bear (2 Black. Com. 121)— is quite at variance with this rule of construc- tion. 16 OF CORPOREAL HEREDITAMENTS. that, in such a case, " the ancestor and the heirs took equally as a succession of usufructuaries, each of whom during his life enjoyed the beneficial, but none of whom possessed, or could lawfully dispose of, the direct or absolute dominion of the property " (a). The feudal system, however, had not long ^leen introduced into England before the restric- tion on alienation began to be relaxed. Subsequently, by a statute of Edward I. (6) the right of every freeman to sell at his own pleasure his lands or tenements, or part thereof was expressly recognized; at a still later period, the power of testameriuary alienation was bestowed (c), until at the present day, the right to dispose of property is not only established but has become inseparable from its possession. Moreover, the old feudal rule of strict con- struction has long since given way lo the contrary maxim, that every grant is to be construed most strongly against the grantor (d). Yet so deeply rooted are the feudal prin- ciples of our law of real property, that in the case before us, the ancient interpretation remains unaltered ; and a A grant to grant to A. B. simply now confers but an estate for his confera ^ly a ^^^^» which estate though he raay part with it if he pleases, life estate, will terminate at his death, into whosoever hands it may have come. This rule has The most remarkable effect of this antiquated rule has been testator's tn- ^^ frequent defeat of the intentions of unlearned testators tentions. (e), who, in leaving their lands and houses to the objects of their bounty, were seldom aware that they were con- ferring only a life interest ; though, if they extended the gift to the heirs of the parties, or happened to make use of the word estate, or some other such technical term, their gift or devise included the whole extent of the interest (a) Co. Litt. 491 a, n. (1), vi. 5 ; Burgess v. Wheate, 1 Win. Black. 133. (6) Stat. 18 Edw. I. c. 1. (c) By Stat. 32 Hen. VIIi:. c. 1, as to estates in fee simple, and by stat. held for 1;he life of another person. See 1 Jarm. on Wills, 54, 1st ed. ; 49, 2nded.; 55 3rd etl. (d) Shep. ToucL. 68. (e) 2 Jarman on Wills, 170, 1st ed. ; 219, 2nd ed. ; 247, 3rd ed., and 29 Car. II. c. 3, s. 12, as to estates the cases there cited. OF AN ESTATE FOR LIFE. 17 they had power to dispose of. " Generally speaking," says Lord Mansfield (a), " no common person has the smallest idea of any difference between giving a horse and a quan- tity of land. Common sense alone would never teach a man the difference ; but the distinction, which is now clearly established, is this : — If the words of the testator denote only a description of the specijic^estate or land de- vised, in that case, if no words of limitation are added, the devisee has only an estate for life. But if the words denote the qvxintum, of interest or property that the testa- tor has in lands devised, then the whole extent of such his interest passes by the gift uO the devisee. The question therefore, is always a question of construction upon the words and teiins used by the testator." Such questions, as may be imagined, have been sufficiently numerous. Happily by Acts o . Parliament for the amendment of the laws with respect to wills (6), a construction more accord- ant with the plain intention of the testators is now given in such cases. If the owner of an estate for his own life should dispose An estate pur thereof, the new owner will become entitled to an estcvte*^ for the life of the former. This, in the Norman French, with which our law still abounds, is called an estate ']fmr autre vie : and the person for whose life the land is holden is called the cestui que vie. In this case, as well as in that of an original grant, the new owner was formerly enti- tled only so long as he lived to enjoy the property, unless the grant were expressly extended to his heirs ; so that in case of the decease of the new owner in the lifetime of the cestui que vie, the land was left without an occupant so long as the life of the latter continued, for the kw would not allow him to re-enter after having parted with his life estate. No person having therefore a right to the pro- autre vie. (o) In Hogan v. Jackson, Cowp. 306. (6) Imperial 7 Will. IV. & 1 Vict, c. 20, and R. S. 107, s. 28. See also lilackatone Com. p. 117, 3 118, by Leith and Smith, as to oases other than of wills where a fee may pass or be released without use of the word heirs. 18 OF CORPOREAL HEREDITAMENTS. Oeneral occu pant. Special occu pant. Statute of Frande. Cestui que vie may be or- dered to be produced. perty, anybody might enter on the land ; and he that first entered might lawfully retain possession so long as the cestui que vie lived. The person who had so entered was called a general occupant. If, however, the estate had been granted to a man and his heirs during the life of the cestui que vie, the heir might, and still may, enter and hold possession ; and in such case he is called in law a special occupant, having a special right of occupation by the terms of the grant. ' By 36 ^^. c. 20 R. S. 106, the provisions of 29 Charles II, c. 3, s. 12, and of 14 Geo. II. c. 20, s. 9, relating ^o this estate are repealed as to wills executed after 1873, and it is enacted that a devise may thereafter be made of such an estate though there be a special occupant. By R. S. 105, such an estate will descend in case of intestacy as a fee simple.' When one person has ar estate for the' life of another, it is evidently his interest that the cestui que vie, or he for whose life the estate is holden, should live as long as pos- sible ; and, in the event of his decease a temptation might occur to a fraudulent owner to conceal his death. In order to prevent any such fraud, it is provided, by an Act of Parliament passed in the reign of Queen Anne (a), that any person having any claim in remainder, reversion or expectancy, may, upon affidavit that he hath cause to believe that the cestui que vie is dead, and that his death is concealed, obtain an order from the Lord Chancellor for the production of the cestui que vie in the method pre- scribed by the Act ; and, if such order be not complied with, then the cestui que vie shall be taken to be dead, and any person claiming any interest in remainder, or rever- sion, or otherwise, may enter accordingly. The Act, moreover, provides, that any person having an estate pur wire vie, who, after the determination of such estate, shall continue in possession of any lands, without the express consent of the persons next entitled, shall be adjudged a trespasser and may be proceeded against accordingly. (a) Stat. 6 Anne, c. 18. OF AN ESTATE FOR LIFE. 19 The owner of an estate for life is called a tenant for life, A tenant for for he is only a holder of the lands according to the feudal principles of our law. A tenant, either for his own life, or for the life of another {pur autre vie), hath an estate of freehold, and he that hath a less estate cannot hath a free- have a freehold. Here, again, the reason is feudal. A life estate is such as was considered worthy the acceptance of a, free man; a less estate was not. ^-nd it is worthy of remark, that in the earlier periods of our law an estate for a man's own life was the only life estate considered of sufficient importance to be an estate of freehold : an estate for the life of another was not reckoned of equal rank. But this distinction has long since disappeared ; and there are now some estates which may not last a lifetime, but are yet considered in law as life estates, and are estates of freehold. Thus, an estate granted to a woman during Estate during her widowhood is in law a life estate, though deter min- ^ °^ able on her marrying again (a). Every tenant for life, unless I'estrained by covenant or Timber, agreement, has the common right of all tenants to cut wood for fuel to burn in the house, for the making and repairing of all instruments of husbandry, and for repair- ing the house and the hedges and fences (6), and also the right to cut underwood and lop pollards in due course (c). But, 'subject to the undetermined question of right to clear land for the purpose of bringing into cultivation (d)' he is not allowed to cut timber, or to commit any other kind of waste (e) ; either by voluntary destruction of any Waste. {a) Co. Litt. 42 a ; 2 Black. Com. 121. {b) Co. Litt. 41 b ; 2 Blapk. Com. 35, 122. (c) FhiUipt V. SmUh, 14 M. & W. S89. As to thinnings of yonng tim- ber, see Pidgeley v. Rawling, Coll. 275 ; Bagot v. Bagot, 32 Beav. 609, 518 ; Earl CoioUy v. WelUaky, M. E., Law Rep., 1 Eq. 656 ; 35 Beav. 635. Explained in Honeytoood v. Honeywood, L. R., 18 Eq. 306, 307, 308. (d) Co. Litt. 53 a ; Whitfield v. BeioU, 1 Black Com. 122, 281 ; 3 Black. Com. 224. (e) See this question treated of and the cases. Black. Com. by Leith and Smith, p. 306. 20 OF CORPOREAL HEREDITAMENTS. part of the premises, which is called voluntary waste, or by permitting the buildings to go to ruin, which is called permissive waste. Of late, however, doubts have been thrown on the liability of a tenant for life for waste which is merely permissive ; and the Courts of Equity have re- fused to interfere in the case of a tenant for life, whose estate is equitable only (a). But there appears to be no sufficient ground for doubting the tenant's liability where he has the legal estate vested in himself (6). So a tenant for life is not allowed to dig for gravel, brick, or stone, except in such pits as were open and usually dug when he came in ((;) ; nor can he open new mines for coal or other minerals, nor cut turf for sale on bog lands; for all such acts would be acts of voluntary waste. But to continue the working of existing mines, or to cut turf for sale in bogs already used for that purpose, is not xoaste; and the tenant may accordingly, carry on such mines and cut turf in such bogs foi- his own profit {d). By an old statute, the com- mitting of an act of waste was a cause of forfeiture of the thing or place wasted, in case a im^t of ivaste was issued against the tenant for life. But this writ is now abolished (e); and a tenant for life is now liable to be restrained by injunction from cutting the timber or com- mitting any other act of waste, which he may be known to contemplate, 'and to damages for waste already done (/). An injunction may be granted notwithstanding the per- son in possession claims by adverse legal title {g).' If any of the timber is in such an advanced state that it would take injury by standing, the Court will allow it to be cut, on the money being secured for the benefit of 'lie persons entitled on the expiration of the life estate ; and (a) Powys V. Blagrave, 4 De Snowden Slate Quarries Company, Gex, M. & G. 448, 458 ; Warran L. E. App. Gas. 454. V. Rudall 1 Johu. & Hem. 1. (d) Co. Litt. 54 b ; Copphiger v, (b) Yellowly v. Gower, 11 Ex. 274, Onbbim, 3 Jones & L&t. 397. 293. (e) R. S. 51, s. 75. (c) Co. Litt. 53 b ; Viner v. (/) See R. S. 40, s. 40. yaughan, 2 Beav, 466 ; Elias v. {g) R. S. 40, 8, 39. / OF AN ESTATE FOR LIFE. 81 -the Court will allow the interest of the money to be paid to the tenant during his life (a). If, however, the estate is given to the tenant by a written instrument (b) ex- pressly declaring his estate to be ivithout impeachment o/ Without im- waste, he is allowed to cut timber in a husbandlike man- ^aate. ner for his own benefit, to open mines, and commit other acts of waste with impunity (c) ; but so that he does not pull down or deface the family mansion, or fell timber planted or left standing for ornament, or commit other injuries of the like nature ; all of which are termed eqidt- Equitable able waste; for the Court of Chancery, adminsterL:g ^'^^ equity, restrains sach proceedings (d). ' There is a certain class of waste, which, though in strictness it is waste, is still such as a Court of Equity will not restx*ain, nor for which a jury will give damages, if meliorating in its char- acter, and no way giving cause for complaint. Thus the substitution of a new edifice for an old one of much less value needing great and constant repair, is not necessarily ipso facto waste punishable (e).' As a tenant for life has merely a limited interest, he Leases by cannot of course make any disposition of the lands tojj^f"^ °' take effect after his decease ; and consequently he can (o) Tooker v. Annehly, 5 Sim. 235 ; Waldo v. Wahlo, 7 Sim. 261 ; 12 Sim. 102 ; Tolkmache v. Tolk- maclie, 1 Hare, 450 ; Consett v. Rell, 1 You. & Coll. New Cases, 569 ; Oent V. Harriaou, Johnson 517 ; Hollywood V. Honyioood, L. R. 18 Eq. 306 ; Lownden v. Norton, V. C. H., 35 W. R. 826 ; L. R., 6 Ch. D. 139. It is not clear that the R. S. 40, s. 36, giving the Court of Chancery certain powers to lease and sell settled estates would apply to authorize sales of timber on such estates. (6) Bowman's case, 9 Rep. 10 b. (c) Letois Bowli'a case 11 Rep. 82 b ; 2 Black. Com. 283 ; Barges T. Lamb, 16 Ves. 185 ; Cholmeley v. Paxton, 3 Ring. 211 ; 10 Bam. & Cress 564 ; Davits v. Wescomh, 2 Sim 525; Woolf v. Hill, 2 Swanst 149 ; Waldo v. Waldo, 12 Sim. 107. (rf) 1 Fonb. Eq. 33, n. ; Marqtiis of DovmsJiire v. Lady Sandys, 6 Ves. 197 a ; Barges v. Lamb, 16 Ves. 183 ; Day v. Merry, 16 Ves. 375 a ; Wellesley v. Wellesley, 6 Sim. 497 ; Duke of Leeds v. Earl Amherst, 2 Phil, 117 ; Morris v. Morris, 15 Sim 505 ; 3 De Gex & Jones, 323 ; Micklethwait v. Micklethwait, 1 De Gex & Jones, 504. (e) See the observation of O'Hagan, L. J. in Doherly v. Allan, L. R. 3 H. L. Ca. 726. Black. Com. by Leith and Smith, pp. 305, 306. 22 OF CORPOREAL HEREDITAMENTS Leases by authority of the Court. Emblements. make no leases to endure beyond his own life, unless he be specially empowered so to do by the deed under which he holds. ' In the cases of settled estates the Court of Chancery has by Rev. Stat. c. 40, s. 85, the same power to lease and sell such estates as the Court of Chancery had in England on the 18th of March, 18G5, as to leasing and selling such estates, and the Court in England then had power to authorize leases and sales of such estates under certain conditions, and also to authorize sales of timber thereon' (a). If a tenant for life should sow the lands, and die before harvest, his executors will have the right to the emble- ments or crop (b). And the same right will also belong to his under-tenant ; with this difference, however, that if the life estate should determine by the tenant's own act, as by the marr* ige of a widow holding during her widow- hood, the tenant would have no right to emblements ; but the under-tenant being no party to the cesser of the estate, would still be entitled in the same manner as on the expiration of the estate by death (c). As a consequence of the determination of the estate of a mint of rent, tenant for life the moment of his death, it was held in old times, that if such a tenant had let the lands reserving rent quarterly or half-yearly, and died between two rent days, no rent was due from the under-tenant to anybody from the last rent day till the time of the decease of the tenant for life. But in the reign of King George II. a remedy for a proportionate part of the rent, according to the time such tenant for life lived, was given by Act of Parliament to his executors or administrators {d). For- Apportion- (a) Imperial Stats. 19 & 20 Vic. 0. 120 ; 21 & 22 Vic. c. 77 ; 27 & 28 Vic. c. 45. These Acts have been repealed in England and re- enacted with amendments by 40 & 41 Vic. c. 18, but such repeal would not take effect in Ontario ; Black. Com. by Leith and Smith. (6) 2 Black. Com. 122; see Graves V. Weld, 5 Barn. & Adol. 105. (c) See further as to emblements to Black. Com. by Leith and Smith, pp. 132, 134. {(i) Stat, 11 Geo. II. c. 19, s. 15, explained by Imp. Stat. 4 & 6 Will, IV. c. 22, 8. 1. See Ex parte Smyth, 1 Swanst. 337, and the learned editor's note. OF AN ESTATE FOR LIFE. sa merly, also, when a tenant for life had a power of leasing, and let the lands accordingly, reserving rent periodically, his executors had no right to a proportion of the rent, in the event of the decease between two quarter days ; and as rent is not due till midnight on the day in which it is made payable, if the tenant for life had died even on the quarter day, but before midnight his executors lost the quarter's rent, which went to the person next entitled (a). But the Apportionment Act (b), now provides, that all rents and other periodical payments in the nature of income (whether reserved or made payable under an instrument in writing or otherwise) shall, like interest on money lent, be considered as accruing from day to day, and shall be apportionable in respect of time accordingly. In addition to estates for life expressly created by the parties, there are certain life interests, created by construc- tion and operation of law, possessed by husbands and wives in each other's land. These interests will be spoken of in a future chapter. There are also certain other life estates held by persons subject to peculiar laws ; such as the life estates held by beneficed clergymen. These estates are exceptions from the general law ; and a discussion of them, in an elementary work like the present, would tend rather to confuse the student than to aid him in his grasp of those general principles, which it should be his first object to comprehend. (a) Norris v. HarrUon, 2 Mad. M. R., L. R., 19Eq.271 ; Constable 268. V, Constable L. R., 11 Ch. D. 681. (6) R. S. 136 ; Hasluck v. Pedley, u Eetate tail OF CORPOREAL HEREDITAMENTS. CHAPTEB II. OF AN ESTATE TAIL. The next estate we shall notice is an estate tail, or an estate given to a man and the heirs of his body. This is such an estate as will, if left to itself, descend, on the decease of the first owner, to all his lawful issue, — children, grand-ciiildren, and more remote descendants, so long as his posterity endures, — in a regular order and course of descent from one to another : and, on the other hand, if the first owner should die without issue, his estate, if left alone, will then determine. An estate tail may be either general, that is, to the heirs of his body generally and without restriction, in which case the estate will be descendible to every one of his lawful posterity in due coui'se ; or special, when it is restrained to certain heirs of his body, and does not go to all of them in general; thus, if an estate be given to a man and the heirs of his body by a particular wife ; here none can inherit but such as are his issue by the wife specified. * It must be borne in mind, that in Ontario, the present law of descent of a fee simple estate does not apply to the descent of an estate tail, which is expressly excepted from such law. The descent of an estate tail is therefore as before the act abolishing promogeniture, and is, as the English law, applicable to estates tail.' Estates tail may be also in tail Ttmle, or in tail female : an estate in tail 'male cannot descend to any but males, and male descendants of males ; and cannot, consequently, belong to any one who does not bear the surname of his ancestor from whom he inherited : so an estate in tail female can only descend to females, and female descendants of females. Special estates tail, confined to the issue by a particular wife, are not OF AN ESTATE TAIL. 25 now common ; the most wsual kinds of estates tail given are estates in tail general, and in tail male. Tail female scarcely ever occurs. The owner of an estate tail is called a donee in tail, and the person who has given him the estate tail is called the donor. And here it may be remarked, that such correla- tive words as donor and donee, lessor and lessee, and many others of a like termination, are used in law to distinguish the person from whom an act proceeds, from the person for or towards whom it is done. The owner of an estate tail is also called tenant in tail, for he is as much a holder as a Tenant in tenant for life. But an estate tail is a larger estate than an ^^ estate for life, as it may endure as long as the first owner of the estate has any issue of the kind mentioned in the gift. It is consequently an estate of freehold. We shall now proceed to give a short history of this estate; in doing which it will be necessar}^ to advei-t to the origin and pro- gress of the general right of alienation of lands. It will readily be supposed that a mere system of life Feudal estates, continually granted by feudal lords to their tenants, *®°*°^'^' ^' ' J o J come here- would not long continue ; the son of the tenant would ditary. naturally be the first person who would hope to succeed to his father's tenancy : accordingly we find that the hoidinf^ of lands by feudal tenants soon became hereditary, permis- sion being granted to the heirs of the tenant to succeed on the decease of the ancestor. By the term " heirs" it is said that the issue of the tenant were at first only meant ; col- lateral relations such as brothel's and cousins, being exclu- ded ; the true feudal reason of this construction is stated by Blackstone to be, that what was given to a man for his personal service and personal merit ought not to descend to any but the heirs of his person (a). But in our own country it appears that, at any rate in the time of Henry II., collateral relations were admitted to succeed as heirs ; so that an estate which had been granted to a man and his heirs descended, on his decease, not only to his (a) Black Com. 221, 26 OF CORPOREAL HEREDITAMENTS. offspring, but also, in default of off8i)ring, to his other rela- tions in a defined order of auccession. Hence if it were wished to confine the inheritance to the offspring of the To the donee donee, it became necessary to limit the estate expressly to of his botly'"^^'^ aw? the heirs of Ida body, making what was then A conditional called a conditional gift, hy reason of the condition implied gift. Modes of alienation. in the donation, that if the donee died without such parti- cular heirs, or in case of the failure of such heirs at any future time, the land should revert to the donor (a). The most usual species of grant appears, however, to have been that to a man and his heirs generally ; but as the right of alienation seems to have arisen in the same manner with regard to estates gi-anted in both the above methods, it will be desirable, in considering the origin of this right, to include in our remarks as well as an estate granted to a man and his heirs, as an estate confined to the heirs of the body of the grantee. In whichever method the estate might have been granted, it is evident that, besides the tenant, there were two other parties interested in the lands ; one, the person who was the expectant heir of the tenant, and who had, under the gift a hope of succeeding his ancestor in the holding of the lands ; the other, the lord, who had made the grant, and who had a right to the services reserved during the continuance of the tenancj'^, and also a possibility of again obtaining the lands on the failure of the heirs mentioned in the gift. An alienation of the lands by the tenant might therefore, it is evident defeat the right of one or both of the above parties. The modos of alienation which prevailed in early times were very difierent from the ordinary sales of landed pro- perty which occur in modern times. Ready money was then extremely scarce; large fortunes, acquired by com- mercial enterprise, were not then expended in the purchase of country seats. The auction mart was not then estab- lished; such a thing as an absolute sale for a sum of money (a) 2 Black. Com. 110. OF AN ESTATE TAIL. 27 paid down was scarcely to be met with. The alienation of lands rather assumed the form of perpetual leases, granted in consideration of certain services or rents to be from time to time perfoiTneJ or paid. This method was, in feudal langua<^e, termed aubinfeudation. In all the old Subinfeuda- conveyances, in England, almost without exception, the ° ' lands are given to the grantee and his heirs, to hold as tenants of the grantor and his heirs, at certain rents or services ; and when no particular service was reserved, it was understood that the grantee held of the grantor, sub- ject to the same services as the grantor held of his superior lord. As, therefore, it cannot be supposed that gifts should be made without some fair equivalent, and as such equivalent, in the shape of rent or service, would descend to the heir in lieu of the land, we may fairly presume that alienation, as ordinarily practised in early times, was not so great a disadvantage to the heir as might at first be supposed : and this circumstance may perhaps help The power of to account for that which at any rate is an undoubted fact, ove^he^ex- that the power of an ancestor to destroy the expectation of pectationa of his hell's, whether merely collateral or heirs of his body, becomes soon became absolute. In whichever way the grant were *^**^"*®- made, whethei" to the ancestor and his heirs ; or to him and the heirs of his body, we find, however, that by the time of Henry III. the heir was completely in his ances- tor's power, so far as related to any lands of which the ancestor had pos ession. Bracton, who wrote in this reign, expressly lays it down, that the heir acquires nothing from the gift made to his ancestor. The very circumstance that land was given to a pereou and his heirs, or to him and the heirs of his body, enabled him to convey an interest in the land, to last as long as his heirs in the one case, or the heirs of his body in the other, continued to exist. And from the time of Bracton, a gift to a man and his heirs generally has enabled the grantee, either entirely to defeat the expectation of his heir by an absolute conveyance, or to prejudice his enjoyment of the descended lands by obliging him to satisfy any debts or demands, to the value 28 OF CORPORKAL HERKDITAMENTS. • of the lands, according to his ancestor's discretion. With respect to lands granted to a man and the heirs of hia body, the power of the ancestor is not notv complete. The means by which this right of alienation was in this case curteiied will appear in the account we shall now give of the origin an(\ progress of the right of alienation as it affected the interest of the lord. Alienation as The interest of the lord was evidently of two kinds ; intfrestsof^ his interest in the rent and services during the continu- the lord. ance of the tenancy, and his chance or possibility of again obtaining the land on failure of the heirs of his tenant. On the former of these interests, the inroad of alienation appears to have been first made. The tenants, by taking upon themselves to make grants of part of the lands to strangers to hold themselves, prejudiced the security possessed by the lord for the due performance of the ser- vices of the original tenure. And accordingly we find it enacted in Magnn Oharta (a), that no freeman should give or sell any more of his land than so as what remained might be sufficient to answer the services he owed to his lord. The original services reserved on any conveyance were, however, always a charge on the land while in the hands of the under-tenants, and could be distrained for by the lord (b) ; although the enforcement of such services was doubtless rendered less easy by the division of the lands into various ownerships. The infringement on the lord's interest, expectant on the failure oi the heirs of his tenant, appears to have been the last step in the progress of alienation. As the advantages of a free power of dispo- sition became apparent, a new form of grant came into general use. The lands were given not only to the tenant and to his heirs, but to him and his heirs, or to whomsoever he might wish to give or assign the land, or with other words expressly conferring on the tenant the power of alienation (c). In this case, if the tenant granted, or under- (a) chap. 32. (c) Madox's Formulare Anglica- (b) Perkins's profitable Book, sec. num, Preliminary Dissertation, p. 6. 674. The tendency towards the alienation OF AN ESTATE TAIL. 29 let as it were, part of his land, then, on his decease and failure of his heii-s, the tenant's grantee had still a right to continue to hold as tenant of the superior lord ; and such superior lord then took the place of the landlord, which the original tenant or his heirs would have occupied liad he or they been living. And if the tenant instead of thus underletting part of his land, chose to dispose of the v'hole, he was at liberty so to do, by substituting, if he thought fit, a new tenant in his own place (a). Grants of lands with liberty of alienation as they became more freciucnt, appear in process of time to have furnished the rule by which all grants were construed. During the long and feeble reign of Henry III. this change to the disadvantage of the lord appears to have taken place ; for at the begin- ning of the next reign it seems to have been established that, in whatever form the grant were made, the fact of The fact of the exi.stence of an expectant heir enabled the tenant to ^f^j^^***^^®. alienate, not only as against his heirs, but also as against '"'t heir en- the lord. If therefore lands were given to a man and his tenant to heirs, ho could at once dispose of them (b) ; and if lands »li«-'"ate. were granted to a man and the heirs of his body, he could at once dispose of theni as against the heirs of his body. And he was able, the moment ho had issue born-^that is, the moment he had an expectant heir of the kind men- tioned in the gift — to alienate the lands as against the lord also ; and the alienee and his heirs had a right to hold, not only during the existence of the issue, but also after their failure. The original intention of such gifts was therefore in a gi-eat measure defeated ; originally, on failure of the issue the lands reverted to the donor ; but now nothing was requisite but the mere birth of issue to give the donee a complete power of disposition. of lands was perhaps fostered by the spirit of crusading : see 1 vVatkins on Copyholds, pp. 149, 150. (a) See stat. 4 Edw. I. c. 6. (b) Perk. sect. 667— 670; Co. Litt. 43 a. If a tenant of a conditional 155, note. fee had a right to alienation on having issue born, surely a tenant in fee sin:ple must have had at least an equal right. See, however, Co. Litt. 43 a, n. (2) ; Wright's Tenures, so OF CORPOREAL HEREDITAMENTS. Statute De Donia Fee tail. The mere existence of au expectant heir having thus, grown up into a reason for alienation, the barons of the time of Edw. I. began to feel how small was the possi- bility, that the lands, which they had granted by con- ditional gifts (a), to their tenants and the heirs of their bodies, should ever revert to themselves again ; whilst at the same time they perceived the power of their own families weakened by successive alienations. To remedy these evils, and to keep up that feudal system, which land- lords ever held in high esteem, but on which the necessi- ties of society ever made silen^ yet sure encroachments, it was enacted in the reign of Edw. 1. by the famous statute De Donis Conditionalibus (&), — and no doubt as was then thought finally enacted, — that the will of the donor, according to the form in the deed of gift manifestly expressed, should be from thenceforth observed ; so that they, to whom the tenement was given, should have no power to alien it, whereby it should fail to remain unto their own issue after their death, or to revert unto the donor or his heirs, if issue should fail. Since the passing of this statute, an estate given to a man and the heirs of his body has been always called an estate tail, or, more properly, an estate in/ee tail (feuduTn talliatum.) The word/ee (feudum) anciently meant any estate feudally held of another person but its meaning is now confined to estates of inheritance, — that is, to estates which may descend to heirs ; so that a fee may now be said to mean an inheritance. The word tail is derived from the French word tailler, to cut, the inheritance being, by the statute De Bonis, cut down and confined to the heirs of the body strictly ; but, though an estate tail still bears a name indicative of a restriction of the inheritance from any interruption in its course of perpetual descent from father to son, we shall find that in fact the right to establish such exclusive perpetual descent has long since (a) Ante, p. 26. also the Statute of WestmiDSter the (b) Stat. 13 Edw. I. c. 1, called Second. OF AN ESTATE TAIL. 81 been abolished. When the statute began to operate, the inconvenience of the strict entails, created under its autho- Inconvenience rity, became sensibly felt : children, it is said, grew diso- entails, bedient when they knew they could not be set aside; farmers were deprived of their leases ; creditors were defrauded of their debts ; and innumerable latent entails were produced to deprive purchasers of the land they had fairly bought; treasons were also encouraged, as estates tail were not liable to forfeiture longer than for the ten- ant's life (a). The nobility, however, would not consent to a repeal, which was many times attempted by the com- mons, and for about two hundred years the statute remained in force. At length the power of alienation was once more introduced, by means of a quiet decision of the judges, in a case which occurred in the twelfth year of the reign of King Edward IV. (6). In this case, called Talta- Taltarum's 'i'um'a Case, the destruction of an entail was accomplished l\"glroyed by judicial proceedings collusively taken against a tenant in tail for the recovery of the lands entailed. Such pro- ceedings were not at that period quite unknown to the English law, for the monks had previously hit upon a similar device, for the purpose of evading l:he Statutes of Mortmain, by which open conveyances of land to their religious houses had been prohibited ; and this device they had practised with considerable success till restrained by act of parliament (c). In the case of which we are now speaking, the law would not allow the entail to be destroyed simply by the recovery of the lands entailed, by a friendly plaintiff on a fictitious title ; this would have been too barefaced; and in such a case the issue of the tenant claiming under the gift to him in tail, might have recovered the lands by means of a writ of formedon, so Formedon. called because they claimed per formam doni, according to the form of the gift, which the statute had declared should be observed. The alienation of the lands entailed (o) 2 Black. Com. 116. (c) Statute of Westminster the (6) TaUarum'a Case, Year Book, Second, 13 Edw. I. c. 32.; Com. 271. 12 Edw. IV. 19. Tudor's Lg. Ca. r" 32 OF CORPOREAL HEREDITAMENTS. was effected in .- more circuitous mode, by judicial sanction being given to the following proceedings, which afterwards came into frequent and open use, and had some little show of justice to the issue, though without any of its reality. A recovery. The tenant in tail, on the collusive action being brought, was allowed i;o bring into Court some third person, pre- sumed to have been the original grantor of the estate tail. The tenant then alleged that the third person, had ivar- Warranty. ranted the title ; and accordingly begged that he might defend the title which he had so warianted. The third person was accordingly called on ; who, in fact, had had nothing to do with the matt'^r ; but, being a party in the scheme, he admitted t'O ''\.id warranty, and then allowed judgment to go against him by default. Where- upon judgment was given for the demandant or plaintiff, to recover the lands from the tenant in tail ; and the tenant in tail had judgment empowering him to recover a recom- pense in lands of equal value from the defaulter, who had thus cruelly failed in defending his title (a). If any such lands had been recovered under the judgment, they would have been held by the tenant for an estate tail, and would have descended to the issue, in lieu of those which were lost by the wn-rantor's default (6). But the defaulter, on whom the burden was thus cast, wa^ fi man who had no lands to give, some man of straw, w' '1 easily be pre- vailed on to undertake the respci^ ■ y- and, in later times, the crier of the Court was usuu '^ employed. So that, whilst the issue had still the judgment of the Court in their favour, unfortunately for them it was against the wrong person ; and virtually their right was defeated, and Entail barred, the estate tail was said to be barred. Not only were the issue barred of their right, but the donor, who had made the grant, and to whom the lands were to revert on fail- ure of issue, had his reversion barred at the same time (c). (o) Co. Litt. 361 b ; 2 BlacL. Com. 358. (6) 2 Black. Com. 360. (c) 2 Black. Com. 360 ; Cruise on Recoveries, 268. ■ , I OF AN ESTATE TAIL. 38 So also all estates which the donor might have given to , other persons, expectant on the decease of the tenant in tail without issue, (and which estates are called remainders And remain- expectant on the estate tail,) were equally barred. The "• demandant, in whose favour judgment was given, became possessed of an estate in fee simpL:; in the lands ; an estate allowed by law, and bringing with it the fullest powers of alienation, as will be hereafter explained : and the demand- ant, being a friend of the tenant in tail, of course disposed of the estate in fee simple according to his wishes. Such a piece of solemn juggling could not long have held its ground, had it not been supported by its substan- tial benefit to the community ; but, as it was, the progress of events tended only to make that certain which at first was questionable ; and proceedings on the principle of those above related, under the name of suffering common Common re- recoveries, maintained their ground and long continued in °ov®"«^ common use as the undoubted previlege of every tenant in tail. The right to suffer a common recovery was con- sidered as the inseparable incident of an estate tail, and every attempt to restrain this right was held void. Com- plex, however, as the proceedings above related may appear, the ordinary forms of a common recovery in latter times were more complicated still, mistakes were not unfrequently made, and great expense was always incurred. To remedy this evil, an act of parliament (a) was accord- ingly passed in 'England' in the year 1 "^SS. This act, which Recoveries in the wisdom of its design, and the skill of its execution, "^^*^®"^ is quite a model of legislative reform, abolished ths whole of the cumbrous and suspicious-looking machinery of com- mon recoveries. It has substituted in their place a simple deed, executed by the tenant in tail and ' registered ' : by such a deed, a tenant in tail in possession, ' and under cer- tain circumstances presently mentioned, even a tenant in (a) " An act for the abolition of fines and recoveries and for the sub- stitution of more simple modes of assurance." Imp. Stat. 3 & 4 Will. 5 IV. c. 74, drawn by Brodie; 1 Hayes's Conveyancing, 155 ; Rev. Stat. c. 100. 34 OF CORPOREAL HEREDITAMENTS. !i!i tail remainder,' is now enabled to dispose of the lands entailed for an estate in' fee simple; thus at once defeating the claims of his issue, and of all persons having an estate in rem«»inder or reversion. ' The Canadian act of 9 Vic. Rev. Stat. 100, is taken from the Imperial act. The Legis- lature on passing the act of Wm. 4. c. 1., abolishing fines and recoveries with real actions and the effect of a w^ar- ranty, seems to have overlooked the fact that consequently no estate tail could thereafter be barred. It was not till the act of 9 Vic. that a mode of bar was given : such was not the case in England' (a). A common recovery was not, in later times, the only way in which an estate tail might be barred. There was another assurance as effectual in defeating the claim of the issue, though it was inoperative as to the remainders A fine. aii(j reversion. This assurance was a fine. Fines were in themselves, though not in their operation on estates tail, of far higher antiquity than common recoveries. They were not, like recoveries, actions at law carried out through every stage of the process ; but weve fictitious actions, commenced and then compromised by leave of the court, whereby the lands in question were acknowledged to be the right of one of the parties (6). They were called ^nes from their having anciently put an end, as well to the pre- tended suit, as to all claims not made within a certain time afterwards (c), a summary method of ending all disputes, grounded on the solemnity and publicity of the proceed- ings as taking place in open court. By statutes provision was made for the open proclamation of all fines several times in court ; and in order that a fine might operate as a bar after non-claim for five years, it was necessary that it should be levied, as it was said, with proclamations. A judicial construction of the statute of Henry VII., quite apart, as it should seem, from its real intention (d), gave (a) See Black Com. by Leith 4; Com. 349, 364; Co. Litt. 121 an (1). Smith, p. 612. n. b. \d) 4 Reeves's Hist. Eng. Law, (6) 2 Black, Com. 448. 166. 138; 1 Hallam's Const. Hist. (c) Stat. Edw. l". stat. 4 2 Black. 14. 17. The deep designs attributed OF AN ESTATE TAIL. 85 abolished. to a fine by a tenant in tail the force of a bar to his issue after non-claim by them for five years after the fine ; and this construction was confirmed by a statute of the reign of Henry VIII., which made the bar immediate (a). Since this time the effect of fines in barring an entail, so far as the issue were concerned, remained unquestioned till their abolition ; which took place at the same time, and by the Fines same act of parliament (b), as the abolition of common ' recoveries. A deed registered within six months of exe- cution has now been substituted, as well for a fine, as for a common recovery. Although strict and continuous entails have long been virtually abolished, their remembrance seems still to linger in many country places, * in England,' where the notion of heir land, that must perpetually descend from father to son, is still to be met with. It is needless to say that such a notion is quite incorrect. In families 'in England' where the estates are kept up from one generation to another, settlements are made every few years for this purpose ; Settlements, thus in the event of a mairiage, a life estate merely is given to a husband , the wife has an allowance for pin money during the marriage, and a rent-charge or annuity by way of jointure for her life, in case she should survive her hus- band. Subject to this jointure, and to the payment of such sums as may be agreed on for the portions of the daughters and the younger sons of the marriage, the eldest son who Tnay be born of the marriage is made by the settle- ment tenant in tail. In case of his decease without i.ssue, it is provided that the second son, and then the third, should in like manner be tenant in tail : and so on to the others ; and in default of sons, the estate is usually given to the daughters. By this means the estate is tied up till some tenant in tail attains the age of twenty-one years ; when he is able with the consent of his father, by Blackstone (2 Black. Com. 118, writers to have most probably had 354) and some othera to Henry VII, no existence, in procuring the passing of this (a) 32 Hen. VIII. c. 36. statute, are shown by the above (b) 4 Will VI. c. 1, see ante p. 33. 86 OF CORPOREAL HEREDITAMENTS. Fhmogeni ture. who is tenant for life, to bar the entail with all the remain- ders. Dominion is thus again acquired over the property^ which dominion is usually exercised in a re-settlement on the next generation ; and thus the property is preserved in the family. Primogeniture, therefore, as it obtains among the landed gentry of England, is a cv^tom only, and not a right ; though there can be no doubt that the custom has originated in the right, which was enjoyed by i;he eldest son, as heir to his father, in those days when estates tail could not be barred. Primogeniture, as a cus- tom, has been the subject of much remark (a). Where family honors or family estates are to be preserved, some such device seems necessary. But, in other cases, strict settlements of the kind refen*ed to seem fitted rather to maintain the posthumous pride of the present owner, than the welfare of futui-e generations. The policy of the law is now in favour of the free disposition of all kinds of property ; and as it allows estates tail to be baiTed, so it will not permit the object of an entail to be accomplished by other means, any further than can be done by giving estates to the unborn children of living 'persons. Thus an estate given to the children of an unborn child would be ^ perpetuity, absolutely void (6), ' for by possibility such estate might not vest till after expiration of lives in being and a term of twenty-one years next after termination of such lives^ which, with allowance for gestation, if gestation exists, is the utmost period during which property can be tied up so as to prevent power of complete alienation. A limitation to be valid within this rule against pei*petuity and remote- ness must be such as necessarily to take effect and vest within the period above named; the mere possibility that (a) See 2 Adam Smith's "Wealth cl Nations, 181, M'Culloch's edition; and McCuUoch's n. xix., vol. 4, p. 441. See also Traites de Legislation Civile et P^nale, .ouvrage extrait des Manuscrits de Bentham, par Dumont, torn. I, p. 307, a work of profound philosophy, except where a hardened scepticism makes it shallow. (b) Hay V. Earl qf Coventi-y, 3 T, Rep. 86 .• BnKlnell v. Elms, 1 East, 462. OF AN ESTATE TAIL. »7 it may so vest will not prevent its being deemed invalid if by possibility it may not so vest, as in the case of a limi- tation to unborn children of unborn persons' (a). The desire of individuals to keep up their name tt,nd memory has often been opposed to this rule of law, and many shifts and devices have from time to time been tried to keep up a perpetual entail, or something that might answer the same end (6). But such contrivances have invariably been defeated ; and no plan can now be adopted by which lands can with cei'tainty be tied up, or fixed as to their future destination, for a longer period than the lives of persons and a term of twenty-ono years after their decease Whenever an estate tail is not an estate in possession, Estate tail but is preceded by a life interest to be enjoyed by some precedtd by a r J ^ J J J life interest. other person prior to the possession of the lands by the tenant in tail, the power of such tenant in tail to acquire an estate in fee simple in remainder expectant on the decease of the tenant for life is subject to some limitation. In the time when an estate tail, together with the rever- Concurrence sion, could only be barred by a recovery, it was absolutely ^ '^\ f *iifa necessary that the first tenant for life, who had the posses- required. sion of the lands, should concur in the proceedings ; for no recovery could be suffered, unless on a feigned action brought against the feudal holder of the possession {d). This technical rule of law was also a valuable check on the tenant in tail under every ordinary settlement of landed property ; for, when the eldest son (who, as we have seen, is usually made tenant in tail) came of age, he found that, before he could acquire, the dominion expectant on the decease of his father, the tenant for life, he must (a) Smith's Executory Interests added to Feame 709. (6) See Fearne's Contingent Ee- mainders, 253 et seq. ; Mainwar'mg V. Baxter, 5 Ves. 458. (c) Fearne's Contingent Remain- ders, 430 et seq. The period of gestation is also included, if gesta- tion exist ; Gadell v. Palmer, 7 Bligh, N. S. 202. Tudor's Lg. Cases. {(l) Cruise on Recoveries, 21. Black. Com. by Leith and Smith, p. 520. See however stat. 14 Geo. II. c. 20. !| 38 OF CORPOREAL HEREDITAMENTS. Protector. His consent required to bar re- mainders and reversions. Issue may be barred with- out protec- tor's consent. obtain from his father consent for the pui-pose. Opportu- nity was thus given for providing that no ill use should be made of the property (a). When ' the act of 9 Vic. Kev. Stat. 100 was passed,' the consent formerly required was accordingly still preserved, with some little modification. The act has established the office of protector, which almost always exists during the continuance of such estate under the settlement as may precede an estate tail. And the con- sent of the protector is required to be given, either by the same deed by which the entail is barred, or by a separate deed, to be executed on or before the day of the execution of the former, and to be also 'registered' at or previously to the time of the ' registry' of the deed which bears the entail {b), 'which deed requires to be registered within six months after execution, except in the case of certain leases.* Without such consent, the remainders and reversion cannot be baiTed (c). In ordinary cases the protector is the fii-st tenant for life under the settlement, in analogy to the old law (d) ; but a power is given by the act, to any person entailing lands, to appoint, in place of the tenant for life, any number of persons, not exceeding three, to be together protector of the settlement during the continuance of the preceding estate (e) ; and, in such a case, the consent of such persons only need be obtained in order to effect a complete bar to the estate tail, and the remainders and reversion. The protector is under no restraint in giving or withholding his consent, but is left entirely to his own discretion (/). If he should refuse to consent, the tenant in tail may still bar his own issue ; as he might have done before the act by levying a fine ; but he cannot bar estates in remainder or reversion. The consequence of such a limited bar is, that the tenant acquires a disposable estate in the land for so long as he has any issue or descendants living, and no longer ; that is, so long as the estate tail (a) See First Report of Real Pro- (d) S. 19. perty Commissioners, p. 32. (e) S. 20. (b) Rev. Stat. 100. s. s. 31. 35. (/) S. 25. 27. (c) Con. Stat. s. s. 32. 36. illlll I OF AN ESTAx*: TAIL. 39 would have lasted had no bar been placed on it. This is called a base fee. But, when hi.s issue fail, the person hav- Base fee. insr estates in remainder or reversion become entitled. When the estate tail is in possession, that is, when there EsUte tail in is no previous estate for life or otherwise, there can very possesaion. seldom be any protector, and the tenant in tail may, at any time by deed duly registei'ed within six months after execution, bar the entail, remainders, and leversion at his own pleasure. And where a previous estate for life exists Life estate it does not confer the offi(;e of protector, unless it t»e ^J"^!^?"^^ created by the same settlement which created the estate tail ; so that a tenant in tail i n remainder expectant on an estate for life, created by some prior deed or will, may bar the ent-ail, remainders, and reversion, without the con- sent of the tenant for life under such prior deed or will. The above mentioned right of a tenant in tail to bar Estates tail the entail is subject to a few exceptions ; which though ^*°*®^ ^^ of not very frequent occuiTenco it may be as well to men- tion. And, first, estates tail ^ anted by the crown as the reward for public services cannot be barred so long as the reversion continues in the crown. This restric- tion was imposed by an act of parliament of the reign of Henry VIII., and it has been continued by the act. There are also some cases ' in England' in which entails have been created by particular acts of parliament, and cannot be barred. Again, an estate tail cannot be ban*ed by any person Tenant in tail who is tenant in tail after possibility of issue ^^^'^''^^- biutv^of^ue This can only happen where a person is tenant in special extinct, tail. For instance, if an estate be given to a man and the heirs of his body by his present wife ; in this case, if the wife should die without issue, he would become tenant in tail after possibility of issue : the possibility of his having issue who could inherit the estate tail would have become extinct on the death of his wife. A ten- ancy of this kind can never arise in an ordinary estate in tail general or tail male ; for, so long as a person lives, the law considers that the possibility of issue continues, 40 OF CORPOREAL HEREDITAMENTS. cannot be barred by will or con- tract. however improbable it may be from the great age of the party (a). Tenants in tail after possibility of issue extinct were prohibited from suffering common recoveries by '* statute of the reign of Elizabeth, and a similar prohibition is contained in the revised act. ' The issue in expectancy of tenant in tail cannot avail themselves of the act' (b). An estate tail ' It is important to observe that subject to the question whether those entitled after the actual tenant in tail can be precluded on sale of the estate under process of execu- tion against him or under bankrupt laws, to which allusion will presently be made, and subject also to the liability to be barred under the Statute of Limitations by adverse possession against sucli tenant', an estate tail can only be baiTed by an actual conveyance by deed, duly registered. Thus every attempt l>y a tenant in tail to leave the lands entailed by his will, and every contract to sell them, not completed in his lifetime by the proper bar (c), will be null and void as against his issue claiming under the entail, or as against the remaindermen or reversionei"s, (that is, the owners of estates in remainder or reversion,) should there be no such issue left : ' but a vendor may, during his life- time, be compelled to the extent of his power to complete a contract to convey in fee simple ; the protector, how- ever, if any, cannot be compelled to assent, and the issue are not compellable to complete their ancestor's contract (d). And a conveyance not valid under the act as for want of due registry is binding on the tenant himself and his life interest (e). In cases of void dispositions or consents relief may sometimes take place under sec. 27.' (/). A tenant in tail may cut down timber for his own bene- fit, and commit what waste he pleases, without the neces- (o Litt. 860.34. ; Co. litt. 40 a ; 2 Black. Com. 125; Jee v. Aitdley, 1. Cox 324. (6) sec. 8. (c) R. S. 8. 8. 19, 36. 24. Oraham v. Oraham, 6. Grant 372, Sugden Stats 226. (e) Dumhk v. Johnson 17. U. C. C. P. 9. (/) Black. Com. by Leith and (d) Peare'v. Duncombe 7, Hare Smith, p. 528. OF AN ESTATE TAIL. 41 Grant U. C. and «ity of bairing the entail for thfit purpose (a). A tenant in tail was moreover empowered by % statute of Henry VIII. to make leases, under certain restrictions, of such of the lands entailed as had been most commonly let to farm for twenty years before ; but such leases were not to exceed twenty-one years, or three lives, from the day of the making theieof, and the accustomed yearly rent was to bo reserved. This power was however of little use; for leases under this statute, though binding on the issue, were not binding on the remaindermen or reversioner, and conse- quently had not tliat certainty of enjoyment which is the great inducement to the outlay of capital, and the conse- quent improvement of landed property. The act now empowers every tenant in tail in possession to make leases by deed, without the necessity of ' registry,' for any term not exceeding twenty-one years, to commence from the date of the lease, or from "xny time not exceeding twelve calendar months from the date of the lease, where a rent shall be thereby reserved, which, at the time of granting such lease, shall be a rack-rent, or not less than five-sixth pai'ts of a rack-rent (b). It has been observed, that in ancient times, estates tail Forfeiture for were not subject to forfeiture for high treason beyond the '■'^*'°°' life of the tenant in tail (c). This privilege they were deprived of by an act of parliament passed in the reign of Henry VIII. (d), by which all estates of inheritance (under which general words estates tail were covertly included) were declared to be forfeited to the king upon any convic- tion of high treason (e). The attainder of the ancestor did Attainder, not of itself prevent the descent of an estate tail to his issue, as they claimed from the original donor, jJ^i' foi'mam doni ; and, therefore, on attainder for murder, an estate tail descended to the issue : ' and it would seem that now (a) Co. Litt. 224 a; 2 Black. Com. 115. (h) Sec. 30. (c) Ante, p. 31. 6 {d) 26 Hen. VIII. c. 13, s. 5 ; see also 5 & 6 Edw. VI. c. 1 1, s. 9. (e) 2 Black, Com. 118. FT 42 OF CORI'OKEAL HiiREDlTAMENTS. even in cases of high treason the issue in tail will not ho- disinherited' (a). HnBljond and In addition to the liabilities above mentioned are the rigiits whieh tho marriage of a tenant in tail confers on the wife 'as dowress' if the tenant he a man, or on the husband ' in certain cases as tenant by the curtesy' if the tenant h& a woman ; an account of which will be contained in a future chapter on the relation of husband and wife. Descent of lui Subject to those right and liabilities, an estate tail, if estate tail. 111 1 -n 1 -i ■ n • i« 1 i not duly barred, will descend to the issue ot the donee in due course of law ; all of whom will be necessarily tenants in tail, and will enjoy the same powers of disposition as their ancestor, the original donee in tail. 'The law appli- cable to descent of an estate tail involves consideration of most of the old common rules of descent, for the statute of Victoria which no' overns descent as to fee simple estates does not applj the descent of an estate tail very rarely occurs in practice and a knowledge of the common law rules is now of little sei'vice it is thought advisable in so elementary a work as this not to trouble the student with more than a brief outline of the law. Descent at common law is admirably treated of by Black- stone (b). The first four rules govern. The 1st is, that inheritances lineally descend to the issue of the person who last died actually seised in infinitum, but never line- ally ascend. This rule is however varied in its application to entails; for seisin is of no importance, descent has always to be traced from the purchaser, the donee in tail, and all who are lineally descended from him are heirs of his body, and so take as such per formam doni. The half blood to issue of the donee in tail are not excluded from the inheritance, for as the half blood claim, not from the person last seised, but from the donee in tail they must always be of his whole blood. The 2nd rule is, that the (a) 7 Anne. c. 21 17 Geo. 2 c. 39 32 & 33 Vic. c. 29 as. 54, 56 Ca. Black. Com. by Leith k Smith, p. 287. (6) See the first edition of Black, stone by Leith p. 137. OF AN ESTATE TAIL. 4» I not bo- are the 8 on the busband ,'nant h& ud in a o tail, if lonee in tenants sition as w appli- ation of ! statute J simple bate tail of the thought trouble ;he law. Black- is, that person, er line- li cation nt has in tail, leirs of he half d from om the y must lat the male i.s.sue bo preferred to the female: this rule apj)eftrH where the entail is general, as on giftw to a man and the heirs of his ))0d were, as will be remembered, either the subinfeudation of parts of the land, to be holden by the grantor, or the convey- ance of the whole, to be holden of the superior lord. It was impossible to make a grant of part of the lands to be (a) pp. 15, 16. (b) p. 29. OF AN ESTATE IN FEE SIMPLE. 45 holden of the superior lord without, his consent ; for, the services reserved on any grant were considered as entire and indivisible in their nature. The tenant, consequently, if he wished to dispose of part of his lands, was obliged to create a tenure between his giantee and himself ^ by reserv- ing to himself and his heirs such service as would remune- rate him for the ser\ ices, which he himself was liable to render to his superior lord. In this manner the tenant became a lord in his turn ; and the method which the ten- ants were thus obliged to adopt, when alienating part of their lands, was usually resorted to by choice, whenever they had occasion to part with the whole; for the irnme- diate lord of the holder of any lands had advantages of a feudal nature (a), which did not belong to the superior lord when any mesne lordship intervened; it Vvas therefore desirable for every feudal lord, that the possession of the lands should always be holden by his own immediate ten- ants. The barons at the time of Edward I. accordingly, Subinfeuda- perceiving that, by the continual subinfeudations of their *^°°'^^^^' . ^ ... . vantageous to tenants, their privileges as superior lords were gradually the superior encroached on, proceeded to procure an enactment in their *"^ ' own favour with respect to estates in fee simple, as they had then already done with regard to estates tail (6). Ttiey did not, however, in this case, attempt to restrain the prac- tice of alienation altogether, but simplv procured a prohi- bition of the practice of subinfeudatioii ; and at the same time obtained, for their tenants, facility of alienation of part of their lands, to be holden of the chief lords. The statute by wliich these objects were effected is known The statute of by the name of the statute of Quia emptores (c) ; so called J'^'^'/" ^"*-P" from the words with which it commences. It enacts, that from thenceforth it shall be lawful to every freeman to sell at his own pleasure his lands and tenements or part thereof, so nevertheless that the feoffee (or purchasei") shall i; ton t, 1 ')(■ (a) Such a marriage andwardship, to be hereafter explained. (6) By the stat. De Bonis, 13 Edw. I. c. 1, ante, p. .m (c) Stat. 18 Edw. I. I* c. 1. 46 OF CORPOREAL HEREDITAMENTS. hold the same lands or tenements of the same chief lord of the fee, and by the same services and customs, as his feoffor held them before. And it further enacts (a), that, if he sell any part of such his lands or tenements to any person, the feoffee shall hold that part immediately of the chief lord, and shall forthwith be charged with so much service as pertaineth, or ought to pertain, to the said chief lord, for such part, according to the quantity of the laad or tenement so sold. This statute did not extend to those who held of the king as tenants in cainte, who how- ever subsequently acquired power ; and the right of dispos- ing of an estate in fee simple, by act inter vivos, is now the undisputed privilege of every tenant of such an estate. Blackstone's explanation of an estate in fee simple is, that a tenant in fee simple holds to him and his heirs for ever, generally, absolutely and simply without men- tioning luhat heirs, but referring to his own pleasure, or the disposition of the law (h). But the idea of nominating an heir to succeed to the inheritance has no place in the English law, however it might have obtained in the Roman Juris- The heir is prudence. The heir is always appointed by law, the max- appointedby |j^ being Solus Deus hcerede.tn facere potest, non homo (c); and all other persons, whom a tenant in fee simple may please to appoint as his successors, are not his heirs but his Assigns. assigns. Thus, a purchaser from him in his lifetime, and a devisee under his will, are alike assigns in law, claiming in opposition to, and exclusion of the heir, who would otherwise have becou.e entitled (d). Excepted per- With respect to certain persons exceptions occur to the right of alienation. Before 'certain statutes' (e) if an alien or foreigner, under no allegiance to the crown, purchased an sons. Alien. (a) Chap. 2. (b) Black. Com. 104. See how- ever 3 Black. Com. 224. (c) Reeves's Hist. Eng. Law, 105 ; Co. Lit. 191 a, n. (1), vi 3. {d) Hogan v. Jackson, Cowp. 305 ; Co. Litt. 191 a, n. (1), vi. 10. {e) As to alienage in Ontario, see Canadian Law Times, vol. i, p. 12, et aeq., and Black. Com., Ist ed. by Leith, pp. 181, 189, as to rights of aliens to devise, inherit, 4c., prior to late enabling Acts. OF AN ESTATE IN FEE SIMPLE. 