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SIR WILLIAM BLACKSTONE, KNT. m ADAPTED TO THE PRESENT STATE OF THE LAW IN ONTARIO, BT ALEXANDER LEITH, Q. C, AND JAMES FREDERICK SMITH, LL.B., OF OSQOODE HALL, BAHBI8TERB-AT-LAW. SBOOND EDITION. i h ROWSELL & HUTCHISON, KINa-STREBT. 1880. ■M Entered according tg the Act of Parliament of Canada in the year of our Lord one thoviwnd ei^t hundred and eighty, by Alexander Lkith and Jamkh Fbeuekick Suith, in .he Office of the Minister uf Agriculture, PRINTBO AND BOL'KD BT IIUMTER, KOSK & CO., TOROHTO. S' i Af ^. iNce 113 ' Estates, Freehold or less than Freehold 113 ! I. Tenant in Fee Simple 115 j Signification of " Fee " 116 ) A Fee may bo in Hereditaments, Corporeal or Incorporeal 117 | Word " Heirs " necessary in grant of Fee Simple 117 Relaxation of the Rule in Wills, &c 117 | II. Limited Fees 119 1. Qualified or base Fee 120 2. Conditional Fee 120 Statute De Donis 122 Origin of Estates-tail 123 Tail Special and General 124 Tail Male or Female 125 The Incidents of an Estate-tail 126 Recoveries 127 Fines 128 Estates-tail made chargeable with debts 128 Conveyances under the Act respecting the Assurance of Estates- tail 129^ « CHAPTER IX. I ■I Of Freeholds, not of Inheritance 130 1. Life Estates 131 \ tU CONTENTS. PAflK 'Or Freehold, not op lnHtHnxscM— Continual. 1. E«tovon 132 2. Emblemonta 132 3. Uuder-tenanU' RighU 133 II. Estate Tail after pouibility of Issue extinct 134 III. Tenancy by the Curtesy 13(J IV. Dower. 139 1. Who may be endowed 130 2. Forfeiture of Dower 140 3. Of what dowable 141 4. Dower, how barred 14H 6. Jointure and antenuptial settlement 148 6. Election 153 7. Bar by Deed : 155 CHAPTER X. Of Estates lbshthvn Freehold 169 1. Estates tor years 159 Division of Time 159 Incidents of Estate for years 162 Emblements 164 II. Estates at Will 165 III. Estate at Sufferance 170 Remedies against overholding tenants 171 CHAPTER XL Or Estates UPON Conditions 177 I . Estates on Conditions implied 177 Forfeiture : : 178 II. Estates on Conditions expressed 179 Condition Precedent or Subsequent 180 Conditional Limitation 184 III. Estates in Pledge 185 Mortgage 185 Equity of Redemption •. 186 Foreclosure 186 Release of Mortgage 187 Covenants in Mortgage 193 Insurance under Mortgage 194 Power of Sale 200 Distress 206 Possession 212 The Act respecting Shorts Forms of Mortgages considered 224 CHAPTER XII. Of Estates in Possession, Remainder and Reversion 232 I. Estates in Possession 232 II. Estates in Remainder 233 V, PAUB 132 1. 132 133 2. 134 3. VM 130 139 140 141 148 148 153 III. E»\ 156 M 159 169 169 162 164 166 170 171 177 177 178 179 180 184 186 185 186 186 187 193 194 200 206 212 224 232 232 233 CONTENTS. IX I'.WIB Op Ehtatkr iir Pomkcmhiox, Remainder and Reveksion— CViUitiufd. Particular Estate 2'M Freehold not to ouinmenoo tit futnro 235 Remainder and particular Estate cominenco to;^t«thor. 235 Remainder to vest in determination of particular KstaUi 239 Vested Remainders 240 Contingent Remainders 241 How defeated 243 Of Executory Devises 246 1 . Irecutory Devise of a Freehold to commence in/i <.ro. , . . 246 2. Devise of Foe upon Fee 246 3. Devise over of a Terni of Years 247 Estate in Reversion 240 Merger 250 CHAPTER XIII. Op Ehtate in Severalty, Joint Tenancy, Coparcenary and Common 263 I. Estates in Severalty 253 II. Estate in Joint Tenancy. 