47 estate in lands, the crown might at any time have asserted a right to such estate ; unless it was merely a lease taken by a subject of a friendly state for ' mercantile purposes.' For the conveyance to an alien of any greater estate in lands in this country, was a cause of forfeiture to the Queen, who, after an inquest of office had been held for the purpose of finding the truth of the facts, might have seized the lands accordingly. • As from and on the 23rd November, 1849, aliens are placed as to real estate on much the same footing as natural born subjects of Her Majesty (a).' ' But it is now provided for (h) that on £Cnd from 23rd November, 1849, real property' of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural-born British subject ; and a title may be derived through, from, or in succession to an alien in the same manner in all respects as through, from, or in succession to a natural -born British subject. ' There is a proviso that then vested rights and titles as against m alien shall not be impaired.' Infants, or all persons under the age of twenty-one Infanta, years, and also idiots and lunatia, though they may hold lul^tic^ lands, are incapacitated from making a binding disposition of any estate in them. The conveyances of infants are generally voidable only (c), and those of lunatics and idiots appear to be absolutely void, 'but it has been said by Spragge, C, that the law was not clear {d) ; and it would seem that dealings of sale and purchase by and to an insane person, apparently sane, would not have been set aside by those who had dealt with him of the strength on his being sane (e), especially where parties and things dealt with could not have been restored to their original position.' (a) Rev. Act, c, 97. (6) 33 Vict ch. 14, 8. 2. (c) 2 Black. Com. 313, N. E. by Leith and Smith,. (d) 6 Grant, 642, and see oaaes, Black. Com. by Leith and Smith, p. 314. (e) Sugden on Powers, 8th ed. 6o4; Hansard v. Smith, 6 Ir. R. Eq. 429. 48 OF CORPOREAL HEREDITAMENTS. Excepted objects. Act. Charities. Since recent legislation, alienation by an insane person is void as against the Inspector under the Act, unless for full value paid or secured, or the purchaser had no notice of the insanity (a). And by Revised Statute, ch. 40, sections 57 to 85, too lengthy to be here set forth, the Court of Chancery has extensive powers and jurisdiction as to the property and persons of lunatics and infants, and as to disposal thereof.' There are certain objects, also, in respect of which the alienation of lands is restricted. In the reign of George TheMortmain II. an Act was passed, commonly called the Mortmain Act, the object of which, as expressed in the preamble, was to prevent ixnprovident alienations or dispositions of landed estates, by languishing or dying persons, to the disherison of their lawful heirs (6). This statute provides that no lauds or hereditaments, shall be conveyed or settled for any charitable uses, unless such lands or hereditamerits, or money or personal estate (other than stock in the public funds) be conveyed by deed indented, sealed and delivered in the presence of two or more credible witnesses, twelve calendar months at least before the death of the donor or grantor, including the days of the execution and death, and inrolled in the High Court of Chancery within six calendar months next after the execution thereof; and unless such stock be transferred six calendar months at least before the death of the donor or grantor, including the days of the transfer and unless the same be made to take effect in possession for the charitable use intended immediately from the making thereof, and be without any power of revocation, reservation, trust, condition, limita- tion, clause, or agreement whatsoever, for the benefit of the donor or grantor, or of any person or persons claiming unvler him. Provided always, that nothing therein before mentioned relating to the sealing and delivering of any deed twelve calendar months at least before the death of (a) Rev. Act, c. 220, & 47, as to 43 Vict. c. 36. proceedings by the Inspector : see {b) Stat. 9 Geo. II. ch. 36. OF AN ESTATE IN FEE SIMPLE. 4» the grantor, or to the transfer of any stock six calendar months before the death of the grantor, shall extend to any purchase of any estate or interest in lands and here- ditaments, or any transfer of stock to be made really and bona fide for a full and valuable consideration actually paid at or before the making of such conveyance or trans- fer, without fraud or collusion. And all gifts, conveyances, and settlements for any charitable uses whatsoever made in any other form than by that act is directed, are declared to be absolutely, and to all intents and purposes null and void. Gifts to either of the two Universities, or any of their colleges, or to the college of Eton, Winchester or Westminster, for the support and maintenance of the scholars only upon those foundations, are excepted. It will be seen that in consequence of this Act no gift of an estate in land for charitable purposes can be made hy will. ' This statute of Geo. II. and the statutes of Mortmain generally, have been held to be in force here (a), subject to the exception as to bequests to what were called super- stitious uses, such as for masses for the soul and the like, which though not to a corporate body, were declared void by the statute of 32 H. VIII. c. 10. Inasmuch as in Ontario " by our law all bodies of Christians enjoy equal toleration," a bequest of money for paying for masses for the repose of the testators soul, is not invalid as a super- stitious use (b). Registry in the county registry office (if, indeed that that can be deemed requisite), has been considered equiva- lent to the enrolment required by the statute. The effect, however, of the Statutes is much diminished by vaiious Provincial Acts. By the R. S. O., c. 216, any religious Provincial body of Christians may take conveyances for site of a ?°*^ authoriz- churcb, meeting-houses, &c., or other " religious or congre- ances to religious uses. .16 V. c. 136. (o) Doe Andenon v. Todil, 2 U. C R. 82 ; Mercer v. Hemton, 9 C. P. U. C. 349; Halkck v. WiUon, 7 C. P. U. C. 28. (h) Elmaley v. Madden, 18 Grant, 386. I 50 OF CORPOREAL HEREDITAMENTS. gational purpose," in the name of trustees. Powers of mortgaging and leasing are granted, also power to any such body to take by gift or devise any lands if made six months before death of donor ; the deed of conveyance to be registered within twelve months after execution, and of lands so given or devised, and not to exceed, however, one thousand dollars in annual value, nor are they to be held for more than seven years, and unless disposed of within that period revert to the donor or devisor, or his representatives. As to any special Act with reference to any religious body the provisions of such Act are to con- tinue unimpaired, but such body is to be entitled to all additional privileges coiiferred by the general Act. By 3 Vic. c. 74, certain powers of acquisition of, and dealing with lands are granted to the United Church of England and Ireland, and by 8 Vic. c. 82, to the Eoman Catholic Church. By R. S. c. 167, power is given to any five or more adults to incorporate themselves for any benevolent or provident, or any other purpose not illegal, except of trade or business, or within the provision of any of the various Acts named in the empowering Act, which Acts relate to ■cemeteries, companies for insurance, construction of public works, manufacturing, mining, &c. The power to take lands by purchase is confined to what is required by actual use and occupation for the purposes of the society ; and that to take by gift, devise, or bequest, is also limited as to amount and period allowed for holding. Somewhat the same terms as above mentioned are contained in the above R. S. c. 216. Under the R. S. c. 150, any number of persons not less than five, may become incorporated " for any purposes of objects to which the legislative authority of the Legisla- ture of Ontario extends, except the construction and working of railways, and the business of insurance," with power to acquire real estate requisite for their business. Under various other Acts joint stock companies can be OF AN ESTATE IN FEE SIMPLE. 51 formed with powers to acquire and hold lands to a limited extent, and under certain restrictions and conditions {a)J Again no conveyance can be made to any corporation, unless a licence to take land has been granted to it by the crown. Formerly, licence from the lord, of whom a tenant in fee simple held his estate, was also necessary to enable him to alienate his lands to any coi-poration (6). For this alienation to a body having perpetual existence was an injury to the lord, who was then entitled to many advantages to be hereafter detailed, so long as the estate was in private hands ; but in the hands of a corporation these advantages ceased. In modern times, the rights of the lords having become comparatively trifling, the licence of the crown alone has been rendered by parliament suffi- cient for the purpose (c): 'usually, however, express power is given to corporations in their charter of incorporation to hold lands to a certain specified extent.' By a statute of the reign of Elizabeth, conveyances of Conveyances landed estates, and also of goods, made for the purpose crecUtore! °* of delaying, hindering or defrauding creditors, are void as against them ; unless made upon good, which here means valuable, consideration, and bond fide, to any person not having, at the time of the conveyance, any notice of such fraud {d). And, by a subsequent statute of the same reign. Voluntary voluntary conveyances of any estate in lands, tenements, or'idt^^clauM or other hereditaments whatsoever, and conveyances of of revocation, such estates made with any clause of revocation at the willpurchM^W of the grantor are also void as against subsequent pur- chasers for money or other valuable consideration (e). The effect of this enactment was, that any person who made a voluntary settlement of landed property, even on his own (a) See R. S. 149 to 159. (b) 9. Black. Com. 269. (c) Stat. 7 & 8 Will. Ill, s. 35. c. 37. (d) Stat. 13 Eliz. c. c. 5 ; Twynt'a case, 3 Rep. 81 a ; 1 Smith's Lead- ing Cases, 1 ; Spencer v. Slater, L. R., 4 Q. B. D. 13; and see Rev. Act c. 95, a. 13, to remove doubts as to construction of the Act. See Rev. Act, c. 49, s. 10 as to proceedings. (e) Stat 27 Eliz. c. 4, made per- petual by 39 Eliz. c. 18, s. 31. ^r 52 Debts. OF CORPOREAL HEREDITAMENTS. children, miefht afterwards have sold the same property to any purchaser ; and the purchaser even though he had full notice of the settlement, would hold the lands without danger of interruption from the persons on whom they had been previously settled. But if the settlement were founded on any valuable consideration, such as that of an intended marriage, it cannot be defeated, 'This unjust law has been varied : and now, unless in cases where a pur- chaser had before the 28tii of February, 1868, entered into a contract for, or received a conveyance on his pur- chase ; conveyances in good faith duly registered before execution of the conveyance to, and creation of any con- tract for conveyance to any subsequent purchaser of the same lands from the same grantor, is not to be deemed void merely because voluntary (a).' The methods by which a tenant in fee simple can alienate his estate in his lifetime will be reserved for future con- sideration ; as will also the subject of alienation by testa- ment. As a tenant in fee simple may alienate his estate at his pleasure, so he is under no control in his management of the lands, but may open mines, cut timber, and commit waste of all kinds (6), grant leases of any length, and charge the lands with the payment of money to any amount. Fee simple estates are moreover subject, in the hands of the heir or devisee, to debts of all kinds contracted by the deceased tenant. This liability to what may be called an involuntary alienation, has like the right of voluntary alienation been established by very slow degrees (c). It appears that, in the early periods of our history, the heir of a deceased person was bound, to the extent of the inheritance which descended to him, to pay such of the debts of his ancestor as the goods and chattels of the ancestor were not sufficient to satisfy (cZ). But the (a) Rev. Act, c. 95, sa. 11, 13. {b) 3 Black. Com. 223. (c) See Co. Litt. 191 a, n. (l),vi. 9. (d) Glanville, lib. vii. c. 8 ; Bract. 61 a ; 1 Reeves's Hist. Eng. Law, 813. These authorities appear ta be express ; the contrary doctrine, however, with an account of the reasons for it, will be found in Bac, Abr. .tit. Heir and Ancestor (F). OF AN ESTATE IN FEE SIMPLE. 58 spirit of feudalism, which attained to such a height in the reign of Edward I., appears to liave infringed on the ancient doctrine ; for we find it laid down by Britton, who wrote in that reign, that no one should be held to pay the debt of his ancestor, whose heir he was, to any other ])er- son than the king, unless he were by the deed of his ancestor especially bound to do so. On this footing the law of England long continued. It allowed any person, Heirs might by any deed or writing under seal (called a special con- bouml by tract or specialty) to bind or charge his heir.s, as well as specialty, himself, with the pa3rment of any debt, or the fulfilment of any contract ; in such a case the heir was liable, on the decease of his ancestor, to pay the debt or fulfil the con- tract, to the value of the lands which had descended to him from the ancestor, but not further. The lands so de- scended were called assets by descent, from the French word assez, enough, because the heir was bound only so Assets. far as he had lands descended to him enough or sufficient to answer the debt or contract of his ancestor. If, how- ever, the heir was not expressly named in such bond or contract, he was under no liability. When the power of testamentary alienation was granted, a debtor who had thus bound his heirs, became enabled to defeat his credi- tor, by devising his estate by his will to some other person than his heir ; and, in this case, neither heir nor devisee was under any liability to the creditor. Some debtors, however, impelled by a sense of justice to their creditors, left their lands to trustees in trust to sell them for the payment of their debts. The creditors then obtained pay- ment by the bounty of their debtor ; and the Court of Chancery, in distributing this bounty, thought that " equality was equity," and consequently allowed creditors by simple contract to participate equally with those who had obtained bonds binding the heirs of the deceased (h). In such a case the lands were called equitable assets. At Equitable {h) Parker v. Dee, 2 Cha. Cas. Ves. 219 ; 2 Jarra. Wills, 544, Ist 201 ; Bailey v. Ekins, 7 Ves. 31 , 7 ed.; 523, 2nd ed.; 554, 3rd ed. Wf 54 OF CORPOREAL HEREDITAMENTS. length an act of William and Mary made void all devises by will as against creditors by specialty in which the heirs were ])ound, but not further or otherwise; 'and power wasgiven to bring action against the heirs and devisee' (a); but iluvises or dispositions of any lands or hereditaments for the jjayment of any real and just debt oi debts were exempted from the operation of the statute (6). Creditors, however, who had no specialty bindin^ the heirs of their debtor, still remained without remedy against either heir or devisee ; unless the debtor chose of his own accord to charge his lands by his will with the payment of his debts; in which case, as we have seen, all ■ creditors were equally entitled to the benefit. So that, . till 'comparatively recent legislation presently mentioned,' a landowner might incur as many debts as he pleased, and , yet leave behind him an unincumbered estate in fee sim- ple, unless his creditors had taken proceedings in his life- time, or had entiued into any bond or specialty binding his heirs. Former eflect If, howevei*, the debtor should by his last will have ^gj^^g^^m charged his lands with, or devised them subject to, the payment of his debts, such charge was still valid, and every creditor, of whatever kind, had, as above named, an equal right to participate in the produce. Hence arose this curi- ous result, that a person that had incurred debts, both by • simple contract and by specialty in which he had bound his heirs, might by merely charging his lands with the payment of his debts, place all his creditors on a level, so far as they might have occasion to resort to such lands ; thus depriving the creditors by specialty of that priority to which they All creditors would otherwise have been entitled (c). This anomaly has equal degree, ^o^ been remedied by an A.ct which provides that, in the (a) Stat. 3 Will & Mary, c. 14, berry, 12 C. P. U. 0. 339. 8. 2, niaile perpetual by stat. 6 & 7 (6) Stat. 3 AViU. & Mary, c. 14,. Will. III. c. 14, as to proceedings s. 4. in Ontario under this Act see Van- (c) See Mr. Williams' Essay oa Koughnet v. Boas, 7 W. 0. R. 248, Real Assets, p. 39. commented on in Rymal v. Ash- m OF AN ESTATE IN FEE SIMPLE. 55 administration of the estate of any person, 'debts to the Crown, or executor, or administrator, or of record, specialty, sLnple contract, or claims for damages payable by statute as simple contract debts shall be paid, 2>ttri piisau without priority;' out of the assets of such deceased person, pro- vided that the act shall not prejudice or attect any lien 'existing durinL: the debtor's lifetime' (a). The first enactment which gave to a creditor a remedy against the lands of his debtor was made in the reign of Edward I. (b), shortly before the passing of the statute of Quia Emptorea (c), which sanctioned the full and free alienation of fee simple estates. By this enactment it is provided, that when a debt is recovered or acknowledged in the King's Court, or damages awarded, it shall be thenceforth in the election of him that sueth for such debt or damages to have a writ oi fieri facias unto the sheriff of the lands and goods, or that the sheriff deliver to him all the chattels of the debtor (saving only his oxen and beasts of his plough), and tlie one half of his land, until the debt be levied according to a reasonable price or extent. The Writ of elegit. writ issued by the Court to the sheriff, under the authority of the statute, was called a writ of elegit; so named, be- • cause it was stated in the writ that the creditor had elected (elegit) to pursue the remedy which the statute had thus provided for him. One moiety only of the land was allowed to be taken, because it was necessary, ac- cording to the feudal constitution of our law, that what- ever were the difficulties of the tenant, enough land should be left him to enable him to perform tlie services due to his lord. ' The writ of fieri facias against lands has, in Ontario, superseded the writ of elegit It issued in the first instance by force of the Act of 5 Geo. II. c. 7, under the fourth section of which realty in the plantations was made sub- (a) Rev. Acts, c. 107, s. 30. Second. (6) Stat. 13 Edw. I. c. 18, called (c) Stat 18 Edw. I. c. 1. the Statute of Westminster the r" i i mr \ i 56 OF CORPOREAL HEREDITAMENTS. ject to the like remedies and process for seizure and sale for satisfaction of debts as personal estate. Un :'--h-,y\,-}-c-A-- .:yy ? ;'T, ■'■.■.i.iv*. In addition to the interests which may be created by alienation, either voluntary or involuntary, there are cer- tain rights conferred by law on husbands and wives in each other's lands, by means of which the descent of an estate, from an ancestor to an heir, may partially be defeated. These rights will be the subject of a future chapter. If, however, the tenant in fee simple should not have disposed of his estate in his lifetime, or by his will. (a) Lester v. Oarland, 5 Sim. 205 ; Phipps V. Lord EnnismorQ, 4 Russ. 131 ; Davidson, supra, the law and forms. See, however, as to a restric- tion on a man's own alienation, the case of Brooke v. Parson, 27 Beav. 181. (ft) See forms Davidson, Convey., vol. iii, index, heading, separate use. (c) Stats. 13 Eliz. c. 20 ; 57 Geo. III. 8. 99, 8. 1 ; 1 & 2 Vict. c. 106, B. 1 : SImw v. Pritchard, 10 Bam. & Cress. 241 ; Lo7i(j v. Storie, 3 De Gex & Smale, 308 ; Hawkins v. Oathercole, 6 De Gex, M. & G. 1. (d) Fhirty v. Odmi, 3 T. Rep. 681 ; stats. 5 & 6 Edw. VI. c. 16 ; 49 Geo. III. c. 126. (e) McCarthy v. Goold, 1 Ball & Beatty, 387 ; Tunstal v. Boothby, 10 Sim. 542. But see statutes 47 Geo. III. sesB. 2, c. 25, s. 4. and 11 Geo. IV. & 1 Will. IV. OF AN ESTATE IN FEE SIMPLE. 6» and if it should not be swallowed up by his debts, his lands will descend (subject to any right of his wife) to the heirs at law. The heir, as we have before observed, is a The heir at person appointed by the law. He is called into existence by his ancestor's decease, for no man during his lifetime can have an heir. Nemo est hcerea vlventis. A r^ may have an heir apparent, or an heir 2)re8uinptive . i. atil Lis decease he has no he ir. The heir apparent is . e ] ;or .;on, Heir ap- who, if he survive the ancestor must certainly be his neir, as W^^^' an ' only son ' in the liftime of his father, ' a widower.' The heir presumptive is the pei-son, who, though not t ^tain to Heir pre- be heir at all events, should ho survive, would yet be the heir ^"^^ *^®' in case of the ancestor's immediate decease. Thus an only daughter is the heiress presumptive of her father : if he , ... were now to die, she would at once be his heir ; but she is not certain of being heir; for her father may have a son, who would become 'co-heir presumptive with her,' during her father's lifetime, An heir at law is the only person in whom the law of England vests property, whether he will or not. If I make a conveyance of land to a person in my lifetime, or leave him any property by my will, he may, if he pleases disclaim taking it, and in such a case ' ' it will not vest in him against his will (a). But an heir at • , ■■ law, immediately on the decease of hia ancestor, becomes presumptively possessed, or seised in law, of all his lands (6). No disclaimer that he can make will have any effect. The heir can- though, of course, he may, as soon as he pleases, dispose ^'^^^'^"^ of the property by an ordinary conveyance. A title as heir at law is not nearly so frequent now as it was in the times when the right of alienation was more restricted. And when it does occur, it is often established with diffi- culty. This difficulty arises more from the 'nature of fthe facts to be proved, than from any uncertainty in the law. For the rules of descent have an almost mathematical accuracy, so that, if the facts are rightly given, the heir (a) Nkhohon v. Wordsworth, 2 {b) VVatkiiis on Descents, 26, 25 Swanst. 366, 372. (4th ed. 34)). €0 OF CORPOREAL HEREDITAMENTS. Gradual pro- at law can at once be pointed out, The accuracy law of law 'down to the statute which now governs ' has arij descents. of the governs nas arisen by degrees, by the successive determination of disputed points. Thus, in the early feudal times, an estate to a man and his heirs simply, which is now an estate in fee simple, was descendible only to his offspring, in the same manner as an estate tail e.t the present day ; but in process of time collateral relations were admitted to succeed. When this succession of collaterals first took place is a question involved in much obscurity ; we only know that in the time of Henry II. the law was settled as follows : — In default of lineal descendants, the brothers and sisters came in ; and if they were dead, their children ; then the uncles and their children ; and then the aunts and their chil- dren ; males being always preferred to females. Subse- quently, about the time of Henry III. (a), the old Saxon rule, which divided the inheritance equally amongst all males of the same degree, and which had hitherto pre- vailed as to all lands not actually the subjects ol feudal tenure (6), gave place to the feudal law, introduced by the Normans, of descent to the eldest son or eldest bro- ther ; though among females the estate was equally divi- ded, as it is at present. And, about the same time, all descendants in infinitum of any person, who would have been heir if living, were allowed to inherit by right of representation. Thus, if the eldest son died in the life- time of his father, and left issue, that issue, though a grandson or a granddaughter only, was to be preferred in inheritance before &ny younger son (c). The father, moreover, or any other lineal ancestor, was never allowed to succeed as heir to his son or other descendant ; neither were kindred of the half-blood admitted to inherit (d). The rules of descent, thus gradually fixed, long remained ia) Reeves's Hist. 310 ; 2 Black. Com. 215 ; Co. Litt. 191 a, note (1), vi. 4. {h) Clements v. Sandaman, 1 P. Wms. 63. 64; 2 Lord llaymond, 1024 ; 1 Scriv. Cop. 53 ; 2 Black. Com. 215. (f) 1 Reeves's Hist. 310. (d) 2 Black. Com. c. 14. OF AN ESTATE IN FEE SIMPLE. 61 I. * unaltered. Lord Hale, in whose time they had continued the same for above 400 years, was the first to reduce them to a series of canons (a) ; which were afterwards admira- bly explained and illustrated by Blackstone, in his well known Commentaries ; nor was any alteration made till the enactment of the act for the amendment of the law of inheritance (6). By this act, ' relating to descents between 1st July, 1834 and 31st December, 1851 both dates inclu- sive,' amongst other important alterations, the father is heir to the son, supposing the latter to leave no issue; and ail lineal ancestors are rendered capable of being heirs; relations of the half-blood are also admitted to succeed, only on failure of relations in the same degree of the whole blood. The act has, moreover, settled a doubtful point in the law of descent to distu-nt heirs. The ' com- mon law * rules of descent as modified by this act, will be found in the next chapter, as also the present law created by the Act of Victoria. (o) Hale's Hist. Com. Law, 6th (b) 4 Wm, 4. c, ed., p. .318 et seq. to 17. 1 R. 105 88. 12 (d). :■ ,,'*', '.i : :• Ml 62 OF CORPOREAL HEREDITAMENTS. Rules of descent. Rule 1. Purchase. Descent for- merly traced from the per- son last pos- sessed. II I CHAPTER IV. OF DESCENT OF A^r ESTATE IN FEE SIMPLE. We shall now proceed t j consider the 'common law' rules of descent of an estate in fee simple, as altered by the act ' of William ' (a). This act does not extend to any descent on the decease of any person, who may have died before the first of July 1834. For the rules of descent prior to that date, the reader is referred to the Commen- taries of Blackstone (6), and to Watkins's Essay on the Law of Descents. 1. The first rule of descent 'before the Act of Victoria' is, that inheritances shall lineally descend, in the first place, to the issue of the last purchaser in infinituni. The word purchase has in law a meaning more extended than its ordinar}' sense : it is possession to which a man cometh not by title of descent (c) : a devisee under a will is accord- ingly a purchaser in law. And, by the act, the purcha- ser from whom the descent is to be traced is defined to be, the last who had a right to the land, and who cannot be proved to have acquired the land by descent, or by cer- tain means {d) which render the land part of, or descend- ible in the same manner as, other land acquired by descent. This is an alteration of the old 'common' law, which was, that descent should be traced from the person who last had feudal possession or seisin, as it was called ; the maxim being seisina facit stipitem ( e ). Now the heir to be sought for is not the heir of the person last possessed, but the heir of the last person entitled who did not inhe- (a) R. S. 105 106. (6) 2 Black. Com. c. 14 (c) Litt. s. 12. {d) Escheat, Partition. (e) Black. Com. 209; Watk. Des- cent, C. 1, B. 2. I 4 OF DESCENT OF AN ESTATE IN FEE SIMPLE. 68 nt, whether he did or did not obtain possession, or the receipt of the rents and profits of the land. 2. The second rule is, that the male issue shall be Rule 2. admitted before the female (a). 3. The third rule is, that where two or more of the Rule 3. male issue are in equal degree of consanguinity to the purchaser, the eldest only shall inherit ; but the females shall inherit all together (b). The last two rules are the same as before the act of 'William' ; accordingly, if a man had two sons, William and John, and two daughters, Susannah and Catherine, William the eldest son, is the heir at law, in exclusion of his younger brother John, according to the third rule, and of his sisters, Susannah and Catharine, according to rule 2, although such sisters should be his seniors in year. If, however, William should have died without issue, then John would succeed, by the second rule, in exclusion of his sisters; but if John also died without issue, the two sisters succeed in equal shares by the third rule as being together heir to their father. Primogeniture, or the right of the eldest among theP"™°' males to inherit, was a matter of far greater consequence in ancient times, before alienation by will was permitted, than it is at present. Its feudal origin is undisputed ; but in this country it appears to have taken deeper root than elsewhere ; for a total exclusion of the_ younger sons appears to be peculiar to England : in other countries, some portion of the inheritance, or some charge upon it, is, in many cases at least, secured by law to the younger sons (c). From) this ancient right has arisen the modern Eng- lish custom of settling the family estates on the eldest son ; but the right and the custom are quite distinct : the right may be prevented by the owner making his will ; and a conformity to the custom is entirely at his option. When two or more persons together form an heir, they Coparceners, are called in law coparceners, or more shortly parceners. 'It may be that as to descents governed by 14 & 15 Vic. c. ■i it ?!:' (a) Black. Com. 212. (b) Black. Com. 214. (c) Co. Litt. 191 a. n. (1) vi. 4. if : 64 Rule 4. t Descent of an estate tail. Rule 5. W Exclusion of lineal ances< tors. OF CORPOREAL HEREDITAMENTS. 6. R. S. 105. 8. 37 the estate in coparcenary is abolished, it being enacted that co-heirs shall take as tenants in com- mon.' 4. The fourth rule is, that all the lineal descendants in infinitum of any person deceased represent their ancestors; that is, stand in the same place as the person himself would have done had he been living (a). Thus, in the case above mentioned, on the death of William the eldest son, leaving a son, that son would succeed to the whole by right of representation, in exclusion of his uncle John, and of his two aunts Susannah and Catherine ; or had William left a son and daughtei', such daughter would after the decease of her brother without issue, be in like manner, the heir of her grandfather, in exclusion of her uncle and aunts. The preceding rules of descent apply as well to the descent of an estate tail, if not duly barred, as to that of an estate in fee simple. The descent of an estate tail 'was before treated of (6). 5. The fifth rule is, that on failure of lineal descendants or issue of the purchaser, the inlieritance shall descend to his nearest lineal ancestor. This rule is materially differ- ent from the rule which prevailed at 'common law' before the passing of the act of William. The former rule was that, on failure of lineal descendants or issue of the person last seised (or_ feudally possessed), the inheritance should descend l-o his collateral relations, being of the blood of the first purchaser, subject to the three preceding rules (c). The old law never allowed lineal relations in the ascending line (that is parents or ancestors) to succeed as heirs. But, by 11 lo act ' of William ' descent is to be traced through the ancestor, who is to be heir in preference to any person who would have been entitled to inherit, either by tracing his descent through such lineal ancestor, or in consequence of there being no descendant of such lineal ancestor. The exclusion of parents and other lineal anccs- iil! .': (a) Black. Com. 21(J. (b) p. 42. (c) 2 Black Com. 220. OF DESCENT OF AN ESTATE IN FEE SIMPLE. 66 tors from inheriting under the old law was a hardship of which it is not easy to see the propriety ; nor is the explanation usually given of the origin perhaps quite 8atisfactor3\ 6. The sixth ' rule under the act of William ' is, that the Rule 8. father and all the male paternal ancestors of the pftrcha- ser, and their descendants, shall be admitted, before any of the female paternal ancestors or their heirs ; all the female paternal ancestors or their heirs, before the mother or any of the maternal ancestors, or her or their descend- ants ; and the mother and all the male maternal ancestors, and her and their descendants, before any of the female maternal ancestors, or their hell's. This rule is a develop- Preference of ment of the ancient canon, which requires that, in collate- males, ral inheritances, the male stock should always be prefer- red to the female ; and it is analogous to the second rule above given, which directs that in lineal inheritances the male issue shall be admitted before the female. This strict and careful preference of the male to the female line was in full accordance with the spirit of the feudal sys- tem, which being essentially military in its nature, imposed obligations by no means easy for a female to fulfil ; and those who were unable to perform the services could not expect to enjoy the benefits (a). The feudal origin of our laws of descent will not, however, afford a complete expla- nation of this preference ; for such lands as continued descendible after the Saxon custom of equal division, and not according to the Norman and feudal laws of primo- geniture, wei-e equally subject to the preference of males to females, and descended in the first place exclusively to the sons, who divided the inheritance between them, leav- ing nothing at all to their sisters. The true reason of the preference appears to lie in the degraded position in soci- ety, which, in ancient times, was held by females ; a posi- tion arising from their deficiency in that kind of might, which then too frequently made the right. The rights (a) Black. Com. 214 m 66 OF CORPOREAL HEREDITAMENTS. given by the common law to a husband over his wife's property (rights now generally controlled by proper set- tlements previous to marriage), shows the state of depen- dence to which, in ancient times, women must have been Preference of reduced [a). The preference of males to females was left males, con- untouched by the act 'of William'; and the father and all tinued. ^jg most distant relatives have priority over the mother ^f the purchaser : she could not succeed as his heir until all the paternal ancestors of the purchaser, both male and female, and their respective families, had been exhausted. The father, as the nearest male lineal ancestor, of course stands first, supposing the issue of the purchaser to have failed. If the father should be dead, his eldest son, being the brother of the purchaser, will succeed as heir in place of his father, according to the fourth rule ; unless he be of the half blood to the purchaser, which caae is provided for t/ the next rule, which is : — Kule 7. 7. That a kinsman of the half blood shall be capable of being.heir ; and that such kinsman shall inherit next after a kinsman in the same degree of the whole blood, and after the issue of tiuch kinsman when the common ances- tor is a male, and next after the common ancestor, when such ancestor is a female. This introduction of the half blood is also a new regulation ' under the act of William,* and like the introduction of the father and other lineal ancestors, it is certainly an improvement on the old * com- mon' law, which had no other reason in its favour than the feudal maxims, or rather fictions, on which it was By the old law founded (6), By the old law, a relative of the purchaser could not in'- of the half blood, that is, a relative connected by one only, and not by both of the parents, or other ancestors, could not possibly be heir ; a half brother for instance, could never enjoy that right which a cousin of the whole blood though ever so distant, might claim in his proper turn. 8. The eighth rule is, that in the admission of female herit. Bole 8. (a) See post, th« cha^ ^r on Hue- band and Wife. (6) 2 Black. Com. 228. h t" wm OF DESCENT OF AN ESTATE IN FEE SIMPLE. 6T paternal ancestors, the mother of the more remote male paternal ancestor, and her heirs, shall be preferred to the mother of a less remote male paternal ancestor, and her heirs ; and, in the admission of female maternal ancestors, the mother of the more remote male maternal ancestor, and her heirs, shall be preferred to the mother of a less remote male maternal ancestor, and her heirs. The eighth rule is a settlement of a point in distant heirships, which very seldom occurred, but which has been the subject of a vast deal of controversy. The opinion of Blackstone (a) and Watkins (b) is now declared to be the law. (a) Black. Com. 238. et seq. 4th ed.) (b) Watkins on Descents, 130 (146 , ! 68 OP CORPOREAL HEREDITAMENTS. i - :b, CHAPTER V. THE PRESENT LAW OF DESCENT. ■"V'v tributiouB. '11 Conforms to The Statute of Victoria (a), which governs descent on and statute of Dia-^^^® ^^^ ^^^^ day of January, 1852, is entirely subversive of the former system, and is based "n the rules of the civil law. Tn many respects, it hvuva a close resemblance to the mode of succession to personalty under the Statute of Dis- tributions, whicii according to Mr. Justice Blackstone (b), is but a restoration with some amendments of the law \rhich prevailed before the Noi man Conquest. Many of the decisions on that statute, especially as to the advancement and hotchpot clauses, may 1 - ai)|)iicable to our present law of descent; but in applying the cases the difference of language in the two Acts must be borne in mind. This Act seems to be copied almost entirely from the revised Act of the State of Nfw York, and the American decisions under that Act, and of the laws of descent of some other of the States of the Union will be found to be of service. Itistol'e observed that section 22, expressly includes ^^"'^^gj^*^'* estates puv oMre vie, and does not include estates-tail : the pur autre vie descent of the latter are governed therefore, as before butnotestates i • i j- 7 • ■»«• t j.i i 1 ^ ^ • tiiil or in trust explamed, perjoi'mam aom. Moreover, it the legul estate is vested in a trustee, then, b^' section 40, this Act does not apply to aifect the descent oi the legal estate, though by . ) section 19, the equitable interest of the cestui que trust will descend according to its provisions. Sections 19, 20, 21, should be referred to before considering other sections. Taken from New York Act. Statute in- (a) As the Act involves few prin- ciples of law, and mere effort of memory suffices to obtain a know- ledge of it, the author treats but briefly of the subject. He has, in conjunction with Mr. Smith, com- mented fully upon it in a work less elementary than the present. Ex tracts from that work re w given showing the leading icatuio of the Act, its similarity with i '10 Statute of Distributions as to personalty, its variance from the old law, and ex- plaining some Bugular expressions. Is ■ J - r ^1 THE PItESENT LAW oF DESCENT. 69 Descent is no longer, aa under the Statute of WiH' im, to be traced from the piirchasor, or person entitlfd ; but the language oi lliis section is, that the real estate of any person who shall die intesUite, 8i'i$ed in fee-simph', or for the life of another, shall deHcend, iScc. The first question which sug- gests itself on the language of this section is, whetiior we are again referred to thr rigoui'ous common law rule, which was, that the descent should be tracetl from the person hist actually teiaed, and that a mere seisin in law did not suffice to constitute a good root of descent, a seisin in deed, or its equivalent, being requisite. Thus in the case of A., an ille- gitimate child dying seised, leaving his wife and wife's brother, and B. his son, and heir at law, him surviving; assume that B. never was seised, and died intestate : here, at common law, as descent had to be traced from A. as last seised, his wife's relations could never take, and the estate would escheat ; but had B, entered, his mother or her colla- teral relative might have taken as heir to her son. Under the Statute of Wi iliam, in such cas(! there must always have been an escheat, even though B. had entered, on its being shown that he inherited, and that A. was the purchaser (a). The hardship in this instance was never remc ed here, b\it a remedy was applied in England by 22 & 23 Vic. ch. 35. sec. 19. In such a case, unde/ the Statute of Victoria, the question would be, whether the mother could take under the latter part of section f.7, as heir to B. ; oj' whether, as B. never acquired seisin, descent would have to be traced from A. as the stirps, and so escheat ; for it is apprehended that in such a case the mother could not take under section 36, which is confined tu the next of kin to A. under the Statute of Distributions ;£=?': There can be little doubt t lat by virtue of the comprehen- sive meaning given to the words " real estate," actual seisin is not requisite, and that the word seised in section 22 will be construed as entitled to (6) ; for the word seisin, in its Nil 1on(;er trace from purchiLser. Do we revert to coui. law rule of tracing from person last neinfd f The word st'wd identi- c.vl with eiilitkd to for Surposes of escent. (n) Dov Blackburn v. Blackburn, 1 Moo. & R. 547, per Parke, B. (h) Wivshburn Rl. Prop. Vol. 3, 3rd ed. p. 14. Vol. .3, 3rd ed., p. 14. i' I |i r)(iiK;eiit y«»' capita, not ptr dirpes prtivails 70 OF CORPOREAL HEREDITAMENTS. strict sense, is inappropiiate to many rights, intereHts, and estates, whica arc to descend, and would therefore receive a wider signification appropriate to such rights. The wording of the 22nd section requires explanation, as it is somewhat calculated to mislead. It enacts that the , „ . estate shall descend to the lineal descendants of the person oUowiiiL' tho .1,1 1 • • 11 civil law. last seised, and those claiming under them, 'per stirpe-s. Now, this expression at the outset, would lead to th«' infer- ence that the common law rule of nuccaHalon per stifpea was to he the prevailing feature in the statute, whereas it is just the reverse ; and it is the civil law rule of succession ji;cr capita that prevails, and descent per stirpes only takes place as an exceptional case, as will be seen in the sequel. S. 23 intro- Section 23 expressly introduces descent per capita to peraipita^^^^ ^^^^ exclusion of the former system of descent per stirpes. when degrees Thus A. dies scised, having had two daughters, both dead, ity'equa'lf "" ^^ ^-'^ lifetime ; one of which daughters left one son, and the other eleven sons : here instead of the one grandson taking one half, as would be the case tracing descent per stirpes as formerly, he will only take equally with the others, viz., one- twelfth. But it will be observed this rule only ap- plies when all taking are of equal degrees of consanguinity : otherwise under section 24 if in the above case, the others in un- mother of the one son had been alive on the death of A., and then under s. the mother of the eleven sons dead ; here, as the descendants 24 descent Qf ^ q^^ ^q unequal degrees of consanguinity, the mother stirpes partly living will take one half, and the eleven sons of the mother dead the other half between them all : the descent is par- tially per stirpes and partially per capita ; it is per stii'pea as between the daughter living and the eleven sons of the daughter dead, but it is per capita as between such eleven sons among themselves. This mixed system of descent per stirpes or per capita, according as the parties entitled are in equal or unequal degrees of consanguinity to the intestate, is not confined to this section, and will be found to pervade the Act. Inheri- tance per sthyes is admitted when representation becomes but if some heirs be in equal and othe per rnjHta. THE PRESENT LAW OF DESCENT. 71 .of s. 24. necessary to prevent the exclusion of persons in a remoter degree, as for instance when there is left a son, and children of a deceased son, but when all are in eciual degree, as grand- children, representation becomes utmecessary, and would occasion an uno(]ual distributicm, and all take per capiUv (a). Take the following ease in further illustration of this 24th Illustration section : assume that A. has three children, B., C, and D. ;* that C. and D. die in the lifetime of A., C, leaving two children and D. four children, and then A. dies seised, intestate : here B. the surviving child, will take one- third, being " such share as would have descended to him (by section 24) if all the children of the intestate who have died leaving issue, had been living :" the two grandchildren, issue of C, will take inr atirpea quoad their ancestor, viz., one-third, which they wi!' divide per capita between them- selves, and each take half a third or sixth : and the four grandchildren, issue of D., will take in the same way, jper stirpes, ^heir ancestor's share, one-third, which they will divide between them per capita, and each take a fourth of a third, or a twelfth : and this because " the descendants of each child (of the intestate) who shall be dead, shall in- herit in equal shai'es the share which their parent would have received if living."- The 24th section applies only " if any one or more of the children of the intestate be living," and not where none are living, but have left descendants in unequal degreea: the latter case is reached by the 25th section, and by it the rule prescribed by section 24 " shall apply in every case where the descendants entitled to share • shall be of unequal degrees, &c." Thus, if in the case put, B., C, and D., had been grandchildren, instead of children of A. (their parents being dead), section 24 would not have ap- plied to meet the case, as no children of the intestate would have been living on the death of the intestate ; but by the combined action of sections 24 and 25, the estate would go as above stated. It will be seen hereafter that a posthumous III ^ 11!, ill t, . ( i 1 I, (o) Ai to descent 2>er atirpta and they severally rest, tee Vinnius on per capita, and the grounds on which the Institutes, lib. 3, tit. 1, n. 6. r I i .4* L a i' 72 OF COKPOREAL HEREDITAMENTS. The half- blood aud hotch-potch, Analogy in the aVwve to right under Statute of Distributions. child is to be considered as in esse : that, except in certain cases, the half blood take equally with the whole blood in the same degree : and that a child who has been advanced shall bring, before participating, his advancement into hotch- pot. The course of descent, as above mentioned, is the same as the rule of rjuccession to personal property prescribed by the Statute of Distributions of Charles, under like circumstances i. e., where an intestate dies leaving lineal descendants and no widow : and even if there be a widow, the Statute (sec- tion 40) expressly resei'yes the widow's right to dower, which would be one-third for life, whilst the Statute of Dis- ti'ibutions gives her one-third absolutely. Section 26. The first clause provides that if the intestate die without descendants, the inheritance shall go to the father, if living, unless the inheritance came to the intestate on the part of the mother, and the mother he living; what shall be the descent inthelatter event, if themotherbe living, is provided for not by this section, but by section 27. Meaning of First, however, should be explained what is meant by the expression. • • -i • • .i • i •. • " j. "If the inlier- expression in tins section as to the inheritance coming to itancecometo^j^e j^^ggj^^a^j^Q ojj the part of his mother, oMd tht mother intestate on , ^ t . ^ i • ? • • i the part of his 0(31 715? Living, lakmg the word inheritance in the sense m mother and^^^ ^j^j^j^ -^^ reference to descents it is frequently used (as in livinij. the 7th common law canon), as referring to, or as synony- mous with course of descent, or the descent itself, instead of the subject matter thereof, iu is difficult to understand how ♦ an inheritance as such can come to a child from a living mother. Mr. Justice Blackstone and others express the 7th common law canon thus : " in collateral inheritance, the male stocks shall be preferred to the female, unless the lands have descended from a female : " in sec. 26 the word inher- itance is not used in the sen^ein which it is used in the 7th canon, but in the sense in which the word lands is there x, - made use of ; for the 19th section declares that the word inlieHtance shall be understood to mean in the prior --' twenty-seven sections, "real estate;" and the 21st section THE PRESENT LAW OF DESCENT. 73 declares, that the words " where the estate shall have come to the intestate on the part of the father or mother," shall be " construed to include every case in which the inherit- ance shall have come to the intestate by devise, gift, or de- scent, from the parent referred to or any relation of the blood of the parent" {a). By R. S: 0. 107 an innovation is made on the former , law in enacting that where any corporeal or incorporeal hereditament is vested in fee simple as a hare trustee, it shall descend to the legal personal representatives of the trustee. The case of a bare trustee may be instanced by the position of one who has no beneficial interest, and ceased to have any duty to perform, or as to whom there is no necessity that the legal estate should remain vested in him; as for instance if the estate in fee were vested in a trustee in trust for a married woman for her life, but for her separate use during her then coverture, and after her death in t'-ust for A. in fee, here on her death the trustee becomes a bare trustee. It may now be well to gi\D a summary of what has been Summary of explained as to the present law of descent. Assume the statute o" ^ intestate to be the purchaser, or that the estate came on Victoria, neither the paternal nor the maternal side ; the estate will descend, first, to the lineal descendants of the intestate, and those claiming under them per stirpes or per capita according to whether the claimants are in equal or unec^ual degrees of consanguinity, as before explained ; and sub- ject to the law of hotch-pot, dower, and curtesy. Failing descendants, it will go to the father. If there be no father, but a mother, and brothers or sisters, or descendants of brothers or sisters ; it goes to to the mother for life, and the remainder to the brothers and sisters (including the half-blood) and descendants of such as maj' be dead, per , ,; , stirpes or per capita according to the degree. If there be no father, or brother, or sister, or descendant of such, it (a) See as to blood relationship Act, of the blood of a child, Cole v, ^_ under American Acts, and that a Batley, 2 Curtis, C. C 562. father is, within the meaning of the 10 f I i s 1 s ' ;; 74 OF CORPOREAL HEREDITAMENTS. goes to the mother If no father or mother ; it will go to brothers and sisters, and descendants ctfsuch, per atripcB or per capita (including the half blood). Failing descen- dants, father, mother, brothers, and sisters, and descendants of brothers or sisters ; then uncles and aunts on both paternal and maternal sides take, and their descendants •per stirpes or per capita as the case may be. Failing the last resort, viz., uncles and aunts, and their descendants, . the Statute of Distributions governs. If the estate came not as above supposed, but by descent, devise, or ^'ift, from the father, or some relative of the blood of the father (sections 31, 21), it will still go as above, but the maternsl uncles and aunts will be postponed to the paterna? uncles and aunts, and their descendants ; should the estate have come, however, from some paternal ancestor l the intestate, it would seem that in such case and in such case only, the half-blood on the 'maternal oide 'vyuld be entirely excluded (s. 35). If the estate came to the intestate on the part of mother, i. e., by descent, devise, or gift, from her, or from some relative of her blood (s. 21), there is more variance : thus in such case failing liraal descendants, if father, mother, brothers, and sisters (including half-blood), or descendants of brothers and sisters be living, the mother will take for life, and the remainder go to the brothers and sisters (including those of half-blood), and their descendants; but if the mother were dep.d, the father would take in her place for life the remainder gomg over as before ; and it would be only in the event of there being no mother, brothers, or sistei 3, or descendants, that the father would take absolute^^ If there were a mother and father, and no brothers and sisters, or descendants, then the mothe.' would take in preference to the father. Failing father,^ mother, brothers, sisters, and descendants of brothers and sisters ; the maternal uncles and aunts and their descend- ants will take in preference to those on the paternal side, who only take on all others entitled as above, being THE PRESENT LAW OF DESCENT. 75 Distributions. exhausted ; and failing these the Statute of Distributions again goverLs. The above presupposes that the estate came from some relative of the blood of the mother, and not from the laother or other maternal ancestor ; for in the latter ease apparently the half-blood on the paternal side would bo included (s. 25). In any event tlie right of dower attaches, according as permissible before the statute, which gives the descent subject to such claim. Tenancy by the curtesy also was allowed. The right of succession to personal estate under the Right of suc- Statute of Distributions is governed by 22 & 23 Car. II. c.^^J,*^;, 10, explained by 29 Car. II. c. 30, by which it is enacted Statute of that the surplusage of intestate's estates (except/^mes covert which were left as at common law) shall, after the ex- piry of one full year from the death of the intestate, be distributed in the following manner : one-third to the widovv' of the intestate, and the residue in equal pro- portions to his children, or if dead, to tl;ieir representatives, that is, their lineal descendants, per stirjJes or per capita, according as the parties are in equal or unequal degrees of consanguinity to the intestate, in like manner as they would inherit real estates, as before pointed out in treating ss. 23 & 24. If tliere are no children or legal representa- tives subsisting, then a moiety to the widow, and a moiety to the next of kin in equal degree and their representatives. If no widow, the whole shall go to the children. If neither widow nor children, the whole shall be distributed among the next of kin in equal degree and their representatives ; but no representatives are admitted among collaterals, farther than the children of the intestate's brothers and sisters. Brothers' and sisters, and children of deceased brothers and sisters will take per stirpes or capita according to the degrees, as they would inherit real estate as before mentioned under section 29. The right to take by representation among collaterals being confined to children of brothers and sisters, a son of -4- il'1 7(] I'f OF CORPOREAL HEREDITAMENTS. a deceased uncle will not be eu*^.itled to share with an undo living, nor a child of a deceased nephew with a living nephew, nor a grandchild of a deceased brother of the intestate with a child of a deceased brother of the intestate. Tlie next of kin are to be investigated by the same rules of consanguinity as prevailed, according to the computation of the civilians, and not of the canonists, which the law of England adopts in the descent of real estates, because in the civil computation, the intestate himself is the terminus, a quo the several degrees are numbered, and not the common ancestor, according to the rule of the canonists : and therefore, the mother, as Avell as the father, succeeded to all the personal effects of their children who died intestate and without wife or issue. In exclusion of the brothers and sisters of the deceased. And so the law still remains with respect to the father ; but by Statute 1 Jae. II. c. 17, if the father be dead, and any of the children die intestate without wife or issue, in the lifetime of the mother, she and each of the remaining children and their representatives, divide his effects in equal proportions to each. When the father takes, he takes all to the exclusion of the mother. If there be no parents or children, or descendants of children and the nearest surviving relations are brothers and sisters, and grandfather and grandmother, the two former will take, though all are in the second, and therefore equal degrees. Grandfather or grandmother will exclude uncles and aunts, the latter being in the third degree ; which is the reverse of the present law as to realty. Great-grandfathers and great-grandmother- share with uncles and aunts, all being in equal degree. A grandfather on the father's side and grandmother on the mother's side share equally, dignity of blood not being material. Aunts and nieces, uncles and nephews, being all in the third djgree, are equally entitled. Relationship by marriage gives no title, except '' "'"^c •;£ the wife of the intestate. Relations by the b.>*"^i .;'J take nally with tho.se of the whole blood in the sam^ ,3g»-co M, THE PRESENT LAW OF DESCENT. 77 The above is now subject to an exception as regards the ^ S. O.c 125, , L r. • 1 J T> asto separate separate personal property oi a married woman, under Kev, property of Stat, eh 125, by s. 25 of which, such property, on death of ™'^"*'" women. the married woman intestate, leaving a husband and chil- dren, will go as to one-third to the husband, and the residue to the children, and if there be no children, then it will go as if the Act had not been passed, and so the husband could acquire the whole as entitled to adminis- tration. It will have been seen, as pointed out, in considering the Comparison of various sections of the Statute of Victoria, that the whole re^*^^a^d ©f course of descent does not differ widely from the rules of succession to succession to personalty under the Statute of Distri-^^ butions ; that the former as well as the latter are based on the civil law, and the claimants take much in the same order and computation of degrees ; and where claimants do not take under the Statute of Distributions equally with those in the same degree, the same exceptions exist under the law as to real'^y. Thus, father, mother, and children of an intestate are in the same degree of consanguinity to him, viz., the firist degree; but an exception to the rule that all in equal degrees share equally, exists both as to personalty and realty in favour of the children, who take priority without any distinction as to the half-blood (unless in case of real estate which has come from a lineal ancestor, section 35) ; and in each case they and their descendants take per stirpes or per capita, according to whether they are all in equal or unequal degrees ; a system quite unknown to the common law. Again, failing the father and descendants, the mother, being the only one remaining in the fii-st degree, would have taken all, but by the Statute of James (there being no widow), she is to take an ; equal share absolutely with brothers and sisters of the intestate, and their children : and the Statute of Victoria proceeds on the same principle, and gives the realty to the mother /or Zi/e, and the remainder to brothers and sisters, ^^ and their descendants. As to those in the second degree, viz., grandfathers, grandraothers, brothers, and sistei-s, the *! , 78 : Variance. 1 OF CORPOREAL HEREDITAMENTS. same rule and the same exception io it exists as above alluded to; they are all in equal degrees, and yet the brothers and sisters take .priority. So again, neither as to personalty or realty will one or more brothers or sisters, as nearest in degree, exclude the children of a deceased brother or sister, as more remote in consanguinity : no distinction is made by reason of age, sex, or blood (unless, indeed, as to the latter in case of an ancestral estate) : and the peculiar mode of taking, sometimes 2'e/' atii'pes and sometimes per capita, prevades both systems, and applies in like cases: there is also the same law of hotch-pot with but trifling variation. The rights as to realty of the widv.,\v or hi'sband of an intestate cause no great variance, at least in principle; they take interests in the realty under th > same circumstances that they would in person- alty, though the value of the interest may differ. Thus, the widow by express reservation of her right in the Statute of Victoria, takes her dower or one-third for life in realty , and in personalty she takes the same pro- portion absolutely if there are lineal descendants, and if none, then one-half absolutely. So the husband might take under similar reservation as tenant by the curtesy, the whole of the realty for life ; whilst, as to personalty, the 'separate property of the wife, he will under Rev. Stat. ch. 125, receive one-third absolately, and the residue will go to the children in the same manner as personalty of a husband would be distributed between widow and children, and if no children he will take all absolutely. The variance seems chiefly to consist in this : that the Statute of Victoria, wheal the inheritance is derived by the intestate from a relative, gives preference in certain instances to the blood of such relatives, as may be exemplified by its excluding the ha', f- blood (if the estate have been derived from an aricestor), and postponing the uncles and aunfcs (if derived ficrii a relative), on the side on which the inheritance is not derived ; and in giving also the father only a life-estate, if the property came on the maternal side, where he would otherwise take the fee : THE PRESENT LAW OF DESCENT. 79 whilst as to personalty no regard is paid as to the derivation of the property. Again, grandfathers and grandmothers are excluded as to realty, unless they can take (s. 20) ; whilst as to personalty, they are only post- poned to those in the same degree, viz., brothers and sisters, and share in the same class with those of the third degree, ' viz., uncles and aunts. Furthermore, as to realty, the right of representation is extended to descendants of collaterals, as brothers and sisters, uncles and aunts ; whilst as to personalty, it extends only to children of one class of collaterals, viz., of the brothers and sisters of the intestate. It will be seen that sometimes the Statute of Victoria sometimes a gives a Zi/e-estate in the whole and remainder over, whilst [',,^.'^^*"" I en as when in simi whole : the Statute of Distributions in like circumstances giveena3torealt3r, only a ])roportion or ahaye of the whole, hut nhsoliitely: i^j. drcnni' the principle still is the same : the same iiurties taki;, and ^^'^"'^^^ .''^ *" * . ' , personalty, a are perhaps (squally benefited, though in a different mode,«/(,uf is given for the absolute right to a proportion may be worth neither "''•'*'''"^<^'y- more nor less than a lif(^-estate in the whole. The Statute of Distributions, dealing nmch with personalty qui ipso usu consumitur, could give no life-estate, such a dealing with such personalty would be foreign to its nature, and the laws which govern it (a), whereas no such difficulties present themselves in giving a life-estate in realty : and such a course has the advantage over giving a share absolutely, that the estate is ultimately preserved more entire. The 27th section affords an illustration of this : it gives the mother an estate for life in all, whilst the Statute of James gives her, in like circumstances (and there being no widow) a moiety absolutely in personalty, the other moiety going to brothers and sisters of the intestate. Having now shewn the close resemblance of the present law of descent to the Statute of Distributions, it i-emains to remark that it would appear we have as to realty reverted to a " restoration with some refinements and (a) See Wms. Pers. Prop, as to life interest given in chattels which. the rights and remedies in equity of ipso usu non consul luintur. one entitled in remainder after a 1 1 80 OF CORPOREAL HEREDITAMENTS. Estate tail. Comparison of the three van ous grad descent. Feudal Sys tern. regulations, of our old constitutional law, which prevailed as an established right and custom from the time of King Canute." Such is the statement of Sir W. Blackstone as to the Statute of Distributions (a). The Descent of Estates Tail is unaffected by the Statutes of William and Victoria, and was before considered. jmuansonot The principles of the feudal system governed the com- ...0 three van- * lei t/>i ous grades of Hlou law rules 01 descent. It was irom the person last actually seized, and so ready and present at the call of his lord to render the feudal services, and not from the person last entitled merely, as under the Act of William, that descent was to be traced. Again, the lineal ancestor never took ; a rule founded probably on the feudal principles that the ancestor would be unfit for the militaiy service, on the condition of which the estate was granted ; it was only by a fiction of law that collateral ancestors were allowed to take. So also the strict feudal rule, which rec^uired the collateral heir to be of whole blood of the purchaser, excluded entirely the collateral kinsman of the half-blood as heir to the person last seised. Again, attainder so far coiTupted the blood, that descent could not be traced from or through the person attainted : nor was this, perhaps unnecessarily harsh, in the troubled times of the middle ages, when fealty and allegiance were all-important. In course of time, however, the necessity of many of the rules founded on the feudal system had ceased to exist ; and such rules wer<^ not only unnecessarily harsh and unjust, but unsuited to modern times ; hence the changes effected by the Statute of William. The implied condition. Changes by diiini bene se gesserit, on grant to the vassal, had no longer Ham in feudal ^^^ importance it had in feudal times ; and so the descents. corruption of blood consequent on attainder was abolished. The importance which the common law attached to actual possession had passed away, and hence the more just rule was introduced, of not excluding as the stock of descent, the person last entitled, merely because he did not acquire " - -4-— (a) 2 Black. Com. 516. THE PRESENT LAW OF DESCENT. 81 i-ia. actual seisin ; and the mere fact of his being the person last entitled, was sufficient to enable descent to be traced from him as ath'pa, unless indeed he inherited. Military service had ceased to exist as the condition of tenure of an estate, and with it consequently was abolished the rule < excluding the lineal ancestor. So again, on principles of natural justice and equity, the half-blood were not excluded, and the land not escheated rattier than the half- blood should take, as not being of the blood of the purchaser, but such half-bloo<' were favourably admitted to the inheritance. While changes, however, were effected by the Statute of Changes by William, it will be seen that they were by no means so ^^* "' ^'''**^ radical as those effected by the Statute of Victoria: in fact most of the common law rules still ' continued. Thus, the law of primogeniture continued among males; the preference also of males to females ; the law of coparcenary; the representation by lineal descendants ad injiniturti of their ancestor, or descendant p«r stirpes; and the pre- ference, to a certain extent, given to the blood of the fiist purchaser, since, for instance, if the person last entitled inherited, though from his mother (the purchaser), the heir would be sought for ori failure of lineal descendants among the maternal, in preference to the paternal line of the person so last entitled. During the third period, governed by the Statute of Victoria, from the 1st January, 1852, an entirely different system will be found to prevail : a system based on the civil, instead of the feudal law. Every trace of the latter ceases to exist (except a partial relic of the preference given to the blood of the purchaser in cases of the half- blood, and uncles and aunts), and lands, as regards their ^descent, are placed on somewhat the same footing as chattels ; primogeniture is abolished ; females take equally with males in the same degree; descent per capita prevails in the place of descent per stiiyes ; the half-blood are admitted equally with the whole blood in the same degree (unless in case of an ancestral estate, and the half- 11 , \ • i i ^!-i ■^1 K \t»!w.:; 82 * OF CORPOREAL HEREDITAMENTS. blood not l)eing of the blood of the ancestor); Rnd, as thougli the more fully to swetp away the former law, the Statute of Distributions is to govern in cases not specifically provided for. The existence of each particular system during the epochs into which the subject has been divided, may be referred to the requirements of the country and of the age in which such system existed or exisis, thou<;h perhaps in that respect both the Statutes of William and Victoria might have been passed at earlier periods. OF THE TENUttE OF AN ESTATE IN FEE SIMPLE. 83 11 CHAPTEl; VI. OF THE Tl NURE OF AN ESTATE IN FEE SIMPLE. The most familiar instanci' of a tenure is given by a com- A Icnso for mon lease of a house or land for tenn of years : in this^' ^"* case the person letting i still ca a the lnvllord, .iml the person to whom the premises iv let is called the tenant; the terms of the tenure are according to the agreement of the parties, the rent being usually the chief item, and the rest of the terms of the tenure Vieing contained in the covenants of the lease; but, if no rent shoidd l)e paid, the relation of landlf)rd and tenant would still subsist, though of course not with the same advantage to the landlord. This, however, is not a '" eehold tenui c ; the lessee has only a chattel interest; l-at it may serve to explain tenures of a freehold kind, which are not ;>» familiar, though ecjually important. So, when a lease of land is made to a man a lease for for his life, the lessee becomes tenant to the lessor (a), although no rent may be reserved ; here again a tenure is created by the transaction, during the life of the lesnee, and the terms of the tenure depend on the agreement of the parties. So, if a gift of land should be made to a man a gift in tail# and the heirs of his body, the donee in tail, as he is called, and his issue, would be the tenants of the donor as long as the entail lasted (6), and a freehold tenure would thus be created. But if a gift should be made to a man and his heirs, or Fee simple, for an estate in fee simple, it would not be lawful for the parties to create a tenure between themselves, as in the case of a gift for life, or in tail. Fur by the statute of (a) Litt. 8. 132 ; Gilb. Tenures, 90. 410 ; Watk. Desc. p. 4, n. (m); pp. (6) Litt. 8. 19 ; Kitchen on Courts, 11, 12 (4th ed.). ,^ *'!.> IMAGE EVALUATION TEST TARGET (MT-3) A A ^/ ^ .^^^ ■6r fc IP 1.0 11^ 11,25 IIP "^^ us U 2.5 2.2 U4 - 6" i 2.0 il 111.6 I Photographic .^Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 1 JSSO (716) 873-4503 ^m w ^< iv^ N> 6^ L

';' There is yet another incident of the tenure of estates in fee simple; an incident which lias existed from the earliest times, and is occasionally productive of substantial advan- tage to the lord. As the donor of an estate for life has a cert£i,in reversion on his tenant': death, and as the donor of an estate in tail has also a reversion expectant on the decease of his tenant, and failure of his i.ssue, but subject to be defeated by the proper bar, so the lord, of whom an estate in fee simple is held, possesses in respect of his lord- ship or seignory a similar, though more uncertain advan- tage, in his right of escheat; by which, if the estate happens to end, the land reverts to the lord, by whose ancestors or predecessors they were anciently granted to the tenant to be held of the grantor or his heirs (c). When the tenant of i an estate in fee simple dies, without having alienated his estate ir his lifetime, or by his will, and without leaving any heirs, lineal or collateral, such lands escheat (as it is called) to the lord of whom they were held. Bastardy is the most usual cause of the failure of heirs ; for a bastard is in law nullius Jllius ; and, being nobody's son, he can consequently have no brother or sister, or any other heir than the heir of his body (d). If such a person, therefore, were to purchase lands, that is, to acquire an estate in fee simple in them without having made a will, and without leaving any issue, the lands would escheat to the lord of the fee, for want of heirs: Again, before forfeitures for treason and felony were abolished (e) sentence of death pronounced on a person convicted of high treason or mur- (a) Scriv. Cop. 736. (b) Co. Litt. 67 b. n. (2) 68 b, n. (6). (c) 2 Black. Com. 72 ; by Leith & 12 Smith, p. 284. (>l) 2 Black. Com. 347. (e) Black, Com. by Leith & Smith, p. 287. i: I f It .,.<' 90 OF CORPOREAL HEREDITAMENTS. nil der. or of abetting, procuring, or counselling the same, caused his blood to bo attainted or coiTupted, and to lose its inheritable quality. In cases of high treason, the crown became entitled by forfeiture to the lands of the traitor, but in the other cases the lord, of whom the estate was held, became entitled by escheat to the lands, after the death of the attainted person (a) ; subject, however, to the Queen's right of possession for a year and a day, and com- mitting waste, called the Qic^i.'s year, day and waste, — a right usually compounded for. When an escheat occurs, the crown obtains the lands escheated, in conser^ lence of the before mentioned rule, and that the crown was the ori- ginal proprietor of all the lands in the Province (h). But if ' in England there' should be any lord of a manor, or other person, who could prove that the estate so termina- ted was held of him, he, and not the crown would be enti- tled. In former times there were in England many such mesne or intermediate loi'ds ; every baron, according to the feudal system, had his tenants, and they, again, had theirs. The alienation appears, indeed as we have seen (c), to have most generally, if not universally, proceeded on this system of subinfeudation. As since the statute of Quia emiitores, passed in the reign of Edward I., it has pot been lawful to create a tenure of an estate in fee simple to be held of the grantor, so that every lordship or seignory, of an estate in fee simple must bear date at least as far back as that reign, ' it follows that on an escheat, the crown must always take in Ontario, as between the ci'own and the last owner there can be no mesne lord.' (a) 2 Black. Com. 245, 252; 4 Black. Com. 380, 381. (6) In England lauds escheated or forfeited to the crown are frequent- ly restored to the families of the per- 8o:as to whom such lands belonged pursuant to stat, 39 & 40 Geo. III. c. 88, s. 12, explained and amended by stats. 47 Geo. III. sess. 2, c. 24, and 59 Geo. III. c. 94, and extended to forfeited leaseholds by stat. 6 Geo. IV. c. 17. (c) Ante, pp. 27, 44. OF JOINT TENANTS AND TENANTS IN COMMON. CHAPTER VII. OF JOINT TENANTS AND TENANTS IN COMMON. . 91 A GIFT of lands to two or more persons in joint tenancy is such a gift as imparts to them, with respect to all other persons than themselves, the properties of one single owner. As between themselves, they must, of course, have separate ' • rights ; but such rights are equal in every respect, it not being possible for one of them to have a gi-eater interest than another in the subject of the tenancy. A joint ten- The four uni- ancy ib accordingly said to be distinguished by unity of ^|,1fj^py^'" possession, unity of interest, unity of title, and unity of the time of the commencement of such title (a). Any estate may be held in joint tenancy ; thus, if lands be given to A. and B. they will become at once joint tenants toi' life Joint tenants 'but, unless in the case of grant to trustees or executors, ^'^''"^®" there must be on the face of the instrument an intent apparent to create a joint tenancy, otherwise the grantees will take as tenants in common (b).' Being regarded with respect to other persons, as but one individual, their estates - , will necessarily continue so long as the longer liver of them exists. While they both live, as they must have seve- ral rights between themselves, A. will be entitled to one moiety of the rents and profits of the^ land, and B. to the ' . ' other ; but after the decease of either of them, the survivor will be entitled to the whole during the residue of his life. So, if lands be given to A. and B. as joint tenants and the joint tenants heirs of their two bodies ; here, if A. and B. be persons '" *^' who may possibly intermarry, they will have an estate in special tail, descendible only to the heire of their two bodies : so long as they both live, they will be entitled to (a) 2 Black. Com. by Leith and {b) R. S. 105. Smith, p. 255. ■ 92 Joint tenants in fee. OF CORPOUKAL HEREDITAMENTS. the rents and profits in cqaal shares; after the decease of either, the survivor will be entitled for life to the whole ; and, on the decease of such sui'vivor, the heir of their bodies, in case they should have intermamcd, will succeed by descent, in the same manner as if both A. and B, had been but one ancestor. If, however, A. and B. bo persons who cannot at any time lawfully intermarry, as, if they be brother and sister, or both males, or both females, a gift to them and the heirs of their two bodies will receive a somewhat different construction. So long as it is possi- ble for a unity of interest to continue, the law will cany it into effect: A, and B. will accordingly be regarded a.s one person, and will be entitled jointly during their lives. While they both live their rights will be equal ; and, on the death of either, the survivor will take the whole, so long as he may live. But, as they cannot intermarry, it is not possible that any one person should be heir of both their bodies: on the decease of the survivor, the law, there- fore, in order to conform as nearly as possible to the mani- fest intent, that the heir of the body of each of them should inherit, is obliged to sever the tenancy and divide the inheritance between the heir of the body of A. and the heir of the body of B. Each heir will accordingly be enti- tled to a moiety of the rents and profits, as tenants in tail of such moiety. The heirs will now hold in a manner denominated tenancy in common ; instead of both having the whole, each will have an undivided half, and no fur- ther right of survivorship will remain (a). An estate in fee simple may also be given to two or more persons as joint tenants. The unity of this kind of tenure is remarkably shown by the words which are made use of to create a joint tenancy in fee simple. The lands intended to be given to joint tenants in fee simple are limited to them and their heirs, or to them, their heirs and assigns 'as joint tenants or with intent apparent on the ffrant that they shall so take/ (h), although the heirs of one (o) Litt. 8. 283. See. He Tiverton (b) K S. 105. Market Act, 20 Beav. 374. or JOINT TENANTS AND TENANTS IN COMMON. 9S of tliom only will succeed to tho inheritance, provided the joint tenancy be allowed to continue : thus, if lands be so j;iven to A., B., and C, and their heiva, A., B., and C. will togethei' be regarded as one person ; and, when they are all dead, but not before, the lands will descend to the heirs of .the artificial person (so to s|)eak) named in the gift. The survivor of the three, who together compose the tenant, will, after the decease of his companions, become entitled to the whole lands. While they all liv(;d each liad the whole ; when any die, tho survivors or survivor can have no more. The heir of the survivor, is, therefore, the person who alone will be entitled to inherit, to the entire exclusion of the heirs of those who may have pre- viously died. A joint tenancy in fee simple is far more Trustees are usual than a joint tenancy for life or in tail. Its principal ^,,^'^^Jg°^^4g use in practice is for the purpose of vesting estates in trus- tees (a). On the decease of one of them the whole estate then vests at once in the survivors or survivor of them, without devolving on the heir at law of the deceased trus- tee, and without being affected by any disposition which he may have made by his will ; for joint tenants are inca- pable of devising their respective shares by will : they are not regarded as having any separate interest, except as between or amongst themselves, whilst two or more of J.'? them are living. Trustees, therefore, whose only interest is that of the persons for whom they hold in trust, are properly made joint tenants ; and so long as any one of • them is living, so long will every other person be excluded from the legal possession of the lands to which the trust extends. But on the decease of the surviving trustee, the lands will devolve on the devisee under his will, or on his heir at law, who will remain trustee till the lands are conveyed to some other trustee duly appointed. ' In the case of a bare trustee, that is one who can have no duty to perform and might be called on at any time to con- vey his whole interest to his cestui que trust, the es^^rate :. (a) See post, the chapter on Uses and Trusts. 94 OF COm'<»REAL IIKIIKDITAMKNTH. A release ia the proper form of as surance be- tween joint tenants. A joint tenancy may be severed. on his death intestate will r instance, when they are not all trustees for one and the same purpose, both a joint tenancy and a tenancy in common are inconvenient methods for the enjoyment of property. Of the two a tenancy in common is no doubt preferable ; inasmuch as a certain possession of a given share iij preferable to a similar chance of getting or losing the whole, according as the tenant may or may not survive his companions. But the enjoyment of lands in severalty is far more beneficial than either of the above modes. Accordingly it is in the power of any joint tenant or tenant in common to compel his companions to effect a partition between themselves, according to the value of their shares : * Prio'* to the statute 4 Wm. c. 1, R. S. c. 51, s. 74, which abolished the old wi >f partition, tenants in common, like joint-tenants, were compellable, by the statutes of Henry VIII. and Wm. III., to make partition of their lands ; which they were not at common-law, as parceners were. Partition may now be had under R. S. c. 40 &; 101. By R. S. c. 98, the partition, if voluntary, must be by deed. A singular mode of saie and quasi partition is authorized among co-heirs by the statute abolishing primogeniture, R. S. c. 105, ss. 45, 4G, 47, 48, under which the parties authorized by law to make partition are to receive an offer from any one of the parties interested to buy the shades of the others and report the same to the courts, and pre- ference of offer is to be given always to such an one who before that Act would have been heir-at-law, and after such one, then to the next who would have been heir-at- law. A sale can also be directed so that the proceeds may be divided. The right of partition also existed, and might have been enforced, in equity (a) ; so may it yet: in fact, as regards equitable fees-simple, such court, under the Provincial statute has exclusive jurisdiction (6). Singular questions sometimes arose under proceedings for partition^ (a) 2 WTiite & Tudor, Lg. Cases, 468 ; R. S. c. 40 and 101, u. 7. (h) R. S. c. 101, B. 7. OF JOINT TENANTS AND TENANTS IN COMMON. 97 from the impartible nature of the property, to which allusion has been made before, in the case of parceners, and the course adopted referred to. A reference to the valuable notes of White & Tudor to the case of Agar v. Fairfax, 2 Lg. Cases, Chan., will afford information in cases of difficulty (a). Difficulties, however, arising from the nature of the property, can now be overcome by the court directing a sale under the Acts before mentioned (6).' (a) In Turner v. Mwjuri, 8 Ves. 143, thero was a decree in a par- tition of a single house ; and Sir Samuel Romilly, in his argiiment, mentioned a case where a partition was carried out l)y building up a wall in the middle of the house. After the commission was executed in Turnery. Moryan, the defendant excepted on the ground that the coninissionersallottedto the plaintiff the whole of the chimneys, all the fire-places, and all the conveniences- in the yard. The Lord Chancellor overruled the exception, saying he did not know how to make a better partition ; that he grantetl the com- mission with great reluctance, and it must be a strong case to induce t?ie court to interpoae, aa the parties- ought to buy and sell. (b\ In re Dennk, 10 IT. C. R. 104. !-! — 4- 13 98 OF COEPOREAL HEREDITAMENTS. CHAPTER VIII. OF A FEOFFMENT. Having now considered the most useful freehold estates which are holden in lands, and the varieties of holdinsr arising from joint tenancies and tenancies in common, we ' proceed to the means to be employed in the transfer of these estates from one person to another. And here we must premise that, by enactments of the present reign, the conveyance of estates has been rendered, for the future, a , ; matter independent of that historical learning which was formerly necessary. But, as the means formerl}' necessary for the conveyance of freeholds depend on principles, which still continue to exert their influence throughout the whole systexn of real pi'operty law, these means of con- veyance and their principle must yet continue objects of the early attention of every student : of these meai..i the Feoflfment most ancient is a feoff ment tvith livery of seisin (a), which seisL ^^'^ ° accordingly forms the subject of our present chapter. The feudal doctrine explained in the sixth chapter, that y ' all the estates in land are holden of some lord, ' in Ontario, as before explained (6), the Queen is immediate lady para- mount of whom all lands are held by force of Imp. Stat. 31 Geo. 3. c. 3 s. 43, and the statute of quia emptores,' neces- sarily implies that all lands must always have some feudal holder or tenant. This feudal tenant is the freeholder, or or holder of the freehold ; he has the feudal possession. Seisin. called the seisin, and so long as he is seised, nobody else can be. The freehold is said to be in him, and till it is taken out of him and given to some other, the land itself (a) 2 Black. Com. 310. {h) Ante, pp. 84, 87. OF A FEOFFMENT. 91> is regarded as in his custody or possession. Now this legal possession of lands — this seisin of the freehold — is a matter of great importance, and much formerly depended upon its pi'oper transfer from one to another ; thus at common law seisin must have been acquired by every heir before he could himself become the stock of descent (a). The trans- fer or delivery of the seisin, though it accompanies the transfer or delivery of the seisin, is yet ..ot the same thing as the transfer of his estate. For a tenant merely for life is as much a feudal holder, and consequently as much in possession, or seised, of the freehold, as a tenant in fee simple can be. If, therefore, a person seised of an estate in fee simple were to grant a lease to another for life, the lessee must necessarily have the whole seisin given up to him, although he would not acquire the whole estate of his lessor ; for an estate for life is manifestly a less estate than an estate in fee simple. In ancient times, however, posses- sion Avas the great point ; and, until recent enactments the conveyance of an estate of freehold was of quite a distinct character from such assurances as were made use of, when it was not intended to affect the freehold or feudal posses- sion. For instance, we have seen that a tenant for a term of years is regarded in law as having merely a chattel interest (6) ; he has not the feudal possession or freehold in himself, but his possession, like that of a bailiff or ser- vant, is the possession of his landlord. The consequence is, that any expressions in a deed, from which an intention can be gathered to grant ihe occupation of land for a cer- tain time, have always been sufficient for a lease for a term of years however long ; but a lease for a single life, which transfers the freehold, formerly required technical language to give it effect. A feoffment with livery of seisin was then nothing more Livery in than a gift of an estate in the land with liverij, that is, delivery of the seisin or feudal possession ; this livery of seisin was said to be of two kinds, a livery In deed and a :; ! (a) Ante, p. 62. (6) Ante, p. 8. 1 ( t 100 OP CORPOREAL HEREDITAMENTS. Livery in law. livery in law (a). In performing the ceremony of livery in deed, it was requisite that all persons who had any estate or possession in the house or land, of which seisin was delivered, should either join in or consent to making the lively, or be absent from the premises ; for the object was to give the entire and undisputed possession to the feoffee. If the feoffment was made of different lands lyirg scattered in one and the same county, livery of seisin of any parcel, in the name of the rest, was sufficient for all, if all were in the complete possession of the same feoffor ;. but if they were in several counties, there must have been as many liveries as there were counties. Livery in laiv was not made on the land, but in sight of it only, the feoffor saying to the feoffee, " I give you yonder land, enter and take possession." If the feoffee entered accordingly in the lifetime of the feoffor, this was a good feoffment but if either the feoffor or the feoffee died before entry, the livery was void. In addition to the delivery of seisin, it was also necessary Sarkeaout!'^*^at the estate which the feoffee was to take should be or limited. marked out, whether for his own life or for that of another person, or in tail, or in fee simple, or otherwise, Thi* marking out of the estate is as necessary now as formerly,, and it is called limiting the estate. If the feudal holding is transferred, the estate must necessarily be an estate of freehold ; it cannot be an estate at will, or for a fixed term of years merely. Thus the land may be given to the feoffee An estate for to hold to himself simply; and the estate so limited is, as we have seen (6), but an estate for life, and the feoffee is then generally called a lessee for his life ; though when a mere life interest is intended to be limited, the land is usually expressly given to hold to the lessee "during the term of his natural life." If the land be given to the feoffee and the heirs of his body, he has an estate tail, and is called An estate tail, a donee in tail (c). And in order to confer an estate tail, {a) As to the mmle of making live- Leith & Smith p. 350. ry of seisin and the ceremonies at- (b) Ante, p. 16. tentlant on it see Black. Com. by (c) Ante, p. 25. The estate OF A FEOFFiMENT. 101 it is necessary (except in a will, where greater imlulvocreation, such as heirs of his body, should be made use of ; for a gift of lands to a man and his heirs mule is an estate in fee simjile, and not in fee tail, there being no words of procreation to ascertain the body out of which they shall issue ; and an estate in lands descendible to collateral male heirs only, in entire exclusion of females, is unknown to the English law. If the land be An estate in given to hold to the feoffee and Ida heirs, he has an estate smiple. in f( simple, the largest estate which the law allows. In every conveyance (except by will) of an estate of inheri- tance, whether in fee tail or fee simple, the word heirs is The word necessary to be used as a word of limitation to mark out ^"^* *"? *° ^ the estate (a). Thus if a grant be made to a man and his seed, or to a man and his offspring, or to a man and the issue of his body, all these are sufficient to confer an estate tail, and only give an estate for life for want of the word heirs ; so if a man purchase land to have and to hold to him forever, or to him and his assigns forever, he will have but an estate for his life, and not a fee simple. Before alienation was permitted, the heirs of the tenant were the only persons, beside himself, who could enjoy the estate ; and if they were not mentioned, the tenant could not hold longer than for his own life (6) ; hence the necessity of the word heirs to create an estate in fee tail or fee simple. At the present da}^ the free transfer of estates in fee simple is universally allowed ; but this liberty as ■■"3 have seen (c), is now given by the law and not by the particular words b}'^ which an estate may happen to be created. So that, though conveyances of estates in fee simple are usu- ally made to hold to the purchaser, his loeirs and assigns for ever, yet the word heirs alone gives him a fee simple, of which the law enables him to dispose ; and the remain- ing words, and assigns for ever, have at the present day no conveyancing virtue at all ; but are merely declaratory of :i (a) See exceptional cases Black. Com. by Leith & Smith, p. 118, 119. (6) Ante, pp. 15, 16. (c) Ante, p. 29. 102 A feoffment might have created an estate by wrong. Feoffment by tenant for Ufe. The Statute of Uses, A considera- tion required, or the gift to be made to the use of the feoffee. OF CORPOREAL HEREDITAMENTS. that power of alienation which the purchaser would pos- sess without theni. The formal delivery of the seisin or feudal possession, which always took place in a feotfment, rendered it, till recently , an assurance of great power ; so that, if a person should have made a feoffment to another of an estate, in fee simple, or of any other estate, not warranted by his own interest in the landfi, such a feoffment would have operated by wrong, as it is said, and would have conferred on the feoffee the whole estate limited by the feofl'ment along with the seisin actually delivered. Thus if a tenant for his own life should have made a feoffment of the lands for an estate in fee simple, the feoffee would not merely have acquired an estate for the life of the feoffor, but would have become seised of an estate in fee simple by wrong; accordingly, such a feoffment by tenant for life was regarded as a cause of forfeiture to the person entitled in reversion ; such a feoffment being in fact a conveyance of his reversion, without his consent, to another person (a), 'It is now provided that no feoffment shall have any tortious operation (6).' Down to the time of King Henry VIII. nothing more was requisite to a valid feoffment than has been already mentioned. In the reign of this king, however, an act was passed, known by the name of the Statute of Uses. And since this statute, it has now become further requisite to a feoffment, either that there should be a consideration for the gift, or that it should be expressed to be made, not simply unto but unto and to the iLse of the feoffee. The manner in which this result has been brought about by the Statute of Uses will be explained in the next chapter. (a) The author was about ten years since called on to advise in a case in which many years ago a feoffment in fee simple had been made by a a tenant in tail, and in his opinion the effect of it was such under the old law that the heir in tail was deprived of the ordinary remedy of ejectment, and hatl only left to him the complicated proceeding by writ of formedon which actually issued. See Black. Com. by Leith & Smith, p. 422, n. a. (6) R. S. 98. OF A FEOFFMENT. 103 If proper words of gift were used in a feoffment, and Writing for* witnesses were present who could afterwards prove them, necessary, it mattered not, in ancient times, whether or not they wei-e put into writing ; though writing, from its greater certainty, was generally employed. There was thia difference, however, between writing in those days, and writing in our own times. In our own times, almost everyV)ody can write : in those days very few of the landed gentry of the country were so learned as to be able to sign their own names (a). Accordingly, on every important occasion, when a written document was required, instead of signing their names, they affixed their seals ; and this writing, thus sealed was delivered to the party for whose benefit it was intended. Writing was not then employed for every trivial puipose, but was a matter of some solemnity ; accordingly, it became a rule of law, that every writing under seal imported a consideration (6) : — that is, that a step so solemn could not have been taken without some sufficient ground. This custom of sealing remained after the occasion for it had passed away, and writing had been generally introduced ; so that, in all legal transactions; a seal was affixed to the written document, and the writing so sealed was, when delivered, called a (ked, in Latin a deed. factum, a thing done ; and, for a long time after wi'iting had come into common use, a written instrument, if un- sealed, had in law no superiority over mere words (o) ; nothing was in fact called a writing, but a document under seal. And at the present day a deed, or a writing sealed and ' delivered (d), still imports a consideration, and maintains in many respects a superiority in law over mere unsealed writing. In modem practice the kind of seal made use of is not regarded, and the mere placing of the finger on a seal already made, is held to be equivalent to sealing (e) ; (a) 3 Hallam-8 Middle Ages, 329 ; (c) See Litt ss. 250, 252 ; Co. 2 Black. Com. 305, 306. (h) Plowdeu; 308; 3 Burrow, 1339 ; I Fonblauque on Equity, 342 ; 2 Fonb. Esq. 26. Litt. 9 a, 49 a, 121 b, 143 a, 169 a, Rann v. Hui)he8, 7 T. Rep. 350, n. {d) Co. Latt. 171 b ; Shep. Touch. 50. (e) Shep. Touch. 57. 104 OF COIIPOIIKAL HEREDITAMENTS. Execution. ■ It Escrow. Alteration, raaure, &c. and the words " I deliver this as my act and deed," which are spoken at the same time, are held to be equivalent to delivery, even if the party keep the deed himself (a). The sealing and delivery of a deed are termed the execution of it. Occasionally a deed is delivered to a third person not a party to it, to be delivered up to the other party or parties, upon the performance of a condition, as the pay- ment of money or the like. It is then said to be delivered as an escroiu or mere writing (ao'ijdtiin) ; foi- it is not a perfect deed until delivered up on the performance of the condition ; but when so delivered up, it operates from the time of its execution [b). Any alteration or rasure in or addition to the deed is presumed to have been made before its execution (c). And it was formerly held that any alteration, rasure, or addition made in a material part of a deed, after its execution by the grantor, even though made by a stranger, would render it void, and that any alteration in a deed made by the party to whom it was delivered, though in words not material, would also render it void (d). But a more reasonable doctrine has lately prevailed ; and jt has now been held that the filling in of the date of the deed, or of the names of the occupiers of the lands conveyed, or any such addition, if consistent with the purposes of the deed, will not render it void, even though done by the party to whom it lias been delivered, after its execution (e). If an estate has once been conveyed by a deed, of course the subsequent alteration, or even the destruction, of the deed cannot operate to reconvey the estate ; and the deed, even though cancelled, may be given in evidence to show (a) Doe (I Oarnona v. Knight, 5 Barn. & Cress. 671 ; Oriujeon v. Oerranl, 4 You and Coll, 119, 130 ; Exton V. Scott, 6 Sim. 31 ; Fletcher V. Fletcher, 4 Hare, 67. See also Hall V. Bainbrklge, 12 Q. B. 699. (h) See Shep. Touch. 58, 59 Bowher v. Burdehin, 11 Mees. & Wels. 128, 147 ; Nash v. Flyn, 1 Jones & Lat. 162 ; Oraham v. Oraham, 1 Ves. jun. 275 ; Miller- ship V. Brooks, 5 H. & N. 797 ; Wat kins v. Nash, L. R., 20 Eq. 162. (c) Doe d. Tatum v. Catornore, 16 Q. B. 745. (d) Pigot's case, 11 Rep. 27 a. (e) Aldom v. Cornwell, L. R., 3 Q. B. 573 ; Adsetts v. Hives, 33 Beav. 55. m OF A FEOFFMENT. 106 that the estate was conveyed by it whilst it was valid (), In law, therefore, the person to whom a gift of lands was made, and seisin delivered, was considered thenceforth to be the true owner of the lands. In equity, however, this was not In equity a always the case; for the Court of Chancery, administering ''J.^.y^^j^j equity, held that the mere delivery of the possession or seisin by one person to another was not at all conclusive of the right of the feoffee to enjoy the lands of which he was enfeoffed. Equity was unable to take from him the title which he possessed, and could always assert in the courts of law ; but equity could and did compel Lim to make use of that legal title, for the benefit of any other pei'son who might have a more righteous claim to the beneficial enjoy- ment. Thus if a feoffment was made of lands to one pei"8on for the benefit or to the use of another, such person was bound in conscience to hold the lands to the use or for the benefit of the other accordingly ; so that while the title of the person enfeoffed was good in a court of law, yet he I 1 i'r (a) 27 Hen. VIII. c. 10. (ft) 2 Black. Com. 441. 110 OF CORPOREAL HEREDITAMENTS. derived no benefit from the gift, for the Court of Chancery obliged him to hold entirely for the use of the other for whose benefit the gift was made. This device was intro- duced into England about the close of the reign of Edward III. by the foreign ecclesiastics, who contrived by means of it to evade the statutes of mortmain, hy which lands were prohibited from being given for religious purposes ; for they obtained grants to persons to the use of the religious houses ; which grants the clerical chancellors of those days held to be binding (a). In process of time, such feoffments to one person to the use of another became very common ; for the Court of Chancery allowed the use of lands to be disposed of in a variety of ways, amongst others by will (6), in which a disposition could not then be made of the lands Feoffment to thfTnselves. Sometimes persons made feoffments of lands the use of the ^ feoffor. to others to the use of thet,iselves the feoffors ; and when a person made a feoffment to a stranger, without any con- sideration being given, and without any declaration being- made for whose use the feoffment should be, it was consid- ered in Chancery that it must have been meant by the feoffor to be for his own use (c). So that though the feoffee became in law absolutely seised of the lands, yet in equity he was held to be seised of them to the use of the feoffor. The Court of Chancery paid no regard to that implied con'- sideration, which the law affixed to every deed on account of its solemnity, but looked only to what actually passed between the parties ; so that a feoffment accompanied by a deed, if no consideration actually passed, was held to be made to the use of the feoffor, just as a feoffment by mere parol or word of mouth. If however there was any, even the smallest, consideration given by the feoffee (d), such as five shillings, the presumption that the feoffment was for the use of the feoffor was rebutted, and the feoffee was held entitled to his own use. (a) 2 Black. Com. 328 ; 1 Sand. {e) Perkins, s. 533 ; 1 Sand. Uses, 16(15, 5th ed.); 2 Fonblauque Uses, 61, 5th ed. ; Co. Litt. on Equity, 3. 271b. {!)) 2 Black. Com. 329. [d] 1 Sand. Uses, 62 (61, 5th ed.). I I OF USES AND TRUSTS. Ill Transactions of this kind became in time so frequent tha,t most of the lands in the kingdom were conveyed to uses " to the utter subversion of the ancient commoi* laws of this realm" (a). The attention of the legislature was from time to time directed to the public inconvenience to whic^ these uses gave rise, and after several attempts to amend them (b), an act was at last passed for their abolition. This act is no other ^han the Statute of Uses (c), a statute The Statute which still remains in force, and exercises at the present day ° *^*' a most important influence over the convej'ance of real pro- perty. By this statute it was en-^cted, that where any person or persons shall stand seised of any lands or other hereditaments to the use, confidence, or trust of any other person or persons, that have any such use, confidence, or trust (by which was mear , the persons beneficially enti- tled) shall be deemed in lawful seisin and possession of the same lands and hereditaments for such estates as they have in use, trust, or confidence. This statute was the means of effecting a complete revolutitm in the system of conveyancing. It is a curious instance of the power of an act of parliament; it is in fact an enactment that what was given to A. shall, under certain circumstances, not be given to A. at all, but to somebody else. For suppose a feoff- Feoffment to ment be now made to A. and his heirs, and the seisin (luly j^^j^"*^])" use delivered to him 'or a grant' ; if the feoffinent or grant be of B. and hb expressed to be made to him and his heirs to the use of some other person, as B. and his heirs, A. (who would, before this statute, have had an estate in fee simple at law) now takes no 'permanent estate, but is made by the .statute to be merely a conduit pipe for conveying the estate to B. For B. (who before would have had only a use or trust in equity) shall now, havin;/ the use, be deemed in lawful seisin and possession ; in other words, B. now (a) Stat. 27 Hen. VIII. c. 10, preamble. {b) See particularly stat. 1 Rich. III. c. 1, enabling the cestui que use, or person beneficially entitled, to convey the possession without the concurrence of his trustee, (c) 27 Hen. VIII. c. 10. 112 OF CORPOREAL HEREDITAMENTS. Feoffment without con- sideration. Resulting use. takes, not only the beneficial interest, but also the estate in fee simple e t law, which is wrested from A. by force of the statute. Again, suppose a feoffment to be now made sim- ply to A. and hia heirs without any consideration. We have seen that before the statute the feoffor would in this case have been held in equity to have the use, for the want of any consideration to pass it to the feofiee ; now, there- fore, the feoffor, having the use, shall be deemed in lawful seisin and possession ; and consequently, by such a feoff- ment, although livory of seisin be duly made to A., yet ro permanent estate will pass to him ; for the moment he obtains the estate he holds it to the use of the feoffor; and and the same instant comes the statute, and gives to the feoffor, who has the use, the seisin and possession (a). The feoffor, therefore, instantly gets back all he gave ; and the use is said to result to himself. If, however, the feoffment be made unto and to tlte use of A. and his heirs — as, before the statute, A. would have been entitled for his own use, 80 now he shall be deemed in lawful seisin anJi possession, and an estate in fee simple will effectually pass to him accordingly. ' This doctrine applies equally to a deed of grant or release.' The propriety of inserting, in every feoffment, the words to the use of, jvs well as to the feoffee, is therefore manifest. It appears also that an estate in fee simple may be effectually conveyed to a person by making a feoffment to any other person and his heirs, to the use of or upon confidence or trust for such fomier person and his heirs. Thus, if a feoffment be made to A. and his heirs, to the use of B. and his heirs, an estate in fee simple will now pass to B. as effectually as if the feoffment had been made directly unto and to the use of B. and his heirs in the first instance. The words to the use of are now almost univer- sally employed for such a purpose; but " upon confidence," or " upon trust for," would answer as well, since all these expressions are mentioned in the statute. ' Although the above remarks are applied to the convey- (u) 1 Sand. Uses, 99, 100 (95, 5th etl). OF USES AND TRUSTS. 113 ance by way of feoffment only, it must be borne in mind that they apply equally to most conveyances operating at common law, and to the statutoiy conveyance by way of grant (a).' The word trust, is never employed in modern convey- ancing, when it is intended to vest an estate iv fee simple in any person by force of the Statute of Uses. Such an intention is always carried into effect by the employment of the word use ; and the word trust is reserved to signify a holding by one person for the benefit of another similar to that (fc), which, before the statute was called a use. For, strange as it may appear, with the Statute of Uses Trusta still remaining unrepealed, lands ar.^ still, as everybody knows, Htand^alhe ' frequently vested in trustees, who have the seisin and Statute of possession in law, but yet have no beneficial interest, being liable to be brought to account for the rents and profits by means of the Court of Chancery. The Statute of Uses was evidently intended to abolish altogether the jurisdiction of the Court of Chancery over landed estates (c), by giving actual possession at law to every person beneficially entitled in equity. But this object has not been accomplished^ for the Court of Chancery soon regained, in a c'.rious manner, its former ascendancy, and has kept it to the present day : — So that all that was ultimately effected by the Statute of Uses, was to import into the rules of law some of the then existing doctrin:;3 of the Court of Equity {d), and to add three words, to the use, ta every conveyance (e). The manner in which the Court of Chancery regained its ascendancy was as follows : Soon after the passing of the Statute of Uses, a doctrine was laid down, that there (a) See as to the operation of various modes of conveyance as regards uses declared in them : Black. Com. by Leith re Smith, p. 346, .355, 383. (6) But not the same, 1 8 and. Uses, 266 (278, 5th ed.). IS (c) Chudleigh'8 cote, 1 Rep. 124,^ 125. {(l) Fomb. Eq. 17. (e) See Hopkins v. Hopkins, 1 Atk. 591 ; 1 Sand. Uses, 265 (277, 5th ed.). 114 OF CORPOREAL HEREDITAMENTS. No use upon could not be a use upon a use (a). For instance, suppose a feoffment had been made to A. and his heirs, to the use of B. and his heirs, to the use of C. and his heirs ; the doctrine was, that the use to C. and his heirs, was a use upon a use, and was therefore not affected by the Statute of Uses, which could only execute or operate on the use to B. and his heirs. So that B, and not C, became entitled, under such a feoffment. This doctrine has much of the subtlety of the scholastic logic which was then prevalent. As Mr. Watkin says (6), it must have surprised every one, who was not sufficiently learned to have lost his common sense. It was, however, adopted by the courts and is still law. Even if the first use be to the feoffee himself, in which case he takes by the common law (c), no subse- quent use will be executed, and the feoffee will take the fee simple; thus, under a feoffment unto and to the use of A. and his heirs, to the use of C. and his heirs, C. takes no estate in law, for the use to him is a use upon a use ; but the fee simple vests in A. to whom the use is first declared {14, 4th ed.). (h) 1 Sand. Uses, 300 (324, 6th ed.) (c) 74, R. S. 100, B. 8. 1-39 (d) Sugd. Vend. & Pur. 146 (162, 13th ed.). (e) Bower v. Cooper, 2 Hare, 408 (/) 1 Sand. Uses, 288 (302, 6th ed.). 118 OF CORPOREAL HEREDITAMENTS. Treason. A bare trustee. is a mere creature of equity, and not a subject of tenure. In such a case, therefore, the trustee will hold the lands- discharged from the trust which has so failed ; and he will accordingly have a right to receive the rents and profits without being called to account by any one. In other words, the lands will thenceforth be his ov,n (a). In the event of high treason being committed by the cestui que trust of an estate in fee simple, it was the better opinion that his equitable estate would be forfeited to the crown {b). But, as we have seen all forfeitures for treason are now abolished. And now, as we have seen on the death of a bare trustee intestate, the legal estate in fee vested in him vests in his legal personal represen- tative from time to time. Descent of an The descent of an equitable estate on intestacy follows estate. * ^^^® rules of the descent of legal estates. Creation and Trusts or equitable estates may be created and passed trust^estates ^^'^^ ''"^ person to another, without the use of any par- ticular ceremony or form of words (c). But, by the Statute of Frauds, it is enacted (d), that no action shall be brought upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements, or here- ditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized. It is also enacted (e), that all declarations or creations of trusts or confidences of any lands, tenements or hereditaments, shall be manifested and proved by some writing, signed by the party granting or assigning the same, or by his last will. Statute of Frauds. (a) Burgess v. Wheate, 1 Wm. Black. 123 ; 1 Eden, 177 ; Taylor V. Haggarth, 14 Sim. 8 ; Davall V. New River Company, 3 De Gex k Smale, 394 ; B'Mle v, Symondt, 16 Beav. 406. (b) 1 Hale, P. C. 249. (c) 1 Sand. Uses. 315, 316 (343, 344, 5th ed.). (d) Sect. 4; Sug. V. & P. c. 4. ed.). (e) Sect. 7 ; Tiemey v. Wood, 19 Beav. 330. OF USES AND TRUSTS. 119 Trusts arising or resulting from any conveyance of lands or tenements, by implication or construction of law, and trusts transferred or extinguished by an act or operation of law, are exempted from this statute. In the transfer of equi- table estates it is usual, in practice, to adopt conveyances applicable to the legal estate ; but this is never necessary (a). If writing is used, and duly signed, in order to satisfy the Statute of Frauds, and the intention to transfer is clear, any words will answer the purpose. The sale of real estate by auction is now regulated by an act which renders invalid every such sale where a puffer is employed ; and which requires that unless in the parti- culars or conditions of sale, ' it is stated that the land will be sold subject to a reserved price, or a right of the seller to bid, the sale is to be deemed to be without reserve.' And if the sale is without reserve, the seller may not employ any person to bid at the sale, and the auctioneer may not knowingly take any bidding from any such person. But where the sale is declared to be subject to a right for the seller to bid, he or any one person on his behalf may bid at the auction in such manner as he may think proper. ' Nothing in the act is to be taken as authorizing a seller to become a purchaser, (b).' Courts of Equity, looking to the substance of contracts rather than to the letter, have been in the habit of enforc- ing their performance in many cases as for instance where the time fixed ' is not of the essence of the contract, of little if any importance,' and has gone by, and the contract has therefore, according to the letter of the law, come to an end. Trust estates, besides being subject to voluntary alien- ation, are also liable, like estates at law, to involuntary alienation for the payment of the owner's debts. By the Statute of Frauds it was provided, that if any cestui que Sale of land by auction. it; Where time not of essence. Trust estates liable to debts. The Statute of Frauds. (o) 1 Sand. Uses, 342 (377, 5th pp. 96 et seq., 13th ed. . (6) Rev. Stat. c. 9 8, s. s. 12 to 17-B, 16 as to sellers not being authorized to become purchasers is probably intended to meet the case of trustees, mortgagees, and fiduci- ary vendors who by well known rules of Equity are precluded from buying. 120 OF CORPORKAL HEREDITAMENTS. Snbsequent statutes. Judgment debts. The Statute of Frauds. trust should die, leaving a trust in fee simple to descend to his heir, such trust .should be assets by descent, and the heir should be chargeable with the obligation of his ances- tors for and by reason of such as.sets, as fully as he might have been if the estate in law had descended to him in possession in like manner as the trust descended (a). And the subsequent statute 3 & 4 of Wm. and Mary, c. 14 to which we nave before referred, for preventing the debtor from defeating his bond creditor by his will, applies as well to equitable or trust estates as to estates at law. The same Statute of Frauds also gave a remedy to the creditor who had obtained a judgment against his debtor, by providing, that it should be lawful for every sheriff or other officer to whom any writ should be directed, upon any judgment, to deliver execution unto the party in that behalf suing, of all such lands and hereditaments as any other person or persons should be seised or possessed of in trust for him against whom, execution was sued, like as the sheriff or other officer might have done if the party against whom execution should be sued had been seised of such lands or hereditaments of such estate as they be seised of in trust for him at the time of execution sued. ' But in order that the interest of a cestui que trust should be sale- able under the Act, it must be a pure and simple trust, not complex in its character (6). Various provincial statutes have given remedies against equitable interests of cestui que trust, mortgagors, and others, as well as against legal estates : they are too numerous and complicated to be explained here (c).' Crown debts. Trust estates are subject to debts due to the crown in (a) Stat. 29 Car. II. c. 3, s. 10. Before this provision the Court of Chancery had refused to give the bond creditor any relief. Bennet v. Box, 1 Cha. Ca. 12 ; Prat v. Colt, ib. 128. These decisions, m all 159 ; 1 Sand. Uses, 276 289, 5th ed.). (6) See cases in Leith RL Prop. Stats, p. 315. (c) See 49, s. 11 et seq. See also Leith Real Prop. Stats., title " Sale probability, gave rise to the above and title under execution " p. 300 enactment. See 1 Wm. Black, et seq. OF USES AND TRUSTS. 121 the same manner and to the same extent as estates at law (a). They are also eijually liable to involuntary alienation Bankruptcy. on the bankruptcy of the cestui que trust. The circumstance of property being vested in trustees sometimes occasions inconvenience. A trustee may become, lunatic, or may leave the country, or may refuse to convey, when recjuired, the lands of which he is trustee ; or he may die intestate without an heir, or leaving an infant heir, on whom, if he was a sole or a sole surviving tru.stee, other than a merely bare trustee (b), the lands will descend at law. ' Apart from the general jurisdiction of the Court of Chancery in such cases it has been provided in order to' (c) remedy the inconvenience occasioned to persons beneficially entitled, that whenever any trustee shall die, or desire to Power to ap- be discharged from, or refuse or become unfit or incapable trostees, to act in, the trusts or powers reposed in him, the surviv- ing or continuing trustees or trustee, or the acting ex- ecutors or administators ot the last surviving or continuing trustee, or the last retiring trustee, may, if there be no person nominated for that purpose by the instrument creating the trust, or no such person able and willing to act, appoint a new tristee. And every such trustee, and also every trustee appointed by the Court, either before or after the passing of the act, is invested with the same powers as if he had been originally nominated by the instrument creating the trust. And the above-mentioned power of appointing nev trustees may be exercised in cases where a trustee nominated in a will has died in the lifetime of the testator as well as where he may have died after the testator's decease. 'The act also requires that on the appointment the trust property be conveyed with all convenient speed so as to vest it in the new trustee solely or jointly with continuing trustees as the case may require.' M i.ii i *rtf (o) King v. Smith, Sug. Vend. k Pur., Appendix, No. 15, p. 1098, 11th ed. (&) See ante, p. 118. (c) 107, 8. 3. 16 122 OF COUI'OUEAL HERKDITAMKNTS. Law and equity were (liMtinct Bys- tems. Common T^aw Procedure Act Ontario Judi' cature Act, 1881. Plaintiflf's equitable re- lief. Defendant's equitable re- lief. The concurretit exiHtence of two distinct systems of jurisprudence was a peculiar feature of English Law. On one side of Westminster or 'Osgoode Hall' a man miglit have succeeded in his suit under circumstances in which he would undoubtedly have been defeated on the other side ; for he might have had a title in equity, and not at law (being a cestui que tinist), or a title at law and not in equity (being merely a trustee). In the former case, though he would have succeeded in a chancery suit, he never would have thought of bringing an action at law ; but equity would have taken care that the fruits should be reaped only by the person beneficially entitled. The equitable title was, therefore, the beneficial one, but if barely eiiuitable, it might have occasioned the expense and delay of a Chancery suit to maintain it. A step was taken towards the amalgamation of law and equity by the first Common Law Procedure Act, which conferred on the < 'ourts of Common Law an extensive equitable jurisdiction. 'Since then various acts have been passed of the same tendency (a), now mainly superseded by the Ontario Judicature Act, 1881.' The 'Ontario' Judicature Act,1881,hasnow amalgamated all the superior courts of law and :n"i^j. ii, provides (6) that if any plaintiff claims to be entitled to any equitable grour '. against any deed, instrument, or contract, oi against any r:; ■ it, title, or claim whatsoever asserted by tho defen- dant, jv to any relief founded upon a legal right which theretofore could only have been given by a court of equity, the Courts respectively, and every judge thereof, shall give to such plaintiff the same relief as ought to have been given by the Coui't of Chancery in a suit or other proceeding for the same or the like purpose properly instituted before the passing of the act. It also provides (c), that if any defen- dant claims to be entitled to any equitable estate or right, or to. relief upon any equitable ground, against any deed, (o) R. S. 49. R. S. 132, 133 ; R. S. 51. 50. sa. 131, (6) S. 16, Snb-8. 2. (c) Sect. 16, subsect. 3. OF USES AND TRUSTS. 123 instrument or contract, or against any right, title or claim a88ei-t(!(l by the plaintiti', or allego.s any ground of ('(^uitable defence to any claim of the plaintitf* the said Court.s respec- tively, and every judge thereof, shall give to every e^ No cause to be stayed by in- junction. Legal rights to be recog- nized. Multiplicity of auita avoided. Mandamus. Truata not abolished. (a) Sect. 16, subsect. 4. (b) Sect. 16, subaect. 5. (c) Sect. 16, subsect. 6. (d) Sect. 16, subsect. 7. (e) Sect. 16, aubsect. 8. (/) Sect. 17, aubsect. (8). See also order 46. 124 OF CORPOREAL HEREDITAMENTS. Legal eatate. still be vested in some other person than the beneficial owner. Every purchaser of landed property has, therefore, a right to a good title both at law and in equity ; and if the legal estate should be vested in a trustee, or any person other than the vendor, the concurrence of such trustee or other person must be obtained for the purpose of vesting the legal estate in the purchaser, or, if he should please, in a ne\7 trustee of his own choosing. When a person has an estate at law, and doe? not hold it subject to any trust, he has of course the same estate in equity, but without any occasion for resorting to its aid. To him, therefore, the doctrine of trusts does not apply ; his legal title is sufficient; the law declares the nature and incidents of his estate, and equity has no ground for interference (a). We shall now take leave of equity and equitable estates, and proceed, in the next chapter, to explain a modern conveyance. (a) See Brydgea v. Brydget, 3 Ves. 127. (125) CHAPTER X. OF A MODERN CONVEYANCE. In modern times, down to the year 1841, (a) the kind Lease and of conveyance employed in England on every ordinary purchase of a freehold estate, was called a lease and release ; and for every such transaction, two deeds were always required, ' The conveyance by way of bargain and sale was that usually adopted in Upper Canada.' * In England it was enacted ' (b), that after the 1st of October, 1845, all corporeal tenements and hereditaments shall, as regards the conveyance o2 the immediate freehold thereof, be deemed to lie in grant as well as in livery. ' The Rev. Stat. c. 98, s. 2 is to the same effect.' A simple deed of grant is therefore now sufficient to grant the freehold or feudal seisin of all lands. But as a lease and release was so long in England the usual method of conveyance and many real property cases involve necessity for knowledge of its effect, the nature of a conveyance by lease and release should still form a subject of the student's inquiry; and with this we will accordingly begin. From the little that has already been said concerning a a lease for lease for years, the reader will have gathered, that the y®*"* lessee is put into possession of the premises leased for a definite time, although his possession has nothing feudal in its nature, for the law still recognizes the landlord as retaining the seisin or feudal possession. Entry by the Entry neces- tenant was, however, in ancient times, absolutely necessary ^'*'^- to make a complete lease ' till entry he has only what is (o) Imp. Stat 4 & 5 Vict, c 21. (ft) 8 & 9 V. c. 106 T 126 A release. Incon- verience of lease with entry. OF COKPOREAL HEREDITAMENTS. called an interesse termini ; but it was not necessary,' in accordance with feudal principles, that the landlord should depart at once and altogether, as he must have done in the case of a feoffment where the feudal seisin was transferred. When the tenant has thus gained a footing on the premises, under an express contract with his landlord, he became, with respect to the feudal possesion, in a different position from a mere stranger ; for, he was then capable of acquiring such feudal possession, without any formal livery of seisin, by a transfer or conveyance from his landlord, of all his (the landlord's) estate in the premises. Being already in possessirr) 1 'he act and agreement of his landlord, and under i tenancy recognized by the law, there was not the same necessity for that open delivery of the seisin to him, as there would have been to a mere stranger. In his case, indeed, livery of seisin would have been improper, for he was already in possession under his lease ; and, as a delivery of the possession of the lands could not, therefore, be made to him, it was necessary that the landlord's interest should be conveyed in some other manner. Now the ancient common law always required that a transfer or gift of every kind relating to real property should be made, either by actual or symbolical delivery of the subject of the transfer, • .vLeu this was impossible, by the delivery of r '"uin document (a). But in former times, as we havu o ., every writing was under seal ; and a writing so sealed and delivered is in fact a deed. In this case therefore, a deed was required for the conveyance of the landlord's interest (6); and such conveyance by deed, under the above circumstances, was termed a release. To a lease and release of this kind, it is obvious that the same objection applies as to a feoffment : the inconvenience of actually going on the premises is not obviated ; for, fchu tenant (a) Co. Lite. .9 a ; Doe d. Were v. Cok, 7 Bam. & Cress. 243, 248 ; ante, p. 9. (6) Shep. Touch. 320. OF A MODERN CONVEYANCE. 127 must enter before he can receive the release. In the very «arly periods of our history, this kind of circuitous conveyance was, however, occasionally used. A lease was made for one, two, or three years, completed by the actual entry of the lessee for the express purpose of -enabling him */0 receive a release of the inheritance, which was accordingly made to him a short time afterwards. The lease and release, executed in this manner, transferred the freehold of the releasor as effectually as if it had been conveyed by feoffment (a). But a leas:e and release would never have obtained the ])revalence they afterwards acquired had not a method been found out of making a lease, without the necessity of actual entry by the lessee. The Statute of Uses was the means of accomplishing The Statute, this desirable object. This statute, it may be remembered, *"' enacts, that when any person is seised of lands to the use of another, he that has the use shall be deemed in lawful seisin and possession of the lands, for the same estate as he has in the use. Now. besides a feoffment to one person to the use of another, there were before this statute, other modes by which a use might be raised or created, or, in other words, by which a man might become seised of lands to the use of some other person. Thus, — if, before the Statute of Uses, a bargain was made for the sale of an Bargaia and estate, and the purchase-money paid, but no feoffment was ' executed to the purchaser, — the Court of Chancery, in analogy to its modern doctrine on the like occ ^ns (h), considered that the estate ought in conscience immediately to belong to thy person who paid the money, and, there- fore, held the bargainor or vendor to be immediately seised of the lands in qustion to the use of the purchaser (c). This proper and equitable doctrine of the Oourt of Chancery had rather a curious effect when the Statute of Uses came into operation ; for, as by means of a contract of this kind the purchaser became entitled to the use of (a) 2 Sand. Uses. 61 {74, oth ed.) (b) Ante, p. 115. (c) 2 Sand. Uses, 43 (5.3, 5th ed.) ; Gilb. Uses and Trusts ,49 (94, 3nl ed.) li^ 128 OF CORPOREAL HEREDITAMENTS. the lands, so, after the passing of the statute, he became at once entitled, on payment of hi-^ purchase-money, to the lawful seisin and possession : or rather, he was deemed really to have, by force of the statute, such seisin and possession, so far at least as it was poasible to consider a man in possession, who in fact was not (a). It, conse- quently, came to pass that the seisin was thus transferred from one person to another, by a mere bargain and sale, that is, by a contract for sale and payment of money without the necessity of a feoffment, or even of a deed (6) ; and, moreover, an estate in fee simple at law was thus duly conveyed from one person to another without the employment of the technical word heirs, which before was necessary to mark out the estate of the purchaser ; for, it was presumed that the purchase-money was paid for an eatate in fee simple (c); and as the purchaser had, under his contract, such an estate in the use, he of course became entitled, by the very words of the statute, to the same estate in the legal seisin and possession. * But S'.nce the Statute of Uses a conveyance by way of bargain and sale without words of inheritance gives only a life estate ' (d). The mischievous results of the statute, in this particular, were quickly preceived. The notoriety in the transfer of estates, on which the law had always laid so much stress, was at once at an end ; and it was perceived to be very undesirable that so important a matter as the title to landed property should depend on a mere verbal bargain (a) Thus, ha could not maintain an action of trespass without being actually in possession, for this ac- tion is founded on the disturbance of the actual possession, which is evidently more than the Statute of Uses, or any other statute, can give. Glib. Uses, 8t (185, 3rd ed.) ; 2 Fonb. on Equity, 12 ; Har- rison V. Blackburn, 17 C.B., N. S. 678. See, however, Anon., Cro. Eliz. 46 ; Com. Dig. tit. Uses (I) ; Heelis v. Blain, 18 C. B., N. S. 90 : Hudford'a case, L. R., 8 C. P. 309. (6) Dyer, 229 a; Comyn's Di- gest, tit. Bargain and Sale (B. 1, 4) , Gilb. on Uses and Trusts, 87, 271 (197, 475, 3rd ed.) (c) Giib. Uses, 72(115, 3rd ed.) (d) GUb. Uses by Lord St Leonards, p. 76 referring to 1 Co. 81 B. OF A MODERN CONVEYANCE. 1S» and money payment, or bargain and sale, as it was Bargains »nd termed. Shortly after the passing of the Statute of Uses, to be by deed it was accordingly required by another act of parliament (a), enrolled. ' known as the statute of inrolments,' passed in the same year, that every bargain and sale of any estate of inheritance or freehold should be made by deed indented and enrolled, within six months (which means lunar months) from the date, in one of the courts of record at Westminster, or before the custos rotulorum and two , justices of the peace and the clerk of the peace for the county in which the lands lay, or two of them at least, whereof the clerk of the peace should be one. A stop was thus put to the secret conveyance of estates by mere contract and payment of money. For a deed entered on the records of r, Court is of course open to public inspection ; and the expense of enrolment was, in some degree, a counterbalance to the inconvenience of going to the lands to give livery of seisin. It was not long, how- A loophole ever, before a loophole was discovered in this latter ^.^g^g^^^yte."* statute, through which, after a few had ventured to pass, all the world soon followed. It was perceived that the act ' requiring enrolment ' spoke only of estates of inheri- tance of freehold, and was silent as to bargains and sales for a mere term of years, w^hich is not a freehold. A Bargain and bargain and sale of lands for a year only, was not therefore y^^r * affected by the act (6), but remained still capable of being accomplished by word of mouth and payment of money. The entry on the part of the tenant, required by the law (c), was supplied by the Statute of Uses; which, by its own force, placed him in legal intendment in possession of the same estate as he had in the use, that is, for the term bargained and sold to him (d). And as any pecuniary payment, however small, was considered sufficient to raise . a use, it followed that if A., a person seised in fee simple, (a) 27 Hen. VIII. c. 16. (75, 5th ed.) {b) Gilb. Uses, 98, 296, (214, (c) Ante, p. 125. 502, 3rd ed.) ; 2 Sand. Uses, 63 (d) Qilb. Uses, 104(223, 3rd ed.> 17 i\n;.ii m *4 4i -■j.ijsj:.,aMa.\.: — ^ — 130 Lease and release. OF CORPOREAL HEREDITAMENTS. bargained and sold his lands to B. for one year in con- sideration of ten shillings paid by B. to A., B. became, in law at once possessed of an estate in the lands for the term of one year, in the same manner as if he had actually entered on the premises under a regular lease. Here then was an opportunity of making a conveyance of the whole fee simple, without livery of seisin, entry, or enrolment. When the bargain and sale for a year was made, A. had simply to release by deed to B. and his heirs his (A.'s) estate and interest in the premises, and B became at once seised of the lands for an estate in fee simple. This bargain and sale for a year, followed by a release, is the modern conveyance by lease and release — a method which was first practised by Sir Francis Moore, Serjeant at law, at the request, it is said, of Lord Norris, in order that some of his relations might not know what conveyance or settlement he should make of his estate (a) ; and although the efficiency of this method was at first doubted, it was, for more than two centuries, the common means of conveying lands in England. It will be observed that the bargain and sale (or lease as it is called) for a year derived its effect from the Statute of Uses; the release was quite independent of that statute, having existed long before, and being as ancient as the common law itself. The Statute of Uses was employed in the conveyance by lease and release only for the purpose of giving to the intended releasee, without his actually entering on the lands, such an estate as would enable him to receive the release. When this estate for one year was obtained by the lease, the Statute of Uses had performed its part, and the fee simple was conveyed to the releasee by the release alone. The release would, before the Statute of Uses, have conveyed the fee simple to the releasee, supposing him to have obtained that possession for one year, which, after the statute, was given him by the lease. After the passing of the Statute of Frauds (b), (a) 2 Preat. Conv. 219. (6) Stat. 29 Car. II. e. 3 ; ante, p. 106. OF A MODERN CONVEYANCE. 131 it became necessary that every bargain and sale of lands for a year should be put into writing. No pecuniary rent was ever reserved, the consideration being usually f ve shillings, the receipt of which was acknowledged, though in ffict it was never paid. And the bargain and sale for a Bargain and year, was usually made by deed, though this was not abso- mu8t'be*in^'' lutely necessary. It was generally dated the day before writing. the date of the release, though executed on the same day as the release, immediately before the execution of the lattei". ' From what is above stated it will be seen that any freehold estate can be created and conveyed by a deed of bargain and sale. For this, however, a deed is requisite, and mere writing will not suffice as .in the cape of a mere estate for years, as the Statute of Enrolments of Henry VIII., before referred to, requires a deed on every bargain and sale of a freehold.' ' The inconvenient necessity of enrolment would seem, by the Provincial Statute 37 Geo. III. c. 8, to have been 37 Geo, III. c. supposed to have existed in this Province. That statute regieiiy in effect declared that registry in the county registry office enrolment, for should supply the place of enrolment under the Statute a B. & S. by of Enrolments. It has been held also to have been retro- ^^^^ P"^ spective in its operation, and to have authorized the con- veyance by way of bargain and sale by deed 'poll as well as by indenture (a).' 'Next followed the Provincial Statute 4 Wm. IV. c. 1,4 Wm. IV. c. s. 47, which did away with even the necessity of registry, with remstry! and was also held to be retrospective (6). By Stat. 9 Vic. c. 34, 8. 14, registration was declared to be equivalent to enrolment, but Stai. 13 & 14 Vic. c. 63, reciting that the effect of that clause might be to render doubtful the mean- ing of Wm. IV. c. 1, repealed it. By the operation of these statutes, therefore, the Statute of Enrolments seems to be entirely superseded.' (o) Rogers v. Barnum, 6 U. C. R. 0. S. 252. (6) Rogers v. Bomum, vhi sup. ; Doe dem, Loucka v. Fisher, U. C. E. 670. 132 OF CORPOREAL HEREDITAMENTS. also allows corporations to convey by B. &S. Objection to this mode of conveyance. Money consi- dertion re- quisite. Placing of the legal and equi- table estates. ' There was a further difficulty attending the conveyance by bargain and sale, which also required legislative remedy, namely, that it was doubtful whether a corporation could convey by this mode of assurance. This was chiefly in consequence of the wording of the Statute of Uses being " that where any person shall stand seised to the use of another, or of a body politic or corporate," &;c. ; and it was held that the word " person" did not include corporations, so that the statute did not apply to a corporation, and the use raised in the corporation would not be executed by the statute, but left as at common law, a mere trust. This was remedied by Stat. 4 Wm. IV., c. 1, R. S. 0. c. 98, decla- ring that corporations aggregate might convey by bargain and sale : but the statute does not say, as the Statute of Uses says in effect, that a use raised shall be executed in favour of cestui que use. There is in strictness no use executed ; the Act simply empowers a coi^ioration to con- vey in a particular mode. . It is generally considered a cor- poration cannot be seised to a use (a).' ' The chief objections at the present day to the bargain and sale, which do not apply to the conveyance by way of lease and release, or of grant, are ; First, that in the con- veyance by way of bargain and sale a consideration must be expressed, and it must be a money consideration, or money's worth, to raise the use ; Secondly, as presently explained, no general powers, as powers of appointment, &c., &c., can be grafted on the deed of bargain and sale.' ' The first objection depends on the necessity of some consideration passing to the bargainor to raise a use, and make him stand seised to the use of the bargainee ; and it must have been money or money's worth ; natural love and jaffection would not suffice ; though in the latter case the deed might operate as covenant to stand seised ; and in the absence of any consideration, it can take effect as a grant; but in such a case the legal estate may not vest in the same person if the instrument operated as intended, namely as a (a) Jones, Uses, 40, but see Gilbert, Uses p. 7, note OP A MODERN CONVEYANCE. 188 bargain and sale. Thus if A. bargain and sell to B. and his heirs, to the use of C. and his heirs, and the conveyance operate in that way, B. will take the legal, and C. the equi- table estate, for every use declared is a use on a use, the first use being raised in the bargainor ; but if it operate as a grant, C. will take the legal estate.* ' As to the second objection ; general powers, as to grant Powers can- leases, or of appointment, cannot be grafted on a bargain !!^*{t^ ^ and sale, or covenant to stand seised, as they can on a grant, or release (a): so that a bargain and sale to A., to such uses as he, or any other should appoint, and till appointment to him in fee, would be ineffectual, as such, to convey the legal estate to A.'s appointee ; for, on the appointment, the instrument must operate, if at all, as a bargain and sale directly to the appointee ; but it can- not so operate, since as there is no consideration between the parties, no use is raised in the bargainor.' 'Chattel interests in land actu«,l]y in exist, ce, s'lch as lessees terms of years, cannot be conveyed by bargain and sale so as to vest the term in the intended alienee, for as the statute mentions only such persons as are seised to the use of others, this was held not to extend to terms of years, Terms of or other chattel interests, whereof the termor is not seised, ^^*™* but only possessed ; and therefore, if an existing term of one thousand years be limited to A., to the use of (or in trust for) B.,the statute does not execute this use, but leaves it as at common law. And, (by more modem resolutions). Cases where where lands are given to one and his heirs in trust, to {.j^^ ^j["|!^g receive and pay over the profits to another, this use is not should retain executed by the statute : for the land must remain in the ^^^q^ trustee to enable him to perform the trust , and this will be the case, as a general rule, wherever the grantee has some active duty to perform, or control or discretion to exercise. But on a devise to one and his heirs on trust to j>ei'mA,t another to receive the profits, it has been held that A I . i •*i I 'I (a) Gilbert. Uses, Sugden, Powers, 138 ; Watkins, Conveyancing, 9th ed. p. 357. 134 OF CORPOREAL HEREDITAMENTS. the latter takes the legal estate by force of the statute which executes the trust (a).' Distinction ' Tho attention of the student may be called to the dif- between limi- >> i . i- •. .• . i_ tiiiu uscB on a*^^^"^*^ between limitations to uses by conveyances operating common law at coinmon law as releases, &c., or by way of ijrant under conveyance -n c^ ^r, / ^ • -, -i ami one ope- K h. c. 98 (which operates in the same way as a common th*^b^"*t"'^ law conveyance), and by conveyance operating and taking effect in the first instance by the raising of an use in the conveying party for the benefit of another under the Sta- tute of Uses. The distinction is most important, because on the character in which the instrument operates will depend the placing of the legal and equitable estates : thus, under a feoffment or grant or release to A. and his heirs to the use of B. and his heirs, the latter take the legal estate, for the first and only use i*aised is in A. But had the con- veyance been by bargain and sale, or covenant to stand seised, and could it only so operate, A. would take the legal and B. merely the equiteble estate : for, under such con- veyances the first use raised is in the bargainor, or cove- nantor, and consequently the use declared in favour of B. is unexecuted by the statute, and is a mere trust. In most of the cases given in this work where examples are given of conveyances and their effect, it is to common law con- veyances that allusion is made or to those by way of statutory grant.' * In England it is provided by the act of 4 & 5 Vic. c. 21 that a release may take effect without a prior lease. But since then it is enacted in England by the act of 8 & 9 Vic. E. S. 0. c. 98, c. 106, and here by Rev. Stat. c. 98 s. 2, that ' All corporeal intrant. * tenements and hereditaments as regards the immediate freehold thereof, shall be deemed to lie in grant as well as in livery.' The result of this is, that this mode of convey- ance supersedes the mode of conveyance formerly most generally adopted here to pass fee simple estates ; viz., by way of bargain and sale, which has disadvantages before (a) See further Tyrrel's case Tud. Lg. Ca. RI. Prop, and cases there referred to. OF A MODERN CONVEYANCE. 13S referred to not attendant on a conveyance by way of grant.' 'The word grant, as an operative word, had a' ways a 0|.eration of most extensive signification ; it might, as the circumstances***'^ T"""*^ of the case require, operate as a feoffment, surrender, lease, release, bargain and sale, covenant to stand seised, or other assurance ; and vice versa (a). But for the purposes of pleading, it is proper to determine in what way the instru- ment really does operate, and to set it out accordingly ; thus, if lessee should convey the residue of his term to his landlord by the use of the words, " release, assign, bargain, sell, give, &c., the instrument should not be pleaded as ope- rating in either of those modes of conveyance, but as a suirender ; for as it can so operate (without the use of the Conveyances word surrender), such is its proper legal effect. And so y^ei^edao- in every case, in correct pleading, the instrument should be cordiug to pleaded in the character in which it really operates in law, feet.' *** and not in the general words used in it. In some cases it must be so pleaded, for though " where a deed may ope- rate in two ways he to whom it is made may elect in which way he will have it operate — the Court ought not to be left to make the election" (6)." ' There was, however, an objection to the. use of the ImpUad cove- word, from a supposition that it implied a covenant or"*"'" warranty for title, and certainly in the case of a lease it did imply, as the word " demise" now implies, a cove- nant for quiet enjoyment, unless the implication be de- stroyed by an express covenant on the subject. R. S. c. 98 (a) See ('o. Litt, 301 b. ; Nick- ohm V. DUlabough, 21 U. C. R. 591 ; Watt V. Feader, 12 C. P. U. C. 254 ; Doe V. Daviea, 2 M. & W. 513 Acre V. Livingstone, 26 U. C. R 282 In Cameron v. Oann, 25 U. 0. Rep. 77, a releane for five shillings' considera- tion was held not to operate as a bargain and sale or a grant, and to be altogether ineffectual for want of possession in the releasee ; but see Jones on Uses, 108, that a surrender which contemplates an extinction of an estate, may be construed as a covenant to stand seised though that continues the estate. In Collvtr v. Shaw, 19 Grant, some doubt was expressed as to the decision in Cam- eron v. Chmn. {b) Roe V. Pranmar, 644 ; 1 Smith, Lg. Oa. ; Stephen on Pig. 311, 391, 1 Saund., 235, c. a.9. i i i. 4' --^ 130 OF CORPOUKAI, HKRKiJlTAMKNTS. declares that the word shall neither imply a warranty nor covenant.' 'Conveyances of remainders or reversions dependent on a life or other freehold estate, were always properly made by way of grant, as being in their nature incorporeal, whereof livery could not be made, for the seisin of the freehold was in the immediate freeholder. Such interests are not touched by the statute, and grants of ihem operate under the common law.* How a grant 'A grant of the immediate freehold will operate under the 98, operate in statute OS at common law, that is, it will not require the regard tonnes aid of the Statute of Uses to give it effect. Thus, if A. declared. tenant for life, or seised in fee, grant to B. for a considera- tion, the conveyance will operate as a feoffment or a com- mon law conveyance. And if the coua ance had been to B. to the use of C. the first and onl} raised would be in B., which (as presently explaineu in speaking of the Statute of Uses) would be executed by the statute, and C. thus take the legal estate.' The eatate The legal seisin being thus capable of being transferred mailed out. ^^ ^ deed of grant, there is the same necessity now as there was when a feoffment was employed, that the estate which the purchaser is to take should be marked out (a). If he has purchased an estate in fee simple, the conveyance must be expressed to be made to him and his heirs ; for the construction of all conveyances, wills only excepted, is in this respect the same ; and a conveyance to the purcha- ser simply, without these words, would convey to him an dstate for his life, as in the case of feoffment (h). In this case also, as wed as in a feoffment, it is the better opinion that, in order to give permanent validity to the convey- ance, it is necessary either that a consideration should be expressed in the conveyance, or that it should be made to the use of the purchaser as well as unto him (c) : for a lease (a) Shep. Touch. 327 ; see ante, (c) 2 Sand. Uses, 64—69 (77—84, p. 100. 5th ed.) : Sugd. note to Gilb. Uaes, (b) Shep. Touch., ubi supra. 233 ; see ante, pp. Ill, 112. OF A M(3DERN «JONVEYANCE. 137 and release was formerly, and a deed of grant is now, as much an Ofttablished conveyance as a feofl'incnt ; and the rule was, before the Statute of Uses, that any conrct/ance, and not a feoffment particularly, made to another without any consideration, or any declaration of uses, should be deemed to be made to the use of the [)arty conveying. In Conveyance order, therefore, to any such construction, and so to pre- "1**/°^"'^,^^,^ vent the Statute of Uses from immediately undoing all ':/■ the par- that has been done, it is usual to express, in every convey- ance, that the purchaser shall hold, not only unto, but unto and to the use of himself and his heirji ; ' Vmt this is unne- cessary where a consideration is expressed in the deed.' A conveyance might also have been made by lease and A conveyance release, as well as ^y a feoffment, to one person and his t,, usea. heirs, to the use of tme other person and his heirs ; and, in this case, as in a similar feoffment, the latter person took at once the whole ' legal estate in' fee simple, the former being made, by the Statute of Uses, merely a conduit-pipe for conveying the estate to him (a). This extraordinary result of the Statute of Uses is continually relied on in modern conveyancing ; and it may now be accomplished by a deed of grant in the same manner as it might have been before effected by a lease and release. It is found particularly advantageous as a means for avoiding a rule of law, that a man cannot make any conveyance to him- A man can- self ; thus if it were wished to make a conveyance of the hhnseSr*^ legal estate in lands from A., a person solely seised, to A. and B. jointly, this operation could not, before the Statute of Uses, have been effected by less than two conveyances ; for a conveyance from A. directly to A. and B. would pass the whole estate solely to B. (6). It would, therefore, have been requisite for A. to make a conveyance to a third person, and for such person then to-reconvey to A, and B. jointly. And this was the method actually adopted, under similar circumstances, with respect to leasehold estates (a) See ante, p. 1 12. himself and another on a joint ao* (6) Perkins, sc. 403. So a n an connt : Faulkner v. Lowe, 2 Ex. oannot covenant to pay money to Rep. 595. 18 vn Mil 138 OF CORPOREAL HEREDITAMENTS. But a man and personal property, which are not affected by the Sta- tute of Uses, until an act was passed by which any person may now assign leasehold or personal property to himself jointly with another (a) ; but this act does not extend to freeholds. If the estate be freehold, A. must convey ' by freehoW to' * ^^Y ^^ grant or conveyance operating at common law' (6) another to hiB to B. and his heirs, to the use of A. and B and their heirs ; and a joint estate in fee simple will immediately vest in them both. Suppose, again, a person should wish to con- vey a freehold estate to another, reserving to himself a life interest, — without the aid of the Statute of Uses he would be unable to accomplish this result By a single deed (c). But, by means of the statute, he may now make a convey- ance of the property to the other and his heirs to the use of himself (the conveying party) f ;r his life, and from and immediately after his decease, to the use of the other and his heirs and assigns. By this means the conveying party will at once become seised of an estate for his life, and after his decease an estate in fee simple will remain for the other. ' But from what has been before explained in regard to conveyances by way of bargain and sale, it will be understood that for the purposes above referred to a conveyance must not be adopted operating by raising a first use in the party conveying, as a bargain and sale or covenant to stand seised.' The reader wiU now be in a situation to understand an ordinary purchase deed of the simplest kind, with ' an English specimen of which he is accordingly presented : a specimen of such a deed in common use in Ontario far more concise will be found in the act as to short forms of con- veyance, Rev. Stat. c. 102. In the case of a simple pur- chase deed it is not usual or necessary to make any recital as in the English form. We shall hereinafter consider shortly this act.' (d) : An ordinary urchase eed. I (a) R. S. 95. 8. 10. (6) See ante, p. 134. (c) Perk 88. 704, 705 ; Yovk v. Jones. 13 Mee. & Wels. 534. {d) See post in treating of cove- uanta for title, and as to precautions requisite in using the forms in the Mt OF A MODERN CONVEYANCE. 13» T^HIS INDENTURE, made the first day of January 1846 between A. B. of Cheapside in the City of London esquire of. the one part and C. D. of Lincoln's Inn in tho county of Middlesex esquire of the other part Whereas by indentures of lease and release bearing date respectively the first and second days of January 1838 and respec- tively made between E. F. of the one part and the said A. B. of the other part for the consideration therein men- tioned the messuage lands and hereditaments hereinafter described with the appurtenances were conveyed unto and to the use of the said A. B. his heirs and assigns for ever And whereas the said A. B. hath contracted with the said C. D. for the absolute sale to him of the inheri- tance in fee simple in possession of and in the said mes- suage lands and hereditaments with the appurtenances free from all incumbrances for the sum of ot e thousand pounds Now THIS Indenture VVitnesseth that in pur- suance of the said contract and in consideration of the sum of one thousand pounds of lawful money of Great Britain to the said A. B, in hand paid by the said C. D. upon or before the execution of these presents (the receipt of which said sum of one thousand poimds in full for tho absolute purchase of the inheritance in fee simple in possession of and in the messuage land and hereditaments hereinbefore referred to and hereinafter described with the appurtenances he the said A. B. doth hereby acknow- ledge and from the same doth release the said C. D. his heirs executors administrators and assigns) He the said A. B. DOTH by these presents grant (a) unto the said C. D. and his heirs ALL that messuage [here describe tJie premises] Together with all outhouses ways watercourses trees commonable rights easements and appurtenances to the said messuage lands hereditaments and premises (6) hereby granted or any of them belonging or therewith used or enjoyed And all the estate (c) and right of the (a) Ante, pp. 125, 134 (b) Ante, p. 12. (c) Ante, p. 15. 140 OF CORPOREA.L HEREDITAMENTS. Formal of legal in- etnimentB Teetatum. " said A. B. in and to ihe same To have and to hold the " said messuage lands hereditaments and premises intended to be hereby granted with the appurtenances unto the use " of (a) the said C. D. his heirs and assigns for ever (h)." [Then follow covenants by the vendor ivith the purchaser for the title ; that is, that he has good right to convey the previises, for their quiet enjoyment by the purchaser, and freedom from incumbrances, and that the vendor and his heirs xvill make all such further conveyances as may be reasonably required.] " In witness whereof the said par- " parties to these presents have hereunto set their hands " and seals the day and year first above written." To the foot of the deed are appended the seals and signatures of the parties (c) ; and, on the back is endorsed a further receipt for the purchase-money, also an attestation by the witnesses, though the deed would not be void without any (d). style From the specimen before him, the reader will be struck with the stiff and formal style which characterizes legal instruments ; but the formality to be found in every pro- perly drawn deed has the advantage, that the reader who is acquainted with the usual order knows at once where to find any particular portion of the contents ; and, in matters of intricacy, which must frequently occur, this facility of reference is of incalculable advantage. The framework of every deed consists but of one, two, or three simple sen- tences, according to the number of times that the testatum, or witnessing part, " Now this Indenture witnesseth," is repeated. This testatum is always written in large letters; and, though there is no limit to its repetition (if circum- stances should require it), yet in the majority of cases, it occurs but once or twice at most. In the example above given, it will be seen that the sentence on which the deed is framed is as follows : — " This Indenture, made on such a "day between the parties, witnesseth, that for so much (a) Ante, p. 131. (6) Ante, p. 131. (c) Ante, p. 106. (rf) 2 Black. Com. 307, 378. OF A MODERN CONVEYANCE. 141 " money A. B. doth grant certain premises unto and to the " use of C. D. and his heirs." After the names of the parties have been given, an interruption occurs for the purpose of introducing the recitals ; and when the whole of the intro- ductory circumstances have been mentioned, the thread is resumed, and the deed proceeds, "Now this Indenture witnesseth." The receipt for the purchase-money is again a parenthesis ; and soon after comes the description of the property, which further impedes the progress of the sen- tence, till it is taken up in the hahenduTn, " To have and to hold," from which it uninterruptedly proceeds to the end. The contents of deeds, embracing as they do all manner of transactions between man and man, must necessarily be infinitely varied, and a simple conveyance, such as that we have given, is rare, compared with the number of those in which special circumstances occur. But in all deeds, as nearly as possible, the same order is preserved. The names of all the parties are invariably placed at the beginning : then follow recitals of facts relevant to the matter in hand ; then a preliminaiy recital, stating shortly what is to be done ; then, the tc tatum, containing the operative ivorda of the deed, or the words which affect the transaction, of which the deed is the witness or evidence ; after this, if the deed relate to property, come the parcels or descrip- tion of the property, either at large, or by reference to some deed already recited, 'but it is not advisable to refer to another deed for description, as in such case evidence may have to be given of that deed': then, the habendum shewing the estate to be holden ; then, the uses and trusts, if any ; and, lastly, such qualifying provisoes and cove- nants, as may be required by the special circumstances of the case. Throughout all this, not a single stop is to be found, and the sentences are so framed as to be independ- ent of their aid; for, no one would wish the title of his estate to depend on the insertion of a comma or semicolon. The commencement of sentences, and now and then some few important words, which serve as landmarks, are ren- derde conspicuous by capitals : by the aid of these, the 142 Covenant to «tand seised. OF CORPOREAL HEREDITAMENTS. practised eye at once collects the sense ; whilst, at the same time, the absence of stops renders it next to impossible materiall}' to alter the meaning of a deed, without the for- gery being discovered. ' The remarks as to punctuation are hardly applicable to Ontario.* Similar to a bargain and sale is another method of con- veyance occasionally, though very rarely employed, namely, a coveTumt to stand seised to the use of another, in consi- deration of blood or marriage (a). ' A man may covenant to stand seised to the use of his child or kinsman, and the Statute of Uses will execute the ' use raised to the extent covenanted for and transfer the legal estate, but a use will not arise on a covenant in favour of a son-in-law or a broth- er-in-law, as there is no affinity of blood. A man cannot covenant with his wife to stand seised to her use, hus- band and wife in inany respects being one in law, and a man cannot covenant with himself ; the covenant should be with some third person to stand seised to the use of the wife (b).' In addition to these methods, there may be a conveyance by appointTnent of a use, under a power of appointment, of which more will be said in a future chap- ter. The student, indeed, can never be too careful to avoid supposing that, when he has read and understood a chap- ter of the present, or any other elementary work, he is therefore acquainted with all that is to be known on the subject. To place him in a position to comprehend more is all that can be attempted in a first book. (a) See Doe d. Daniell v. Wood- rqfe, 10 Moe & Wels. 608 ; Doe d. Sterling v, Prince, C. P., 15 Jur. 632. (b) 3 Jarm A; By. Convey, by Sweet, 672. ( 143) CHAPTER XI. OF A WILL OF LANDS. The right of a testamentary alienation of lands is a matter depending upon act of parliament. We have seen, that previously to the reign of Henry VIII. an estate in fee simple, if not disposed of in the lifetime of the owner, descended, on his death, to his heir at law (a). The hard- ship of the rule was latterly somewhat mitigated by the prevalence of conveyance to uses ; for the Court of Chancery allowed the use to be devised by will (6). But when the Statue of Uses (e) came into operation, and all uses were turned into legal estates, the title of the heir again prevailed, and the inconvenience of the want of testamentary power then began to be felt. To remedy this inconvenience, an act of parliament to which we have Statute of^ before referred (d), was passed six years after the enact- ment of the Statute of Uses. By this act, every person having any lands or hereditaments holden in socage, or in the nature of socage tenure, was enabled by his last will and testament in writing, to give and devise the same at his will and pleasure ; and those who had estates in fee «imple in lands held by knights' service were enabled, in the same way, to give and devise two third parts thereof. When, afterwards by the statute of 12 Car. II. c. 24 (e) socage was made the universal tenure, all estates in fee simple became at once devisable, being all then holden by socage. This extensive power of devising lands by a Wills of H. 8. (a) Ante, p. 46. (6) Ante, p. 110. (c) Stat. 27 Hen. VIII. c. 10; ante, p. 111. (d) 32 Hen. VIII. c. 1, explained by statute 34 & 35 Hen. VIII. c. 6. (e) Ante, p. 88. " i lt i lM fil ^ W M iiill J i i 144 OF CORPOREAL HEREDITAMENTS. The Statute of Frauds. I I Wills Act mere writing unattested was soon curtailed by the Statute of Frauds, which required that all devises and becjuests of any lands or tenements, should be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and should be attested and subscribed in the presence of the said devisor by three or four credible witnesses, or else they should be utterly void and of none effect. * Various pro- vincial acts made additions and amendments to the statute (l). The law which now governs is contained in Rev. Stat. c. 106, it applies to all wills made after 31st December, 1873, and sections 20, 21, 22, 25, and 26, apply also to wills of testators who have died since 31st De- cember, 1868, or may hereafter die. These last named sections as also sections one to six are revisions of the provincial acts above referred to.' This act permits of the devise by will of every kind of estate and interest in real property which would otherwise devolve to the heir of the testator, or, if he became entitled by descent, to the heir of his ancestor ; but enacts that no will shall be valid, unless it shall be in writing, and signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction ; and such signature shall be made or acknowledged by the testator, in the presence of two or more witnesses, present at the same time ; and such witnesses shall attest, and shall subscribe the will in the presence of the testator, and by way of explanation, that every will shall, so far only as regards the position of the signature of the testator, or of the person signing for him, be deemed to be valid, if the signature shall be so placed at, or after, or following, or under, or beside, or opposite to the end of the will, that it shall be apparent on the face of the will that the testator intended to give effect by such hia signature to the writing signed as his will ; and that (a) See sections 1 to 6 of Rev. cases decided on them, Leith Real Stat. c. 106 and S. S. 20, 21, 22, 25 Prop. Stat. ch. " WiUs," pp. 287 et and 26. See these statutes and seq. OF A WILL OF LANDS. 145 no such will shall be affected by the circumstance that the signature shall not follow, or be immediately after, the foot or end of the will, or by the circumstance that a blank space shall intervene between the concluding word of the will and signature, or by the circumstance that the signature shall be placed among the words of the testimonium clause, or of the clause of attestation, or shaU follow or be after or under the clause of attestation, either with or without a blank space intervening, or shall follow or be after or under or beside the names, or one of the names, of the subscribing witnesses, or by the circumstance that a signature shall be on a side or page, or other portion of the paper or papers, containing the will, whereon no clause or paragraph or disposing part of the will shall be written above the signature, or by the circumstance that there shall appear to be sufficient space on or at the bottom of the preceding side or page, or other portion of the same paper, on which the will is written, to contain the signature ; and the enumeration of the above circumstances is not to restrict the generality of the above enactment. But no signature is to be operative to give effect to any disposition or direction which is underneath, or which follows it ; nor shall it give effect to any disposition or direction inserted after the signature shall be made. The unlearned reader will perhaps be of opinion that there is not one of the positions above so laboriously enumerated, that might not very properly have been considered as at the foot or end of the will within the spirit and meaning of the act ; except in the case of a large blank being left before the signature, apparently for the purpose of the subsequent insertion of other matter: in which case the fraud to which the will lays itself open would be a sufficient reason for holding it void. The Statute of Frauds, it will be observed, required that Who may be the witnesses should be credible ; and, on the point of ^*'^«"»«»- credibility, the rules of law with respect to witnesses have, till recently, been very strict ; for the law had so great a dread of the evil influence of the love of money, that it 19 'I i f: :i 1 ; i-i ii !l 146 OF CORPOREAL HEREDITAMENTS. would not even listen to any witness who had the smallest pecuniary interest in the result of his own testimony. Hence, under the Statute of Frauds, a bequest to a witness to a will, or to the wife or husband of a witness, prevented such witness from being heard in support of the will ; and, the witness being thus incredible, the -vdll was void for want of three credible witnesses. By an act of Geo. II. (a), a witness to whom a gift was made was rendered credible, and the gift only which was made to the witness was declared void ; but the act did not extend to the C8,se of a gift to the husband or wife of a witness ; such a _'ft therefore, still rendered the whole will void (b). Under Wills Act. the Wills Act, however, the incompetency of the witness at the time of the execution of the will, or at any time afterwards, is not sufficient to make the will invalid (c) ; and if any person shall attest the execution of a will, to whom, or to whose wife or husband, any beneficial interest whatsoever shall be given (except a mere charge for pay- ment of debts), the person attesting will be a good witness ; but the gift of such beneficial interest to such person, or to the wife or husband of such person, will be void (d). Creditors, also, are good witnesses, although the will should contain a charge for payment of debts (e), and the mere circumstance of being appointed executor is no objection to a witness (/). Bevooation of So much, then, for the power to make a will of lands •'^ and for the formalities with which it must be accompanied. A will, it is well known, does not take effect until the decease of the testator. In the meantime, it may be revoked in various ways '; as, by the marriage of either a By marriage, man or a woman (g). A will may also be revoked by (o) Stat. 25 Geo. II. o. 6. (b) Hatfield v. Thorp, 5 Barn, k Aid. 589; 1 Jarm. on WUls, 65, iBt edit ; 2 Strange, 1255. (c) 8. 16. (d) 8. 17, See Gurmij v. Gurmy, 3 Drew, 208 ; Tempest v. Tempest, 2 Kay & J. 635. (e) 8. 18. (/) 8. '9. (gr) S. 20, and see S. 8. "Except a will made in exercise of a power of appointment, when the real or personal estate thereby appointed would not, in default of such appointment, pass to his or her OF A WILL OF LANDS. 147 T)urning, tearing, or otherwise destroying the same, by the By burning, testator, or by some person in his presence, and by his direction, with the intention of revoking the same (<(). But the Wills Act enacts (h), that no obliteration, interlineation, or other alteration, made in any will after its execution shall have any effect (except so far as the words or effect of the will, before such alteration, shall not be apparent), unless such alteration shall be executed in the same manner as a will ; but the signature of the testator, and the subscription of the witnesses, may be made in the margin, or on some other part of the will, opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end, or some other part of the will. A will may also % writing be revoked by any writing, executed in the same manner [.yj^j^^^**' as a will, and declaring an intention to revoke, or by a subsequent will or codicil (c), to be executed as before. By subse- And where a codicil is added, it is considered as part of ^y®°*JJ^' the will ; and the disposition made by the will is not disturbed further than is absolutely necessary to give effect to the codicil (d). The above are the only means by which a will can now Sub8ec[uent be revoked ; unless, of course, the testator choose afterwards ' "^°" ^°°* to part with any of the property comprised in his will, which he is at perfect liberty to do. In this case the will is revoked, as to the property parted with, if it does not find its way back to the testator, so as to be his at the time of his death. Under the Statute of Hen. VIII. a will of lands was regarded in the light of a /»'e.9gnf conveyance, to come into operation at a future time, namely, on the death of the testator. And if a man, having made a will of his i: ;;;;,»!■ heir, customary heir, executor or administrator, or the person en- titled, as his or her next of kin, under the Statute of Distributions. " In the goods of Fenwick, Law Rep., 1 Oourt of Probate, 319. (o) S. 20, and see S. 8 s. 20 ; Andrew v. Motely, 12 C. B., N. S. 314. {b) 8. 23. (c) s. 22 and see s. 8. (rf) 1 Jarman on Wills. 146, 2nd ed. ; 162, 3rd ed. 148 OF CORPOREAL HEREDITAMENTS. After pnr- lands, afterwards disposed of them, they would not, on returning to his possession, again become subject to liis will, without a subsequent republication or revival of the will (a). But, under the Wills Act,' and the Act of 32 V. c. L,' no subsequent conveyance shall prevent the operation of the will, with respect to such devisable estate or interest as the testator shall have at the time of his death (6). In chased lands. ^^^ same manner, the old statute 'vas not considered as enabling a person to dispose by will of any lands, except such as he was possessed of at the time of making his will : so that lands purchased after the date of the will could not be affected by any of its dispositions, but descended to the heir at law (v). This also is altered by the Act, which enacts (r7), that every will shall be construed, with reference , to the property comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, imless a contrary intention shall appear by the will. So that every man may now dispose, by his will, of all such landed property, or real estate, as he may here- after possess, as well as that which he now has. Again, the result of the old rule, that a will of lands was a present conveyance, was, that a general devise by a testator of the residue of his lands was, in effect, a specific disposition of such lands and such only as the testator then had, and had General "esi- not left to any one else (e). A general residuary devisee uary evisee. ^^^ ^ devisee of the lands not otherwise left, exactly as if such lands had been given him by their names. The con- sequence of this was, that if any other persons, to whom lands were left, died in the lifetime of the testator, the residuary devisee had no claim to such lands, the gift of which thus failed ; but the lands descended to the heir-at- law. This rule is altered by the act, under which, unless a contrary intention ai)pear by the will all real estate com- A will now Bpeaks from the death of the testator. (a) 1 Jarman on Wills, 130, 180, Ist ed. ; 122, 164, 2nd ed. ; 136, 183, 3rd ed. (6) 8. 25, and see s. 8. (c) 1 Jarman on Wills, 548, 2nd ed. ; 610, 3rd ed. (d) 8. 26 and see s. 8. (e) 1 Jarman on Wills, 548, 2nA ed, ; 610, 3rd ed. OF A WILL OF LANDS. 149 prised in any devise, which shall fail by reason of the death of the devisee in the lifetime of the testator, or by reason of such devise being contrary to law, or otherwise incapable of taking effect, shall be included in the residuary devise (if any) contained in the will (a). This failure of a devise, by the decease of the devisee in a lapse, the testator's lifetime, is called a /a; we; and this lapse is not prevented by the lands being given to the devisee ar by the will (c). The other case is, that of the devisee beitii,' a child or other issue of the testator dying in the testator's lifetime and ^^^"® ° leaving issue any of whom are living at the testator's death. In this case, unless a mere life estate shall have been left to the devisee, the devise shall not lapse, but shall take effect as in the former case (d). Devise to issue of testator. (a) 8. 27. (6) Hodgson and Wife v. A^nhroae, 1 DougL 337. (c) 1 Vict. 8. 34. ((/) Sect. 35. See Principles of the Law of Personal Property, 387, 9th ii iliii ^mmmmm 150 OF CUltPOUEAL HEUEDITAMENTU. Conutruotion Tho conHtruction of wills is the next object of our attention. In construing wills, tho Courts have always borne in mind, that a testator may not havo hail the same opportunity of legal advice in drawing his will, as he would have had in executing a deed. And the first great Intention to maxim of construction accordingly is, that the intention of the testator ought to be observed. The decisions of the Courts, in pursuing this maxim, have given rise to a number of subsidiaiy rules, to be applied in making out the testator's intention ; and, when doubts occur, these rules are always made use of to detennine the meaning ; so that the true legal construction of a will is occasionally different from that which would occur to the mind of an unprofessional reader. Certainty cannot be obtained without uniformity, nor uniformity without rule. Rules, therefore, have been found to be absolutely necessary ; and the indefinite maxim of observing the intention is now largely qualified by the numerous decisions which have been made respecting all manner of doubtful points, each of which decisions forms or confirms a rule of construction, to be atte led to whenever any similar difficulty occurs. It is, indeed, very questionable, whether this maxim of observing the intention, reasonable as it may appear, has been of any service to testators; and it has certainly occasioned a j^reat deal of trouble to the Courts. Testators have imagined that the •making of wills, to be so leniently interpreted, is a matter to which anybody is competent ; and the consequence has been an immense amount of litigation, on all sorts of contradictory and nonsensical bequests. An intention, moreover, expressed clearly enough for ordinary apprehensions, has often been defeated Technical ^y some technical rule, too stubborn to yield to the general rules. maxim, that the intention ought to be observed. Thus in . one case (a), a testator declared his intention to be, that ed. ; 393, 10th ed. ; Johnaan v. Johnson, 3 Hare, 3 Hare, 157 ; Ecclea v. Cheyne, 2 Kay & J. 676 ; Oriffitlis V. Gale, 12 Sim. 364. (a) Perrin v. Blake, 4 Burr. 2579; 1 Sir Wm. Bla. 672 ; 1 DougL 364 OF A WILL OF LANDS. 151 his son should not sell or dispose of his estate, for longer K^i^ple of time than his life, and to that intent he devised the same life estate, to his son for his life, and after his decease, to the heirs of '"'''* to bo »n , , . fc'Btate taiL the body of his said son. The Court of King's Bench held, as the reader would no doubt expect, that the son took only an estate for his life; but this decision was reversed by the Court of Exchequer Chamber, and it is now well settled that the decision of the Court of King's Bench was erroneous (a). The testator unwarily made use of technical terms, which always require a technical con- struction. In giving the estate to the son for life, and after his decease to the heirs of his body, the testator had, in effect, given the estate to the son (ind the heirs of his body. Now such a gift is an estate tail ; and one of the inseparable incidents of an estate tail is, that it may be bp>rred in the manner already described (/>). The son was, therefore, properly entitled, not to an estate for life only, but to an estate tfiil, which would at once enable him to dispose of the lands for an estate in fee simple. In con- trast to this case are those to which we have before adverted, in the chapter on estates for life (c). In those An intended cases, an intention to confer an estate in fee simple was [j^g®^^*^^^' defeated by a construction, which gave only an estate for only an estate life ; a gift of lands or houses to a person simply, without words to limit or mark out the estate to be taken, was held to confer a mere life interest. But, in such cases, the Courts, conscious of the pure technicality of the rule, were continually striving to avert the hardship of its effect, by laying hold of the most minute variations of phi-ase, as matter of exception. Doubt thus took the place of direct hardship ; till the legislature thought it time to interpose. A remedy is now provided by the wills act, which enacts (d), that where any real estate shall be devised to any person, wnthout any words of limitation, such devise shall be construed to pass the fee simple, or other the whole (a) Fearne. Cont Rem. 147 to 172. (b) Ante, p. 34. (c) Ante, p. 16. {d) S. 30 and see s. 3. .I"^ tcl-ii 1 152 Gift in cat^e of death without issue, Such a gift held M> oe an «8tate tail. OF CORPOREAL HEREDITAMENTS. estate or interest, which the testator had power to dispose of by will, in such real estate, unless a contrary intention shnll appear by the will. In these cases, therefore, the rale of law has been made to ^give way to the testator's intention ; but the case above cited, in which an estate tail was given when a life estate only was intended, is sufficient to show, that rules still remain which give to certain phrases such a force and effect, as can be properly directed by those only who are well acquainted with their power. Another instance of the defeat of intention arose in the case of a gift of lands to one person, " and in case he shall die without issue," then to another. The courts interpreted the words, " in case he shall die without issue," to mean " in case of his death, and of the failure of his issue ; " so that the estate was to go over to the other, not only in case of the death of the former, leaving no issue living at his decease, but also in the event of his ler.ving issue, and his issue afterwards failing, by the decease of all his descendants. The courts considered that a man might properly be said to be " dead without i.ssue," if he had died and left issue, all of whom w^ere since deceased ; quite as much as if he had died, and left no issue behind him. In accordance with this view, they held such a gift as c^bove mentioned to be, by implication, a gift to the first person and his issue, with a remainder over, on such issue failing, to the second. This was, in fact, a gift of an estate tail to the first party (a) ; for an estate tail is just such an estate as is descendible to the issue of the party, and will cease when he has no longer heirs of his body, that is, when his issue fails. Had there been no power of barring entails, this would no doubt have been a most effectual way of fulfilling to the utmost the testator's intention. But, as we have seen, every estate tail in possession is liable to be barred, and turned into a fee simple, at the will of the (a) 1 Jarm. Wills, 464, 2nd ed. ; 517, 3rd ed. ; MaChdl v. Weeding, 8 Sim. 4, 7. de*" -.'"^d. OF A WILL OF LANDS. 153 owner. With this legal incident of such an estate, the courts considered that they had nothing to do ; and, by this construction, they accordingly enabled the first devisee to bar the estate tail which they adjudged him to possess, and also the remainder over to the other party. He Intention thus was enabled at once to acquire the whole fee simple," contrary to iihe intention of the testator, who most pro- bably had never heard of estates tail, or of the means ol barring them. This rule of construction had been so long and firmly established, that nothing but the power of parliament could effect an alteration. This was done by the act, which directs (a) that in a will the words "die without issue," and similar expressions shall be construed to mean a want or failure of issue in the lifetime, or at the death of the party, and not an indefinite failure of issue ; unless a contrary intention shall appear by the will, by reason of such person having a prior estate tail or of a preceding gift being, without any implication aiising from such words, a gift of an estate tail to such person or issue or otherwise. From what has been said, it will appear that, before the above-mentioned alteration, an estate tail might have been given by will, b}; the mere implication, arising from, the apparent intention of the testator, that the land should not go over to any one else, so long as the first devisee had any issue of his body. Tn the particular class of cases to which we have referred, this implication is now excluded by express enactment. But the general principle by which any kind of estates may be given by will, whenever an intention so to do is expressed, or clearly implied, still remains the same. In a deed technical words are always required ; to create an estate tail by a deed, it is necessary, as we have seen (b), that the word heirs coupled with words of procreation, such as heirs of the body, should be made use of. So, we have seen that, to give an estate in fee simple, it is necessary, in a deed, to use the word heirs # II i^ji III (a) Sect 3L 20 (ft) Ante, p. lOr. if 164 OF CORPOREAL HEREDITAMENTS. Gift of an estate tail by will. as a word of limitation, to limit or mark out the estate. But in a will, a devise to a person and his seed (a), or to him and his issue (6), and many other expressions, are sufficient to confer an estate tail ; and a devise to a man and his heirs male, which, in a deed, would be held to confer a fee simple, in a will gives an estate in tail male ; for the addition of the word " male," as a qualification of heirs, shows that a class of heirs, less extensive than heirs general, was intended (o) ; and the gift of an estate in tail male, to which, in a will, words of procreation are unnecessary, is the only gift which at all accords with Gift of a fee such an intention. So, even before the enactment, Bimp e y wi . j^j-g^j^jj^g ^^jjj^^ g^ devise without words of limitation should be construed to pass a fee simple, an estate in fee simple was often held to be conferred, without Ihe use of the • word heirs. Thus, such an estate was given by a devise to one in fee simple, or to him /or ever, or to him and his X, assigns for ever {d), or by a devise of all the testator's ■ * . estate, or of all his property, or all his inheHtavce, and by a vast number of other expressions, by which an intention to give the fee simple could be considered as expressed or implied (e). The doctrine of u ses and trusts applies as well to a will as to a conveyance made between living parties. Thus, a devise of lands to A. and his heirs to the use of B. and his heirs, upon certain trusts to be performed by B., will vest the legal estate in fee simple in B. ; and the Court of Chancery will compel him to execute the trust ; unless, indeed, he disclaim the estate, which he is at perfect liberty to do. But, if any trust or dutj' should be imposed upon A, it will then become a question, on the construction of the will, whether or not A. t^kes any Uses and trusts. (a) Co. Litt. Op;" Black. Com. 115. (6) Martin v. Su\innell, 2 Beav. 249; 2 Jarm. on T^iUs, 329, Ist ed. See, hoM^ever, 2 J Arm. on Wills, 347, 2nd ed. ; 388, 3rd ad. (c) 2 Jarman on Wills, 266, 2nd ed. ; 298, 3rd ed. (d) Co. Litt. 9 b ; 2 Black. Com. 108. (e) 2 Jarm. on Wills, 225 et seq., 2nd ed. ; 253 ct seq., 3rd ed. OF A WILL OF LANDS. 155 legal estate ; and, if any, to what extent. If no trust or duty is iraposed on him, he is a mere conduit-pipe for conveying the legal estate to B., filling the same passive oflUce aa a person to whom a feoffment or conveyance has been made to the use of another (a). From a want of acquaintance on the part of testators with the Statute of Uses, great diflSculties have frequently arisen in determin- ing the nature and extent of the estates of trustees under wills. In doubtful cases, the leaning of the courts was to give to the trustees no greater estate than was absolutely necessary for the purpose of their trust. But this doctrine having frequently been found inconvenient, provision has been made in the Wills Act {h), that, under certain circumstances, not always to be easily explained, the fee simple shall pass to the trustees, instead of :-n estate determinable when the purposes of the trust shall be satisfied. The above examples may serve as specimens of the great Danger of danger a person incurs, who ventures to commit ^he JS"^''^J®^'^i destination of his property to a document framed in ignorance of the rules, by which the effect of such document must be determined. The Wills Act, by the alterations above mentioned, has effected some improve- ment; it no act of parliament can give skill to the unpractised, or cause every body to attach the same meaning to doubtful words. The only way, therefore to avoid doubts on the construction of wills, is to word tliem in proper technical language, — a task to which those only who have studied such language can be expected to be competent. It is usually the practice, as is well known, for every testator to appoint an executor or executors of his will ; and the executors so appointed have important jjowers of disposition over the personal estate of the testator (c). (o) 2 Jarm. on VVilla 239, 2nd ed. ; (c) Principles of the Law of 270, 3rd ed. Property, 341 et seq., 8th ed. ; 372 (6) 88. 32, S3. et seq., 9th ed. ; 379, 10th ed. J! \l r^ i' ' 1 i I Iri I 'i if;: 5r ! ' r. "'^rl 156 OF CORPOREAL HEREDITAMENTS. Devise of real estate is inde- pendent of «xecutors' assent. Charge of debts. Where trus- tees may sell or mortgage to pay testa- tor 8 debts or legacies. But the devise of the real estate of the testator is quite independent of the executors' assent or interference, unless the testator should either expressly or by impli- cation have given his executors any estate in, or power over, the same. In modem times, however, the doctrine has been broached, that if a testator charges his real estate with the payment of his debts, such a charge gives by implication a power to his executors to sell his real estate for the payment of his debts. Mr. Williams has elsewhere attempted to show that this doctrine, though recognized in several modern cases, is inconsistent wi^h legal pri.iciplcis (a) ; and in this he has since been supported by the great authority of Lord St. Leonards (6). In consequence, how- ever, of the difficulties to which these cases gave rise, an act has passed by which, where there is a charge of debts or legacies, the trustees in some cases and in other cases the executors of a testator are empowered to sell his real estate for the purpose of paying such debts or legacies. The act (c), provides that where, by any will coming into operation ' after 18th September, 1865, or after passing the statute,' the testator shall have charged his real estate or any specific portion thereof with the payment of his debts or of any legacy, ' or of any specific sum of money,' and shall have devised the estate so charged to any trustee or trustees for the whole of his estate or interest therein, and shall not have made any express provision for the raising of such debts legacy ' or sum ' out of the estate, such trustee or trustees may, notwithstanding any trusts actually declared by the testator, raise such debts, legacy, ' or sum,' by sale or mortgage of the lands devised to them. And the powei*s thus conferred extend to all persons in whom the estate devised shall for the time being be vested by survivorship, descent, or devise, and to any persons appointed to succeed to the trusteeship, either under any power in the will, or by Chancery (d). But if any testator, (a) See the Essay on Real Assets, (c) R. S. 107, s. 17. c. 6. (d) S. 18. (b) Sug. Pow. 120—122, 8th ed. OF A WILL OF LANDS. 157 who shall have created such a charge, shall not have Where execu- de vised the hereditaments charged in such terms as that or mortgage his whole estate and interest therein shall become vested *" P*y .^ or legacies. in any trustee or trustees, the executors or executor for the time being named in his will (if any) shall have the same power of raising the same moneys as is before vested in the trustees ; and such power shall from time to time devolve to the per.son or persons (if any) in whom the executorship shall for the time being be vested (a). And purchasers or mortgagees are not to be bound to inquire whether the powers thus conferred shall have been duly exercised by the persons acting in exercise thereof (6). But these provisions are not to prejudice or affect any sale or mortgage made or to be made in pureuance of any will cominc- into operation before * 18th September, 1865,' nor are they to extend to a devise to any person in fee or in Devise in fee tail, or for the testator's whole estate and interest, charged "{iarced with with debts or legacies ; nor ai'e they to affect the power of 'lebts. any such devisee to sell or mortgage as he or they might by law do (c). In these cases the law is, that the devisee may, in the exercise of his inherent right of alienivtion, either sell or mortgage the lands devised to him ; but if legacies only are charged thereon, the purchaser or charges of mortgagee is bound to see his money duly applied in their ^*'^'^°*^^ °°^' payment {d). If, however, the testator's debts are charged Charge of on the lands, then, whether there be legacies also charged " or not, the practical impossibility of obliging the purchaser or mortgagee to look to the payment of so uncertain a charge exonerates him from all liability to do more than simply pay his money to the devisee on his sole receipt (e). (a) Sect. 20. (h) Sect. 19. (c) S. 21. (d) Horn v. Hwiif 2 Sim. & Stu. 448 ; In cases coming within & s. 17, 19, 2.3 and 24, would not the powers be deemed so far trusts, and the persons exercising them so far trustees as to bring payment to them within the Rev. Stat. c. 107, B. 7, and thus their receipts be suffi- cient without seeing to application of the money ? Williama on Asseta, 4. 8, 5, 5, 91, 61. (e) Essay on Real Assets, pp. (52, 63 : Corner v. CarhoriijfU, L. R. , 7, H. of L., E. & I. 731. : !^ ;».!;i I ■ \iM 11 '9itmmm>r 158 OF CORPOREAL HEREDITAMENTS. ' By the same statute it is provided that whenever in any ■will or codicil there is a direction to sell, mortgage, lease, or otherwise dispose of any real estate, and no one is appoint- ed by the testator to do so, then the executors appointed may caiTy out such direction as fully as if appointnd by the testator to do so (22). And if there be power to sell &;c., given to the executors (s. 22), and from any cause letters of administration with the will annexed be conimitt(;d to any person who shall have given the proper security, then such person maj'^ exercise such power («). So also may he, if such power be given and no one be appointed to exercise it (h). And where any person has contracted in writing for the sale and conveyance of real estate, and dies intestate, or without providing by his will for conveyance to the person entitled, then, where a right to the conveyance shall exist, the personal representative is to make such conveyance as the deceased if living would have been liable to make (c). Where there are several personal representatives the powers above referred to vest in the survivor (d). The will or probate thereof affecting lands comprised in any grant from the crown should be registered within twelve months from the death of the testator ; but if the person interested in the lands devised is disabled from registry within such period by reason of contesting the will or other inevitable difficulty without his wilful neglect or default, then it suffices if registry be had within twelve months after attainment of the will or probate, or removal of the impedi- ment. The penalty for non-compliance with the act is, that the will is to be deemed void as against purchasers or mortgagees from the heirs-at-law if for value and without actual notice (e).' (a) S. 23. (b) S. 24. (c) S. 25. (d) S. 27. (e) Rev. Stat. sb. 74, 74, c. 111. (159) CHAPTER XII. :!l t;i 'r il ; OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. The next subject of our attention will be the mutual rights in respect of lands, arising from the relation of husband and wife. In pursuing this subject, let us con- sider, first, the rights of the husband in respect of the lands of his wife ; and, secondly, the rights of the w^ife in respect of the lands of her husband. 1. First, then, as to the rights of the husband in respect The rights of of the lands of hi., wife. ' Except as affected by recent in^rMpect'of legislation presently refeiTed to,' by the act of marriage, l^nds of the husband and wife become in law one person, and so continue during the coverture or marriage (a). The wife is, as it were, merged in her husband. Accordingly, the husband was entitled to the whole of the rents and profits which arose from his wife's lands, and acquired a freehold estate therein, during the continuance of the coverture (b) ; and, in like manner, all the goods and personal chattels of the wife, the property in which passes by mere delivery of possession, belonged solely to her husband. ' Her chattels real became his, and liable for his debts, except by no possibility could they have vested in her during coverture, or she survived and no disposition had been made of them by him.' For by the ancient common law, it was impos- sible that the wife should have any power of disposition over property for her separate benefit, independently of her husband. In modern times, however, a more liberal Trusts for doctrine has been established by the Court of Chancery ; separate use. for this court now permits property of every kind to be vested in trustees, in trust to apply the income for the sole and separate use of a woman during any coverture, present 'i ji n (a) Litt. B. 168 ; 1 Black. Com. 442 ; Gilb. Teu. 108 ; 1 Eoper's Husband and Wife, 1. {b) Robertson v. NorrU, 11 Q. B. 916. 10 ft 160 OF CORPOREAL HEREDITAMENTS. or future. Trusts of this nature are continually enforced by the court ; that is, tlie court will oblige the trustees to hold for the sole benefit of the wife, and will prevent the husband from interfering with her in the disposal of such income ; she will consequently enjoy the same absolute power of disposition over it as if she were sole or unmar- ried. And, if the income of property should be given directly to a woman, for her separate use, without the intervention of any trustee, the Court will compel her husband himself to hold his marital rights in such income simply as a trustee for his wife independently of himself (a). The limitation of property in trust for the separate use of an intended wife is one of the principal obj. ts of a modern marriage settlement. By means of such a trust, a provision may be secured, which shall be independent of the debts and liabilities of the husband, and thus free fiom the risk of loss, either by reason of his commercial embar- Separate pro- rassments, or of his extravagant expenditure. In order rendered m-^ more completely to protect the wife, the Court allows alienable. property thus settled for the separate use of a woman to be so tied down for her own personal benefit, that she shall have no power, during her coverture, to anticipate or assign her income ; for it is evident that, to place the wife's property beyond the power of her husband, is not a com- plete protection for her, — it must also be placed beyond the reach of his persuasion. In this particular instance, therefore, an exception has been allowed to the general rule, which forbids any restraint to be imposed on aliena- tion. When the trust, under which property is held for the separate use of a woman during any coverture, declares that she shall not dispose of the same or of the income thereof in any mode of anticipation, every attempted disposition by her during such coverture will be deemed absolutely void (6). (a) 2 Rop. Husb. and Wife, 152, 182; Major v. Lanalcy, 2 Russ. & Mylne, 355. (6) Brandon^v. Robinson, 18 Ves. 434 ; 2 Rop.JHusb. and Wife, 230 ; ^ullett V. Armstrong, 1 Beav. 1 ; X tylne Sc Cr. 390 ; Scarborough v. Borman, 1 Beav. 34 ; 4 M. & Cr. 377 : Baggett v. Mevx, 1 Collyer, 138; affirmed, 1 Ph. 627. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 161 Not only the income, but also the corpus of any property, A» to the whether real or personal, may be limited to the separate use of a married woman. Recent decisions have established that a simple gift of real estate, either with or without the intervention of trustees (a) for the separate use of a married woman, is sufficient to give her in equity a power to dispose of it by deed or will, without the consent or concurrence of her husband (b). The same rule has long been estab- lished with respect to personal estate (c). ' Her power to convey the legal estate in lands so given is hereinafter spoken of ((/).' Whilst provisions for the separate benefit of a married Husband and woman have thus arisen in equity, the rule of law by^^g^ji^o^^ which husband and wife are considered as one person still pe^on. continues* in operation, and is occasionally productive of rather curious consequences. Thus, if lands be given to A. Gift to hm- and B. (husband and wife), and C, a third person, and ^ ^^^^J^^* their heirs ' as joint tenants* — here, had A. and B. been person, distinct persons, each of the three joint tenants would, as we have seen, have been entitled, as between themselves, to one-third part of the rents and profits, and would have had a power of disposition also over one-third part of the whole inheritance. But, since A. and B., being husband and wife, are only one person, they will take, under such a gift, a moiety only of the rents and profits, with a power to dispose only of one-half of the inheritance (e) ; and C, the third person, will take the other half, as joint tenant with them. Again, if lands be given to A. and B. (husband Gift to hus- and wife) and their heirs — here, had they been separate per- ^^H^i^u"^ '"^* sons, they would have become, under the gift, tenants ' in heirs, common ' in fee simple, and each would have been enabled, without the consent of the other, to dispose of an undivided (a) Hallv. Waterhouae, V. C. S., Personal Property; 424, 9th ed. ; 13 W. R. 633. (b) Taylor v. Meads, L. C, 13 W. R. 394; 11 Jur., N. S., 166; 4 De Gex, Jones & Smith, 597. (c) See principles of the Law of 21 431. 10th ed. (d) Dvberley v. Day, 16 Bea. 33. (e) Litt. s. 291 ; Gordon v. Whiel- dm, 11 Beav. 170 ; Re Wylde, 2 De Gex, M. & G. 724. I I I, t 1 ; s ■ «? J. ] f \ hi * ; i ; «.? M fii hi \ 162 They take by entireties. Husband and wife cannot convey to each other. Unless by means of the Statute of Uses. Curtesy, Curtesy of equitable estate. OF CORPOREAL HEREDITAMENTS. *' moiety of the inheritance. But, as A. and B. are one, they now take, as it is said, hy entireties; and, the husband Cftnnot dispose of any part of tl " inheritance, without his wife's concurrencr. Unless they both agree in making a disposition, each one of them must lun the ri^\" of gaining the whole by survivorship, or losing it by dying first (a). Another consequence of the unity of husband and wife is the inability of either of them to convey to the other. As a man cannot convey to himself, .so he cannot convey to his wife, who is part of himself (h). But ' either * may leave lands to the other by will ; for the i i;u ried state does not deprive either of Miat disposing power. And by means of the Statute of Uses, the effect of u conveyance by a man to his wife be produced (c) ; for a man may convey to another perstni to the use of his wife in the same mauuer as, under the statute, we have seen {d), a man may convey to the use of himself. ' At common law if the husband survived the wife, he would,' in case he had issue by her born alive that might by possibility inherit the estate as her heir, become entitled to an estate for the residue of liis life in such lands and tenements of his wife as she was solely seised of in fee simple, or fee tail in possession. The husband, while in the enjoyment of this ^ tate, is called a tenant by the curtesy of England, or, more shortly, tenant by the curtesy. If the wife's estate be equitable only, that is, if the legal estate in lands should be vested in trusts 'S for her and her heirs, her Viusband would still, on survivii •■, in case he has had issue which might inherit, be entitled to be tenant by curtesy, in the same manner as if the estate were legal (e) ; (a) Doe d. Freestone v. Parratt, 5 T. Rep. 652. (b) Litt. s. 168. (c) 1 Roper, Husb. and Wife, 53. (d) Ante, p. 137. (e) 1 Roper, Husband and Wife, 18. W^hen the lands belong to the wife for her separate use, there are conflicting decisions as to the husband right to curtesy. See Moore, v. Webster, V.-C. S., L. R., 3 Eq. 267 ; Appleton v. Bowley, V.-C. M., L. R., 8 Eq. 139 ; Cooper V. MacdonoM, L. R., 7 Ch. D, 288. ►See also Mr. William it's Lectures oa Settl.ments, pp. 105-108. I OF THE MUTUAL RIGUTS OF HUSBAND AND WIPE. 168 for equity in this respect follows the law. But, whether •*'«*«*♦' '"a«t legnl or equitable, the 'state must >>o a several one, or else held under a tenancy in common, and must UQt be one of which the wife was seised or possessed jointly with any other person or persons. The estate must also ' <■ an estate Estate must in possession; for there can be no curtesy of an estate ing^.n"^'"*"" reversion expectant on a life interest or other estate of freehold. The husbaml must also have had, by his wife, Fsaue must issue born alive, and also capable of inheriting as heir to,J)^'^" the wife. Thus, if the wife be seised of lands in tail niale, v'apaWe of the birth of a daughter only will not entitle her husband h"ir toTl^e** to be tenant by cui'tesy ; for the daughter cannot by possi- '*^^"' bility inherit such an estato from lur mother. And it is ''he wife necessary that the wife should have acquired an actual ],^^.^,^ mtu&lW seisin of all estates, of which it was possible that an actual "•''^^^• seisin could be obtained ; for the husband has it in his own power to obtain for his wife actual seisin, and it is his own fault if he has not done so. 'The above rules stillKcce.it govern in cases where recent enactments do not deprive *"*'' '"®° ' the husband of his right and tli'' wife obtained no power to convey as a feme sole, but sueli right has, in consequence of the repeated action of the Legislature become the subjec^ ' of much doubt and litigation (a). Sections 2 and 3 of the Rev. Stat. c. 125 deprive the husband of his common law right to the pernancy of the projits ■ I fir I Ni! (a) See post. (6) 3 App. Kep. 511 and post. 164 OF CORPOREAL HEREDITAMENTS. IH, , expressly to the same effo t.and the following remarks maAcr in treating of tliat .statute and of ch. 127 with respect to conveyances by married vomen should be referred to respect- ing the change in the old law as to the estate by the curtesy. It will be seen that the difficulties arising out of the various Acts are such as to preclude their being fully dealt with in a work of this nature ; indeed there is but little inducement to do so, as some change is so often made by the Legislature. Poweni of The power of a married woman of full age to dispose of women as" to ^^^' *'^*^ estjite by will, or by instrument inter vivos, with- dispoial of Qut the consent of her husband and the formalities required by Rev. Stat. 127, as distinct from her right to exercise a power or authority to appoint or charge, &c., may be con- sidered under the following heads : 1. Where the legal estate is vested in her unaffected by Rev. Stat. c. 125, or right of separate use, or is vested in her as trustee ; 2. Where it is only the beneficial equitable interest which' is vested in her unaffected as above ; 3. The legal estate vested in trustees for the separate use of the wife, and without restraint on anticipation ; 4. The legal estate vested in the wife by limitation by deed or will to her separate use, and without restraint ou anticipation ; 5. Where the legal estate is in the wife and comes under 88. 2 & 3 of Rev. Stat. c. 125 ; 6. Where the marriage was after the 2nd March, 1872, and the case comes under s. 4 of that Statute ; 7. The power to devise. It would seem that, in the 1st case, the wife can convey only as authorized by R. S. c. 127 ; but by ch. 10 of the acts of 1881, she is authorized to discharge a mortgage as a feme sole ; and if she be a bare trustee of a freehold she can also convey as a feme sole, by R. S. c. 107, s. 6. (a). (a) As to the case of being trustee otherwise than as bare trustee, see Shelford Stats. 8 ed, 376, referring to 1 Treston Abstracts, 337 ; As to- the meaning of the term baretrustecr see p. 118. OF THE MUTUAL RIGHTS OF HUSHANI) AND WIFE. 16f In the 2n(l case "Equity follows the law, and presorvinj^ t\u' analogy between legal ami ecjuitahle estateH, ruciuirea that the equital)le estates of married women shall he con- veyed inter vivo», in the same manner as a legal est solution is to hold that the Act of 1873 only applies to cases where the marriage took place and the property was acquired before the 2nd of March, 1872, aud that when the property was acquired subsequently, a con- veyance by the wifo alone will suffice. That however is a mode of intei-preting the statute which could only ha adopted after great con- sideration, for no such restriction of its operation is be to gathered from its own language, but it will be time enough to grapple with these difficulties when the question directly arises. It is enough at present to remark that it seems impossible to draw any inference that the Legislature intended to abolish the estate by the curtesy in toto from the circumstance that in the next seeaion it rendered his concurrence in a deed essential to its validity." In Shelley v. Goring. 8 Prac. Rep. the property was acquired in 1877, and it would seem that the marriage was btjfore MarcJi, 1872, and it was said by Counsel, in Godfrey v. Harr'iHori, i.i/ra, that the bill was filed before the Act of 40 V. ch. 7, (R. 8. c. 12.5, s. 4). It was con- sidered that the plaintiff, the married woman, could sue without a next friend ; which can only be where the property is for her sole separate use aud control independ- ently of her husband. This case is, however, explained and distinguish- ed in the t . . ab-^AC referred to. In Goil^rey v. HarrUon, above referred to, before the Referee in Chambers, 3rd March, 1880, not yet reported, the case -of Shelley v. Goring v.'as distinguished. The marriage was in 1850, the property was acquired by the plaintiff, a married womam, as heiress-at-law to her father, who died intestate in July, 1872. The learned Referee remarked on the difference of language between the original Act of 35 V. 16 and faction 4 of R. S. 125, and held that the property was not separate property under the Revised Statute, and stayed pro- ceedings till a next friend should be appointed. (a) As to the law under the Con. Stat., see Leitli Rl. Prop. Stat, p. 281, and Black. Com. by Leith & Smith, p. 407 in treating of 8. 6, R. S. 0. 106. ■■?, ' it I f ill 168 Requisite. W^d lands. Seisin. R S. c. 126 8. 2. Dower out of a rem«ioder. OF CORPOREAL HEREDITAMENTS. cases where that statute does n.-t govern the wife always had power to devise as a feme sole (a). To entitle a widow to dower at law, viz., to a third for her life, (as distinct from her right in equity, which is presently explained), the rule is, that she is entitled to be endowed of all lands and tenements of which her husband was seised in fee simple or fee tail in possession at any time during the coverture otherwise than in joint tenancy, and of which any issue which she might have had, minrht by possibility have been heirs ; an exception, however, is created by 32 Vic. < . 7, K S. c. 126, s. 3, as to land which at the tim^ c-f alienation by the husband, or of his death, if he died seised, was wholly wild T,iid unimproved. It will be observed that xh^vr; jg no necessity that issue should actually be born, as is requisite in tenancy by the curtesy, but the possibility suffices. There must, to entitle the widow to dower at common law be seisiii in the husband during coverture, and that of an estate of inheritance in possei>sion ; but actual seisin is not requisite, and seisin in law suffices — and even seisin in Jaw is dispensed with since 4 Wm. IV., c. 1 ; li. S. c. 126, sec. 2, if the husband were disseised berore coverture, and so continiied during coverture till death : in such cise the widow wov^ld yet be entitled to dower, but it must be sued for i^rd obtained within the same period that the husband's right of entry raighu be enforced. If, however, the hu3b.i,nd were once seised during coverture, his subse- quent disseisin and bar by the Statute of Limitations would not operate against his widow (6). It is the necessity for seisin in the husband of the requisite estate which excludes the widow at law from dower in trust estates of the husband, of which the legal seisin is in the trustee. So also, dower does not attach on a remainder in fee dependant on a life-estate, if the remainder-man die or alien pending the life-estate (c) ; for (o) DavMonv. Sage, 20 Grant 115. (c) Cuminy v. Alguirs, 12 U. C. {b) McDonald v. McMillan, 23 R. 330 ; Pulker et al v. Evans, 13 U. C. R. 301. U. C. R. 546. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 169 lys if the seisin of the freehold is in the tenant for life, and the remainder also is not an estate of inheritance in possession. But if a remainder or reversion be dependent only on a term of years, as the possession of the tenant is the possession and constitutes the seisin of the remainder-man or reversioner, dower will attach ; and this is so also with regard to tenant by the curtesy. It was by force of that Old fonnB of part of the rule now under consideration thp-t the widow ^ggj^^^ was excluded from dower under one form of conveyance •lower, to uses to bar dower in vogue before section one of the statute last referred to. /V Under this a common law conveyance was made to the purchaser (the husband) and his heirs to hold to such uses as he should appoint, and in default of, and till appoint- ment to the use of him and his assigns during his life without impeachment of waste, and on the determination during the life of the purchaser of that estate by any means, to the use of a dower trustee and his heirs, or executors administrators, during the life of the purchaser, in trust for him and his assigns, and after the determination of the estate limited to the trustee to the use of the heirs and assigns of the purchaser. Under such limitations the husband, by exercise of the power, had full control, and if he died without exercising it, dower never even attached for the only estate of which the husband would be seised in possession, during his life, would be the life-estate ; and the remainder in fee is prevented from becoming an estate of inheritance in possession under the rule in Shelley's case (a), and the law of merger (6), in consequence of the intervening estate to the trustee (c). Such limitations as Now uaeleaa the above will, however, now no longer sufHce, unless ||g *'* indeed the husband exercised the power, for by R. S. c. 126, s. 1, " When a husband dies beneficially entitled to any land for an interest which does not entitle his widow to dower out of the same at law, and such interest, whether 4-t (a) Post. (6) Post. 22 .._ (c) Watk. Conveg. 9 ed, p. and notes. 91 J 170 OF CORPOREAL HEREDITAMENTS. ' ■' wholly equitable, or partly legal and j^artly equitable, is an estate of inheritance in possession, or equal to an estate ,, , of inheritance in possession (other than an estate in joint tenancy), then his widow shall be entitled in equity to dower out of the same lands." Under such limitations as the above, the estate, it will be observed, is partly legal J , ,, and partly ec^uitable, equal to an estate of inheritar.ee in possession. Another form Another form sometimes adopted, and which can yet adoted under be adopted with effect, so far as to enable the husband to ^*H*^^"g^* convey free of dower, is to convey by common law con- subject to bo veyance or grant to the purchaser in fee (the husband), to te eated. ^^^j^ ^^^^ ^^ j^^ should appoint, and in default of and till appointment, to him in fee ; (the limitations were usually more complex than as above in fee, but it simplifies ho to state them) (a). Under such limitations, dower does attach, subject to be divested, on exercise of the power of 1 appointment; for the husband, till exercise of the power is seised of an estate of inheritance in possession ; but on execution of the power, the appointee (a purchaser from the husband) comes in as if named in the conveyance to the husband (in consequence of the peculiar operation of such powers and appointments), and so paramount to the right of dower of the wife. The operation and effect of these conveyances is thus : A conveys by common law con- veyance, or by grant (h), to B (the husband), in fee, to such uses as he shall by deed appoint, and in default of, and till appointment, to him in fee : B sells to C, and conveys and appoints the estate to C in fee, reciting the powt , of appointment : the whole transaction is now to be read as though by the first conveyance A had conveyed to B and his heirs, to the use of C and his heirs ; which would under the Statute of Uses vest the legal estate and fee in C, and so paramouiit to the right of dower. Of course, if B die {a) As to the covenants for title, (oi 1 Smith, Lg. Ca. 5th ed., p. G4. Sec ; -p forms of conveyance, Davi(l?oa'8 19" Conv. vol. 2, 169-173. . - • . ^ . on of a grant in .>f u»*'8 U.ci.. ed, see ante p. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. m without exercising the power then his widow will be entitled to dower which having attached was never divested. The right of dower might have been barred altogether by Si. jointure, agreed to be accepted by the intended wife previously to marriage, in lieu of dower. This jointure was either legal or equitable. A legal jointure was first authorized by the Statute of Uses (tt), which, by turning uses into legal estates, of course render them liable to dower. Under the provisions of this statute, dower may be barred by the wife's acceptance previously to marriage, and in satisfaction of her dower, of a competent liveJihood of freehold lands and tenements, to take effect in profit or possession presently after the death of the husband for the Jife of the wife at least (b). If the jointure be made after marriage, the wife may elect between her dower and her jointure (c). A legal jointure, however, has in modern times seldom been resorted to as a method of barring dower : when any jointure has been made, it has usually been merely of an equitahle kind ; for if the intended wife be of age, and a party t( the settlement, she is competent, in equity, to extinguish her title to dower upon an} terms to which she may think proper to agiee {d). And if the wife should have accepted an equitable jointure. Chancery will effectually restrain her from setting up any clai u to her dower. But in equity, as well as at law, the jointure, in order to be an absolute bar of dower, must be made before marriage. A widow will be restrained in equity from claiming dower out of real estate purchased with partnership property in the name of her husband, or in the joint names of him and his co- partners, for the purpose of partnership in trade (e) ; for such property is considered in equity as Jointure. Bar in equity by ante nuptial agreement. Equitable jointure. Not of part- nership pro- perty. X . i (a) 27 Hen. VIII. c. 10. (6) Co. Litt. 30 b ; 2 Black. Com, 137 : I Roper's Husband and Wife, 462. (c) 1 Roper's Husband and Wife, 468. (d) 1 Roper's Husband and W^ife, 488 ; Dyke v. limdall, 2 De G., M. & G. 209. {e) Phillips V. Phillip', 1 My. &K. 649; Conger v. Piatt, 2.i U. C. R. 277. 'i+ 172 OF CORPOREAL HEREDITAMENTS. Nor in case of contract to sell before marriage. Sole Seisin. Exchange. The right in equity by B.S 126. Dower out of trust estates. Husband must die- entitled. Wife joining in a moi'tgage. personal estate, and therefore not liable to dower, and moreover the husband is trustee for the partnership : the defence also can be raised by equitable plea at law (a). So also if the husband before rruirrUuje had contracted to sell, or granted a right of purchase of, his real estate : here, if the C(jntract or right were still subsisting on the husband's death, the widow, as against the party entitled to claim the benefit thereof, would be equally restrained in equity (b). The seisin must have been a sole seisin ; therefore the widow of a joint tenant is not, though the widow of a tenant in common is, entitled to dower {<;). Tr case of e :change of lands, the widow is not entitled to do\/er in the land both taken and given in exchange : she is in such case put to her election as to the lands out of which she will be endowed (d). Where dower is allowable, it matters not though the husband aliene or incumber the lands during the coverture; for he alienes them liable to dower. Prior to the Statute 4 Wm. IV. c. 1, a widow was not entitled to dower out of trust estates of her husband, though they might have been equitable estates of in- heritance in possession : this varied from the law as to curtesy which gave the husbauJ a life-interest in such estates of the wife, the other requisites to qualify the hus- band being present. It will be observed, the husband must (lie beneficially entitled, therefore if the husband aliene there will be no dower. As to dov.'er when the wife joins in a mortgage with her husband the Act 42 Vic. c. 22 is as follows; but it is not clear whether it affects mortgages made before the Act. (a) See form of plea, Conger v. Piatt, supra. (6) Parke on Dower, 106 note o, ; see potit, and Gordon v. Gordou, 10 Grant 4fivi. (c) HaskUly. Frazer, 12C.P.U.C. 383 ; Ham v. Ham. 14 U. C. R, 407. (d) Co. Litt. 31 b. : McLellan v. Meggatt, 7 U. C. R. 554 ; se*; also Totoeky v. SmUh, 12 U. C. R. 555 ; Stafford V- Truevinn, 7 C. P. R, 41, as to the proof required that tito transaction was an exchange. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 17» a " No bar of dower contained in any mortgage or otlier instrument intended to have the effect of a mortgage or other security upon real estate shall operate to bar such dower to any greater extent than shall be necessary to give full effect to the rights of the mortgagee or grantee under such instrument," s. 1 : and by section 2 a wife is entitled to dower in the surplus of purchase-money arising from the sale under a mortgage. Where a husband contracts to purchase in fee, and dies, the widow will bo entitled to dower as against the heirs- at-law (a) : and even though the contract could not be enforced in law by reason of default in the purchaser in the terms of the contract, still, if it be a contract subsisting and capable of being enforce<| in equity, his widow will be entitled to dower ; and in such cases even be entitled to call (in the personal representatives of the deceased hus- band to administer and pay the purchase money, and complete the contract (h). The case of a husband having contracted to purchase, and the widow being entitled to dower in etjuity, proceeds on the principle that, in equity, what is agreed to be done is to be considered as done, the money considered as actually converted into land, and the vendor from the time of the contract a trustee for the purchaser, who is thenceforth deemed beneficially entitled. And by application of the same principle in the converse case, viz., that of a husband who before marriage has con- tracted to sell, ami married before payment of the pu'chasu money or conveyance, here though as above mentioned, the widow would at law be entitle to dower, still equity will restrain an Pi,ction, at law at the instance of the purchaser ; for by the contract the land in equity is deemed as con- verted into money, and the vendor trustee for the purchaser (c). So again, a widow may, on the principle above mentioned, be entitled in equity to dower out of On husband'* contract to purchase. Compulsion by widow of us cuiiipietion Principle, conversion. On same uria- ciple, widow barred on con- tract to sell. (o) Craiii v. Templetoii, 8 Grant, 483. (6) Carrick v. Smith, 34 U. C. R. .392, per Wilson, J. ((•) Lloiid V. Lloyd, 4 Dru. & War. 370. 174 OF CORPOREAL HEREDITAMENTS, Entitled in what would be personal estate at law : thus, under certain dower out of circumstances, money vested in trustees with express what may be injunctions to lay out the same in the purchase of lands in estate at law. foe-simple or fee-tail for the benefit of the husband and his heirs, even though never so laid out during the hus- band's lifetime, will nevertheless be looked on in equity as actually converted into ,ands, and the delay of the trustees in doing what they ought to have done shall not So also hue- prejudice the widow ((/). On the same principle, a hus- to curtesy out ^^^^'^ ^^iH ^^ equity (unless precluded by the Act of 35 of personalty. Vic. c. 16 ; R. S. c. 125, s. 5.), be entitled to curtesy out of personal estate at law; as if money be stipulated to be laid out in lands to be settled on a fevie covert in fee or in tail, the husband is entitled to curtesy, though no purchase be actually made in the lifetime of the wife ' (6). Tenant in dower is liable for iw/8^e (c). ' - The acceptance by a widow of what is given to her ex- pi'essly in lieu of dower is a good bar to her claim for dower : so also if it can be clearly implied from the will that the provision was to be in lieu of dower. By 43 V. c. 14, s, 3, where a dowress has, after the death actTonm'ustiVe of her husband, actual possession of the land of which she brought. jg dowable, either alone or with heirs or devisees of her husband, the period of ten years within which her aqtion of dower is to be brought shall )>& coi/ijjuted from the time when such possession of the dowress ceased. By the Revised Stat, c, 108, s. 25: "No action of or suit for dower shall be brought but within ten years from ,": the death of the husband of the dowress, notwithstanding any disability of the dowress or anyone claiming under her." \ When the husband's interest was a mere right of action, che time which would bar the the husband will also bar Liable for waste. Devise or be quest in lieu of dower. The time within which {a) Lewin on Trusts, 7th ed. p. 802. (b) Lewin on Trusts, supra. (c) As to whether the catting of timber, to bring wild land into cultivation, is waste, p. 19, note e. OF THE MUTUAL RIGHTS OF HUSBAND AND WIFE. 175 the wife, notwithstanding her coverture ; and if the bar against the husband be not complete on his death, the time which has run against him will count as against the widow ; for the R. S. c. 126, s. 2, which in such case gives her dower in virtue of such right in her husband, limits the - period of suit for dower to that within which such right might be enforced. By R. S. c. 108, s. 16, " no arrears of dower or dam- ages on account of such arrears shall be recovered or obtained by any action or suit for i longer period than six years next before the commencement of such action or ■ suit." Dower may also be barred by deed of the married w^oman Bar by deed, executed as required by the statutes authorizing this mode of bar (a). The R. S. c. 126 s. 5 provides that "a married woman ma}' bar her dower in any lands or hereditaments by joining with licr husband in a deed or conveyance thereof in which a release of dower is contained." The R. S. c. 127, s. 3 provides for conveyance by a married woman of the age of twenty-one years of her interest in real estate with her husbands con- currence, and enacts tliat " she may, by deed, bar her dower, and any right or inchoate r'ght of dower" (h). It will be observed that c. 126 is silent as: to the woman being of age. It would seem that in those cases to which c. 126 is applicable, c. 127 will not vary its effect as to age : this conclusion is entirely independent of any argument to be (b) As to conveyance by a married woman of her right to dower of landa of a deceased former husband, see Leith, Real Prop. Stats, p. 237. (c) Chapter 127, ss. 3 & 12 seem to be taken mainly from the Imperial Act 3 & 4 William IV. c. 74, ss. 77, 78, in which, in consequence of all reference to dower being omitted, doubts were raised whether right to dower could be extinguiahetl : Shel- ford Stats. 8th ed. p. 371. Possibly this caused the insertion of the dower clause in our Act, or it may have been that the Legislature consider- ed that c. 126 applied only when the husband wasconveyingsomedowable interest, and the wife joined to release dower, and would not apply where it was the dower only which was being released : Milter v. Wiky, 16 C. P. U. C. 368, 17 C. P. U. C, 8. c. ; Howard v. Wilson, 9 U. C R. 450. H i ft ■1 i i i i i ! 1 T 176 i OF CORPOREAL HEREDIIAMENTS. drawn from s. 12 of c. 127, which section, indeed, may aftbrd no argument (a). By R. S. c. 126, s. 5, (b) "A married woman may also bar her dower by executing either alone or jointly with other persons, a deed or conveyance to which her husband is not a party containing a release of such dower ; but no such deed oi' conveyance shall be effectual to bar her dower unless made in conformity with the married woman's real estate act, R. S. O. c. 127." Provision is also mad< by c. 126, for the case of lunacy of the wife, and foi the case of the husband having agreed to sell, and retainer by the purchaser of part of the pur- chase niuney as indenmity against dower, and for the case of the wife having lived apart from her husband for two years under such circumstances as to disentitle her to alimony, in which latter case the Act of 41 Vic. c. 8 ap- plies. The Act of 43 Vic. c. 14, s. 4, extends these pro- visions, as also the Act of 1881, ch. 14. Certain formalities (o) Furtiean v. Mitchell, 3 App. Rep. 510 ; but see Bouttead v. WhUmore, 22 Grant, 222, per Proudfoot, V. C. {b) There is a difficulty ab to the construction of this section ansing out of the fact that to conform with c. 127 the husband must be a party, as that Act, s. 3, expre-isly requires it, and indeed there is nothing else to which there can be conformity. Unless so much of s. 5 as requires conformity is to be rejected, it would appear that the only mode of pro- ceeding would be under s. 4 of c. 127 and to procure a Judge's order dispensing with the necessity of the husband being a party. It would seem, however, that section 4 was intended only to apply to cases therein specified, and others ejusdem generis, and not to such a case as mere temporary, though lengthy, absence of the husband. The words "any other cause" are to be con- strued with rtference to the context, .1 l the maxim notcitur a sociis appli "«. The Legislature seems to have erred in referring to c. 127 at :ill, the language of s. 5. of that Statute is the same as the Con 8tat. c. 84, s. 5, and all that the latter Statute required was examination of the wife by the proper official as to her consent to be barred. When the Con. Statute was in force, there was, till 36 V. c. 18, no such pro- vision as above in relation to a J udge's order. Probably so much of s. 5 as requires conformity is to be rejected, for it can hardly be that the Legislature is to be understood as saying that a woman might bar by deed to which her husband is not a party, but tliat the deed should net operate unless he were a party, or a Judge dispensed with his being a party. 01 THE MUTUAL RIGHTS OF HUHBAND AND WIFK, 17T hod to bo observed often under the old modo of barring dower; the Revised Statutes chapters 12G and 55 remedy defects. Chapter 55 of the lie vised Statutes governs proceedings in suits for dower. U authorizes also where tlie property out of which dower '\^ sought is imii;trtible, as a mill, the allotment of an annuity in lieu oi dower, and further pro- vides against the right of the widow to the benefit of peniianent improvements made af Lv r alienation by, or death improve- of , the husband {«). , ™«°*»- Section 3 of R. S. c. 120 prerHides th« ecovery of dower Wild land, out of any separate and distinct lot .hich, at the time of the alieiuiL.on by, or duath of, the husband, if he died seised, was in a state of nature and unimproved by clearing, fencing, &c. The demandant's right to have woodlana assigned to her for firewood, and timber for fencing the other portions of land assigned to her of the same lot, is specially reserved. The R. S. c. 55, by sect! as 3 and 21, relieves owners of Dowress can lands from the uncertainty consequent on a claim for dower ^^ ^"^'^^^'^j, not prosecuted : by those sections the vk wress can be com- ^Uottwl. pelled to an assignment of dower, and thus the land not assiirned for dower relieved from the claim.' i'^ ii ! (a) See remarks on these pro^-i- sions, and how far they apply if the husband died before 18th May, 1861, and as to aower out of the improve- ments ; Leith's Real Prop. Statutes, p. 247, n. a. 248 : and as to improve- ments and damages ; Hodgina v. HodDint, 13 C. V. U. C. 151, per Draper, C, J, ; Linfoot v. Buncombe, 21 C. P. U. C. ; Wallace v. Moixre, 18 Grant ; Doe Riddell v. Owinnel, 1 Q. B. 682. — tC— - — n"— ■>1 - 28 :? ■''•> ^, ■>T^% IMAGE EVALUATION TEST TARGET (MT-S) ^O A^ k!? ^ ^' /# ^. 5r «/^ 10 I.I |21 125 US S -^ 12.0 ■luu L25 1 1.4 1.6 Hiotographic Sciences Corporation 23 WFJT MAIN STREET WKBSTER,N.Y. 14S80 ('. !6) 472-4503 ^V k ^^ •4 V \\ A lo '4 178 OF INCORPOREAL HEREDITAMENTS. PART II. OF INCORPOREAL, HEREDITAMENTS. Incorporeal property. Our attention has hitherto been directed to real property of a corporeal kind. We have considered the usual estates which may be held in such property, — the mode of descent of such estates as are inheritable, — the tenure by which estates in fee simple are holden,- -and the usual method of the alienation of such estates, whether in the lifetime of the owner or by his will. We have also noticed the modification in the right and manner of alienation pro- duced by the relation of husband and wife. Besides cor- poreal property, we have seen that there exists also another kind of property, which, not being of s visible and tangible nature, is denominated incorporeal. This kind of property, though it may accompany that which is corporeal, yet does not in itself admit of actual delivery. When, therefore, it was required to be transferred as p separate subject of property, it was always conveyed, in ancient times, by writing, that is by deed ; for we have seen that formerly ?11 legal writings were in fact deeds. Property of an Lay in grant incorporeal kind was, therefore, said to lie in grant, whilst corporeal property was said to lie in livery (a). For the word grant, though it comprehends all kinds of convey- ances, yet more strictly and properly taken, is a conveyance by deed only (6). And livery, as we have seen (c), is the technical name for that delivery which was made of the seism, or feudal possession, on every feoffment of lands and houses, or coi'poreal hereditaments. In this difference in the ancient mode of transfer accordingly lay the chief dis- (a) Go. Litt 9 a. (6) Shep. Touch. 228. (c) Ante, p. 99. ■'» or INCORPOREAL HEREDITAMENTS. tinction between these two classes of property. But as we have seen (a), now all corporeal tenements and here- ditaments, as regards the conveyance of the immediate free- hold thereof, lie in grant as well as well as in livery. There is, accordingly, now no practical difference in this respect between the two classes. 179 (a) Ante, p. 126. ■■■■I 180 OF INCORPOREAL HEREDITAMENTS. CHAPTER I. OF A 'REVERSION AND A VESTED REMAINDER. Particular •state. The first kind of incorporeal hereditament which we shall mention is somewhat of a mixed nature, being at one time incoi'poreal, at another not ; and, for this reason, it is^ not usually classed with those hereditaments which are essentially and entirely of an incorporeal kind. But as this hereditement partakes, during, its existence, very strongly of the nature and attributes of other incorporeal hereditaments, particularly in its always permitting and generally requiring, a deed of grant for its transfer, — it is here classed -.vith such hereditaments. It is called, accord- ing to the mode cf its creation a reversion or a vested remainder. If a tenant in fee simple should grant to another person a lease for a term of years, or for life, or even if he should grant an estate tail, it is evident that he will not thereby dispose of all his interest : for in each case, his grantee has a less estate than himself. Accordingly, on the expiration of the term of years, or on the decease of the tenant for life, or on the decease of the donee in tail without having^ barred his estate tail and without issue, the remaining^ interest of the tenant in fee will revert to himself or hi» heirs, and he or his heir will again become tenant in fee simple in possession. The smaller estate which he has so- granted is called, during its continuance, the particular estate, being only a part, or particula, of the estate in fee (a). And, during the continuance of such particular estate, the interest of the tenant in fee simple, which still remains undisposed of — that is, his present estate, in virtue of (a) 2 Black, Com. 165. OF A REVERSION AND A VESTED REMAINDER. 181 years. which he is to have again the possession at some future time — is called his reversUm. Reversion. If at the same time with the grant of the particular estate he should also dispose of this remaining interest or reversion, or any part thereof, to some other person, it then changes its name, and is termed, not a reversion, but a remainder. Thus, if a grant be made by A., a tenant in ReiKainder. fee simple, to B. for life, and after his decease to C. and his >- heirs, the whole fee simple of A. will be disposed of, and C.'s interest will be termed a remahider, expectant on the decease of B. A remainder, therefore, always has its origin A remainder in express grant : a reversion merely arises incidentally, in express'^^nt. consequence of the grant of the particular estate. It is created simply by the law, whilst a remainder springs from the act of the parties (a). 1. And, first, of a reversion. If the tenant in fee simple A reversion should have made a lease merely for a term of years, his , ^ ^"® reversion is looked on, in law, precisely as a continuance of his old estate, with respect to himself and his heirs, and to all other persons but the tenant for years. The owner of the fee simple is regarded as having simply placed a bailiff on his property (6) ; and the consequence is, that, subject to the lease, the owner's rights of alienation remain unimpaired, and may be exercised in the same manner as before. The feudal possession or seisin has not been parted with. And a conveyance of the reversion may, therefore, be made by a feoffment with livery of seisin, made with the consent of the tenant for years (c). But, if this mode of transfer should not be thought eligible, a grant by deed will be equally efficacious. For the estate of the grantor is strictly incorporeal, the tenant for years having the actual possession of the lands : so long, therefore, as such actual possession concinues, the estate in fee simple is strictly an incorporeal reversion, which, together with the seisin or feudal possession, may be conveyed by deed of IH M ' (a) 2 Black. Com. 163. (6) Watk. Descents, 108(113, 4th ed.) (c) Co. Litt. 48 b, n. (8). m^. 182 OF INCORPOREAL HEREDITAMENTS. A reversion grant (a). But, if the tenant in fee simple should have life. made a lease for life he must have parted with his seiBin to the tenant for life ; for, an estate for life is an estate of freehold and such tenant for life will, therefore, during his life, continue to be the freeholder, or holder of the feudal seisin (6). No feoffment can consequently be made by tenant in fee simple ; for he has no seisin of which to make livery. His reversion is but a fragment of his old estate, and remains purely incorporeal, until, by the dropping of the life of the grantee, it shall again become an estate in possession. Till then, that is, so long as it remains a reversion expectant on an estate of freehold, it can only be conveyed, like all other incorporeal hereditaments, when apart from what is corporeal, by a deed of grant. ' Many another form of conveyance may operate as a grant, but still must be con- if of a reversion on a freehold it should be pleaded as a veyedbydeed„^„^, ,^, of grant S^^^^ ('')• We have before mentioned (d), that in the case of a lease for life or years, a tenure is created between the parties, the lessee becoming tenant to the lessor. To this tenure are usually incident two things, fealty (e) and rent. The oath of fealty is now never exacted ; but the rent, which may be reserved, is of practical importance. This rent is called in Rent Bervice. law rent sei^ice in order to distinguish it from other kinds of rent, to be spoken of hereafter, which have nothing to do with the services anciently rendered by a tenant to his lord. It consists, usually, but not necessarily, of money ; for, it may be rendered in corn, or in anything else. . Thus, an annual rent of one peppercorn is sometimes reserved to be paid, when demanded, in cases where it is wished that lands should be holden rent free, and yet that the landlord should be able at any time to obtain from hia tenant an acknowledgment of his tenancy. To the reservation of a ■■^ rent service, a deed was formerly not absolutely necessary. Fealty and rent. (o) Doe d. Were v. Cole, 7 Barn. & Cress. 243, 248 ; ante, p. 126. (b) Ante, p. 99. (c) Ante, p. 135. {(1) Ante, p. 83. (e) Ante, p. 86. OF A REVERSION AND A VESTED REMAINDER. 1«3 For, although the rent is an incorporeal hereditament, yet the law considered that the same ceremony, by which the nature and duration of the estate were fixed and evidenced, was sufficient also to ascertain the rent to be paid for it. But now (a), it is provided, that a lease, required by law to be in writing, of any tenements or hereditaments shall be void at law, unless made by deed. In every case, therefore, where the Statute of Frauds (b) has required leases to be in writing, th oy must now be made by deed. But, according to the exception in that statute, where the lease does not exceed three years Trom the making, a rent of two-thirds of the full improved value, or more, may still be reserved by parol merely. Rent service, when created, is considered Rent iasues to be issuing out of every part of the land in respect of '^^toithe^ which it is paid : one part of the land is as much subject to lands, it as another. For the recovery of rent service, the well Distress, known remedy is by distress and sale of the goods of the tenant, or any other person, found on any part of the premises, ' except, as regards goods of others, those delivered to the tenant to be wrought on or worked up in the way of his trade, as cloth to a tailor to be made into a coat ; the goods of boarders or lodgers are not liable to the head land- lord beyond the amount due from them (c) to their land- lord : as a general rule, too, the goods of a guest at an inn are exempt.' This remedy for the recovery of rent service belongs to the landlord of common right without any express agreement {d). In modern times it has been extended and facilitated by various Acts of Parliament (e). In addition to the remedy by distress, there is usually Condition of contained in leases a condition of re-entry, empowering reentry, the landlord, in default of payment of the rent for a certain 1 i 1 ] ii III; (a) Rev. Stat. 98. (6) Stat. 29 Car. II. c. 3, ante, p. (c) 43 V. c. 16. ((/) Litt. 88. 213, 214. It must be made between sunrise and sunset, TuUon V, Darke, 5 H. & N. 647. Anne, c. 14 ; 4 Geo. II. c. 28 : and 11 Geo. II. c. 19 ; Co. Litt. 47 p, n. (7) : Rev. Stats, c. 65. c. 107, ss. 10 & 11, c. 136, c. 108, ss. 4, 16, 17, ch. 51, ss. 59, 60 ; 11 Geo. 2, c, 19; and Black. Com. by Leith & Smith, (e) Stat. 2 Wm. & Mary, c. 5 ; 8 pp. €7, 69, 171. 184 OF INCORPOREAL HEREDITAMENTS. Demand formerly re- quired. Modeiii pro- ceedings. time, to re-enter on the premises and hold them as of liis former estate. When such a condition is inserted, the estate of the tenant, wliether for life or years, becomes determinable on such re-entry. Before any entry can be made under a proviso or condition for re-entry on non- payment of rent, the landlord is required to make a demand, upon the premisss, of the precise rent due, at a convenient time before sunset of the last day when the rent could be paid according to the condition ; thus, if the proviso be for re-entry on non-payment of the rent by the space of thirty days, the demand must be made on the evening of the thirtieth day (a). ' But well drawn leases dispense with necessity for any demand : and, by statute,' if half a year's rent is due, and no sufficient distress is found on the premises, the landlord may recover the premises, at the expiration of the period limited by the proviso for re-entry (b), by action of ejectment, v/ithout any formal demand or entry (c) ; but all proceedings are to cease on payment of all arrears and costs, ai any time before the trial (d). 'A mortgagee not in possession is not to be barred if within six months after execution executed he pays all arrears costs and damages and performs all the agreements entered into by the lessee (e).' Formerly also the tenant might, at an indefinite time after he was ejected, have filed his bill in the Court of Chancery, and he would have been relieved by that Court from the forfeiture he had incurred, on his payment to his landlord of all arrears and costs. But now the right of the tenant to apply for relief in equity is restricted to six calendar months next after the execution of the judgment on the ejectment (/): and 'on such application no injunction is to issue restraining the ejectment unless the amount due and costs of the ejectment (a) I Wma. Saund. 287, n. (16) ; Acocka V. Phillips, 5 H. & N. 183. (6) Doe d. Dixon v. Roe, 7 C. B. 134. (c) Rev. Stat. c. 51, ss. 59, 60, re- enacting Btat. 4 Geo. II. a 28, s. 2. id) S. 64. ■ . .. ■- (e) S. 62. (/) S. 61 re-enacting stat. 4 Geo. II. c. 28, 8. 2 ; Bow8er v. Colby, 1 Hare, 108. P,! OF A REVERSION AND A VESTED REMAINDER. 185 ■Ill be brought into Court (th derive their estates from the same source, the grant of and remain- ^|jy owner in foe simple ; and one of them has no more right to be lord than the other. But as all estates must be holden of some person, — in the case of a grant of a parti- cular estate with a remainder in fee simple, — the particular tenant and the remaindennan l)oth hold their estates of the No rent Bcr- same chief lord as their grantor hell before. It conse- quently follows, that no rent service is incident to a remainder, as it usually is to a reversion ; for rent service is an incident of tenure, and in this case no tenure exists. The other point of difference betweevi a reversion and a remainder we have already m^ticed (rty, namely, that a reversion arises necessarily fiom the grant of the parti- cular estate, being simply that part of the estate of the grantor which remains undisposed of, but a remainder is always itself created V)y an express grant. We have seen that the powers of alienation possessed by a tenant in fee simple enable him to make a lease for a term of years, or for life, or a gift in tail, as well as to grant an estate in fee simple. But these powers are not simply in the alternative, for he may exercise all these powers of alienation at one and the same moment ; provided, of course, that his grantees come in one at a time, in some prescribed order, the one waiting for liberty to enter until the estate of the other is determined. In such a case the ordinaiy mode of conveyance is alone made use of ; and until the act requiring a feoffment to be by deed, if a feoffment should have been employed, there would have been no occasion for a deed to limit or mark out the estates of those who could not have immediate possession. The seisin would have been delivered to the first person who was to have possession (/>) ; and if such person was to have been only a tenant for a term of years, such seisin would have immediately vested in the prescribed owner of the first estate of freehold, whose baiiifi* the tenant for years is Powers of alienation. (a) Ante, p. 181. (6) Litt 8. 60 ; 2 Black. Coin. 167. OF A UEVEHSION AND A VESTED llEMAINDEH. 189 accounted to be. From such first freeholder, on the determination of his estate, the seisin, by whatever means vested in him, will devolve on the other grantees of free- hold estates in the order in which their estates are limited to come into possession. So long as a regular order is thus laid down, in which the possession of the lands may devolve, it matters not how many kinds of estates nre grante. vners to convey them. Of these future estates Two kinds. there are two kinds, a contingent remainder, and an executory interest. The former is allowed to be created by any mode of conveyance. The latter can arise only by the instrumentality of a will, or of a use executed, or made into an estate by the Statute of Uses. The nature of an executory interest will be explained in the next chapter. The simplicity of the common law allowed of the Contingent creation of no other estates than particular estates, followed ''emamders . ' were ancient- by the vested remainders, which have already occupied ly illegal. our attention. A contingent remainder — a remainder not vested, and which never might vest, — was long regarded as illegal. Down to the reign of Henry VI. not one instance is to be found of a contingent remainder being held valid (a). The early authorities on the contrary are rather opposed to such a conclusion (6). And, at a later (a) The reader should be informed that this assertion is grounded only on Mr. Williams's researches. The general opinion appears to be in favour of the antiquity of contingent remainders. See Third Report of Ileal Property Commissioners, p. 23; 1 Steph. Com. 615, n. (c), 8th ed. And an attempt to create a contin- gent remainder appears in an un- dated deed in Madox's Formular Anglicanum, No 536, p- 305. (6) Year Book, 11 Hen. IV. 74; in which case, a remainder to the right heira of a man w/w was dead before the remainder was limited, was held to vest by purchase in the person who was heir. But it was said by Hankey, J., that if a gift were made to one for his life, with remainder to the right heirs of a man toho was living, the remainder would be void, because the fee ought to pass immediately to ium to whom it was limited. Note, also, that in Afandevill'a case (Co. Litt. 26 b), which is an ancient case of the heir of the body taking by pur- chase, the ancestor was dead at the time of the gift. The cases of rents are not apposite, as a diversity was long taken between a grant of a rent and a conveyance of the free- hold. The decision in 7 Hen. IV. 6 b, cited in Archer's case (I Rep. 66 b), was on a case of a rent-charge. The authority of P. U Rich. II. FitT. Abr. tit Detinue, 46, which i i r i i 1 1 200 OF INCORPORKAL HEREDITAMENTS. period, the authority of Littleton is express (a) that every remainder, which beginneth by a deed, must be in liim to whom it is limited, before livery of seisin is made to him who is to have the immediate freehold. It appears, how- ever to have been adjudged, in the reign of Henry VI., that if land be given to a man for his life, with remainder , '' to the right heirs of another who is living, and who after- wards dies, and the tenant for life dies, the heir of the stranger shall have this land ; and yet it was said that at the time of the grant, the remainder was in a man- ner void (g). This decision ultimately prevailed. And the same case is accordingly put by Perkins, who lays it Gift to A. for down, that if land be leased to A. for life, the remainder to mainder to t/he right heirs of J. S., who 's alive at the time of the lease, this remainder is good, because there is one named in the lease (namely, A. the lessee for life), who may talce immediately in the beginning of the lease {h). This ap- pears to have been the first instance in which a contingent remainder was allowed. In this case J. S. takes no estate at all ; A. has a life-interest ; and, so long as J. S. is living the remainder in fee does not vest in any person under the the right heirs of J. S. is cited in Archer's cane, (1 Rep. 67 a), and in Chudleigh's case (1 Rep. 135 b), as well as in the margin of Co, Litt. 378 a, is merely a statement by the Judge of the opinion of the counsel against whom the decision was made. It runs as follows : — "Cherton to RykhU— You think {voua guides) that inasmuch as A. S. was living at the time of the remainder being limited, that if he was dead at the time of the remain- der falling in and had a right heir at the time of the remainder falling in, that the remainder would be good enough? Rykhil — Yes, Sir. — And afterwards in Trinity Term, judgment was given in favour of Wad [the opposite counsel] : quod nota bene" It is curious that so much pains should have been taken by modem lawyers to explain the reasons why a remainder to the heirs of a per- son, who takes a prior estate of freehold, should not have been held to be a contingent remainder (see Feame, Cont. Rem. 83 et seq.), when the construction adopted (subsequently called the rule in Shelleif's case) was decided on be- fore contingent remainders were allowed. (a) Litt. s. 721 ; see also M. 27 Hen. VIII. 24 a. {h) Year Book, 9 Hen. VI. 24 a ; H. 32 Hen. VI. Fitz. Abr. tit. FeoflF- ments and Faits, 99. (c) Perk. s. 52. OF A CONTTNOENT REMAINDER. 201 gift ; for, the inaxim is, neyno est htres mventia, and J. S. being alive, there is no such person living as his heir. Here, accordingly, is a future estate, which will have no existence until the decease of J. S. ; if, however, J. S. should die in the lifetime of A., and if ho should leave an heir, such heir will tl n acquire a vested remainder in fee simple, expectant on A.'s life interest. But, until these contingences happen or fail, the limitation to the right heirs of J. S. confers no present estate on any one, but merely gives rise to the prospect of a future estate, and creates hn interest of that kind which is known as a con- thifjent remainder {a). The gift to the heirs of J. S. has been determined to be A gift to the sufficient to confer an est»ite in fee simple on t^^e 'person ^"j^|^*J^° who may be his heir, without any additional limitation to simple on hia the heirs of such heir (b). When contingent remainders began to be allowed, awhatbe- question arose, which is yet scarcely settled, what becomes P'V"'^?^*'^ *^® 1 , ^ •' *' ^ , inheritance of the inheritance, in such a case as above, during the life unti; -he of J. S. ? A., the tenant for life, has but a Hfe-interest ; ^°^!J,*^J8g«°°y J. S. has nothing, and his heir is not yet in existence. The ancient doctrine, that the remainder must vest at once or not at all, had been broken in upon ; but the Judges could not make up their minds also to infringe on the corres- ponding rule, that the fee simple must, on every feoffment which confers an estate in fee, at once depart out of the feoffor. They, therefore, sagely reconciled the rule which they left standing to the contingent remainders which they had determined to introduce, by affirming that, during the contingency, the inheritiince was either in abeyance, or in gremio legis or else in nubihua (c). Modern lawyers, however, venture to assert, that what the grantor has not disposed of must remain in him, and cannot pass from him (o) 3 Rep. 20 a, in Boraston'a (c) Co. Litt. 342 a ; IP. Wms. case, 515, 516 ; Bac. Abr. tit. Remainder (6) 2 Jarman on Wills, 2, 2nd ed. and Reversion (e). £5, 50, 3rd ed. 26 _il i ■ * ,1 M Mi \ 1 f '■ ! L 1 202 OF INCOUFUUEAL UBREPITAMENTS. until there exists some grantee to receive it (a). And when tlie yift is by way of uho under the Statute of Uses, there is no doubt that, until the contingency occurs, the use, and with it the inheritance, result to the grantor. So, in the case of a will, the inheritance, until the contingency happens, descends to the heir of the testator (b). ■ But whatever difficulties may have beset the departure from ancient rules, the necessities of society recpiired that future estates, to vest in unborn or unascertained persons, should under certain circumstances be allowed. And, in the time of Lord Coke, the validity of a gift in remainder, to become vested on some future contingency, was well established. Since his day the ITAMENTS. Bule 1. of age, the lands ai-e tied up, and placed beyond the power of complete alienation. This example of a contingent remainder is here given as by far the most usual, being that which occurs in the settlement of landed estates. Two rules for The rules which are required for the creation of a con- of a contin- tingent remainder may be reduced to two ; of wh.ich the eent remain- first, and principal is well established ; but the latter has occasioned a good deal of controversy. The first of these rules is, that the seisin, or feudal possession, must never be without an owner ; and this rule is sometimes expressed as follows, that every contingent remainder of an estate of freehold must have a particular estate of freehold to sup- port it, ' except where, after foreclosure, such necessity is obviated by the R. S. 0. ch. 95, by force of which, as presently mentioned, the destruction of the particular estate, otherwise than by death, will not prevent the remainder taking effect.' The ancient law regarded the feudal possession of lands as a matter, the transfer of which ought to be notorious ; and it accordingly forbad the con- veyance of any estate of freehold by any other means than an immediate delivery of the seisin, accompanied by words, either written or openly spoken, by which the owner of the feudal possession might at any time thereafter be known to all the neighboui'hood. If, on the occasion of any feoffment; such feudal possession was not at once parted with, it remained for ever with the grantor. Thus a feoffment, or any other conveyance of a freehold, made hold from to- to-day to A., to hold from to-morrow, would be absolutely void, as involving a contradiction. For if A. is not to have the seisin till to-morrow, it must not be given him till then (a). So, if, on any conveyance, the feudal posses- sion were given to accompany any estate or estates less than an estate in fee simple, the moment such estates, or the last of them, determined, such feudal possession would again revert to thu grantor, in right of his old estate, and could not be again parted with by him, without a fresh Example, a feoflfment to A. to-day to (o) 2 Bl. Com. by Leith and Smith, p. 135. OF A CONTINGENT REMAINDER. 205 conveyance of the freehold. Accordingly, suppose a feoff- ment to be made to A. for his life, and after his decease and one day, to B. and his heirs. Hejt'% the moment that A.'s estate determines by his death, the feudal possession, which is not to belong to B. till one day afterv ards, reverts to the feoffor, and cannot bj taken out of him without a new feoffinent. The consequence is, that the gift of the future estate, intended to be made to B., ia absolutely void. Had it been held good, the feudal possession would have been for one day without any owmer ; or, in other words, there would have been ". so-called remainder of an estate of freehold, without a particular estate of freehold to sup- port it. Let us now take the case we have before referred to, of an estate to A., a bachelor, for his life, and after his decease to his 'Idest son in tail. In this case it is evident, that the moment A.'s estate determines by his death, his son, if living, must necessarily be ready at once to take the feudal possession, in respect of his estate tail. The only case in which the feudal possession could, under such a limitation, ever be without an owner, at the time of A.'s decease, would be that of the mother being then enceinte of the son. In such a ca,':,e the feudal possession would be evidently without an owner, until the the birth of the son ; and such posthumous son would accordingly lose his estate, were it not for a special provision which has been made in his favour. In the reign of Wm. III. an Act of Parliament (a) was passed, to enable posthumous 'jhildren to take estates, as if born in their father's lifetime. And the law now considers every child en ventre sa m^re as actually born, for the purpose of taking any benefit to which, if born, it would be entitled (b). As a corollary to the rule above laid down, ' arose at com- mon law,' another proposition, frequently itself laid down as a distinct rule, namely, that every contingent remainder To A. for life, and after Ms decease unil one clay, to B. To A. for his life, and after his decease to his eldest son in tail. Posthumous children may take estates if born. (a) Stat. 10 & 11 Wm. III. e. 16. (6) Doe V. Clark, 2 H. Bl. 399 ; Blackburn v. Stables, 2 Ves. & Beames, 367 ; Mogy v. Mogg, 1 Meriv. 654 j Tovoer v. Butts, 1 Sim. & Stu. 181. A contingent remainder must vest during the particular estate, or eo Instanti that it determines. ) .1 . !H 206 OF INCORPOREAL HEREDITAMENTS. must vest, or become an actual estate, during the continu- ance of the particular estate which supports it, or eo instanti that such particular estate determines ; otherwise such contingent remainder will fail altogether, and can Example. never become an actual estate at all. Thus, suppose lands to be given to A. for his life, and after his decease to such son o; A. as shall first attain the age of twenty-four years. Asa contingent remainder the estate to the son is well created (a) ; for the feudal seisin is not necessarily left without an owner after A.'s decease. If, therefore, A. --■:' should, at his decease, have a son who should then be tw^ty-fo\ir years of age or more, such son will at once take the feudal possession by reason of the estate in remainder which vested in him the moment he attained < ' that age. In this case the contingent remainder has vested during the continuance of the particular estate. But if there should be no son, or if the son should not have attained the pi'escribed age at his father's death, the re- y . mainder will fail altogether (6). For the feudal possession will then, immediately on the father's decease, revert, for want of another owner, to the person who made the gift in right of his reversion. And, having once roverted, it ■ cannot now belong to the son, without the grant to him of some fresh estate by means of some other conveyance. It will be found in the nest chapter, which treats of an executory interest, that there are some future limitations, which are valid by way of springing or shifting use in a deed or executory devise in a will, without being preceded by any particular estate of freehold. This subject will accordingly be resumed in the next chapter. (rt) 2 Prest. Abst. 148. (b) Festing v. Allan, 12 Mees. & Wels. 279 ; 6 Hare, 573. See how- ever, as to thie case, Reily v. Gar- nett, 3 De Gex 4; S. 629 ; Browne v. Browne, 3 Sma. & Giflf. 567 ; qy. ? Re Mid Kent R. W. Act, 1856, Ex parte Styan, John. 387 ; Holmes v, PrescoU, V. 0. W., 10 Jur. N. S. 507 ; 12 W. R. 636 ; Rhodes v. Whitefiead, 2 Drew. & Sm. 532; Price V. Hall, L, R., 6 Eq. 399 ; Perceval v. Perceval, L. R., 9 Eq, 386 ; Re Ekldle's Trust, V, 0. B., L. R,, 11 Eq. 559 ; Brackenbury v. Qibbom, L. R. 2 Ch. Div.- 417 ; Cunliffe v. Brancker, L. R. 3 Ch. Div. 393. f^ ii n OF A CONTINGENT REMAINDER. A contingent remainder cannot be made to vest on any event which is illegal, or contra himos mores. Accordingly, no such remainder can be given to a child who may be hereafter bom out of wedlock. But this can scarcely be said to be a rule for the creation of contingent remainders. It is rather a part of the general policy of the law in its discouragement of vice. In the repc4s of Lord Coke, how- ever, a rule is laid down of which it may be useful to take some notice, namely, that the event on which a remainder is to depend must be a common possibility, and not a double possibility, or a possibility on a possibility, which the law will not allow (a). This rule, though professed to be founded on former precedents, is not to be found in any of the cases to which Lord Coke refers, in none of which do either of the expressions " possibility on a possibility," or " double possibility," occur. It appears to owe its origin to the mischievous scholastic logic which was then rife in our courts of law, and of which Lord Coke had so high an opinion that he deemed a knowledge of it necessary to a complete lawyer (6). The doctrine is indeed expressly introduced on the authority of logic : — " as the logician saith, ' potentia est duplex, reniota et propinqua'" (c). This logic, so soon afterwards demolished by Lord Bacon, appears to have left behind it many traces of its existence in our law ; and perhaps it would be found that some of those artificial and technical rules which have most annoy- ed the Judges of modern times {d) owe their origin to this antiquated system of endless distinctions without solid differences. To show how little of practical benefit could ever be derived from the distinction between a common and a double possibility, let us take one of Lord Coke's examples of each. He tells us that the chance that a man and a woman, both married to different persons, shall themselves marry one another, is but a common possibility (e). But 207 Events on which a cou< tingent re- mainder may not vest. Possibility on a possibility. Examples of common and double possi- bilities. (a) 2 Rep. 51 a ; 10 Rep. 50 b. (6) Preface to Co. Litt p. 37- (c) 2 Rep. 51 a. {d) Such as the nde in Dumpor'a case, 4 Rep. 1 19. (e) 10 Rep. 50 b; Year Book, 15 Hen. VII. 10 b, pi. 16. 208 CF INCORPOREAL HEREDITAMENTS. Rule 2. Gift to an un- born person with remain- der to his child, the re- mainder void, the chance that a married man shall have a son named Geoffrey is stated to be a double or remote possibility (a). Whereas it is evident that the latter event is at least quite as likely to happen as the former. And if the son were to get an estate from being named Geoffrey, as in the case put, there can be very little doubt but that Geoffrey would be the name given to the first son who might be born (b). Respect to the memory of Lord Coke has long kept on foot in our law books (c) the rule that a possibility on a possi- bility is not allowed by law in the creation of contingent lemainders. But the authority of this rule luis long been declining (d), and a very learned Judge, now deceased (e), declared plainly that it was abolished. But although the doctrine of Lord Coke, that there can be no possibility on a possibility, has ceased to govern the creation of contingent remainders, there is yet a rule by which these remainders are restrained within due bounds, and prevented from keeping the lands, which are subject to them, for too long a period beyond the reach of alienation. This rule is the second rule, to which we have referred (/), and is as follows : — that an estate cannot be given to an unborn person for life, follmved by any estate to any child of such unborn person (g) ; for in such a case the estate I ^ (a) 2 Rep. 51 b. (b) The true ground of the de- cision in the old case (10 Edw. III. 45), to which Lord Coke refers, was no doubt, as suggested by Mr. Preston, 1 Prest. Abst. 128, that the gift was made to Geoffrey the son, as though he were living, when in fact there was then no such person. (c) 2 Black. Com. 170; Feame, Cont. Rem. 252. {(I) See Third Report of Real Property Commissioners, p. 29 ; 1 Prest. Abst. 128, 129. (e) Lord St. Leonards, in Cole v. Setoell, 1 Conn. & Laws. 344 ; S. C. 4 Dru. & War. 1, 32, The decision in this case has been affirmed in the House of Lords, 2 H. of L. Cases, 186. (/) Ante, p. 204. (<7) 2 Cases and Opinions, 432 — 441 ; Hay v. Earl of Covtntry, 3 T. Rep. 89 ; Brudenell v. Elwes, 1 East, 452 ; Fearne's Posthuoia, 215 ; Fearne, Cont. Rem. 502, -05, Butl. note ; 2 Prest. Abst. 114 ; 1 Sugd. Pow. 470 ; 393, 8th ed. ; 1 Jarm. Wills, 221, 1st ed. ; 203, 2nd ed. ; 227, 3rd ed. ; Cole v. Sewell, 2 H. of L. Cases, 18 abolished, could effectually have barred a contingent remainder. It might, however, have been released ; that but might be is to say, B. might, by deed of release, have given up his'"''^''**'®'^* interest for the benefit of the reversioner, in the same manner as if the contingent remainder to him and his heirs had never been limited ; for the law, whilst it tolerated con- ditions of re-entry and contingent remainders, always gladly permitted such rights to be got rid of by release, for the sake of preserving unimpaired such vested estates as might happen to be subsisting. A contingent remainder was also Was devia- devisable by will under the old statutes, and is so under *^®* the present ' Rev. Stat. c. 106 amending ' the laws with respect to wills. And it was the rule in equity, that an Assignment assignment intended to be made of a possibility for a*'^- valuable consideration should be decreed to be carried into ■effect (6). But it is now enacted that a contingent and r. s. 98 a. 5, (a) Ante, p. 185. see, however, Carlelon v. Leighton, (b) Feame, Cont. Bern. 550, 651 ; 3 Meriv. 667, 668, note (6). t m SI 4 ?- c J 1 J. 212 Inalienable nature. OF INCORPOREAL HEREDITAMENTS. ' an executory and a future interest,' and a possibility coupled with an interest, in any lands whether the object of the gift or limitation of such interest or possibility be or be not ascertaincvl, ' also a right of entry into any land,' may be disposed of by deed {a). i- The circumstance of a contingent remainder having been so long inalienable at law was a curious relict of the an- cient feudal bystem. This system, the fountain of our jurisprudence as to landed property, was strongly opposed to alienation. Its policy was to unite the lord and tenant by ties of mutual interest and affection ; and nothing could so effectually defeat this end as a constant change in the parties sustaining that relation. The proper method, there- fore, of explaining our laws, is not to set out with the notion that every subject of property may be aliened at pleasure ; and then to endeavour to explain why certain kinds of property cannot be aliened, or can be aliened only in some modified mamier. The law itself began in another way. When, and in what manner, different kinds of pro- perty gradually became subject to different modes of alien- ation is the matter to be explained ; and this explanation we have endeavoured, in proceeding, as far as possible to give. But, as to such interests as remained inalienable, the reason of their being so was, that they had not been altered, but remained as they were. The statute of Quia emptores (h) expressly permitted the alienation of lands and tenements, — an alienation which usage had already authorized ; and ever since this statute, the ownership of an estate in lands (an estate tail excepted) has involved in it an undoubted power of conferring on another person the same, or, perhaps more strictly, a similar estate. But a contingent remainder is no estate, it is merely a chance of having one ; and the reason why it so long remained in- (a) R. S. 0. c. 98, b. 5. Tho ute. See Leith's Real Prop. Stats., writer has attempted to explain pp. 65, 76. fully the nature of these rights and (b) 18 Edw. I. c. 1, ante, p. 45, interests, and the efifect of the stat- OF A CONTINGENT REMAINDER. 213 alienable at law was simply because it had never been thought worth while to. make it alienable. One of the most remarkable incidents of a. contingent Destruction, remainder was its liability to destruction, by the sudden determination of the particular estate upon which it depended, ' This liability has been removed by the R. S. 0, Liability to ch. 95, s. 3, except in case of deaths as presently explain- ^ow removed, ed ' : it was, in effect, no more than a strict application of the general rule, required to be observed in the creation of contingent remainders, that the freehold must never be left without an owner. For if, after the determination of the particular estate, the contingent remainder might still, at some future time, have become a vested estate, the free- hold would, until such time, have remained undisposed of, contrary to the principles of the law before explained (a). Thus, suppose lands te have been given to A., a bachelor. Example, for his life, and after his decease to his eldest son and the heirs of his body, and, in default of such issue, to B. and his heirs. In this case A. would have a vested estate for his life in possession. There would have been a contingent remainder in tail to his eldest son, which would have become a vested estate tail in such son the moment he was born, or rather begotten ; and B. would have had a vested estate in fee simple in remainder. Now, suppose that, before A. had any son, the particular estate for life belong- ing to A., which supported the contingent remainder to his eldest son, should suddenly have determined during A. 's life, B.'s estate would then have become an estate in fee simple in possession. There must be some owner of the freehold ; and B., being next entitled, would have taken possession. When his estate once became an estate in possession, the prior remainder to the eldest son of A. was for ever excluded. For, by the terms of the gift, if the estate of the eldest son was to come into possession at all, it must have come in before the estate of B. A forfeiture Foreiturt of by A. of his life estate, before the birth of a son, would ^^ ^^^' li^ i ! ■■.': I ^: •: ■! I" S .1 i fc (o) Ante, p. 204 m 214 OF INC'OKPOUEAL UEUEDITAMENTS. r therefore at once liave destroyed the contingent remainder by letting into possession tlie subsequent estate of B. (a). A right of The (leteruiinatiou of the estate of A. was, liowever, in havo^Bup." ' order to effect tlie destruction of the contingent remainder ported a con- re(£uired to be such a determination as would put an end mamder. to his right to the freehold or feudal possession. Thus, if A. had been forcibly ejected from the lands, his right of entry would still have been sufficient to preserve the con- . tingent remainder ; and, if he should have died whilst so out of possession, the contingent remainder might still have taken effect. For, so long as A.'s feudal possession, or his right thereto, continues, so long, in the eye of the law, does his estate last (b). Merger. It is a rule of law, that " whenever a greater estate and a less coincide and meet in one and the same person, with- out any intermediate estate, the less is immediately anni- hilated ; or, in the law phrase, is said to be merged, that is, sunk or drowned in the greater" (o). From the operation of this rule, an estate tail is preserved by the effect of the statute De donia (cl). Thus, the same person may have, at the same time, an estate tail, and also the immediate remainder or reversion in fee simple expectant on the determination of such estate tail by failure of his own issue. But with regard to other estates, the larger will '■'■■> swallow up the smaller; and the intervention of a contin- ; .; gent remainder which, while contingent, is not an estate, ' ' will not prevent the application of the rule. Accordingly, ^ if in the case above given A. should have purchased B.'s remainder in fee, and should have obtained a conveyance of it to himself, before the birth of a son, the contingent remainder to his son would have been destroyed. For in such a case, A. would have had an estate for his own life, and also, by his purchase, an immediate vested estate in fee simple in remainder expectant on his own decease ; (a) Feame, Cent. Rem, 317 ; see Doe d. Davits v. OcUacre, 5 Bing. N. C. 609. (6) Feame, Cent. Rem. 286. (c) 2 Black. Com. 177. (d) Stat. 13 Edw, I. c. 1 ; ante, p. 30. OF A CONTINGENT IlEMAINDEH. 21S there being, therefore, no vested estate intervening, a mer- ger would have tfvken place of the life estate in the remain- der in feu. The possession of the estate in fee simple would have been accelerated, and would have immediately taken place, and thus a destruction would have been effected of the contingent remainder (a), which could never after- < , wards have become a vested estate ; for, were it to have become vested, it must have taken possession subsequently to the remainder in fee simple ; but this it could not do, both by the terms of the gilt, and also by the very nature of a remainder in fee simple, which can never have a remainder after it. In the same manner the sale by A. to B. of the life estate of A., called in law a surt'ender of the Surrender of life-estate, before the birth of a son, would have acceler- ^'^^ ^^® ated the possession of the remainder in fee simple by giving to B. an uninterrupted estate in fee simple in possession ; and the contingent remainder would consequently have been destroyed {b). The same effect would have been pi-o- duced by A. and B. both conveying their estates to a third person, before the birth of a son of A. The only estates then existing in the land, would have been the life-estate of A. and the repiainder in fee of B. C, therefore, by acquiring both these estates, would have obtained an estate in fee simple in possession ; on which no remainder could depend (c). But now, ' the R. S. O. ch. 95, before refeiTcd r. s. 95, s. 3. to,' has altered the law in all these cases ; for, whilst the^™^^"^ principles of law on which they proceeded have not been expressly abolished, it is nevertheless enacted that a con- tingent remainder shall be, and if created or ' existing within the periods named in the Act,' shall be deemed to have . .L. been, capable of taking effect notwithstanding the deter- mination by forfeiture, surrender or merger of any pre- ceding estate of freehold, in the same manner in all respects as if such determination had not happened. This (a) Feame, Cont. Rem. 340. (6) Feame, Cont. Rem. 318. (c) Feame, Cont Rem. 322. note ; Noel V. Bewley, 3 Sim. 103 ; Egerton V. Mcuaey, 3 C. B., N. S. 338. 216 or INCOIM'OHKAL HKREDITAMKNNS. Trustees to preserve. Act, it will Vje observed, applies only to the three cases of forfeiture, surrender or merger of the particular estate. If, at the time when the particular estate would naturally have expired, the contingent rsniainder be not ready to come into inmiediate possession, it will still fail as before (a) ; ' as, for instance, if the particular estate be for life, and it end V)y death before the event on which the remainder is to vest in possession.* The disastrous consequences which would have resulted from the destruction of the contingent remainder, in such a case as that we have just given, were obviated in practice by means of the interposition of a vested estate between the estates of A. and B. We have seen (h) that an estate for the life of A., to take effect in possession after the determination, by forfeiture or otherwise, of A.'s life interest, is not a contingent, but a vested estate in remain- der. It is a pri'ssnt existing estate, always i*eady, so long as it las Is, to come into possession the moment the prior estate determines. The plan, therefore, adopted for the preservation of contingent remainders to the children of a tenant for life was to give an estate, after the determination by any means of the tenant's life interest, to certain per- sons and their heirs during his life, as trustees for pre- ■ serving the contingent remainders ; for which purpose they wore to enter on the premises, should occasion re.juire ; but should such entry be neccessary, they were neverthe- les to permit the tenant for life to receive the rents and profits during the rest of his life. These trustees were prevented by the Court of Chancery from parting with their estate, or in any way aiding the destruction of the contingent remainders which their estate supported (c). And, so long as their estate continued, it is evident that there existed, prior to the birth of any son, three vested estates in the land ; namely, the estate of A. the tenant for (a) Price v. Hall, L. E., 6 Eq. 399 ; Perceval v. Perceval, L. R. , 8 Eq. 386. (6) Ante, p. 203. (c) Feame, Cone. Rem. 326. OF A CONTINUENT HEMAINDER. 217 life, the estate in remaindor of the trustees (lunn;» his life, and the estate in fee simple in remainder, heloii^'ing, in the case we liave supposed, to B. and his heirs. This vested estate of the trustees, interposed between the estates of A. and B., prevented their union, and consequently prevented the remainder in fee simple from ever coming inS) possession, so long as the estate of the trustees en), but the seisin was at once transferred to those to whose use estates were limited. Some of these estates were as follows : — *' To the use of the said A. and his assigns for and during To A. for life. " the term of his natural life without impeachment of waste " and from and immediately after the determination of that " estate by forfeiture or otherwise in the lifetime of the " said A. to the use of the said (trustees) their heirs and To trusteoB " assigns during the life of the said A. In trust to preserve to preserve *' the contingent uses and estates hereinafter limited contingent remainderBa " from being defeated or destroyed and for that purpose " to make ^^n tries and bring actions as occasion may " require But nevertheless to permit the said A. and "his assigns to receive the rents issues and profits of t ' 1 h i (a) Ante, pp. 113, 140. 28 (6) Ante, p. 109. 1 > u 4 218 OF INCORPOREAL HEREDITAMENTS. " the said lands hereditaments and premises during his " life And from and immediately after the decease To A. 's first "of the said A. To the use of the first son of the andothersons„^^jj A. and of the heirs of the body of such first son " lawfully issuing and in default of such issue To the "use of the second third I'ourth fifth and all and every " other son and sons of the said A. severally successively " and in remainder one after another as they shall be in " seniority of age and priority of birth, and of the several " and respective heirs of tlie body and bodies of all and " every such son and sons lawfully issuing, the elder of such " sons and the heire of his body issuing, being always to "be preferred to and to take before the younger of such " sens and the heirs of his body and respective bodies issu- « " ing And in default of such issue" &c. Then follows any other remainder ' or remainders, as, for instance, to B. in fee. On such limitations as above, it would seem that there is, since the Revised Act above refeired to, no longer any necessity for the estate to the trustees during the life of A.; since the statute prevents destruction of the remainders to his issue by any surrender, forfeiture, or merger of his estate before birth of issue : and as regards termination of his estate by death, that event could not possibly cause the destruction of any limitation to the issue, as on death of A. a son of his, (if any) must neces- sarily be alive or in ventre sa mere. But, if the limitations be not to the issue cf the life tenant as above, but to sons unborn of some other person, then there is a necessity for the estate to trustees ; thus, on limitations to A. for life with remainder to the eldest son of B., a bachelor, in tail, remainder to C. in fee, the death of A. before birth of a son would defeat the limitation to the son.' Trust estates. In a former part of this volume we have spoken of e][uitable or trust estates (a). In these cases, the whole estate at law belongs to trustees, who are accountable in equity to their cestuis que trust, the beneficial owners. As (a) See the rbapte:- on Uses and Trusts, ante, p. 109, et seq. son the OF A CONTINGENT REMAINDER. 211> 4 equity follows the law in the limitation of its estates, so it permits an equitable or trust estate to be disposed of by way of particular estate and remainder, in the same man- ner as an estate at law. Contingent remainders may also be limited of trust estates. But between such cciitingent Contingent remainders, and contingent remainders of estates at law, tr^t'" i^^ ^^ there was always this difference, that whilst the latter were inde- were destructible, the former were not (a). The destruc- ^ "^'^ ^ ^" tion of a contingent remainder of an estate at law depen- ded, as we have seen, on the ancient feudal rule, which required a continuous and ascertained possession of every piece of laud to be vested in some freeholder. But in case of trust estates, the feudal possession remains with the trustee (b). And, as the destruction of contingent remain- ders at law defeated, when it happened, the intention of those who created them, equity did not so far follow the law as to introduce into its system a similar destruction of contingent remainders of trust estates. It rather compelled the trustees continually to observe the intention of those whoee wishes they had undertaken to execute. Accor- dingly, if a conve3'ance had been made unto and to the use of A. and his heirs, in trust for B. for life, and after his decease in trust for his first and other sons successively in tail, — here the whole legal estate would have been vested in A., and no act that B. could have done, nor any event which might have happened to his equitable estate, before i its natural termination, could have destroyed the contin- gent remainder directed to be held by A. or his heirs in trust for the eldest son. ,, ■ , '• (a) Fearne, Cont. Rem. 321. temp. Talbot, 145, 151, ; Hopkins v. (6) See Chapman v. Blmett, Cas. Hopkins, Cas. temp. Talbot, 52 n. iM flH m 220 OF INCORPOREAL HEREDITAMENTS. CHAPTER III. OF AN EXECUTORY INTEREST. Contingent remainders are future estates, which, as we . ' have seen (a), were, until ' the provisions made by R. S. 95, s. 3,' continually liable, in lav "ntil they actually existed as estates, to be destroyer ui jouaer, — executory interests, on the other hand, are future estates, which in their nature Executory in- are indestructible. They arise, when their times comes, as of their own of their own inherent strength ; they depend not for pro- strength, tection on any prior estates, but on the contrar}', they r themselves often put an end to any prior estates which ^ may be subsisting. Let us consider, first, the means by which these future estates may be created ; and secondly, the time fixed by the law, within which they must arise, and beyond which they cannot be made to commence. Section I. Of the Means of ivhich Executory Interei. ■■ nay he created. 1. Executory interests may now be created in two ways — under the Statute of Uses and by will. Executory intei'ests created under the Statute of Uses are called Springing and springing or shifting uses. We have seen (&) that, pre- 8 ing uBes. yJQygjy ^q {^jjg passlug of thls statute, the use of land was under the sole jurisdiction of the Court of Chancery as trusts are now. In the exercise of this jurisdiction it would seem that the Court of Chancery, rather tnan dis- appoint the intentions of parties, gave validity to such (a) Ante, p. 213. (6) Ante, pp. 109, 110. OP AN EXECUTORY INTEREST. 221 interests of a future or executory nature, as were occasion- ally created in the disposition of the use (a). For instance, if a feoffment had been made to A. and his heirs, to the use of B. and his heirs from to-morrow, the Court would, it seems, have enforced the use in favour of B., notwith- standing that, by the rules of law, the estate of B. would have been void (b). Here we have an instance of an exe- cutory interest in the shape of a springing use, giving to B. a future estate arising on the morrow of its own strength, depending on no prior estate, and therefore not liable to be destroyed by its prop falling. When the Statute of Uses (c) was passed, the jurisdiction of the Court .^ of Chancery over uses was at once annihilated. But uses in becoming, by virtue of the Statute, estates at law, brought with them into the Courts of law many of the attributes, which they had before possessed while subjects of the Court of Chancery. Amongst others which re- ;^ maiued untouched, was this capability of being disposed of in such a way as to create executory interests. The legal ! seisin or possession of lands became then, for the first time, disposable without the observance of the formalities pre- viously required (c^); and, amongst the dispositions allowed, were these executory interests, in which the legal seisin is ' shifted about from one person to another, at the mercy of the springing uses, to which the seisin has been indis- : solubly united by the Act of Parliament; accordingly it now happens that by means of uses:, che legal seisin or possession of lands may be shifted from one person to another in endless variety of ways. We have seen that a conveyance to B, and his heirs to hold from to-niorrow, is absolutely void. But by means of shifting uses, the desired result may be accompliahed ; for, an estate may be con- veyed to A. and his heirs, to the use of the conveying party and his heirs until to-morrow, and then to the use of B. and his heirs. A. very common instance of such a Example :— fl »: 1H-:; (a) Butl. n. (a) to Feame, Cont. Rem. 381 (6) Ante, p. 204. (c) 27 Hen. VIII. c. 10, ante, p. HI. (rf) See ante, pp. 127, 128. rP iltl 222 OF INCORPOREAL HEREDITAMENTS. In other uses. To the use of shifting use occurs in an ordinary marriage settlement of heirs until a lands. Supposing A. to be the settlor, the lands are then "'d"*^^' th ' otherwise than by deed of bargain and sale ' (a), conveyed marriage, to by him, by the settlement executed a day or two before the marriage, to the trustees (say B. and C. and their heirs) " to the use of A. and his heirs until the intended marriage shall be solemnized, and from and immediately after the solemnization thereof," to the uses agreed on ; for example, to the use of D., the intended husband, and his assigns for his life, and so on. Here B. and C. take no permanent estate at all, as we have already seen (b). A. continues, as he was, a tenant in fee simple until the maniage ; and, if the marriage .should never happen, his estate in fee simple will continue with him untouched. But, the moment the marriage takes place, — without any further thought or care of the parties, — the seisin or possession of the lands shifts away from A. to vest in D., the intended husband, for his life, according to the disposition made by the settlement. After the execution of the settlement, and until the marriage takes place, the interest of all the parties, except the settlor, is future, and contingent also on the event of the marriage. But the life estate of D., the intended husband, is not an interest of the kind called a contingent remainder. Foi', the estate which precedes it, iiamely, that of A., is an estate in fee simple, after which no remainder can be limited. The use to D. for his life springs ^up on the marriage taking place, and puts an end at once and for ever to the estate in fee simple which belonged to A. Here, then, is the destruction of one estate, and the substitution of another. The possession of A. is wrested from him by the use to D., instead of D.'s estate waiting till A.'s possession is over, as it must have done had it been merely a remainder. Another instance of the appli- cation of a shifting use occurs in those cases in which it is wished that any person who shall become entitled under Another instance. (a) Ante, pp. 132, 134, (b) Ante, pp. Ill, 136. OF AN EXECUTORY INTEREST. 223 the settlement should take the name and arms of the settlor. In such a ease, the intention of the settlor is enforced by means of a shifting clause, under which, if the party for the time being entitled should refuse or neglect, within a definite time, to assume the name and bear the arms, the lands will shift away from him, and vest in the person next entitled in remainder. From the above examples, an idea may be formed of the shifts and devices which can now be effected in settlements of land, by means of springing and shifting uses. By means of a use, a future estate may be made to spring up with certainty at a given time. It may be thought, there- fore, that contingent remainders, having until recently been destructible, would never have been made use of in modern conveyancing, 'but that every thing would have been made to assume the shape of an executory interest. This, however, is not the case. For many instances, future estates are necessarily required to wait for the regular expiration of those which precede them ; and, when this is the case, no art or device can prevent such estates from being what they are, contingent remainders. The only thing that could formerly be done, was to take care for their preservation, by means of trustees for that purpose. For, No limitation the law, having been acquainted with remainders long ^"'{jifj.; ' ^ae before uses were introduced into it, will never construe which can be any limitation to be a springing or shifting use, which, by remainder, any fair interpretation, can be regarded as a remainder, whether vested or contingent (a). The establishment of shifting and contingent uses occa- r sioned great difficulties to the early lawyers, in consequence of the supposed necessity that there should, at the time of the happening of the contingency on which the use was to shift, be some person seised to the use then intended to take effect. If a conveyance were made to B. and his heirs to the use of A. and his heirs until a marriage or other (a) Fearne, Cont. Rem.|386— 396. Bam. & Cross. 191, 197 ; 1 Prest. 626 ; Doe d. Harris v. HomM, 10 Abst. 130. 224 OF INCORPOREAL HEREDITAMENTS. event, and afterwards to the use of C. and his heirs, ii was said that the use was executed in A. and his heirs by the statute, and that as this use was co-extensive with the seisin of B., B. could have no actual seisin remaining in him. The event now happens. Who is seised to the use of C. ? In answer to this question it was held that the original seisin reverts back to B., and that on the event . happening he becomes seised to the use of C. And to support this doctrine it was further held that meantime a Scintilla jvrU. T^ossibiViiy oi seinin, or scintilla juris, remained vested in B. But this doctrine, though strenuously maintained in theory, was never attended to in practice. And in modern times the opinion contended for by Lord St. Leonards was generally adopted, that in fact no scintilla whatever remained in B., but that he was, by force of the statute, immediately divested of all estate, and that the uses thence- forward took effect as legal estates according to their limi- tations, by relation to the original seisin momentarily The doctrine vested in B. (a). And a final blow to the doctrine has ished. ^ow bsen given b}'^ an act (6), which provides that where by any instrument any hereditaments have been or shall be limited to uses, all uses thereunder, whether expressed or implied by law, and whether immediate or future, or contingent or executory, or to be declared under any power therein contained, shall take effect when and as they arise, by force of and by relation to the estate and seisin origin- ally vested in the person seised to the uses ; and the con- tinued existence in him or elsewhere of any seisin to uses or scintilla juris shall not be deemed necessary for the support of, or to give effect to futui-e or contingent or ex- ecutory uses ; nor shall any such seisin to uses or scintilla juris be deemed to be suspended, or to remain or to subsist in him or elsewhere. One of the most convenient and useful applications of Powen. springing uses occurs in the case of powers, which are methods of causing a use, with its accompanying estate, to (o) Sugd. Pow. 19, 8th ed. (b) Bev. Stat. c. 95, 5, 2. III OF AN EXECUTORY INTEREST. 225 spring up at the will of any given person (a) : — Thus, lands Example, may be conveyed otherwise than by deed raising the first use in the party conveying, as a bargain or sale or coven- ant to stand seised, to A. and his heirs to such uses as B. shall, by any deed or by his will, appoint, and in default of and until any such appointmet, to the use of C. and his heirs, or to any other uses. These uses will accordingly confer vested estates on C, or the parties having them, subject to be divested or destroyed at any time by B.'s exercising his power of appointment. Here B., though not owner of the property, has yet the power, at any time, at once to dispose of it, by executing a deed ; and if he should please to appoint it to the use of himself and his heirs, he is at perfect liberty so to do ; or, by virtue of his power, he may dispose of it by his will. This power of appointment is evidently a privilege of great value ; and it is acccord- ingly usually provided by Bankruptcy Acts, that the Bankruptcy, trustee for the creditors of any person becoming bankrupt may exercise, for the benefit of his creditors, all powers which might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy or during its continuance. ' But by Rev. Stat. c. 66, s. 36, the power of B. seems to be saleable under execution against him,' (6). If, however, in the case above mentioned, ' the power should not be sold under execution,' and B. should • not become bankrupt, and should die without having made any appointment by deed or will, C.'s estate, having escaped destruction, will no longer be in danger. Suppose, however, that B. should exercise his power, and Exercise of appoint the lands by deed, to the use of D. and his heirs. P^^®""- In this case, the execution by B. of the instrument required by the power, is the event on which the use is to spring up, and to destroy the estate already existing. The mo- ment, therefore, that B. has duly executed his power of appointment over the use, in favour of D. and his heii*s, (a) See Co, VII., 1. 29 Litt. 271 p, n. (1), (6) See cases on this Act, in Allen V. Edinburgh Co. 25 Grant 306. 226 OF INCORPOREAL HEREDITAMENTS. D. has an estate in fee simple in possession vested in him, by virtue of the Statute of Uses, in respect of the use so appointed in his favour ; and the previously existing estate The power is of C. is thenceforth completely at an end. The power of ueef °^*' * disposition exercised by B. extends, it wili be observed, only to the use of the lands ; and the fee simple is vested in the appointee, solely by virtue of the operation of the Statute of Uses, which always instantly annexes the legal estate to the use (a). If, therefore, B. were to make an appointment of the lands^ in pursuance of his power, to D. and his heirs, to the wje of E. and his heirs, D. would still have the use, which is all that B. has to dispose of ; and the use to E. would be a use upon a use, which, as we have seen (6), is not executed, or made into a legal estate, by the Statute of Uses. E., therefore, would obtain no estate at law ; although the Court would, in accordance with the expressed intention, consider him beneficially entitled, and would treat him as the owner of an equitable estate in fee simple, obliging D. to hold his legal estate merely as a trustee for E. and his heirs. The terms of In the exercise of a power it is absolutely necessary must be^com- *'^*^ ^^® terms of the power, and all the formalities required plied with, by it, should be strictly complied with. If the power should require a deed only, a luill will not do ; or, if a ivill only, then it cannot be exercised by a deed (e), or by any other act, to take effect in the life-time of the person exercising the power (fZ). So, if the power is to be exer- cised by a deed attested by two witnesses, then a deed attested by one witness only will be insufficient (e). This strict compliance with the terms of the power was carried Power to be to great length by the Courts of law ; so much so that writing^under where a power was required to be exercised by a writing under hand and seal attested- hy ivitnesses, the exei'cise of hand and seal, attested by witnesses. (a) See ante pp. Ill, 112. (6) Ante p. 114. (c) Majoribanks v. Hovenden, Drury, 11. {d) Sugd. Pow. 210, 8th ed. ; I Chance on Powers, ch. 9, pp. 273 et seq. (e) Sugd. Pow. 207 et seq., 8th. ed. : 1 Chance on Powers, 331. 2 1 I e 1 c n /•• OF AN EXECUTORY INTEREST. HI m 227 the power was held to be invalid if the witnesses did not sign a written attestation of the signature of the deed, as well as of the sealing (a). The decision of this point was rather a surprise upon the profession ' in England,' who had been accustomed to attest deeds by an indorsement, in the words "sealed and delivered by the within-named B. in the presence of," instead of wording the attestation, as in such a case this decision required, 'and as usual in Ontario,' " Signed, sealed, and delivered," &;c. In order, therefore, to render valid ' in England,' the many deeds which by this decision was rendered nugatory, an Act of Parliament, was passed by which the defect thus arising was cured. 'That New enact Act is in terms similar to the R. S. 0. ch. 98, s. 10, which "^J"*' lo! ^ enacts in revision of the prior Provincial Act of 29 Vic, that ' a deed executed in the presence of, and attested by, two or more witnesses in the manner in which deeds are ordinarily executed and afcteste( shall, so far as respects y the execution and attestation thertjf, be a valid execution /^ of a power of appointment by deed or by any instrument in writing not testamentary ; notwithstanding it shall have been expressly required that a deed or instrument in wri- ting, made in exercise of such power should be executed or attested with some additional or other form of execution or attestation, or solemnity. Provided always, that this provision shall not operate to defeat any direction in the instrument creating the power that the consent of any par- ticular person shall be necessary to a valid execution, or 4 that any act shall be performed, in order to give validity to any appointment having no relation to the mode of executing and attesting the instrument; and nothing con- fa) Wright v. Wakeford, 4 Taunt. 213 ; Doe d. Mamfietd v. Peach, 2 Mau. & Selw. 576 ; Wright v. Bar- low, 3 Mau. & Selw. 512. See, how- ever, Vincent v. Bishop of Sodor anil Man, 5 Ex. Rep. 682, 693, in which case the Court of Exchequer inti- mated that they considered the caae of Wright v. Wuke/ord now over- ruled by the case of Bardett v. Doe d. SpiUbury, 10 Clark & Fin. .340 ; 6 Man. & Gran. 389. See, also. Re Ricketts' Trusts, 1 John. & H. 70, 72, affirmed in H. of L. as Newton v. Ricketts, 9 H. of L. Caa. 262. -it 'I 228 OF INCOnPOREAL HEREDITAMENTS, EfHiitaWe re- lief on de- fective exe- Otttioii. Exercise of power by viU. tained in the act is to prevent the donee of a power from executing conformably to the power by writing or other- wise than by an instrument executed and attested as an ordinary deed ; and to any such execution of a power this provision is not to extend. This strict con.struction adopted by the Courts of law, in the case of instruments exercising powers, is in some degree counterbalanced by the practice which prevails in equity, to give relief in certain cases, when a power had been defectively exercised. If the Courts of law have gone to the very limit of strictness, for the benefit of the persons entitled in default of appointment, the Court of Chancery, on the other hand, appears to have overstepped the proper boundaries of its jurisdiction in favour of the appointee (a). For, if the intended appointee be a pur- chaser from the person intending to exercise the power, or a creditor of such person, or his child, or if the appoint- ment be for a charitable purpose, — in any of these cases^ equity will aid the defective execution of the power (h) ; in other words, equity will compel the person in possession of the estate, and who was to hold it until the power was duly exercised, to give it up on an undue execution of such power. It is certainly hard that, for want of a little caution, a purchaser should lose his purchase, or a creditor his security, or that a wife or child should be unprovided for ; but it may well be doubted whether it be truly equi- table, for their sakes, to deprive the person in possession ; for the lands were originally given to him to hold until the happening of an event (the execution of the power), which, if the power be not duly executed, has in fact never taken place. The above remarks equally apply to the exercise of a power by will. Formerly, every execution of a power to to appoint by will was obliged to be effected by a will (a) See 7 Ves. 506 ; Sugd. Pow. 2 Chance on Powers, c. 23, p. 488 et 532 et seq. , 8th ed. aeq. ; Lucena v. Lucena, 5 Beav, {b) Sugd. Pow. 534, 535, Sth ed. ; 249. OF AN EXECrXOKY INTEREST. 229 conformed, in the number of its witnesses and other cir- cumstances of its execution, to the »• Xjuisitions of the power. But the ' R. S. 0. ch. lOG,' with respect to wills, requires that all wills should be executed and attestiid in the same uniform way ; and it accordingly enacts, that no Wills Act. R. appointment made by will in exercise of ^any power shtdl " be valid, unless the same be executed in the manner required by the Act ; and that every will executed in the manner thereby required shall, so far as respects the exe- cution and attestation thereof, be a valid execution of a power ot appointment by will, notwithstanding it shall have been expressly required that a will made in exercise of such power should be executed with some additional or other form of execution or solemnity. These powers of appointment, viewed in regard to the individuals who are to exercise them, are a species of dominion over property, quite distinct from that free right of alienation which has now become inseparably annexed to every estate tail, to which a modified right of alienation, only belongs. As alienation by means of powers of ap- pointment is of a less ancient date than the right of alien- ation annexed to ownership, so it is free from some of the incumbrances by which that right is still clogged. Thus a Appoint- - . , . • /• ninents be- man may exercise a power of appointment m tavour oit^eenhus- himself or of his wife ((t) ; although, as we have seen (6),'"^°'^'**°^ a man cannot directly convey, by virtue of his ownership, either to himself or his wife. And a power of appoint- Married ment either by deed or will may be given to any woman ; ^"eTclse™*^ and, whether given to her when married or single, she may powers. exercise such a power without the consent of any husband to whom she may then or thereafter be married (c) ; and the power may be exercised in favour of her husband, or of any one else (d). The power to dispose of property independently of any P (a) Sugd. Pow. 471, 8th ed. (6) Ante, pp. 137, 162. (c) Dot d. BlomfieUl v. Eyre, 3 C. B. 557 ; 5 C. B. 713. (d) Sugd. Pow. 471, 8tli ed. M ^1 m 230 OF INCORl'OUEAL HEUKUITAMKNTS. A general power of appointment now executed by a general devise. A power may exist concur- rently with ownership. A power may be extin- guished or suspended. ownership, though estahlishod for some three centuries, i» at the present d or app jn- dant to the manor of the lord, who had made t'le grant; whilst the lanti granted out was said to be holden of the manor. Very many grants were thus made, until the pass- ing of the statute of Quia emptores put an end to these creations of tenancies in fee simple, by directing that on every such conveyance the feoffee should hold of the same chief lord as his feoffor held before (h). But such tenan- cies in fee simple as were then already subsisting were left untouched, and they still remain in all rases in which free- hold lands are holden of any manor. The incidents of such a tenancy, so far as respects the tenant, have been .explained in the chapter on the tenure of an estate in fee simple. The correlative rights belonging to the lord form ,. the incidents of his seignory. The seignory, with all its ' incidents, is an appendage to the manor of the lord, and a conveyance of the manor simjdy, without mentioning its appendant seignories, will accordingly comprise the seig- nories, together with all rents incident to them. In ancient Attornment, times it was necessary that the tenants should attorn to the feoffee <^)f the manor, before the rents and services could effectually pass to him. For, in this respect, the owner of a seignory was in the same position as the owner of a reversion (c). But the same statute (d) which abolished attornment in one case, abolished it also in the other. No attornment, therefore, is now required ' Other kinds of appendant incorporeal hereditaments in Rights of England, are rights of comvion, such as common of tivr- common. bai^, or a right of cutting turf in another person's land ; :.^:!' (a) Ante, p. 190. {b) Ante, pp. 45, 84. ((c) Ante, p. 186. (d) Stai 4 & 5 Anne, c. 16, s. 9 ; ante, p. 186. ■ ill 244 OF INCORPOREAL HEREDITAMENTS. Common of poature. OommonB. Appurtenant incorporeal hereuita- menta ariso by grant ov preacriptiou. Bights of way. Appurte- nances. common of piscary, or a right of fishing in another's water ; a.nd eominon of past ure, yf\\'\c\\ i.s the most usual, being a right of depasturing cattle on the land of another. The rights of common now usually met with in England, are of two kinds ; one where the tenants of a manor possess rights of common over the wastes of the manor which be- long to the lord of the manor, subject to such rights (a) ; and the other, where the several owners of strips of land, composing together a coumion field, have at certain seasons a right to put in cattle to range over the whole. The inclosuro of conniions, so fre(iuer)t of late years, has ren- dered nmch less usual than formerly the right of common possessed by tenants of manors over the lord's wastes. Various Acts have been passed in England of late years for the regulation, improvement, or inclosure of commons, which Acts do not concern us. 2. Incorporeal hereditaments ajrpurienant to corporeal hereditaments are not very often met with. They consist of such incorporeal hereditaments us are not naturally and originally appendant to corporeal hereditaments, but have been annexed to them, either by some express deed of grant or by prescrijition from long enjoyment. Rights of way or passage over the property of another person are the principal kind of incorporeal hereditaments usually found appurtenant to lands. When thus annexed, they will pass by a conveyance of the lands to which they have been annexed, without mention of the appurtenances (b) ; although these words, "with the appurtenances," are usually inserted in conveyances, for the purpose of dis- tinctly showing an intention to comprise such incorporeal hereditaments of this nature as may belong to the lands. But if such rights of way, though usually enjoyed with the lands, should not be strictly appurtenant to them, a conveyance of the lands merely, with their appurtenances, without mentioning the rights of common or way, will not (a) Ante, p. 85. (6) Co litt. 121 b. OF HERKDITAMKNTS PURELY INCORPOREAL. iti5 he sufficient to comprise thoin (a). It is, tlierefore, usual in conveyances to insert at the end of tlu? " parcels " or descrif)tion of the property a number of "general words," in which are comprised, not only all rights of way and conmion, &c., which may belong to the premises, but also Huch as may have been therewith used or enjoyed (6). ' If, however a conveyance of a freehold be expressed to be made with reference to the Act as to short forms of con- veyances all appurtenances will pass without special mention : but the Act as to short forms of leases is not equally comprehensive as to rights not legally appurtenant but merely enjoyed with the land' (c). 3. Such incorj)oreal hereditaments as stand separate and alone are generally distinguished from those which are appendant or appurtenant, by the appellation in ijrosa. Of these the fii-st we may mention is a seignory in gr<>m,A seignory in which is a seignorj' that has been severed from the demesne S"""*"- lands of the manor, to which it was anciently appendant. It has now become quite unconnected with anything corporeal, and existing as a separate subject of transfer, it must be conveyed by deed of grant. The next kind of separate incorporeal hereditament is a Pent seek, rent seek, (redditus sIccuh,) a dry or barren rent, so called> because no distress could formerly be made for it. This kind of rent forms a good example of the antipathy of the ancient law to any inroad on the then prevailing .system of tenures. If a landlord granted his seignory, or his rever- sion, the rent service, which was incident to it, passed at the same time. But if he should have attempted to convey M (a) Harding v. Wilson, 2 B. & Ores. 96 ; Barlow v. Shades, 1 Cro. h, M. 439. See also James v. Plant, 4 Adol. & Ellis, 749 ; Hinchliffe v. Earl of Kinnoul, 5 New Cases, 1 ; Pheyaey v. Vicar if, 16 Mee. & Wels. 484 ; Ach'oyd v. Smith, 10 C. B. 164; Worthington v. Gimson, Q. B., 6 Jur., N. S. 1053 ; 2 EUis & Ellis, 618; Baiak v. Fortune, H. L., iO W. R. 2 ; 7 Jur., N. S. 926 ; Wardle V. Brocklehurst, 1 Ellis & Ellis, 1058 ; Watts v. Kelson, L. R., 6 Ch- 166 ; Kayv. Oxky, L. R., 10 Q. B. 360. (b) Ante, p. 139. (c) See 8. 3 of the Act, and Leith's Real Prop. Stats, p. 106, and cases quoted. 246 OF INCORPOREAL HEREDITAMENTS. A rert charge. his rent, independently of the seignory or reversion to which it was incident, the grant would have been effectual to deprive himself of the rent, but not to enable hia giantee to distrain for it. It would have been a rent seek. Rent seek ^Iso occasionally arose from grants being made of rent charges, to be hereafter explained, without any clause of distress. But now, by an Act of Geo. II. (a) a remedy by distress is given for rent seek, in the same manner as for rent reserved upon lease. Another important kind of separate incorporeal here- ditament is a rent charge, which arises on a grant by one person to another, of an annual sum of money, payable out of certain lands in which the grantor may have any estate. The rent charge cannot, of course, continue longer than the estate of the grantor ; but, supposing the grantor i to be seised in fee simple, he may make a grant of a rent charge for any estate he pleases, giving to the granoee a rent charge for a term of year^, or for his life, or in taiL or in fee simple. For thid purpose a deed is absolutely necessary; for a rent charge, being a separate incoi-poi'eal hereditament, cannot according to the general rule, be created or transferred in any other way, unless indeed it be given by will. ' ^ Creation of In settlements where rent charges are given by way of under the^ta-P^"""^*^'^^^ ^^^ jointure, they are usually created under a tute of Uses, provision for the purpose contained in the Statute of Uses. The statute directs that, where any persons shall stand seised of any lands, tenements, or hereditaments, in fee simple or othei'wise, to the utte and intent that some other person or persons shall have yearly to them and their heirs, or to them and their assigns, for term of life or years or some other special time, any annual rent, in every such case the same persons, their heirs and assigns, that have such use to have any such rent shall be adjudged and deemed in possession and seisin of the same rent of such estate as they had in the use of the rent ; and they may (o) Stat. 4 Geo. II. c. 28, «. 6. OF HEREDITAMENTS PURELY INCORPOREAL. 247 distrain for non-payment of the rent in their own names. From this enactment it follows, that if a conveyance of lands be now made to A. and his heirs, — to the use and intent that B. and his assigns may, during his life, thereout receive a rent charge, — B. will be entitled to ' ■ -» rent charge, in the same manner as if a gi-ant of the ' < ' arge had been duly made to him by deed. The a ve « lact- ment, it will be seen, is similar to the prior clause ct the Statute of Uses relating to uses of estates (a), and is merely a carrying out of the same design, which was o render every use, then cognizable only in Chancery, an estate or interest within the jurisdiction of the Courts of law. But in this case also, as well as in the former, the end of the statute has been defeated. For a conveyance of land to A. and his heirs, to the use that B. and his heirs may receive a rent charge, in trust for C. and his heirs, will now be laid hold of under the equitable doctrines of the Court of Chan- cery, for C.'s benefit, in the same manner as a trust of an estate in the land itself The statute vests the legal estate in the rent in B. ; and C. takes nothing in a Court of law, because the trust for him would be a use upon a use (b). But C. has the entire beneficial interest ; for he is possessed of the rent charge for an equitable estate in fee simple. In ancient times it was necessary, on every grant of a clause of rent charge, to give an express power to the grantee to •distress, distrain on the premises out of which the rent charge was to issue. If this power were omitted, the rent was merely a rent seek. Rent service, being an incident of tenure* might be distrained for b}'^ common right ; but rent charges were matters the enforcement of which was left to depend solely on the agreement of the parties. Bu^ since a power of distress has been attached by parliament (c) to rents seek, as well as to rents service, an express power of distress is not necessary for the security of a rent charge (d). Such i! r (a) Ante, p. HI. (6) Ante, p. U4. (c) Stat. 4 Geo. II. c. 28, s. 5. See Johnson v. Faulkner, 2 Q. B. 925, 935 ; Miller v. Green, 8 Bing. 02 ; 2 Cro. & Jerv. 142 ; 2 Tyr. 1. (d) Saward v. Anstey, 2 Bing. 519 ; Buttei'y v. Robinson, 3 Bing. 392 ; Dodda v. Tltompson, L. Rep.» 1 0. P. 133. 1 ( 1 i i 1 1 p -jp '1! i 248 OF INCORPOREAL HEREDITAMENTS. Power of «ntry. a power, however, is usually granted in express terms. In addition to the clause of distress, it is also usual, as a further security, to give to the grantee a power to enter on the premises after default has been made in payment for a certain number of days, and to receive the rent and profits until all the arrears of the rent charge, together with all expenses, have been duly paid. ^ u . ' Estate for Ufe Incorporeal hereditaments are the subjects of estates ^arge? analogous to those which may be holden in corporeal here- ditaments. If, therefore, a rent charge should be granted for the life of the grantee, he will possess an estate for life in the rent charge. Supposing that he should alienate this life-estate to another party, without mentioning in the deed of grant the heirs of such party, the law formerly held that in the event of the decease of the second grantee in the lifetime of the former, the rent charge became extinct for the benefit of the owner of the lands out of which it issued (a). The former grantee was not entitled because he had parted with his estate ; the second grantee was dead, and his heirs weie not entitled because they were not named in the grant. Under similar circumstances, we have seen (6) that, in the case of a grant of corporeal heredita- ments, the first person that might happen to entei- upon the premises after the decease of the second grantee had formerly a right to hold possession during the remainder of the life of the former. But rents and other incorporeal hereditaments are not in their nature the subjects of occu- pancy (c) ; they do not lie exposed to be taken possession of by the first passer-by. It was accordingly thought that the statutes, which provided a remedy in the case of lands and other corporeal hereditaments, were not applicable to the ;, . case of a rent charge, but that it became extinct as before mf ntioned (d). By a modern decision, however, the con- struction of these statutes was extended to this case also (e); It > (.1) Bac. Abr. tit. jmd Occupancy (B). (6) Ante, p. 18. Estate for Life (c) Co. Litt. 41 p, 388 a. (d) 2 Black. Com. 260. (e) Bearpark v. Hutchinson, 7 Bin/?. 178. OF HEREDITAMENTS PURELY INCORPOREAL. 249 iind now the R. S. O. ch. 106, with respect to willp,Tlie Wills permits every person to dispose by will of estates ^swr estates /rwr autre vie, whether there shall or shall not be any special ""'''« '"«• occupant thereof, and whether the same shall be a cor- poreal or an incorporeal hereditament ; * and in case it be not devised, it will descend under the Revised Statute in like manner as a fee simple estate would descend.' A grant of an estate tail in a rent charge scarcely ever occurs in practice. But grants of rent charges for estates Estate in fee in fee .ample are not uncommon, in 'England,* especially ^'™P^®"' * in the towns of Liverpool and Manchester, where it is the usual practice to dispose of an estate in fee simple in lands for building purposes in consideration of a rent charge in fee simple by way of ground rent, tc be granted out of the premises to the original owner. These transactions are accomplished by a conveyance from the vendor to the pur- chaser and his heirs, to the use that the vendor and his heirs may thereout receive the rent charge agreed on, and to the further use that, if it be not paid within so many days, the vendor and his heirs may distrain, and to the further use that, in case of non-payment within so many more days, the vendor and his heirs may enter and hold possession till all arrears and expenses are paid ; and sub- ject to the rent charge, and to the powers and remedies for securing payment thereof, to the use of the purchaser, his heirs and assigns for ever. The purchaser thus acquires an estate in fee simple in the lands, subject to a perpetual rent charge payable to the vendor, his heirs and assigns. It should, however, be carefully borne in mind, that trans- actions of this kind are very different from those grants of fee simple estates which were made in ancient timec by lords of manors, and from which quit or chief rents have arisen. These latter rents are rents incident to tenure, and may be distrained for of common right without any •express clause for the purpose. But as we have seen (a), since the passing of the statute of Quia emptores, it has i I i (a) Ante, pp. 45, 84. 82 260 A release of Eart of the ind. Apportion- ment on descent of part. Release of part not now on extinguish taent. Exoneration of executors OF INCORPOREAL HEREDITAMENTS. not been lawful for any person to create a tenure in fee simple. The modern rents of which we are now speaking are accordingly mere rent charges, and in ancient days would have required express clauses of distress to make them secure. They were formerly considered in law as against conivnon right («), that is, as repugnant to the feudal policy, which encouraged such rents only as were incident to tenure. A rent charge was accordingly regar- ded as a thing entire and undivisible, unlike rent service, which was capable of apportionment. And from this pro- perty of a rent charge, the law, in its hostility to such charges, drew the following conclusion : that if part of the land, out of which a rent charge issued, were released from the charge by the owner of the rent, either by an express deed of release, or virtually by his purchasing part of the land, all the rest of the land should enjoy the same benefit and be released also (h). If, however, any portion of the land charged should descend to the owner of the rent as heir-at-law, the rent would not thereby have been extin- guished, as in the case of a purchase, but would have been apportioned according to the value of the land ; because such portion of the land came to the owner of the rent, not by his own act, but by the course of law (c). But it is now provided {d), that the release from a rent charge of part of the hereditaments charged therewith shall not extinguish the whole rent charge, but shall operate only to bar the right to recover any part of the rent charge out of the hex'editaments released ; without prejudice, neverthe- less, to the rights of all persons interested in the heredi- taments remaining unreleased and not concurring in or confirming the release. The rent charges of which we are speaking are usually further secured by a covenant for payment, entered into (a) Co. Litt. 147 b. (6) Litt. 8. 222 ; Dennett v. Pass, 1 New Cases, 388. (c) litt. 8. 524. (d) Rev. Stat. 95. See remarks on this statute, Black. Com. by Leith & Smith, pp. 70, 71. OF HEREDITAMENTS PURELY INCORPOREAL. 251 by the purchaser in the deed by which they are granted. ffom liability In order to exonerate the executors or administrators ofchargeB. such a purchaser from perpetual liability under this cove- nant, it is now provided (a) that where an executor or administrator, liable as such to the rent or covenants con- tained in any conveyance on chief rent or rent charge, or v agreement for such conveyance, granted to or made with the testator or intestate whose estate is being administered, shall have satisfied all then subsisting liabilities, and shall have set apart a sufficient fund to answer any future claim that may be made in respect of any fixed and ascertained sum agreed to be laid out on the property (although the period for laying out the same may not have arrived), and shall have conveyed the property, or assigned the agree- ment to a purchaser, he may distribute the residuary per- sonal estate of the deceased without appropriating any part thereof to meet any future liability under such con- veyance or agreement. But this is not to prejudice the right of the grantor or those claiming under him to follow the assets of the deceased into the hands of the person.o amongst whom such assets may have been distributed. It is difficult to understand how the act can be applied if the * property be a freehold, and how in such case an ad minis- " » trator can convey, if no power to convey be given by the will. Although rent charges and other self-existing incor- incorporeal poreal hereditaments of the like nature are no favourites 11^®^^!,^^'*^^"^^.^^. with the law, yet, whenever it meets with them, it applies to the same to them, as far as possible, the same rules to which cor- poreal. '^^^ poreal hereditaments are subject. Thus, we have seen that the the estates which may be held in the one are analogous to those which exist in the other. So estates in fee simple, both in the one and in the other, may be aliened by the owner, either in his lifetime or V)y his will, to one person or to several as joint tenants or tenants in common, and, on his intestacy, will descend to the same heir-at-law. « (a) Rev. Stat. 107. a. 33. 252 OF INCORPOREAL HEREDITAMENTS. 4^ption. But in one respect the analogy fails. Land is essentially Tenure an ex- the subject of tenure; it may belong to a lord, but be holden by his tenant, by whom again it may be sub-let to another ; and .so long as rent is rent service, a mere incident arising out of the estate of the payer, and belonging to the estate of the receiver, so long may it accompany, as accessory, its principal, the estate to which it belongs. But the receipt of a rent charge is accessory or incident to no other hereditament. True a rent charge springs from and is therefore in a manner connected with the land on which it is charged ; but the receiver and owner of a rent charge has no shadow of interest beyond the annual payment, and in the abstract right to this payment his estate in the rent consists. Such an estate therefore cannot be subject to any tenure. The owner of an estate in a rent charge conse- quently owe no fealty to any lord, neither can he be subject in respect of his estate, to any rent as rent service ; nor, from the nature of the property, could any distress be made for such rent service if it were reserved (a). So, if the owner of an estate in fee simple in a rent charge .should die intestate, and without leaving any heirs, his estate can- not escheat to his lord, for he has none. It will simply cease to exist, and the lands out of which it was payable will thenceforth be discharged from its payment (h). Another kind of separate incorporeal hereditament which occasionally occurs in England, is a right of common in ^ gross. This is, as the name implies, a right of common ■ over lands belonging to another per.son, possessed by a man /'"'"^-"[.Jr;.'-,,.,. not as appendant or appurtenant to the ownership of any lands of his own, but as an inde]iendent subject of pro- perty (c). Such a right of common has therefore always required a deed for its transfer. Advowsona. Another important kind of separate incorporeal heredi- Common in gross. (o) Co. Litt. 298 a, n. (2). (b) 2 Black. Com. .33, 34. (c) Co. Litt. 47 a, 144 a ; 2 Black. Com. 42. But it said that tho Queen may reserve a rent out of an incor- poreal hereditament, for which, by her prerogative, she may distrain on all the lands of the lessee. Co. Litt. 47 a, note (1) ; Bac. Abr. tit. Bent (B). OF HEREDITAMENTS PURELY INCORPOREAL. 25» tament is an advowson in gross. An advowson is a per- petual right of presentation to an ecclesiastical benefice. The owner of the advowson is termed the patron of the benefice ; but, as such, he has no property or interest in the glebe or tithes, which belong to the incumbent. As patron he simply enjoys a right of nomination from time to time, as the living becomes vacant. And this right he exercises ly a. presentation to the bishop of some duly ' qualified clerk or clergyman, whom the bishop is accord- ingly'^ bound to institute to the benefice, and to cause him to be inducted into it (a). When the advowson belongs - to the bishop, the forms of presentation and institution are supplied by an act called collation (6). In some rare cases of advowsons donative, the patron's deed of donation is alone sufficient («). = , ■ .. Advowsons are principally of two kinds, — advowsons History of of rectories, and advowsons of vicarages. The history of ^'^^"[^"^ °^ advowsons of rectories is in many respects similar to that - of rents and of rights of common. In the very early ages of our history advowsons of rectories appear to have been almost always appendant to some manor. The advowson was part of the manorial property of the lord, who built the church, and endowed it with the glebe and most part of the tithes. The seignories in respect o'- which he received his rents were another part of his manor, and the remainder principally consisted of the demesne and waste lands, over the latter of which we have seen that his tenants enjoyed rights of common as appendant to their estates {d). The incorporeal part of the property, both of the lord and his tenants, was thus strictly attendant or incident to that part which was corporeal ; and any con- veyance of the corporeal part naturally and necessarily car- ried with it that part which was incorporeal, unless it were expressly excepted. But, as society advanced, this simple state of things became subject to many innovations, and If % if (a) 1 Black. Com. 190, 191. (5) 2Black. Com. 22. (c) 2 Black. Com. 23. (d) Ante pp. 85, 242. ^^ '■? •T^ 254 OP INCORPOREAL HEREDITAMENTS. J 1 J in various cases the incorporeal portions of property became severed from the corporeal part, to which they had previously belonged. Thus we have seen (a) that the seignory of lands was occasionally severed from the cor- poreal part of the manor, becoming a seignory in gross. So rent was sometimes granted independently of the lord- ship or reversion to which it had been incident, by which means it at once became an independent incorporeal here- ditament, under the name of a rent seek. Or a rent might have been granted to some other person than the lord, under the name of a rent charge. In the same way a right of common might have been granted ) some other person than a tenant of the manor, by means of which grant a separate incorporeal hereditament would have arisen, as a common in gross, belonging to the grantee. In like man- ner there exist in England at the present day two kinds of advowsons of rectories; an advowson uppendavt to a manor, and an advowson in gross (b), which is a distinct subject of property, unconnected with any thing corporeal. Advowsons in gross appear to have chiefly had their origin from the severance of advowsons appendant from the manors to which they had belonged ; and any advowson now appendant to a manor, may at any time be severed from it, either by a conveyance of the manor, with an express exception of the advowson, or by a grant of the advowson alone independently of the manor. And when once severed from its manor, and made an independent incorporeal hereditament, an advowson can never become Conveyance appendant again. So long as an advowson is appendant flon*° ^ ^^^' to a manor, a conveyance to the manor, even by feoffment, and without mentioning the appurtenances belonging to the manor, will be sufficient to comprise the advowson. But when severed, it must be conveyed, like any other separate incorporeal hereditament, by a deed of grant. There are otl species of incorporeal hereditaments Origin of advowsons in gross. son. ill (a) Ante p. 245. (6) 2 Black. Com. 22 ; Litt. 8. 617. OF HEREDITAMENTS PURELY INCORPOREAL. 255 which are scarcely worth particular notice in a work so elementary as the present, especially considering that some do not exist in Canada, and the short notice that has necessarily here been taken of the more important kinds of such property. Thus, titles of honour, in themselves an Titles of important kind of incorporeal hereditament, are yet, on^"°"* account of their inalienable nature, of but little interest to • the conveyancer. The same remark also applies to offices Offices, or places of business and profit. No outline can embrace every feature. Many subjects, which have here occupied but a single paragraph, are of themselves sufficient to fill a volume. Reference to the different works on the separate subjects here treated of must necessarily be made by those who are desirous of full and particular information. Ii i \ !■ \ I i 1 i i - J i .i . ( 26G ) -j. r-y {■r. An estate in copyhold is not a freehold ; but, in construction of law, merely an estate at the tvill of the lord of the manor, at whose will copyhold est.tes are expressed to be holden. Copyholds are also said to be holden accor'trii ^o the custom of the manor to which they belong, for custom is the life of copyholds. _.4_^_ ^ (a) Ante p. 84. V'''. Ui'.'':'''' OF COPYHOLDS. 257 In forint'i- days a baron oi' gi»at lord, becoming posseis.^ed Origin oi of a tract of 'ind, grant( ' jmvt of it to freemen for estates in fee simple, giving rise to tin; tenure of such estates as we have seen in the chapter on Tenure (a). Part of the land he res««rved to himself, forming the demesnes of the manor, properly so called : other parts of the land he gi-anted out to his villeins or slaves, permitting them, as an act of pure grace and favour to enjoy such landu at his pleasure ; but sometimes enjoining, in return for such favour, the performance of certain agricultural si rvices, such as ploughing the demesne, carting the manure, and other servile works. Such lands as remained, jjjenerally the poorest, were the waste lands of the manor, over which rights of cuinmon were enjoyed by the tenants. Thus arose a manor, of whicli the tenants formed two classes, the freeholders and the villeins. For each of these classes a separate Court was held: for the freeholders, a Court Baron ; for the villeins anoUier, since called a Customary Court, (uatomary In the former Court the suitors were the judges ; in the ^'o"r*- latter the lord only, oi liis steward. In some manoi^s the villeins were allowed life interests; but the gi;.,nts were not extended so as to admit an}- of their Issue m a mode similar to that in which the heii.s of freemen became enti- tled on their ancestors' decease. Hence arose copyholds for lives. In other manors a greater degree of liberality was shown by the lords ; and, on the decease of a tenant, the lord permitted his eldest son, or sometimes all the sons, or sometimes the youngest, and afterwards other relations, to succeed him by way of heirship ; for which privilege, however, the payment of a fine was usually required on the admittance of the heir to the tenancy. Frequently the course of descent of estates of freehold was chosen as the model for such inheritances ; but, in man}'' cases, disposi- tions the most capricious were adopted by the lord, and in ,„_-.,- time became the custom of the mdnor. Thus arose copy- holds of inheritance. Again, if a villein wished to part - (a) Ante p. 86. 33 58 OP COPYHOLDS. Rise to cer- tainty of tenure. with his own parcel of land to some other of Iuh fellows the lord would allow him to surrender or yield up again the land, ani then, on payment of a fine, would indulgently admit as hi.s tenant, on the same tetnis, the other, to whose use the surrender had been made. Thus arose the method, now prevalent, of conveying copyholds by surrender into the hands of the lord to the use of the alienee, and the subsefjuent admittance of the latter. But by long custom and continued indulgence, that which at first was a pure favour gradually grew up into a right. The will of the lord, which had originated the custom, came at last to be controlled by it {a). The rise of the copyholder from a state of uncertainty to certainty of tenure appears to have been very gradual. Britton, who wrote in the reign of Edward L, thus describes this tenure under the name of villeinage : " Villeinage is to hold at his will by villein services to improve for the advantage of the lord." And he adds that, " In manors of ancient demesne there were pure villeins of blood and of tenure, who might be ousted of their tenements at the will of their lord." But in the reign of Edward IV. the judges gave to copyholders a certainty of tenure, by allow- ing to them an action of trespass on ejection by their lords without just cause. " Now," saj's Sir Edward Coke," *' copyholders stand upon a sure ground ; now they weigh not their lord's displeasure ; they shake not at every sudden blast of wind ; they eat, drink, and sleep securely ; only having a special care of the main chance, namely, to perform carefully what duties and services soever their tenure doth exact and custom doth require ; then let lord frown, the copyholder cares not, knowing himself safe." A copyholder has, accordingly, now as good a title as a free- holder ; in some respects a better ; for all the transactions relating to the conveyance of copyholds are entered in the court rolls of the manor, and thus a record is preserved of the title of all the tenants. (a) 2 Black. Com. 93 et seq., 147 ( 259 ) V ^ PART IV. s CHAPTER I. ;i OF A TERM OF YEAllS. At the present day, one of the most important kinds of chattel or personal interests in landed })roperty is a term of years, by which is understood, not the time merely for which a lease is granted, but also the interest acquired by the lessee. Terms of years may practically be considered as of two kinds ; first, those which are created by ordinary Two kinds of leases, which are subject to a yearly rent, which seldom years, exceeds ninety-nine years, and in respect of which in Eng- land so large a number of the occupiers of lands and houses are entitled to their occupation (a) ; and secondly those which are created by settlements, wills, or mortgage deeds, in respect of which no rent is usually reserved, which are frequently for one thousand years or more, which are often vested in trustees, and the object of which is usually to secure the payment of money by the owner of the land. But although terms of years of different ..^^ . lengths are thus created for different purposes, it must not therefore, be supposed that a long term of years is an interest of a different nature from a short one. On the contrary, all terras of years of whatever length possess precisely the same attributes in the eye of the law. The consideration of terms of the former kind, or those A tenancy at •created by ordinary leases, may conveniently be preceded by a short notice of a tenancy at will, and a tenancy by sufferance. A tenancy at will may be created by parol (6), (a) In Ontario building leases are be fixed by arbitration, on the ex- usually for a term of 21 yean* with piration of each term, provisions for renewals of such (6) Stat. 29 Car. II. c. 3, s. 1. terms in perpetuity, at rentals to wiU. .•4L m d 260 OF PERSONAL INTERESTS IN REAL ESTATE. or by deed ; it arises when a ])erson lets land to another,, to hold at the will of the lessor or person letting (a). The lessee, or person taking the lands, is called a tenant at will ; and, as he may he tuiTied out when his landlord pleases, so he may leave when he likes. A tenant at will is not answerable for mere permissive a\ aste (6). He is- allowed, if turned out by his landlord, to reap what he Emblements, has sown, or, as it is legally expressed, to take the emhle- menfs (c). But as this kind of letting is very inconve- nient to both parties, it is scarcely ever adopted ; and, in, construction of law, a lease at an annual rent, made gener- ally without expressly stating it to be at will (d), and without limiting any certain period, is not a leasp at will, but a lease from year to year (e), of which we shall pre- sently speak. When property is vested in trustees., the cestui que trust is, as we have seen (/), absolutely entitled to such property in equity. But as the courts of law did not recognize trusts, they c nsidered the cestui que trust, when in possession, to be merely the tenant at will of his trustees {g) ; and a cestui que trust, whilst in possession, is a tenant at will, although absolutely entitled in equitv. A tenancy by ntffercmce (h) is when a person, who has originally come into possession by a lawful title, holds sue h possession after his title has determined. A lease from year to year is a method of letting very commonly adopted ; in most cases it is much more advan- tageous to both landlord and tenant than a lease at will. The advantage consists in this, that both Isindlord and Cestui que trust tenant at will. Tenancy by Buflferance. Lease from year to year km ifli ' («) Litt. s. 68 ; 2 Black. Com. 145. {b) Harnett v, Maitland, 15 Mee. & Wels. 257. (c) Litt. 8. 68 ; see Graves v. Weld, 5 B. & Adol. 105 ; Black. Com. by Leith <(.• Smitli, pp. 135, 167, aa to emblements. ((0 Doe (1. Ba-jfoio v. Cox, 1 1 Q. B. 112 ; JJoe d. Dixie v. Davicn, 7 Exch. Kep. 89. (fi) Riyht d. Flower v. Darhy, I T. Rep. 159, 163 ; Black. Com. by Leith il- Smitli, p. 168. (/) Ante p. 115. ((j) Earl of PoTufret v. Lord Winihor, 2 Ves. sen. 472, 481. See Milling v. Leak, 16 C. B. 652. (h) As to this tenancy and Ontario Statutes relating to it, see Black. Com. by Jjcith & Smith, pp. 170. et' seq. OF A TERM OF YEARS. 261 tenant are entitled to notice before the tenancy can be determined by the other of them. This notice must be ./ given at least half a year before the expiration ot the I current year of the tenancy (a) ; for the tenancy cannot be determined by one only of the parties, except at the end of any number of whole years from the time it began. So that, if the tenant enter on any quarter day, he can quit onl}' on the same quarter day ; when once in possession, he has the right to remain for a year ; avid if no notice to quit be given for half a year after ho has had possession, he will have a right to remain two whole years from the time he came in ; and so on from year to year. A lease from year to year can be made by parol or word of mouth, if the rent reserved amount to two-thirds at least of the full improved value of the lands ; for if the rent reserved do not amount to so mu. h, the Statute of Frauds declares that such parol lease shall have the force and effect of a lease at will only (6). A lease from year to year, reserving a less amount of rent, must ".'j iuade by deed (c). The best way to create this kind of tenancy is to let the lands to hold " from year to year," simply, for much litigation has arisen from the use of more circuitous methods of say- ing the same thing (d). A lease for a fixed number of years may, by the Statute I^ase for of Frauds, be made by parol, if the term do not exceed i'®*''**" three years from the making thereof, and if the rent reserved amount to two-thirds, at least, of the full im- proved value of the land (e). Leases for a longer term of years, or at a lower rent, were required, by the Statute of Frauds, to be put into writing and signed by the parties making the same, or their agents thereunto lawfully authorized by writing. But a lease of a separate incor- {a) Right d. Flower v. Darby, 1 T. Rep. 159, 16.1 ; aud aee Doe d. Lord Bradford v. Watkhiji, 7 East, 651. (b) 29 Car. II. c. 3, ss. 1, 2. (c) R. S, 98, 8.4. (d) See Bac. Ab. . tit. Leases and Terms for Years, (L. 3) ; Dof d. Clarh V. Smaridtje, 7 Q. B. 9.')7. (e) 29 Car. 11. c. .3, a. 2; Lord Bolton V. Tomliii, 5 A. & E. 856. 26«? To be by- deed. OF PERSONAL INTERESTS IN REAL ESTATE. poreal hereditament was always required to be made by deed (a). And the Act to amend the law of real property now provides that a lease, required by law to be in writing, of any tenements or hereditaments shall be void at law, unless made by deed (h). But such a lease, although void as a lease for want of its being by deed, may be good as an agreement to gi-ant a lease, ut res magis valeat quam pereat (c). It does not require any formal words to make a lease for yeai-s. The words commonly employed are, demise or laase, but any words indicating an intention to give possession of the lands for a determinate time will be sufficient, (d). Accordingly, it sometimes happened, previously to the Act, that what was meant by the parties merely as an agreemeii j to execute a lease, was in law construed as itself an actual lease ; and very many law suits arose out of the question, whether the effect of a memorandum was in law pp actual lease, or merely an agreement to make one. Thus a mere memorandum in writing that A. agreed to let, and B, agreed to take, a house or farm for so many years, at sr.ch a rent, was, if signed by the parties, as much a lease as if the most formal words had been employed. By such a memorandum a term of yeai-s was created in the pre- mises, and was vested in the lessee, immediately on his entry, instead of the lessee acquiring, as at present, merely a right to have a lease granted to him in accordance with the agieement. Thei-e is no limit to the number of years for which a leaoe may be granted ; a lease may be made for 99, 100, (a) R, S. 98. (b) Parker v. Tamoell, V. C. S.. 4 Jur. N. S. 183 ; affirmed 2 Ue Gex & Jones, 559 ; Bu7id y. lioslinij, Q. B., 8 Jur., N. S. 78 ; 1 Best& Smith 371 ; Tidy V. uUolktt, 16 C. B., N. S. 288 ; Rullcuson v. Leon, Exch., 17 Jur., N. S. 608 ; 7 H. & N. 73, over- ruling the case of Stratton v. Fettitt, 16 C. B. 420. (c) Bac. Abr. tit. Leases and Terms for Years (K.) ; Curlbuj v. Mills, 6 Man. & Gran. 173. (d) Poole V. Bentley, 12 East, 1 18 ; Doe d. Walker v. Oroves, 15 East, 244 ; Doe d. Pearson v. Pies, 8 Bing. 178 : S. O. I Moo. &. Scott, 259 ; Warman v. Faithful, 5 Barn. & Adol. 1042 ; Pearce v. Chedyn, 4 Adol. & Ellis, 225. OF A TERM OF YEABS. 263 1,6^, or any other number of years ; the only requisite on this point is, that there be a definite period of time fixed There must be in the lease, at which tl e term granted must end (a) ; and f„r the it is this fixed period of ending which distinguishes a ferin ending. from an estate of freehold. Thus, a lease to A. for his life is a conveyance of an estate of freehold, and must be carried into effect by the proper method for conveying the legal seisin ; but a lease to A. for ninety-nine years, if he shall so long live, gives him only a term of years, on account of the absolute certainty of the interest granted, at a given tivae fixed iu the lease. Besides the fixed time for the term to end, there must also be a time fixed from which the term is to begin ; and this time may, if the parties please, be at a future period (h). Thus, a lease may be made for 100 A Term may years from next Christmas. For, as leases anciently were aXture'tlme contracts between the landlords and their husbandmen, and had nothing to do with the freehold or feudal possession (c), there was no objection to the tenant's right of occupation being deferred to a future time. When the lease is made, the leasee does not become com- Entry, plete tenant by least to the lessor until he has entered on the lands let (c?). Before entry, he has no estate, but only a right to have the lands for the term by force of the lease, called in law an interexi^e terinini. But if the lease should fnteresge ter- be made by a bargain and sale, or any other conveyance '"""• operating by virtue of the Statute of Uses, the lessee will, as we have seen (e), have the whole term vested in him at once, in the same manner as if he had actually entered. The circumstances, that a lease for rears was anciently nothing more than a mere contract, explains a curious point of law relating to the creation of leases for years, which does not hold with respect to the creation of any greater interest in land. If a man should by indenture lease lands, Lease by interest, for a term of years, both <5s'oppeL legal (o) Co. Litt. 45 p. ; 2 Black. Com. 143. (6) 2 Black. Com. 143. (c) See ante, p. 7. (d) Co. Litt. 46 b. (e) Ante, p. 127. i: i ^ mmm mmmwmBBm 264 Exception. Bent and covenants. OF PERSONAL INTEllESTS IN KEAL ESTATE. lessor and lesse will bo esfojtped during the term, or for- bidden to deny the validity of the lease. This might have been expected. But the law goes further, and holds, that if the lessor should at any time during the lease aci[uire the lands he has so let, the lease, which before operated onl^^ by estoppel, .shall now take effect out of the newly- acquired estate of the lessor, and shall become for all pur- poses a regular estate for a term of years ( although he may never enter into actual possession (h)' provided that such covenants relate to the premises let : and a covenant to do any act upon the premises, as to build a wall, is binding on the assignee, if the lessee has covenanted for himself and his ((H.vgnif to do the act (c)- But a covenant to do any act upon premises not comprised in the lease cannot be made to bind the assignee (d)' Covenants which are binding on the assignee are said to Covenants run with the land, the burden of such covenants passing ^jj^ tjjg with the land to every one to whom the term is from time''*°^'- to time assigned. But when the assignee assigns to .another, his liability ceases as to any future breach (e). In the same manner the benefit of covenants relating to the land, enteret^ into by the lessor, will pass to the as- signee ; for, though no contract has been made between the lessor and the assignee individually, yet, as the latter ' has become the tenant of the former, a privity of estate is said to arise between them, by virtue ( " which the covenants entered into, when the lease M'as granted, become mutually binding, and may be enforced by the one against the other (/). This mutual right is also con- firmed by an express clause of the statute before referred to ((/), by which assignees of the reversion were enabled to take advantage of conditions of re-entry contained in leases (ft). By the same statute also, the assignee of the (a) Sugd. Vend. & Pur. .30, 13tli (d) Keppk v. Bailey, 2 My. & «d. Keen. 517. (b) WilUamx v. BoHani/tiet, 1 Brod. {<>) Taijlor v. Shum, 1 Bos. & A Bing. 238 ; .S J. B. Moorfi, 500. Piil. 31 ; RowUy v. Adam.% 4 M. & (c) Spencer's CVmc. 5 Rep. 16 a ; (Jr. 534. Ifeminffvm]/ v. Fernaiidee, 13 Sim. (/) Sugd. \ md. & Pur. 478, note, 228. See Mbishull v. Oate, 2 H. 3rd ed. _ ^ & N. 793, 809. fy)Stat. 32 Hen. VIII. c. 34, a. 2. (A) Ante, p. 185. 34 , 2G6 OF PERSONAL INTERESTS IN REAL ESTATE. Proviso for re-entry. Effect of licence for breach of covenant. reversion is enabled to take advantage of the covenants- entered into by the lessee with the lessor, under whom such assignee claims (a), — an advantage, however, which, in some cases, he is said to have previously possessed (6). The payment of the rent, and the observance and per- formance of the covenants are usually further secured by a proviso or condition for re-entry, which enables the land- lord or his heirs (and the statute above mentioned enables his assigns), on non-payment of the rent, or on non- observance or non-performance of the covenants to re-enter on the pi'emist^s let, and re-possess them as if no lease had be in made. The proviso for re-entry, so far as it relates to the non-payment of rent, has been already adverted to (c). The proviso for re-entry on breach of covenants was, until recently, the subject of a curious doctrine ; that if an express licence were once given by the landlord for the breach of any covenant, or if th« covenant were, not to do a certain act without licence, and licence were once given by the landlord to perform the act, the light of re-entry was gone for ever (d). The ground of this doctrine was, that every condition or re-entry is entire and indivisible; and, as the condition had been waived once, it could not be enforced again. So far as this reason extended to the breach of any covenant, it was certainly intelligible ; but its application to a license to perform an act, which was only prohibited when done without licence, was not very apparent (e). This rule, which was well established, was frequently the occasion of great inconvenience to tenants ; for no landlord could venture to give a licence to do any act, which might be prohibited by the lease unless done with licence, for fear of losing the benefit of the proviso for re-entry, in case of any future breach of covenant. The only method to be adopted in such a case was, to create a (a) 1 Wins. Sauiid. 24C, u. (3) ; Martyn v. WilUavix, 1 H. & N. 817. (6) Vi/vijanv. Arthur, 1 Barn. Sl Cress. 410, 414. (c) Ante p. 184. (d) Dumpor's Case, 4 Rep. 119 ; Brtimmdl v. Macpheraon,, 14 Ves. 173. (e) 4 Jarman's Conveyancing, by Sweet, 377, n. (e). OF A TERM OF YEARS. 26r by fresh ])rovi.so for re-entry on any future breach of the cove- nants, a proceeding which was of course attended with , ,>, expense. The terra would then, for the future, have been determinable on the new events stated in the proviso ; and there was no objection in point of law to such a course ; for a term, unlike an estate of freehold, may be made deter- minable during its continuance, on events which were not contemplated at the time of its creation (a). By statute (?>) R. S. 136, it has been provided, that every such licence shall, unless Keatri'ction otherwise expressed, extend only to the permission actually o" efiFect of given, or to any specific breach of any proviso or covenant made or to be made, or to the actual matter thereby speci- fically authorized io be done, but not so as to prevent any proceeding for an} subsequent breach, unless otherwise specified in such licence. And all rights under covenants and powers of foi'feiture and re-entry contained in the lease are to remain in full force, and are to be available as against any subsequent Itreach or other matter not specifically authorized by the license, in the same manner as if no su<;h licence had been given ; and the condition or right of re-entry is to remain in all respects as if such licence had not been given, except in respect of the particular matter authorized to be done. Provision has also been made that a licence to one of several lessees, or with respect to part only of the property let, shall not destroy the right of re-entry as to the other lessees, or as to the ronuiiiider of the property. It has been further provided (c) that where the Severance of reversion upon a lease is severed, and the i-ent or other ^^g'^jgg' ^ - reservation if legally apportioned, the assignee of each part of the reversion shall, in respect of the apportioned rent or other reservation allotted or belonging to him, have and be entitled to the benefit of all conditions or powers of re-entry for non-payment of the original rent or other reservation, in like manner as if suih conditions or powers had been reserved to \\\\\\ as lueltlent to his part of the reversion in (a) ti I'vw^. t'onv. 199. - (6) Uev. Stat. 136 a. a. 9, 10. Leith Real Prop. Stats., pp. 1-10. (c) Sect. 7. ¥ i 1 i i i 268 OF PERSONAL INTEllESTS IN HEAL ESTATE. Waiver of .'a breach of covenant. respect of the appoitioncd rent or other reservation •The old law, allotted or belonging to him. Before this enactment a grantee of part of the reversion could not take advantage of the condition ; as if a lease had been made of three acres, reserving a rent upon condition, and the reversion of two acres wen; granted, the rent might be apportioned, but the condition was destroyed, " for that it is entire and against common right" (a). The above enactments, howevei', failed to provide for the case of an actual waiver of a breach of covenant. On this point the law stood thus. The receipt of rent by the landlord, after notice of a breach of covenant committed by his tenant prior to the rent becoming due, was an implied waiver of the right of re-entry (h) ; but if the breach was of the continuing kind, this implied waiver did not extend to the breach which continued after the receipt («)• An implied waiver of this kind did not destroy the condition of re-entry (d) ; but an actual waiver had this effect. Few landlords therefore were dis- posed to give an actual waiver. The inconvenience which thus arose is met by a clause (e) which provides that, where any actual waiver of the benefit of any covenant or condition, in any lease on the part of the lessor, or his heirs, executors, administrators, or assigns, shall be proved to have taken place, in any one particular instance, such actual waiver shall not l»e assumed or deemed to extend to an}' instance, or any brea(!}i of covenant or condition, other than that to which such waiver shall specially relate, nor to be a general waiver of the benefit of any such covenant or condition, unless an intention to that effect shall appear. ^ . , A condition of re-entry is, evidently, a very serious instrument of oppression in the hands of the landlord, As to fire insurance (a) Co. Litt. 215 a. See as to coparceners Doe d. I)t Riitzen v. Lewis, 5 A. & E. 277. (b) Co. Litt. 211 b ; Price v. Woricood, 4 H. & N. .512. (c) Doe d. Miiston v. Ol»f execution is actually in the hands of Execution, the sheriff or his officer (h). ' In the case of insolvency, provisions are made for sale insolvency, of the insolvent lessees interest, and also for its suneuder under circumstances at the instance of creditors, subject to payment in the latter case of damages, if any, to the lessor (c).' The tenant for a term of years may, unless restrained by Underlease, express covenant, make an underlease for any [)art of his term ; and any assignment for less than the whole term is in effect an underlease {d). On the other hand, any assur- ance purporting to be an underlease, but which comprises the w^hole terra, is, by the better opinion, in effect an assign- ment (e). It is true that in some cases, where a tenant for • (a) R. S. 107, s. 32. Ante. p. 250 ; {d) See Sugd. Con. Vendors, 482 ; Be Green, 2 DeGex, F. & J. 121. {h As to seizure and .ale and the interests saleable. See Leith on Real Prop. Stats, pp. 303 et seq. (c) 38 Vic. c. 16, ea. ss. 70, 73 ; 40 Vic. c. 41. Cottee V. Rkhardson, 7 Ex. Rep. 143. (e) Palmer v. Edwards, 1 Doug. 187, n ; Parvwiit»r v, Wel/Der, 8 Taunt 583; Prest. Conv. 124 ; Thorn V. Woolkovib, 3 B. & Adol. 586 ; ».f ,%. ,W, <^'^^ % \fAAG\z EVALUATION TEST TARGET (MT.3) &? ^/ A* j3- ^^ I/. o xS> f/>. 1 1.0 1.1 11.25 ■ii|M |U |50 i"^^ MHi •UUu lil 11.6 ■ V] ^ /. '/ /A Sciences Coipomlion 23 WEST MAIN STREET WQSSTER.N.Y. MS80 (716) 873-4503 »^^ 'O \ \\ \ 5\^ ^ V 'i;' v\ " 272 OF PERSONAL INTERESTS IN REAL ESTATE. No disti-ess can be made. years, having less tlian three yeai's of his term to run, ha» verbally agreed with another person to transfer the occu- pation of the premises to him for the rest of the terra, he paying an equivalent rent, this has been regarded as an underlease, and so valid (a), rather than as an attempted assignment which would be void, formerly for want of a writing (h), and now for want of a deed (c). It is, how- ever, held that no distress can be made for the rent thus reserved {d). But if a tenure be created, the lord, if he have estate, must at least have a seignory (e), to which the rent would by law be incident ; and being thus rent ser- vice, it must by the common law be enforceable by dis- tress (/). The very fact, therefore, that no distress can be made for the rent by the common law, shows that there can be no tenure between the parties. And, if so, the attempted disposition cannot operate as an underlease (g). If, how- ever, the disposition be by deed, and be execut-ed by the alienee, it has been decided that the reservation of rent may operate to create a rent-charge (h), for which the owner may sue (i), and which he may assign, so as to entitle the assignee to sue in his own name (j). And if this be so, there seems no good reason why, under these circum- stances, the statutory power of distress given to the owner of a rent seek (k), should not apply to the rent thus created {I). But on this point also opinions differ (m). ' In Lanijford v Mines, 3 K. & J. 220, 227 . Beaumont v. Marquis of Salis- bury, 19 Beav. 198, 210 ; Boardman V. Wilson, L, R., 40. P. 57. (a) PouUney v. Holmes 1 Strange, 405 ; Preece v. Co.Tie, 5 Bing. 27 ; Pollock V. Staaj. 9 Q. B. 2933. (b) Ante, p. 260. (c) Ante, p. 270. (d) Bac, Abr. tit. Distress (A) ; V. Cooper, 2 Wilson 375 ; Preece v. Corrie, 5 Bing. 24 ; Pascoe V. Pascoe, 3 Bing. N. C. 898. (e) Ante, p. 245. { f) Litt. 8. 213. (fli) Barrett v. Rolph, 14 M. & W. 348, 352. {h) Ante, p. 245. (»■) Baker v. Oostliny 1 Bing. N.C. 19. (j) Williams v, Haytoord, Q. B. 5 Jur., N. S. 1417 ; 1 Ellis & Ellis, 1040. (k) Stat. 4 Geo. II. c. 28, s. 3 ; ante, p. 246. {I) Pascoe V, Pascoe, 3 Biug. N. C. 905. (m) See v. Cooper, 2 Wils. 375 ; Langford v. Sehties, 3 K. & J. 220 ; Smith v. Watts, 4 Drew. 338 ; Wills V. Cattling, Q. B. 7 W. R. 448; Burton's Compendium, pi. 1111. OF A TERM OF YEARS. 273 one case in Ontario, a lessor had assigned by deed future rent to him to become payable, and gave express power to distrain ; no estate in the land was assigned ; it was con- sidered that the deed operated as a grant by the assignor of a rent-charge, with express power of distress, or, if a rent seek (to wLich by, 4 Geo. II., such power is incident), that in either point of view, the assignee might distrain in his own name (a). ' Every underlessee becomes tenant to the lessee who No privity grants the underlease, and not tenant to the original lessor, igggo^ ^nd the Between him and the underlessee, no privity is said to exist, underlessee. Thus tlie original lessor cannot maintain any action against an underlessee for any breach of the covenants contained in the original lease (6). His remedy is only against the lessee, or any assignee from him of the whole term. The derivative term, which is vested in the underlessee, is not an estate in the interest originally granted to the lessee : it is a new and distinct term, for a different, because a less, period of time. It certainly arises and takes effect out of the origin" land in as such only by the Court of Chancery, in its office of administering equity. In equity, a mortgage debt is a sum of money, the payment whereof is secured, with interest, on certain lands ; and being money, it is personal projierty, subject to all the incidents which appertain to such pro- perty. The Courts of law, on the other hand, did not regard a mortgr^ge in the light of a mere security for the repayment of money with interest. A mortgage in law was an absolute conveyance, subject to an agreement for a reconveyance, 'or to become void on' a certain given event. Thus, let us suppose freehold lands to be conveyed by A., a person seized in fee, to B. and his heirs, subject to a pro- viso, that on repayment on a given future day, by A. to B., , equity. 278 OF PERSONAL INTERESTS IN REAL ESTATE. of a sum of monej then lent b> B. to A,, with interest until repayment, B. or his heirs will reconvey the lands ta A. and his heirs, ' or that the mortgage become void ;' and with a further proviso, that until default shall be made in payment of the money, A. and his heirs may hold the land without any interruption from B. or his heirs. Here we have at once a common mortgage of freehold land. A., who conveys the land, is called the mortgagor ; B , who lends the money, and to whom the land is conveyed, is called the mortgagee. The conveyance of the land from A. to B. gives to B., as is evident, an estate in fee simple at law. He thenceforth becomes, at law, the absolute owner of the premises, .-tubject to the agreement under which A. has a right of enjoyment, until the day named for the payment of the money (a) ; on which day, if the money be duly paid, B. has either agreed to reconvey the estate to A., ' or that the mortgage be void.' If, when the day comes, A. should repay the money with interest, B. of course must reconvey the lands, ' or if so agreed by the mortgage, it will be void ;' but if the money should not be repaid punctually on the day fixed, there is evidently nothing on the face of the arrangement to prevent B. from keeping the lands to himself and his heirs for ever. But upon this arrangement, a very different construction was placed by the Courts of law and by the Courts of equity, a construc- tion which well illustrates the difference between the two ; Oonstruction the Courts of law, adhering, according to their ancient in il^™^'^^*^* custom, to the strict literal meaning of the terms, holding that if A. did not pay or tender the money punctually on the day named he should lose the land for ever. Tenant in tail ' It may here be mentioned that a tenant in tail can • fee aimple. convey by way oi mortgage a tee simple, and bar his own issue and all ulterior estates under and subject to the pro- visions of R. S. 0. 100, (6). From the date of the mortgage in (a) See as to this, Doe d. JRoylance V. Lightfoot, 8 Mee. & W. 553 ; Doe d. Parsley v. Day, 2 Q. B. 147 ; Rogers v. Orazebrook, 8 Q. B. 895. (b) Re Lawlor, 7 Prac, Rep. 242, •;-\ I OF A MORTOAOE DEBT. 279 deed, the legal estate in fee simple belongs, not to the mort- The legal gagor, but to the mortgagee. The mortgagor, consequently is thenceforward unable to create any legal estate or inter- est in the premises ; he cannot even make a valid lease for The mort- a term of years (a), — a point of law too frequently n^g-f^^e!*^ lected by those whose necessities have obliged them to mortgage their estates. Formerly, when the day named ^Vl»en the day for payment had passed, the mortgagee, if not paid his had passed, money, miijht at any time have brought an action of eject- *^''?^'*F*8*gee •" o ,/ o J might have ment against the mortgagor without any notice, and thus ejected the have turned him out of possession (b) ; so that if the ^'"thout no- debtor had now no greater mercy shown to him than the tice. Courts of law allbwed, the smallest want of punctuality in his payment would cause him for ever to lose the estate he had pledged. In modern times, a provision has been made for re-conveyance and staying the proceedings in any action of ejectment brought by the mortgagee, on payment by the person having right to redeem, being the defendant in the action (c), of all principal, interest, and costs (d), 'in case no sait be pending to foreclose or redeem, and the right to redeem, or the sum due be not disputed. But at the time of this enactment, the jurisdiction of equity over mortgages had become fully established ; and the act may consequently be regarded as ancillary only to that full relief, which, as we shall see, the Court of Chancery was accustomed to afford to the mortgaofor in all such cases. to"©'- The Ontario Judicature Act, 1881,' now provides (e), that a New enact- mortgagor entitled for the time being to the possession or""'" ' receipt of the rents and profits of any land, as to which no ^l«rtgagor , ^ , , ' J > niay m some notice of his intention to take possession, or to enter into cases sue in the receipt of the rents and profits thereof shall have been >8ow"'i»™6- (a) Sec Doe d. Barney v. Adams, 2 Cro. & Jer. 235 ; WhUton v. Pea- cock, 2 Bing. N. C. 411 ; Green v. James, 6 Mee. & Wels. 656 : Doe d. Lord Downe t. Thompson, 9 Q. B. 1037 ; Cuthhertson v. Irving, 4 H. & N.724; 6H. & N. 135; Saundera V, Merryweatlier, 3 H. & Colt, 902, (h) Keech v. Hall, Doug. 21 ; Doe d. Roby V. Ma'wey, 8 Bar. & Cres. Da d. Finher v. Giles, 5 Bing. 421 ; Coote on Mortgages, book 3, c. 3. (c) Doe d. Hurst v. Clifton, 4 Adol. & Ell. 814. (d) R. S. 51, ss. 71, 72. (e) Sec. 17, sub. a. 5. 280 OF PF-RSONAL INTERESTS IN REAL ESTATE. Interposition of the Court of Chancery. Equity of redemption. given by the mortgagee, may sue for .such po,s.ses.sion, ov for the recovery of such rents or profits, or to prevent or to recover damages in res[)ect of any trespass cr other wrong relative thereto, in his own name only, unless the cause of action arises upon a lease or other contract made by him jointly with any other person, 'and in that case he may sue or distrain jointly with such other perscm.' The relative rights of mortgagor and mortgageo appear to have long remained on the footing of the strict construc- tion of their bargain, adopted by the Courts of law. It was not till the reign of James I. that the Court of Chancery took upon itself to interfere between the parties. But at length, having determired to interpose, it went so far as boldly to lay down as one of its rules, that no agreement of the parties, for the exclusion of its interference, should have any effect (a). This rule, no less benevolent than bold, is a striking instance of that determination to enforce fair dealing between man and man, which raised the Court of Chancery, notwithstanding the many defects in its system of administration, to the power and dignity which it enjoyed. The Court of Chancery accordingly held, that after the day fixed for the payment of the money had passed, the mortgagor had still a right to redeem his estate, on payment to the mortgagee of all principal, interest, and costs due upon the mortgage to the time of actual pay- ment. This right still remains, and is called the mort- gagor's eqwity of redemption ; and no agreement with the creditor, expressed in any terms, however stringent, can deprive the debtor of his equitable right, on payment within a reasonable time. If, therefore, after the daj'^ fixed in the deed for payment, the mortgagee should enter into posses- sion of the property mortgaged, the Court of Chancery will nevertheless compel him to keep a strict account of the rents and profits ; and, when ho has received so ' much, or but for his wilful neglect or default, might have received so' much as will suffice to repay him the principal money (a) 2 Cha. Ca. T48 ; 7 Ves. 273, OF A MORTGAOE DEBT. 281 lent, together with intc^rest and costs, he will V)e compelled to re-convey the estate to his former debtor. In ecjuity the mort^gee is properly considered as having no right to the estate, further than is necessary to secure to liimself the due repayment of the money he has advanced, together with the interest for the loan : the equity of redemption, which belongs to the mortgagor, rendei-s the interest of the mortgagee merely of a personal natun^, namely, a security for so much money. At law, the mortgagee is absolutely entitled ; and the estate mortgaged may be devised by his will, or, if he should die intestate, will descend to his heir- at-law ; l)ut in ecjuity he has a security only for the pay- ment of money, the right to which will, in common with his other ]iersonal estate, devolve on his executors or ad- ministrators, for whom his devisee or heir will be a trustee ; and, when they are paid, such devisee or heir will be obliged by the Court, without receiving a sixpence for himself, to re-convey the estate to the mortgagor. And, as we shall presently see, the executors or administrators of the mortgagee are now empowered to re-convey on pay- ment of all sums secured by the mortgage. • Indulgent, however, as the Court has shown itself to the debtor, it will not allow him for ever to deprive the mort- gagee, his creditor, of the money which is his due ; and if the mortgagor will not repay him within a reasonable time, equity will allow the mortgagee for ever to retain the estate to which he is already entitled at law. For this purpose it will be necessary for the mortgagee to bring an action of foreclosure against the mortgagor, claiming that Foreclosure, an account may be taken of the principal and interest due to him, and that the inortgagor may be directed to pay the same, with costs, by a day to be appointed by the Court, and that in default thereof, he may be foreclosed his equity of redemption. A day is then fixed by the Court for payment ; which day, however, may, on bhe application of the mortgagor, good reason being shown, be postponed for a time. Or, if the mortgagor should be 36 I. 282 OF PEUSONAL INTEllESTS IN REAL ESTATE. Sale ready to make re-payment, he may do so on making pro- per application to the ('uurt, admitting the title of the mortgagee to the money and interest. If, hu)wever, on the day ultimately fixed l)y tlie Court, the money should not be furthcoming, the debtor will then be absolutely deprived of all right to any further assistance frr»m the Court ; in other words, hi8 equity of redemption will be foreclosed, and the mortgagee will be allowed to keep, without further hindrance, the estate which was conveyed to him when the moitgage was first made. The Court, in any suit for foreclosure, can direct a sale of tlie property at the re(|uest of either paity instead of a foreclosure. In addition to the remedy by foreclosure, which, it will be perceived, involves the necessity of an acticm, a more simple and less expensive remedy is now usually provided Po^jrof sale. in mortgage transactions; this is nothing more than a power given by the mortgage deed to the mortgagee, with- out further authorit}', to sell the premises, in case default should be made in payment. When such a power is exer- cised, the mortgagee, having the whole estate in fee simple at law, is of course able to convey the same estate to the purchaser ; and, as this remedy would be ineffectual, if the concurrence of the mortgagor were necessrrv it has been decided that his concurrence cannot be required by the purchaser. The mortgagee, therefore, is at any time able to sell ; but, having sold, he has no further right to the money produced by the sale than he had to the lands be- fore they were sold. He is at liberty to retain to himself his principal, interest, and costs ; and, having done this, the surplus, if any, must be paid over to the mortgagor. And, by a recent act (a), a power of .sale, and a power to insure against fire, have been rendered incident to every mort- gage or charge by deed affecting any hereditaments of any tenure. These powers, however, do not arise until after the expiration of six nonths from the time when the prin- cipal money shall have become payable according to the New enact meut. Statutory powers of sale, &c. (a) 42 Vic. cb. 20. OF A Ml>RTOA(JE DKHT. 28$ terms of the dood, or after any interest on such principal money sliall have been in arrear for six months, or after any omission to pay any premium on any insurance, whieh by the terms of the deed ought to be paid by the person entitletl to the prv^perty subject to the ciiarge. And no sale is to be made until after three months notice in wri- ting. But none of these powers are to be exercisable, if it be declared in the mortgage deed that they shall nf)t take effect; and where there is no such declaration, then if 'any power to sell or insure, be inserted in the mortgage, the statutory power is not to apply. A purchaser's title will not necessarily be defeated lor want of notice of sale, or improper exercise of the power, or because no ease has arisen to warrant exercise of the power ; the vendor, how- ever, is to be responsible for loss or damage thereon.' If, after the day fixed for the payment of the money is passed, the mortgagor should wish to pay off the mortgage, he must give to the mortgagee six calendar months' pre- vious notice in writing, of his intention so tu do, and must then punctually pay or tender the mjuey at the expiration of the notice (a) ; for if the money should not be then ready to be paid, the mortgagee will be entitled to fresh notice ; as it is only reasonable that ha should have time afforded him to look out for a fresh security for his money. * It has been enacted (6) that where any person entitled to any freehold land by way of mortgage has died, and his executor or administrator becomes entitled to the mort- gage moneys, or assented to a bequest thereof, or has assigned the mortgage debt, such executor or administra- tor, if the moneys were paid to the testator or intestate in his life-time, or on payment of the moneys due on the mort- gage, or on payment of the consideration money for the as- signment may convey, assign, release, or discharge the mort- gage debt and the legal estate in the land ; and shall have the same power as to any portion of the lands on payment of some part of ths deb' , or on any arrangement foi exon- a Mortgagor must give six moiitha'notice of intention to repay. Powers of executor or administrator iis to mort- gages. lill m m (a) Shrapnell v. Blake, 2 Eq. Ca. Abr. 603, p. 34. (b) R. S. 107, 88. 15, 16. w 1 1 it* 1 284 Mortgage of leaseEoPls. OF PERSONAL INTERESTS IN REAL ESTATE. crating the estate, or any part of the lands without pay- ment of money : and such conveyance, assignment, release, or discharge, shall be as effectual as if made by the person having the legal estate. And a certificate of payment or discharge by a mortgagee, or his assignee, his heirs, execu- tors, administrators, or assigns, or any one of them, when- ever given, is to be valid for all purposes, if conforming to the Registry Act. It is apprehended that an executor or administrator must exercise due caution on releasing part of the laud under the above enactment ; and that if on any such release for quite insufficient consideration a loss should ^ ipen, which, but for such release would not have bap- ^ oed, then not only would such executor or administrator be personally responsible, but, if the facts were within the knowledge of the releasee, the i v^lease might be set aside as a breach of trust to which the releasee was a party, subject to the rights of innocent parties claiming, under the release.' Leasehold estates also frequently form the subjects of mortgage. The term of years of which the estate consists is assigned by the mortgagor to the mortgagee, subject to a proviso for redemption or re-assignment on payment, on a given day, by the mortgagor to the mortgagee, of the sum of money advanced with interest ; and with a further proviso for the quiet enjoyment of the premises by the mortgagor until default shall be made in payment. The principles of equity as to redemption apply equally to such a mortgage, as to a moi'tgage of freeholds ; but, as the security, being a term, is always wearing out, payment will not be permitted to be so long deferred. A power of sale also is frequently inserted in a mortgage of leaseholds, and the statutory powers given by the Act already referred to extend also to leaseholds. From what has been said in the last chapter (a), it will appear that, as Ihe mortgagee is an assignee of the term, he will be liable to the landlorti, du of lea is Hal (a) Ante, p. 265. OF A MORTGAGE DEBT. 28& during the continuance of the mortgage, for the payment of the rent and the performance of the covenants C/i tlie lease ; against this lia.bility the covenant of the mortgagor is his only security. In order, therefore, to obviate this liability, when the rent or covenants are onerous, moit- gages of leaseholds are frequently made by way of demise or underlease: the mortgagee by this means becomes the Mortgage by tenant only of the mortgagor, ' at a mere nominal rent,' "^^^erleaae. and consequently a mere stranger with regard to the landlord. The security of the mortgagee in this case is obviously not the whole term of the mortgagor, but only the new and derivative term created by the mortgage ' It is however dangerous to take a mortgage by way of underlease, as the mortgagor might do or omit some act by which the original lease might be forfeited (; o^'"^' redemption which belongs to the mortgagor is regarded by an equitable the Court as an estate, which is alienable by the mortgagor, ******** and descendible to his heir, in the same manner as any as any other estate in equitj'- (h) ; the Court in truth regards the mortgagor as the owner of the same estate as before, subject only to the mortgage, ^n the event of the decease of the mortgagor, the land mortgaged will con- sequently devolve on the devisee under his will, or, if he should have died intestate, on his heir. And the mortgage debt, to which the lands are subject, was formerly payable in the first place, like all other debts, out of the'personal estate of the mortgagor ' for the benefit of the heir or . devisee.' As in equity the lands are only a security to the mortgagee, in case the mortgagor should not pay him, so also in equity the lands still devolved as the real estate of i ■ i- W {a) R. S. 99, s. 7, and see post application, as to the necessity of seeing to {b) See ante, p. 115, et seq. 288 OF PERSONAL INTERESTS IN REAL ESTATE. payal tho mort- gaged lands, the mortgagor, subject only to be resorted to for payment of the debt, in the event of his personal estate being in- The mortgaffe sufRcent for the purpose. But now (a) it is provided, that paya^leou"of ^^®" any person has died since the ' 31st of December, 1865,' or hereafter dies seised of or entitled to any estate or interest in any real estate which at the time of his death is charged with the payment of any sum of money by way of mortgage, and such person shall not, by his will or deed or other document, have signified any contrary or other intention, the heir or devisee, to whom such real estate descends or is devised, shall not be entitled to have the mortgage debt discharged or satisfied out of the personal estate or any other real estate of such person ; but the estate so charged shall, as between the different persons claiming through or under the deceased person, be prim- arily liable to the payment of all mortgage debts with which the same is charged ; every part thereof, according to its value, bearing a proportionate part of the mortgage debts charged on the whole thereof ; provided that nothing therein contained shall affect or diminish any right of the mortgagee to obtain full payment of his mortgage debt either out of the personal estate of the person so dying as aforesaid or otherwise ; provided also, that nothing therein contained shall affect the rights of any person claiming under any deed, will or document made before the ' 1st of January, 1874,' and in the construction of * any such will, deed, or document,' a general direction that the debts, or that all the debts of the testator, should be paid out of his personal estate, should not be deemed to be a declaration of an intention contrary to or other than the rule established by the Act, unless such contrary or other intention should be further declared by words expressly or by necessary implication referring to all or some of the testator's debts or debt charged by way of mortgage on any part of his real estate (6). It was further provided (c), that the word (a) R. S. 106, 8. 36. (ft) S. 37. (c) S. 9, cl. 6. OF A MORTGAGE DEBT. 289 " mortgage" should be deemed to extend to any lien for unpaid purchase-money ' and any charge, incumbrance, or obligation of any nature on any lands or tenements of a testator or intestate.' The equity of redemption belonging to the mortgagor Mortgage of may again be mortgaged by him, either to the former ^^^Xq^*^®* mortgagee by way of further charge, or to any person. In order to prevent frauds by clandestine mortgages, it is pro- vided by an Act of William and Mary (a), that a person twice mortgaging the same lands, without discovering the former mortgage to the second mortgagee, shall lose his equity of redemption. Unfortunately, however, in such cases the equity of redemption, after payment of both mortgages, is generally worth nothing. And if the mort- gagor should again mortgage the lands to a third person, the act will not deprive such third mortgagee of his right to redeem the two former mortgages {h). When lands are mortgaged, as occasionally happens, to several persons, each ignorant of the security granted to the other, the general rule ' apart from the provisions of the Registry Act,' is, that the several mortgages rank as charges on the lands in the order of time in which they were made, according to the maxim qui prior est tern/pore, potior est jure (c). But as the first mortgagee alone obtains the legal estate, he has this advantage over the others, that 'l he takes a further charge on a subsequent advanc" to the mortgagor, without notice of any intermediate second mortgage, he will be preferred to an intervening second mortgagee {d). And if a third mortgagee, who has made his advance without notice of a second mortgage, can procure a transfer to himself of the first mortgage, he may tack, as it is said, his third mort- Tacking, gage to the first, and so postpone the intermediate incum- (a) Stat. 4 & 5 WiU. & Mary, c. 16, 8. 3 ; see Kennard v. Futvoye, 2 Gif. 81. (b) Stat. 4 & 6 Will. & Mary, o. 16, 8. 4. 37 (c) Jonea v. Jones, 8 Sim. 633 ; Wiltshire v. Rabbits, 14 Sim. 76 Wilviot V. Pike, 5 Hare, 14. (d) Ooddard v. Complin, 1 Cha Ca. 119. 290 OF PERSONAL INTERESTS IN REAL ESTATE. Mortgage for future debts. Future ad- vances. Eflfect of two mortgages by the same per- son. Consolidation of securities. brancer (a). For, in a contest between innocent parties, each having equal right to the assistance of the Court, the one who happens to have the legal estate is preferred to the others ; the maxim being, that when the equities are equal, the law shall prevail. The doctrine thus established is however, very seriously broken in * upon by section 81 of thf Registry Act which provides that tacking shall not be allowed to prevail against the provisions of the Act.' A mortgage may be made for securing the payment of money which may thereafter become due from the mort- gagor to the mortgagee. Where a mortgage extends to future advances, it has been decided, that the mortgagee cannot safely make such advances, if he have notice of an intervening second mortgage {h). There is one case in which the rules of equity singularly favour the mortgages. If one person should mortgage lands to another for a sum of money, and subsequently mortgage other lands to the same person for another sum of money, the mortgagee is placed by the rules of equity in the same favourable position as if the whole of the lands had been mortgaged to him for the sura total of the money advanced. The mortg-igor cannot redeem either mortgage without also redeeming the other; and the mortgagee may enforce the payment of the whole of the principal and interest due to him on both mortfjages out of the lands comprised in either. This rule, known as the doctrine of consolidation of securities, has been extended ' in England ' to the case of mortgages of different lands made to different persons by the same mortgagor becoming vested by assign- ment in the same mortgagee, even when the equities of redemption of the different lands have become vested in different persons (c). It follows, thereiore, that no person (a) Brace v. Duchess of Marl- borough, 2 P. Wms. 491 ; Bates v. Johnson, Johnson, 304. (6) Bolt V. Hopkinson, L. C, 4 Jur., N. S. 1119; 8. C. 3 De Gex & Jones, 177, affirmed in the H. of L., 9 W. R. 900 ; S". C. 9 H. of L. Cas. 514 ; overruling Gordon v. Graham, 7 Vin. Ab. 52, pi. 3. <^ee also Menzies v. Lightfoo*, M. R., Law Rep., 11 Eq. 459. (c) Vint V. Padget, 2 De Gex & Jones, 611. See Baker v. Gray, L. R., I Ch. Div. 491. OF A MORTGAGE DEBT. 291 can there safely lend money on a second mortgage. For, there is this danger, that if the mortgagor should have mortgaged some other estate to some other person for more than its value, the holder of the deficient security may take a transfer of the first mortgage, and, consolidating his own security with it, exclude the second mortgagee. The purchaser of an equity of redemption is exposed to similar risks. Hence, it follows, that, ' in England ' in the words of an eminent judge, " it is a very dangerous thir.g at any time to buy equities of redemption or to deal with them at all " (a). ' Much of the law above mentioned is varied in Ontario Effect of the by the Registry Act, R. S. Ill, ss. 77, 81, by which registry J^T*S^tu* of any instrument is notice of it to all claiming any interest dation. in the land subsequent to such registry, and equitable liens, charges, or interests are not to be deemed valid izi any Court as against a registered instrument executed by the same party his heirs or assigns. Thus in one case (h), the plaintiffs were second mortgagees of A. on which defend- ants had a first registered mortgage, as also a mortgage on B,, both from the same mortgagor, and they sought to consolidate their mortgages as against the plaintifi: It was considered that the riorht to consolidate was an equitable one within section 81, and could not be allowed. It would seem also that section 77 may be material on the point of notice, as for instance, in case of lot 1 being mortgaged, first to A. and then to B., afterwards a mort- gage of lot 2 to C, and after registry of the mortgage to B. there is an assignment to C. of the mortgage to A : here it would seem that C. cannot consolidate as against B, for he had notice by force of section 77 of the second mortgage to B (c).' (a) Beevor v. Luck, V.-C. W,, L. it does not clearly appear that any B. , 4 Eq. 537, 549. mortgage was registered. (6) Brower v. Canadian Aasocia- (c) Baker v. Gray, and Brower v. tion, 24 Grant 509. Itia singular that Canadian Aanociation, supra. i'*>^»i ( 292 ) PART V. OF TITLE. It i8 evident that the acquisition of property is of little benefit, unless accompanied with a prospect of retaining it without interruption. In ancient time conveyances were principally made from a superior to an inferior, as from the great baron to his retainer, or from a father to his daughter on her maiTi^ge. The grantee became the tenant of the grantor ; and if any consideration were given for the grant, it more frequently assumed the form of an annual rent, than the immediate payment of a large sum of money (a). Under these circumstances, it may readily be supposed,' that, if the grantor were ready to warrant the grantee quiet possession, the title of the former ta make the grant would not be very strictly investigated ; and this appears to have been the practice in ancient times ; every charter or deed of feoffment usually ending with a Warranty, clause of warranty, by which the feoffor agreed that he and his heirs would warrant, acquit, and for ever defend the feoffee and his heirs against all persons. Even if this warianty were not expressly inserted, still it would seem that the word give, used in a feoffment, had the effect of Warranty im- ^n implied warranty ; but the force of such implied plied by word -wrarranty was confined to the feoffor only, exclusive of his give. heirs, whenever a feoffment was made of lands to be holden of the chief lord of the fee (6). ' It would seem that even now the word give implies a warranty of title on a gift in (a) Ante p. 27. (6) 4 Edw. I. Btat 3, o. 6 ; 2 Inst. 275 ; Co. Litt. 384 a. n. (1). OP TITLE. 293 tail or lease for life' rendering rent (a).' Under an express Express war- warranty, the feoffoi', and also his heirs, were bound, not ■only to give up all claim to the lands themselves, but also to give to the feoffee or his heirs other lands of the same value, in case of the eviction of the feoffee or his heirs by arv person having a prior title (b). The clause of warranty having long been disused inWarran^ modern conveyancing, its chief force and effect have now"„^ "**' ^°' been removed by clauses of two modern statutes (c). In addition to an express warranty, there were formerly Words which some words used in conveyancing, which in themselves JJ^P^^q" |j°^g^ implied a covenant for quiet enjoyment; and one of these enjoyment words, namely, the word demise, still re'^ains this power. Demise. Thus, if one man demises and lets land to another for so many years, this word demise operates as an absolute cove- nant for the quiet enjoyment of the land by the lessee {d). But if the lease should contain an express covenant by the lessor for quiet enjoyment, limited to his own acts only, such express covenant, showing clearly what is intended will nullify the implied covenant, which the word demise would otherwise contain. So, as we have seen (e) the word give, ' may, in some cases, imply a personal warranty, Give. and the word grant was supposed to have implied a war- Grant. lanty, unless followed by an express covenant, imposing on the grantor a less liability (/). An exchange also, until Exchange. recently implied a mutual right of re-entry, on the eviction of either of the parties from the lands exchanged (f/). It Partition. would seem that a partition between co-partners still im- plies such right.* But an Act (h) now provides, that the (a) Davidson Concise prec. p. 26. See also Bellenden Ker's able let- ter to Lord Chancellor, Leith's Real Prop. Stats, p. 24 of the appendix. (6) Co. Litt. 365 a. See further as to the old law the text of Mr. Williams. (c) R. S. 51, s. 75 ; R. S. 100, s. 2. Leith's Blackstone, Ist ed. , pp. 326, 327. (d) Spencer's case, [5 Rep. 17 a ; Bac. Ab. tit. Covenant (B) ; Mostyn V. The WeM Mostyn Coal and Iron Co., Limited, L. R. 1 C. P. D. 145. See, further, Blackstone by Leith Sc Smith, pp. 359, 367. (e) Ante p. 292. (fj See Co. Litt. 384 a, n, (1). (g) Bustard's Case, 4 Rep. 121 a. (h) R. S. 98, s. 6. 294 OF TITLE. word exchavge, or tho word grant, in a deed shall not ' create any warranty or right of re-entry, or covenant by implication,' except so far as the word grant may by force of any Act of Parliament imply a covenant. Covenants for The absence of a warranty is principally supplied in ®' modern times by a strict investigation of the title of the person who is to convey ; although, in most cases, cove- nants for title, as they are termed, are also given to the purchaser. By these covenants, the heirs of the vendor are always expressly bound ; but, like all other similar contracts, they are binding on the heir or devisee of the covenantor to the extent only of the pi'operty which may descend to the one, or be devised to the other (a). Unlike the simple clause of warranty in ancient days, modem covenants for title are five in number, and few convey- ancing forms can exceed them in the luxuriant growth to which their verbiage has attained. The first covenant is, that the vendor is seized in fee simple ; the next, that he has good right to convey the lands ; the third, that they shall be quietly enjoyed ; the fourth, that they are free from incumbrances ; and the last, that the vendor and his heirs will make any further assurance for the conveyance of the premises which may reasonably be required. At the present day, however, the first covenant is usually omitted, the second being evidently quite sufiicient with- out it ; and the length of the remaining covenants has of late years much diminished. These covenants for title vary in comprehensiveness, according to the circumstances of the case. ' Those in most general use, are to be found in the Act as to short forms of conveyances.' They are treated of in the appendix to this work ; it will there be seen that any variance from the forms, is dangerous, especially in omission of the words " notwithstanding any act of the covenantor;" and that it may be doubtful Oovenants for whether the Act applies to conveyances of leaseholds.' A title by a vendor never gives absolute covenants for the title to the vendor ° (a) Ante, pp. 65, 56. OF TITLE. 205 lands he sells, but always limits his responsihility to the acts of those who have been in possession since the last sale of the estate ; so that if the land should have been purchased by his father, and so have descended to the ven- dor, or have been left to him by his father's will, the covenants wih extend only to the acts of his father and himself (a) ; but if the vendor should himself have pur- chased the lands, he will covenant only as to his own acts, and the purchaser must ascertain by an examination of the previous title, that the vendor purchased what he may properly re-sell. A. mortgagor, on the other hand, always Covenants for 'gives absolute covenants for title ; for those who lend m„rtKagor. money are accustomed to require every possible security for its repayment ; and, notwithstanding these absolute covenants, the title is investigated on evcxy mortgage, with equal strictness as on a purchase. When a sale is made by Covenants by 4- fill BT^ AS trustees, who have no beneficial intere. t in the property themselves, they merely severally covenant that they b^ve respectively done no act to encumber ^he premises. If the money is to be paid over to A. or B., or any person in fixed amounts, the persons who take the money are expected to covenant for the title (b) ; but, if the money belongs to infants or other persons who cannot covenant, or is to be applied in payment of debts or for any similar purpose, the purchaser must rely for the security of the title solely on the accuracy of his own investigation (c). ', ;_.^:^:^■j In strictness the period for which th6 title should be Sixty^eara' investigated, is the last sixty years (d) ; and every vendor requiredT*^' ^ of freehold property is bound, at his own expense, to fur- nish the intended purchaser with an abstract of all the deeds, wills, and other instruments which have been exe- cuted, with respect to the lands in question, during that period ; and also to give him an opportunity of examining such abstract with the original deeds, and with the pro- bates or pffice copies of the wills ; for, in every agreement (a J Sngd. Vend. & Par. 463, 13th ed. ed. (c) Ibid. 463. (b) Sugd. Vend. 4; Pur. 464; 13th (dj Cooper v. Emery, I PhilL 388. 296 OF TITLE. to sell wa-s impHerl hy law nn agreoment to mako a f,'ood LeMehoMa. title to the property to be sold (a). And even on a pur- chase of leasehold property, the purchaser is strictly entitled to a sixty years' title (h) ; that is, su])posing the lease to have been granted within the last sixty years, so much of the title of the lessor was required to be produced as, with the title to the term since its commencement, would make up the full period of sixty years. If the lease be more than sixty years old, the lease is required to be produced or its absence accounted for, and evidence given of the whole of its contents (c). But intermediate assignments upwards of sixty years old are not required to be produced. Certain The Vendor and Purchaser Act {d), however, now provides tween vendor ^'hat in the completion of any contract of eale of land and buyer and made after the ' 10th day of February, 1876,' and subject to in suits dis- . , . , .1 .1 pensed with, any stipulation to the contrary in the contract, recitals, Memorials, statements, and descriptions of facts, matters, and parties recitals, &c., contained in deeds, instruments, Acts of Parliament, or as evidence. statutory declarations twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of the truth of such facts, matters, and descriptions. The last provision adopts, as a general rule, a stipulation which had been usually inserted in conditions of sale, and in the absence of which the purchaser had a right to require evi- dence of the truth of the matters recited. 'The Act further provides that registered memorials of, discharged mortgages shall be sufficient evidence of the mortgages themselves without production of the mort- gages, except so far as the memorials may be proved to be inaccurate ; and the vendor shall not be bound to produce the mortgages unless in his possession or power. Also, that in case of registered memorials 20 years old, of other instruments, if the memorials purport to be executed by (cj Frend v. Buckley, Ex. Ch. L. R. 5 Q. B. 213. (d) R. S. 109. (a) Sugd. Vend. & Pur. 281, 13th ed. (b) Pwrvis V. Bayer, 9 Price, 488; Sottter V. Drake, 5 B. & Add. 992. OF TITLE. 297 the grantor, or in other cases, if pcsscssioii lias been con- sistent with the registered title, the memorials shall bo sufficient evidence without production of the instruments to which they relate (a), except so far they may be proved to be inaccurate; they are also presumed to contain all the ma- terial contents of the instruments to which they relate ; and the vendor is not bound to produce such instruments unless in his possession or power. And when a registered deed or conveyance acknowledges payment of the consideration money, it shall be sufficient evidence of payment except so far as proved to be inaccurate. In all suits it is unneces- sary to produce any evidence which is dispensed with as above between vendor and purchase, and such evidence is prima facie, sufficient in all suits. Finally, a vendor or or purchaser may apply to the Court of Chancery, or a Judge thereof, in a summary way in respect of any requi- sitions or objections, claim for compensation, or other question arising out of or connected with the contract (not being a question affecting the existence or validity of the contract), and the Judge may make such order thereon as to him may seem just.' It is not easy to say how the precise term of sixty years Reason for came to be fixed on as the time for which an abstract of ygj^^^fig^ the title should be required. It is true, that by a statute the reign of Henry VIII. the time within which a writ of right (a proceeding now abolished) might be brought for the recovery of lands was limited to sixty years ; but still in the case of remainders after estates for life or in tail, this statute did not prevent the recovery of lands long after the period of sixty years had elapsed from the time of a conveyance by the tenant for life or in tail ; for it is evident, that the right of a remainderman, after an estate for life or in tail, to the possession of the lands does not accrue until the determination of the particular estate (6). (a) As to evidence by memorialB, searches, &c., irrespective of the Act, see an Essay ou the subject by Mr. Leith in bis Real Property Stat- 38 utes, pp. 427, 448, and cases there quoted, and Be Higgins, 19 Gr. 30.3. (b) Ante, p. 189. See Sugd.Vend. & Pur. 609, 11th ed. 298 Dui'ation of human life. Concurrence of parties in terested. Application of purchase- money. OF TITLE. A remainder after an estate tail may, however, be barred by the proper means ; but a remainder after a mere life- estate cannot. The ordinary duration of human life was therefore, if not the origin of the rule requiring a sixty years' title, at least a good reason for its continuance. For so long as the law permits of vested remainders after estates for life, and forbid"^, the tenant for life, by any act, to destroy such remaindei-s, so long must it be necessary to carry the title back to such a point as will afford a reasonable presumption that the first person mentioned as having conveyed the property was not a tenant for life merely, but a tenant in fee sample (a). , The recent short- ening of the period ' in England ' from sixty to forty years appears justifiable only from the fact that in practice pur- chasers are generally found willing to accept a fortj'^ years' titled iu like manner as, in the purchase of leasehold estates, a condition to dispense with the title to the free- hold was usually submitted to. The abstract of the title will, of course, disclose the names of all parties, who, besides the vendor, may be in- terested in the lands ; and the concurrence of these parties must be obtained by him, in order that an unincumbered estate in fee simple may be conveyed to the purchaser. Thus, if the lands be in mortgage, the mortgagee must be paid off out of the purchase-moncj', and must join to relinquish his security and convey ' the legal estate or release under the Registry Act.' If the wife of the vendor would, on his decease, be entitled to dower out of the lands she must release her right. And when lands were sold by trustees, and the money was directed to be paid over by them to certain named persons, ' or the trusts declared of the money, were of so specific and simple a nature that a purchaser might, without much inconvenience, see that the trusts were carried out ; it was oefore the R. S. 0. s. 99, before referred to (6), obligatory ' on the purchaser to see (a) See Brodie's opinion, 1 Hayes & Pur. 306. 13th ed. Conveyancing, 564 ; Sugd. Vend. (b) Ante, p. 287. OF TITLE. S9» that euch persons were actually paid the money to which they were entitled, unless it \:ere expressly provided by the instrument creating the trust, that the receipt of the trustees alone should be an effectual discharge (a). The duty thus imposed being often exceedingly inconvenient, and tending greatly to prejudice a sale, a declaration, that ed. ; Cooper v. Emery, 10 Sim. 609. (d) R. S. 109. ie) Sugd. Vend. & Pur. 377, 13th ed. 308 OF TITLE. Search in English registries. out delivery of the title-deeds, the only deeds that can accompany the lands sold are the actual conveyance of tho land to the purchaser, and the deed of covenant to pro- duce the former title-deeds. On a future sale, therefore, these deeds will be delivered to the new purchaser ; and the covenant, running with the land, will enable him at any time to obtain production of the former deeds to which the covenant relates. When the lands sold are situated in either of the coun- ties of Middlesex or York 'in England,' search is made in the registries established for those counties : this search is there usually confined to the period which has elapsed from the last purchase-deed, — the search presumed to have been made on behalf of the former purchaser being usually relied on as guarantee against defects in title piior to that time, ' In Ontario a complete search is made, or a com- plete registrar's abstract obtained. Searches of various- kinds are requisite, among others, for any lis pendens, before considered ; for wills, and general conveyances, plans, by laws, drainage charges, liens for special municipal improvements, taxes, mechanics liens, executions, improve- ments by present or former occupants under mistake of title and lien therefor, and proceedings in insolvency. Much as to which enquiry must be made has been before considered. The author does not treat at any length of the subject, as it has been fully dealt with by one quali- fied to do so (a).' Some mention should here be made of ' The Quieting Titles Act, of the general purport of which most persons of intelligence are aware. Resort to it may be found of great service where land is to be sold in lots, and the title is such as that it would be expensive and troublesome to comply with requisitions of many purchasers ; moreover a certificate ol title under the Act encourages purchasers, especially at auction. Sometiijies also important evidence may be likely to disappear ; in other cases there may be (a) Taylor on Investigation of Titles. OF TITLE. current, thougli groundless, rumors of the insufficiency of the title. It behoves applicants, however, carefully to investigate their nieans of proving a good title before applying to the Court, since if the title be rejected it* may seriously affect the value and future sale of the land. A title may be perfectly good, and the owner in possession in no way liable to disturbance, and yet the title not be capable of proof of its sufficiency : such a title is what is termed a (/oud holding title ; and in such case no applica- tion should be made to the Court, but the title left to Vipen into peifection by aid of the Statute of Limitations, when the Act can be resorted to if deemed advisable. During the peiiod that the author was Referee of Titles under the Act, he had occasion to observe that sufficient attention was not paid to that which is above stated.' The views of Mr. Williams on the subject of a .system of registration of assurances will be found in a paper read by him before the Juridical Society, on the 24th of March, 1862, instituled " On the true Remedies for the Evils which afi'ect the Transfer of Land " (a), and to which the reader is referred. Such is a brief and exceedingly imperfect outline of the methods adopted in this country for rendering secure the enjoyment of real property when sold or mortgaged. It may pe haps serve to prepare the student for the course of study which still lies before him in this direction. The valuable treatise of Lord St. Leonards on the law of ven- dors and purchasers of estates will be found to afford nearly all the practical information necessary on that branch of the law. The title to purely personal property depends on other principles, for an explanation of which the reader is referred to the treatise on the principles of the law of per- sonal property. From what has already been said, the reader will perceive that the Law of England has two different systems of rules .for regulating the enjoyment (a) Published in a separate form, by H. Sweet, 3, Chaucery Laue. 80» 310 OF TITLE. and transfer of property ; that the laws of real estate, though venerable for their antiquity, are in the same degi-ee ill adapted to the recjuirements of modern society ; •whilst the laws of personal property, being o*" more recent OJ-igin, are proportionably suited to moderii times. Over them both has arisen the jurisdiction of the Court of Chancery, by moans of which the ancient strictness and simplicity of our real property laws have been in a meas- ure rendered subservient to the arrangements and modifica- tions of ownership, which the various necessities of society have required. Added to this have been continual enact-' ments, espeoially of late years, by which many of the most glaring evils have been remedied, but by which, at the same time, the symmetry of the laws of real property has been greatly impaired. (311 ) APPENDIX. Tlitt Revised Act fts to Short Forms of Conveyances may, Non-applica- perhdpa, be held not to apply to conveyances nf less than a tioi o leoso- ii-eehold interest. Its general frame and pur|)ort seems in-^°^'^"' applicable to an assignment of a loaHchold interest. Thus, the operative clause of gvar.t io to heirs and assigns for ever ; the covenants are with and in favour of heirs ; the covenant for quiet enjoyment is for enjoyment undisturbed by heirs of the grantors ; throughout it is real and not personal representatives that are spoken of, and a release of dower is inserted. By the inter- pretation clause the word " lands " is made to extend as the general rule to freehold lands ; and though section 3 contemplates a possibility of conveyances of less than a fee, that may be in view of conveyances of a life-estates. If the Act should be held inapplicable to leasehold interests, then the forms will, under section 2, be left to construction by their own indei>endent operation. The view of the author, before the decision in Lee v. Lorch, 37 U. C. Li. 262, was, that as the short forms given in the Act fail to give the full effect of the corresponding lengthy forms, they were to be regarded as symbolized, and that any variance from the exact language of a short form would prevent the a[)plication of the lengthy form and take the case out of the Act. The Act says, that certain given words shall have the effect of certain other given words, which latter have in general a more extended effect than the former. The author considered that it would be safer that it should be held, that the exact words of the Act should be complied with, than that the Court or council in dealing with a covenant should be left in uncertainty as to how far a variance from the forms might or might not be permissible, and conse- quently what might be its scope and effect. Thus, for instance, the short form In proviso 9, under the Act as to Short Leases relates only to nonvei-formance of covenants, whilst the lengthy form extends to breach also : this extension is all important, because the latter would probably include negative covenants, which the former certainly will not, as, for instance, breach of covenant not to assign without leave j Lee v. Lorsch supra ; West V. Dohhy L. R 5, Q. B. Ex. Chamb. The door seems to have I i' 312 Effect of omitting words "Not- withstanding Acts, &c." APPENDIX. opened sufficiently in Lee v. Lorsch to let in further questions &i to how far the words of the short forms may be varied without non-application of the lengthy form, until at last by degrees and many variances and decisions it may be found that strict adherence to the forms would cause less uncertainty and litigation as to whether the construction of the covenant is to be on the s'lort or lengthy form. Another point lesri doubtful than the application of tho Act to an assignment of a leasehold deserves consideration, namely, the re«tult of the not uncommon case of striking out the words "notwithstanding anj ''.ct of the covenantor," in the covenant for right to convey under the impression that thereby alone will the following covenants 3 and 4, for quiet possession free from incumbrances be rendered as the prior covenant unqualified and genei'al. As to this it is to be observed that section 3 of schedule 2 authorizes the introduction bf exceptions and qtudifi- cationa oj the covenants. Thus the superadding to the covenant 2 for rights to convey the words " except a certain mortgage dated &c.," would clearly be within the authority : Brown v. O'Dwi/er, 35, Q. B. U. C. 365 ; but in the case of striking out the words " notwithstanding, &c.," with a view to render the covenant unqualified, it is not an introduction of an exception oi* qualification ; it is rather an omission which is intended to enlarge the scope of the covenant, and deprived it of its exceptional and qualified characters and renders it unqualified, or according, to the common expresaion, " full and unlii.iited." If the forms of covenants in the Act did not, as in eflfect they do, except the acts of all othera than the covenantors, and were not coni'iied only, as they are, to his acts '^' *'*"* °^ ^' ^■'" *^''' "**•" '^^ '^"y person whatever." No ^ -"t the effect of omitting the woi-ds " notwithstanding, &c,," in, -'^P.nant 2 for right to convey would be by force of section 2 to- le^tve that covenant unlimited ; but the Act by section 4, as above 'Stated, assumes, and the law appears to be, that the mere omissions of those words in covenant 2 will not affect covenant 3,. as to quiet possession so as to render it unqualified : Brown v. O'Dwyer, supra, per Richards, C. J. Browning v, Wright, 2 B. ;and P. 18 ; Tremha/rd v. Hoakin, Winch. 91. Another view of the omission, though probably erroneous, is, that the- omission takes all three covenants out of the Act as an no warranted alteration, and so leaves them to be construed undec section 2. apart from the corresponding lengthy forms. i ■ i I INDEX. 315 INDEX. Abandonment of easement, evidence, 305. Abeyance, inheritance in, 201. Abstract of title, vendor bound to furnish an, 295. Accumulation, restriction on, 241, Acknowledgment of deeds by married woman, 164, 166, 166. Actions, real and personal, 5. Administrator.— See Executor. of bare trustee, 118. of mortgagee, 283. power to dispose of realty, 157, 168. Advowson, conveyance of, 254. in gross, 253, 254. of rectories, 223. Aoreements, what required to be in writing, 118 for lease, 262. Aids, 85, 87. Alien, 46, 47. Alienation of real estate, 15, 30, 31, 44, 47, 48, 62, 67, 188. power of, unconnected with ownership, 229. of executory interest, 2.38. Ancestor, descent to, 64 formerly excluded from descent, 64. ANTicrPATioN, clause against, 160. Appendant incorporeal hereditaments, 302. common appendant, 303. Appucation of purchase-m-pey, necessity of seeing to the, 298. Appointment, powers of. .^5, 226, 230, 232.— See Powers. on a bargain and sale, 132, 133. Apportionment of rent, 22, 23. of rent charge, 250. Appurtenances, 244. passing by deed under Act as to short forms, 246. Appurtenant incorporeal 'hereditaments, 244, 245, 303, 304. rights of common and of way, 244, 303, 304. * Arbis, directions for use of, 223. Assets, 53. equitable, 53. Assignee of lease liable to rent and covenants, 264, 265. Assignment of lease, 269. of chattel interest must be by deed, 269. Assigns, 46, 101. Attainder.— See Treason. 316 INDEX. Attestation to deeds, 226, 227. to wiUs, 14"., 145, 146, 228. to deeds exercising powers, 227, 228. Attested copies, 307. Attornment, 186, 243. now abolished, 186, 243. Auction, sale of land by, 119. Autre droit, estates in, 175. Autre vie, estate pur, 17, 18. in a rent-charge, 248, 249. Bankruptcy, 56, 271. of cestui que trust, 121. of tenant in fee simple, 54, of trustee, 121. search for, 308. exercise of powers in, 225. as to leaseholds in, 271. Bare trustee, 93, 118, 164. Bargain and sale, 157, 129, 131. , required to be enrolled, 129. for a year, 129, 131. objections to 132. operation of as to uses declared, 132, 133,134,13^., operation of as a grant, &o., 136. no powers of appointment on, 132, 133. Base, fee, 39. Bastardy, 89. Benefice with cure of souls, 58. Breach of covenant, waiver of, 268. actual waiver of, 268. implied waiver, 268. Caital shares, personal property, 6. Cestui que trust, 163, 173, 287, 114, 120, 122, 219. is tenant at will^ 260. que vie, 17, 18. Chambers, 12. Chancery, ancient, 109, 116, 116. modern, 115, 116. interposition of, between mortgagor and mortgagee, 280l- Charities, Incorporated, 50. Charity, conveyance to, 60. CHA1TEI.S, 5, 6. Codicil, 147. Collation, 263. Common, rights of, 244, 262, 264, 303. appendant, 303. Common, extinguishment of rights, 305. in ^ross, 252, 302. limitation of rights of, 303. tenants in, 92. Companies, joint stock, 50. INDEX. 317 -Compensation for improvements, 308. Concealed fraud, limitation in cases of, 301. Condition of re-entry for non-payment of rent, 183. demand of rent formerly required, 184. modem proceedings, 184. formerly inalienable, 185. for breach of covenants, 266, 267. eflfect of waiver, 268. Conditional gift, 30. Consent of protector, 38. Consideration on feoffment, 102, 110, 112, a deed imports a, 103. Consolidation of securities, 290, 291. Construction of wills, 150, 151, 152. of words, 12, 12. CoNTiNOBNT remainders, 198, 201. anciently illegal, 199. definition of, 202. example of. 102, 203, 204, 206, 237h rules for creation of, 204, 205, 208 vesting of, 295, 207. Remainders Act, 215. assignment of, 211, 2.38. destruction of, 213, 281, now indestructible, 213, 215. trustees to preserve, 216, 217. of trust estates, 218. difference between executory devises and. 237. Continuing breach of covenant, 268. Contract cannot bar estate tail, 40. where time not of essence, 119. •Convey ance Act as to short forms of, remarks on. — See Appendix. fraudulent. 51, of advowson, 254. voluntary, 51. by deed, 103, 104, 105, 138, 178, 182. by married women, 164, to uses, and see Estate, 136, 137. common law and under Statute of Uses, distinction between 132. 138, Coparceners, 63. Copyholds, 256. Corporation, conveyance to, 61. Corporeal hereditaments, 1, 9, 11, 10, 13. now lie in grant, 179, Counter-claims, 123. Covenant to stand seised, 142, Covenants in a lease, 264, run with the land, 265. effect of license for breach of, 266, 267. ■waiver of breach of, 268. for quiet enjoyment, implied by certain words. 293. ior title, 294, 295. tuider Act as to short forms, 294 and Appendix. 318 INDEX. Is COVKBTURE, 159. Creditors, conveyances to defraud, 51, judgment, 55, 120.— See Judgment Debts. may witness a will, 146. Crown debts, 55, 120.— See Debts. forfeiture to the, 41, 42, note a, 89, 118. Curtesy, tenant by, 162, 163, 166, note e, 167. Customs, 256. Cy pr6s, doctrine of, 210. Daughters, descent to, 63. Death, gift by will in case of, without issue, 152. Debts, crown, 55, 120. '^'l56 *i57*®®* •""* executors may sell or mortgage to pay^ devise in fee or in tail charged with. 157 judgment, 57, 120. liability of lands to, 55, 56. 4 of leaseholds to, 405. simple contract, 54. charge of, by will, 54, 157. creditors who now stand in equal degi-ee, 55 hability of trust estates to, 119, Deed of grant.— See Grant. alteration, rasure or addition in, 104. whether signing necessary to, 106. poll, 105. required to transfer incorporeal hereditaments. 178 on grant of rent-charge, 246. of grant, conveyance of reversion by, 182. Deeds.— See Title Deeds. Demand for rent, 184. Demesne, the lord's, 85, 257. Demise, implies a covenant for quiet enjoyment, 23a Descent, 8. of an estate in fee simple, 62-67. present law of, 68-82. of an estate tail, 42. gradual progress of the law of, 60. of an equitable estate, 118. of incorporeal hereditaments, 251. Devise.— See Will. Disabilities, tune allowed for, 300, 304. Disclaimer, 59, 154. Distress, 183. clause of, 247. for rent reserved by underlease, 247.. immunity from, 183. Dominant tenement, 303. Dower, 168. action for, 174. cutting timber 19, note e. waste, 184. devise in lieu of, 174. INDEX. B19 DovrsB— (Continued.) bar by time run, 174, 175. bar by jointure or agreenent, 171. partnership property, 171. nuabaud's contract to sell, 172. topurchue, 173. exchange of lands by husband, 172. mortgage, wife joining in, 173. improvements, 177. bar by deed, 175, 176. lunacy, 176. wild land. 177. conveyances to uses to bar, 169, 170. Easements, limitationfi of right to, 30A Ejectment of mortj^agor by mortgagee, 179. Elegit, writ of, 55. Emblements, 22, 260. Enrolment. — See Registry. Entail.— See Tail. Entireties, husband and wife take by, 162. Entry, necessary to a lease, 125, 263. tenant's position altered by, 126. right of, supported a contingent remainder, 214. power of, to secure a rent-charge, 248, Equitable assets, 53. estate, 115-118, 12.3, 218,248. no escheat of, 1 17. forfeiture of, 118. creation and transfer of, 118. descent of, 118. liable to debts, 119. tail in lands to be purchased, 117. curtesy of, 162. relief, 122. waste, 19, 20, 21, note c Equity, follows the law, 116. of redemption, 280. is an equitable estate, 287. mortgage of, 289. Erasure, 104. Escheat, 89, 90, note h. none of trust estates, 117. none of rent-charge, 252. Escrow, 104. EscuAOE, 87. Estate during widowhood, 19. legal, placing of in conveyances, 128, 132, 1.33, 134, 137. pur autre vie, 17, 19, 248, 249. m autre droit, 275. leases and sales of settled, 22. taU, 24, 25, 30, 32, 64, 100, 116, 149, 161, 164, 249.-See Tail. for life, 100, 116, 151, 128. in fee simple, 100, 249. 820 INDEX. EsTATB — {Continued. ) ancient incidents of tenure, 84, 85. no escheat of trust, 117. forfeiture of trust, 118. of life, 102. creation and trarister of trust, 118. must be marked out, 100. of wife, 159, 161, 164, 165, particular, 180. one person may have more than one, 191. words of limitation, 192. in remainder, 193, 194. where the first estate is an estate tail, 195. equitable, 115-118, 123, 218, 248. -See Equitable Estate. E8T0PPEI-, lease by, 263. Evidence by memorials, recitals, &c., 296, 297, note a. Exchange, implied effect of the word, 293 power of, 232, 233. Execution of a deed, 104, 226, 228. Executors, directions to, to sell land, 234, 235. devise of real estate independent of assent of, 156 where they may sell, mortgage, or convey, 157 exoneration of, from liability to pay rent-charges, 360. exoneration of, from rents and covenants in leases. 271 of mortgagee may convey legal estate, 283. Executory dev-ises. See Executorv Interest. devise, difference between contingent remainder and. 237 validity of a limitation as an, 2.38. Executory interest, 199, 209, 220, 236, 239. creation of, under Statute of Uses, 220 by will, 234. alienation of, 238. limit to creation of, 239. where preceded by estate tail, 240. Express trust, limitation in cases of, 300, 301. Father, descent to, 65. Fealty, 86, 87, 89. Fee, meaning of term, 30. simple, 44, 46, 100, 101. alienation by tenant in fee.— See Alienation joint tenants in 92. equitable estate in, 117. gift of, by will, 154. estate of, in rent-charge, 240. Feme Covert.— See Married Woman ; Wife, Feoffment, 98, 110, 182. to the use of feoffer, 110. forfeiture by, 102. deed required for, 106. by tenant for life, 102. writing formerly unnecessary to a, 103. FlUDAt aj'stem, introduction of, 2. abolition of, 8. feuds originally for life, 15, 191. tenancies become hereditaryj 26, 191. INDEX. 321 Fieri Facias, 66. Fine, 49. attornment could be compelled on conveyance by, 186. Fire, relief against forfeiture for non-insurance, 269. protection of purchasers of leaseholds as to insurance, 269. power to insure against, in mortgages, 269, 282, 283. Foreclosure, 282. court may direct sale of property instead of, 282. Forfeiture by feoffment, 102. for treason, 41, 42 note o, 89, 90, 118. abolition of, 41, 42 note o, 89, 90, 118. Formedon, 31. Fraud, concealed, limitation of action in cases of, 301. Frauds, Statute of, 106, 118, 119. 120, 144, 146, 183, 261, 269. Freehold, J9. ■General occupant, 18. residuary devisee, 148. Gestation, period of, included in time allowed by rule of perpetuity, Gift, conditional, 26. in tail, 26, 154. in fee, 26, 15-1 to use of feofet 02. with livery of seisin, 98, 109. to husband and wife and a third person, 161. their heirs, 161. XjIVE, word used in a feoffment, 98. warranty implied by, 293. Goods, 6. •Grant, deed of, 134, 181, 182. construed most strongly against j^rantor, 16. incorporeal hereditaments lay in, 178. implied effect of word, 135, 293. operations of as another mode of conveyance, 134. legal estate, position of on a grant, 132, 134, 136, 137, 138, 191, 192. Habendum, 140, 141. Half-blood, descent to, 66. Heir, anciently took entirely from grantor, 15. at first meant only issue, 25. alienation as against, 26. is appointed by the law, 46, 59. bound by specialty, 53. at law, 39. " expectant, 29. presumptive, 59. cannot disclaim, 59. word " heirs " used in conveyance of an estate of inheritance. 101. is a word of limitation, 101, 192. contingent remainder to, 200, 201. gift to "heirs," 200. 41 322 INDEX. Hereditaments, 4, 6. incorporeal, 9, 178, 242, 244, 251. HOMAOB, 85. HoNouii, titles of, 7. Husband, right of, in hia wife's lands, 159, 166, 163 Married Women's Property Act, and wife one person, 161. caiuiot convey to his wife, 162. wnless by Statute of Uses, 163, appointment 1)y, to his wife, 229. Idiots. — See Lunatic. Implication, gifts in a will by, 154. Improvements, on claim for dower, 177. under mistake of title, 308. Incorporated joint stock companies, 50. Incorporeal propertjr, 9, II, 178, 241, 232, 244, 261, 324 not subject to tenure, 252. Incumbrances, searches for, 308. Indenture, 105. Infants, 47, 236, 300. marriage settlements, 47, 48. Inheritance, law of.— See De.scent. Injunction, 20, 123. Inrolment.— See Registry. Insolvency,— See Bankruptcy. Institution, 253. Insurance, forfeiture of lease for non-, courts may relieve 269 protection of purchaser of leaseholds against non-, 269. Intention, rule as to observing, in wills, 150, 163. Interesse termini, 263. I^TEREST, stipulation to raise, void, 286. stipulation to (iiminish, good 286. statutory provisions as to, 286. Issue, in tail, bar of, 49, 33, 38. devise to, of testator, 149. devise in case of death without, 152. Joint stock companies, 50. Joint tenants for life, 91. in tail, 98. in fee simple, 92. trustees made, 93. release by, 94. tenancy, severance of, 95. estate, no curtesy of, 163. no dower of, 172. Jointure, 171. equitable, 171. Judgment debts, 66, 56, 120. as to trust estates, 119. as to leaseholds, 271. limitation of actions on, 302, INDEX. 323- Ki. ioht's gervice, 87, 88. Lands, liabilty of, for debts, 62, 53, 54, 55, &6. Lafhb, 149. Law aud equity, were distinct Byatems, 122. to be administered concurrently,- 122, 123. Lease, agreements for, 262. from year to year, 260. * . for a term of years, 7, 261. for a number of years, 83, 125. for years is personal propertv, and why, 7, 8. for life, 83. entry, necessary, 1 25, 263. by tenant in tad, 41. leases in writing to be by deed, 262. no formal words in a, 262. by tenant for life, 21, 22. pijwer to, 231, 232. by estoppel, 263. rent reserved by, 264. mortgagor cannot make a valid, 279. forfeiture of, 89. Lease and release, 125, 130. Leaseholds, will of, 270. mortgage of, 284. disclaimer of, in event of bankniptcy, 271. purchaser of, protection against non-insurance, 270. formerly entitled to a sixty year's title, 265. bound by executions, 271. LsoAciEs, limitation of suits for, 301, 302. charge of, 157. Leqal estate, meaning of the term, 115. estate, placing of under conveyances to uses. — See EsTATK. memory, 302. License, eflfect of license for breach of covenants in lease, 266. restrictions on eflfect of, 367. Lien of vendor, 285, 289. LiPK estate for, 15, 16, 19, 100, 151, 189, 191. joint tenants for, 91. equitable estate for, 116. tenant for, concurrence of, to bar entail, 37. estate for, in a rent-charge, 248. tenant for entitled to custody of title-deeds, 306. forfeiture of life estate, 102, 213. Light, limitation of right to, .304. Limitation of estates, 100, 136, 237, 238, 240. of a vested remainder after a life estate, 189. words of 101, 192. statutes of, 299, 300, 301, .302. Lis pendens, 56. Livery, in deed, 99. in law, 100. of wardship, 86. of seisin, 98, 99, 100. corporeal hereditaments formerly lay in, 178. LoooERs' goods protection from distress, 183. Lunatic, 47, 300. S24 INDBX. MAf,ES preferred in de«cent, 63, 68, 66. Maniiamuh, 123. Manors, 88, 286, 287. common appendant, 120, n. Marriage Bettlements, 217, 232, 233, 234. Married woman, separaic property of, 88, 189, 160, 164 168 conveyance of her lands, 104, 168 note e, 166, 167. 229 ■ bare trustee, 164. rights of. in her husband's lands, 168. husband's rijjjhts in her term, 189. appointment by, 229. release of her right to dower, 171, 178, 298. devise by, 167, note a. Memory, legal, 302. Memorialh, evidence by, 296, 297 note a. Merger, 187, 214, 275, 277, 283. of a term of years in a freehold, 278. 276. none of estates held in autre droit, 276. Messuage, term, 11. Mines, 12; 20, 21. Money, land, 117. 1 Mortgage, 277. construction ot in law, 278. for payment of testator's debts, 186, 167. legacies, 1.56, 187. entail barred by, 278. legal estate in, 279. exoneration 288. equity of redemption of, 180, 287, 288. foreclosure of, 281, 282. power of sale in, 282. statutory power of sale in, 282, 283. fire insurance in, 282, 283. repayment of, 281. discharg'j by executors, 283. assignment by executors, 283. of leaseholds, 284. by uuderlease, 285. by deposit of title deeds, 285. interest on, 286. to joi.it mortgagees, 278. now pilr.iitrily payable out of raprtoaged lands. 288. tacking, 289. for future debt and advances, 290. to secure an account current, 290. transfer of, 387. effect of two mortgages by same person, 290. consolidation, 281. • Mortgagee and mortgagor, relative rights of, 279-283. legal personal representative of, may convey legid MoKTOAOOR, covenants for title by a, 295. limitation of his rights to redeem, 302. must give notice of intention to repay mortgaa«-moii«y, may sue in his own name, 279, 280. MoRTMAlw, 31, 48, 49, 61. INDEX. Nam«, diroctioni to Msume, 233. Natukalization, 107. N«w trustee, 121. Next presentntion, 283. Norman conquest, 2. Notice of an incumbrance, 289. for repayment of mortgage-money, 283. to quit, 261. 825^ Occupant, 18. Operativk words, 141. OwNEKSHir, no absolute ownership of real property, 15. Paramount, Queen is immediate latly, 84. Pakcels, 141. Particular estate, IRQ. Parties to a deed, 141. persons taking benefit need not be a party, 105. Partition, 95, 96, 293. Paternal ancestors, descent to, 66, 66. Patron of a living, 263, Perpetuity, 36, 208, 240. 241. Personal property, 6. Pond, description 6f, 12. Possession, mortgagee in, 301. Possibility, alienation of, 211, 212. of issue extinct, tenant in tailafter, 39. on a possibilty, 296, 108. common and double, 206, 207. Posthumous children, 296. Power, 224 saleable under execution, 225. vested in bankn!ipt or insolvent, 226. compliances with formalities of, 226. attestation of deed executing, 226. equitable relief on defective execution of, 228. exercise of, by deed, 227. exercise of, by will, 228, 229, 230. married woman, 229. extinguishment of, 230. suspension of, 23. special, 231. of leasing, 231, 232. estates under, how they take effect, 234. release of, 234. of sale in mortgages, 282, 283. Q^ sale and exchange in settlements, 231. cannot be inserted of appointment in a bargain and salor io.b, loo. Premises, term, 12. Prescription, 302, 303, 304. Presentation, 263. :326 INDEX. Prihooeniture, 36, 63. Privity between lessor and assignee of term, 265. none between lessor and under-lessee, 273. Profit a prendre, 303. Protector of settlement, 38. Pur autre vie, estate, 17, 18, 19. Purchase, meaning of term, 62. deed, specimen of a, 139. money, application of, 298. Purchaser, voluntary conveyances void as to, 51. protection of, without notice, 299. descent traced from the last, 62. relief against mistaken payment by, 233. protection against non-insurance against fire, 269. Qveek is immediate lady paramount, 84. Quieting Titles Act, 308, 309. Quit rent, 88. Real property, 5, 8. Receipt for purchase-money, 297. of trustees now discharges, 299. Recitals twenty years old sufBcieni evidence, 296. Recovery, 32. Rectories, advowsons of, 253. Redemption, equity of, 280, 287, 289. Re-entry by lessor, condition of, 183, 184, 185, 265, 266. not now destroyed by license for breach of covenant, 267. not now destroyed by waiver of breach of covenant, 268. Registry, memorials as evidence, 296, 297 note a. of lis pendens, 56. of deeds, 308. of wills, 158. of deeds barring entail, 38, 40. of conveyances to charitable uses, 49. Release, proper assurance between joint tenants, 94. conveyance by, 125, 130, 135.— See Lease and Release. from rent-charge of part of hereditaments not an extin- guishment, 250. operation of as a bargain and sale, surrender, &c., 135. uses declared on, 127, 134, 137, 138. Religious association, conveyance to. 49, 50. Remainder, 180, 181, 187, 193, 195. bar of, alter an ?state tail, 38, 39. arises from express grant, 189. no tenure between particular tenant and remaindermMi 188 vested, 188, 188. vested, may be conveyed by deed of grant, 190. estates in remainder, 193. definition of vested, 190. example of vested, 189. contingent.— See Contingent RsiLAiNDER. Renewable leases, 187, 274 INDEX. 327 Rbnt, 182, 264, quit, 88. demiind for, 184. remedy by statute, re-entry for non-payment, 183, 184 reservation of, 183. apportionment of, 22, 23. of estate in fee simple, 87, 88. service, 182, 183, 245, 247, 264., passes by grant of reversion, 185. not lost now by merger of reversion, 187. none incident to a remainder, 188. seek. 245. limitations of actions and ruits for, 302. Rent charge, 246, 302. power to grantee to distrain for, 247. estate for life in, 248. estate in fee simple in, 249. release of, 250. apportionment of 250. grantee of, has no right to the title deeds, 305. creation of, under the Statute of Uses, 246. exonet-ation of executors and administrators from liability tu pay, 251. Rbsfduary devise, 148. Resulting use, 112. Reversion, 181, 186, bar of, expectant on an estate tail, 32, 34, 38. in a lease for years, 181. severance of, 267. on lease for life, 182. difficulty in making a title ^o, 306. pur-Iiaser of, 306, 307. Revocation, conveyance with clause of, 51. of wills, 146, 147. Rules, technical, in construing will, 150. Sale of settled estates, 21 n.)te a, 22, 232. for payment of testator's debts, 156, 157. po-^er of, in settlements, 232. contract for. — See Agreements. Scintilla juris, 224, 225. Searches for incumbrances, &c., 308. Seionory, 242. in gross, 245. Seisin, 62, 98, 99, 100, 224. transfer of required to be notorious, 204. actual seisin required for curtesy, 163. legal seisin required for dower, 168. Separate property of wife, 58, 96. 159, 260, 161, 164. Services, feudal, 27. S.aRviENT tenement, 303. Settled estates, leases and sales of, 22, 232. SSTTLEMKNT, 34. protector of, 38. on infants on marriage, 48. voluntary, 51. form of a, 217, 218. 828 INDEX. Severalty, 95. Severance of joint tenancy, 94. of reversion, 267. Shelley's case, rule in, 191, 193, 194. Shifting use, 205, 220, 222, 2.36, 237. no limitation construed as, which can be regarded as a remainder, 223. * Signing of deeds, 106. of wills, 144, 145. Socage, tenure of free and common, 80. Sons, descent to, 63. Spfcial occupant, 18. Specialty, heir bound by, 53. Springing uses. 205, 220, 222, 236, 237. 240. Stops, in deeds, 141, 142. Subinfeudation, 27 45. Sufferance, tenant by, 250. Surrender, of life interest, 213. of a term of years, 273, 274. in law, 273. Survivors of joint tenants entitled to the whole, 93. Tacking, 289, 290. ''"'■Z^Zkf!^^^!^'' *•■ "'■ ■«>■ "«. '«. >^>. '^2. ■% destruction of entails, 31. constructive estate, in a will, 152. bar of estate, 37, 38, 39, 40. by marriage, 278. descent of estate, 42, 80. tenant in, alter possibility extmct, 39 equitable estate, 116. no lapse of an estate, 149. joint tenants in, 91. estate not subject to merger, 214. execution, sale of entail under, 43. Taltarum's case, 31. Tenant for life 17, 19, 21, 37-(and see Life). in tail 25— (and see Tail). for life, feoffment by, 102. in fee simple, 44— (and see Fee Simplb) m common, 95. at will, 259. by infferance, 260. Tenements, 4, 5, 6, 11. Tenure of an estate in fee simple, 83, 84. of an estate tail, 83. none of purely incorporeal hereditaments. 252 by knight service, 85. Tbhurbs, feudal, introduction of, 3, 4 Term of years, tenant for, 7. 259, 260, 263-(and see Lease. ), mortgage for, 284, 285. ^^"^m-f, uses, statute of, as to, 133. INDEX. 329 Tkstai UM, 140, 14], 14S. Thkllcson Act, 241. Timber, 19, 21, 52. cutting of, 19 note c, 21 note a, 52, Time, unity of, 91. where not of essence of a contract, 119. * within which an executory interest must arise, 239. 240 limited by statutes of limitations, 299, 301. 302. Title, 292. covenants for, 294, 295. sixty years required, 295. reasons for requiring sixty years. 297. net for quieting titles, .308, 308. ' Title deeds, destruction, &c., 104. mortgage by deposit of, 285. importance of possession of, 305. who entitled to custody of, .305, 306. covenant to produce, 307. attested copies of, 307. Titles of honour are real property, 7, 256. Transfer of land, 309. of mortgages, 287. TreasOxV, forfeiture for, 41, 42 note a. 89, 90, 118. abolition of forfeiture, 41, 42 note a, 89, 90, 118. Trustee Act, bare, 93, 118, 1_>1, 164. Trustees made joint tenants, 93. failure of heirs of, 118. acts for appointing new, 121. where they may sell or mortgage to pay testator's debts or legacies, ln(», 15(), 157. estates of, under wills, 153, 154. to preserve contingent remainders, 216, 217. such trustees now required, 217, covenants by, on a sale, 295. receipts of, good discharges, 299. Trusts, 109, 113, 218. in a will, 154. contingent remainders of trust estates, 218, 219 for separate use, 58, 159. ^'"estate '" °^^^ "^ express, 300, 301.-See also Equitable Unborn persons, gifts to, 40, 208, 209, 210. Underlease, 271, 273. mortgage by, 285. Unities of a joint tenancy, 91, 95. User, immemorial, 303. abandonment by nou-, 305. Uses, 109, 111, 127, 220, 223, 236. explanation of. Ill, 22.3. no use upon a use, 1 14. conveyance to, placing of legal estate, 113, 132, 133, 1.34, 137 doctrine of, applicable to wills, 154. 42 330 INDEX. Vans— (Continued.) springing and shifting, examples of, 205, 220, 222, 236, 237, power to appoint a use, 225. to bar dower, 1()9, 170. as to leaseholds, 1.33. Vendok, lien of, for unpaid purchase-money, 285, 289. covenants for title bv a, 294, 295. and purchaser, evidence between by memorials to, 296. 297 note «, and Purchaser's Act, 296, 307. Vested remainder, 189, 198. definition of, 190.— See also Rkmaindkk. VoLUNTAKY Conveyance, 51. Waiver of breach of covenant in a lease, 268. Wardship, 86. Warrant, 82, 292. implied by word effect of express, 293. equitable, 21. meliorating, 21. Water, description of, 12. limitation of right to, 304. Way, right of, 244, 303. AViDowHooD, estate durujg, 19.' Wife. See Married Woman. Will, tenant at, 260. cannot bar an estate tail, 40. construction of, 16, 17, 150. alienation by, 143. witnesses to, 144, 145, 146, 229. revocation of, 146, 147. of real estate, now speaks from testators's death, 148. gift of estate tail by, 151, 152, 154, gift of fee simple by, 154. uses and trusts in a, 1S4. registration of, 158. exercise of powers by, 228, 229. executory devise by, 234, 235. of leaseholds, 270. charge of debts by, 54, 156, 157. devise in fee or in tail charged with debts, 157. Wills, statute of, 143. new Act, 144. Witnesses to a deed, 140. to a will, 144, 145, 229. to a deed executing powers, 226. Words, construed according to their usual sense, 13, 17. Writ of elegit, 55. fieri facias, 55. INDEX. 331 Writing, employment of, on transfer of incorporeal property. 9. formerly unnecessary to a feoflfment, 103. nothnig but deeds formerly called writings. 103. now required, 106. bargain and sale for a year must be in, 131. required to assign a lease, 269. contracts and agreements in, 118. trusts of lands recjuired to be in, 118. Wrong, estate by, 102. Year to year, tenant from, 260, 261. TORONTO : PKINTED BY ROWSELL AND HtTCUIHON, KING STREET EAST. \