254 1. Creation of Joint Estates 255 2. Unit^ of Interest, Title, Time and Possession 255 Survivorship 258 3. Severance of Toint Tenancy 259 Partition 260 Alienation 260 Mei^er 261 III. Estates in Coparcenary 262 Unity of Interest, Title, and Possession 262 Hotch-pot 264 Dissolution of Coparcenary 266 III. Tenancy in Common 265 Its Creation 266 Incidents 267 Dissolution 20? CHAPTER XIV. Of the Title to Thinqb Real in General 270 Mere Possession 270 Right of Possession 271 Extinguishment of Right 272 CHAPTER XV. Or Title bt Purchase and First by Escheat 273 Purchase 274 Rules in Shelley's case 275 Conquest 275 Escheat 279 ] & 2 By Failure of Hereditary Blood 280 i X CONTENTS. PAfJE Of Title by Purchas* and Fi.ist by Eschkat Continued. 3 Monsters 281 4 Bastards 281 5 Aliens 282 6 Attainder 283 Corruption of Blood 286 Corporation Lands do not Escheat 288 CHAPTER XVI. Of Titles by Occupancy 289 Special Occupancy 290 New-formed Lands 291 CHAPTER XVII. Of Title by Forfeiture 292 Causes of Forfeiture 292 I. Crimes and Misdemeanors 293 II. Alienation contrary to Law 293 1. InMortmain 293 Invention of Uses, &c 290 2. By Particular Tenant 300 Disclaimer 301 III. Lapse 303 IV. Breach of Condition 304 V. Waste 306 CHAPTER XVIII. Of Title by Alienation 310 History of the Laws of Alienation 310 I. Who may aliene 312 II. Modes of Alienation ^ 321 1. By Deed 321 . 2. By Devise 322 CHAPTER XIX. Of Alienation by Deed 323 I. Nature of a Deed 323 II. Requisites of a Deed 3*24 i. Parties 324 ii. Consideration 324 iii. Writing 326 iv. Arrangement 328 1. Premises 329 2. 3. Habendum and Tenendum 333 4. Reddendum 335 5. Conditions 335 CONTENTS. Xl ' PAOE Of Alienation by Deed — Contimied. 6. Warranty 33G 7. Covenants 33(> 8. Conclusion 337 V. Deed must be read 337 vi. Signature and Sealing 337 vii. Delivery 341 viii. Attestation 342 III. Deeds how avoided 342 Different kinds of Deeds 340 I. Common Law Conveyances 346 1. Feoffment 347 Livery of Seisin '. 350 2. Gift 352 3. Grant 350 4. Lease 356 Church Leases 350 5. Exchange at Common Law 360 6. Partition 360 7. Release 361 8. Confirmation 363 9. Surrender 364 10. Assignment 366 Covenants under 367 11 . Defeasance 373 II. Conveyances operating under the Statute of Uses 373 Origin of Uses 373 Statute of Uses 378 12. Covenant to stand Seised 387 13. Bargain and Sale 388 14. Lease and Release 392 15. Deeds of Revocation and New Appointment 393 Deeds to charge lands, &c 393 1. Obligation or Bond 39» 2. Recognizance 394 3. Defeasance 395 CHAPTER XX. . Of AiiEKATioN BY Devise 397 WUIs 397 History of Devises 397 Statutes of Wills (Henry VIII) 399 Statute of Frauds 4(K> Wills Act, R. S. O., c. 106, conside'"»d rnd commented on 403 I CHAPTER XXI. Of Title by Prescription and non-olaim 418 Discontinuance 419 Continual Claim 419 Possessory Actions 420» xii CONTENTS. PAGE Of Title by Preschiption and non-claim— ^oH^muei Ab:lition of Real and Mixed Actions 425 The '* Real Property Limitation Act," R. S. O., c. 108, considered and commented on 425 Of Title by Prescription to Easements 455 Time Immemorial 456 Modes of Defeating a Claim 456 Dominant and Servient Tenement 460 Custom and Prescription 460 Incorporeal Hereditaments alone can be claimed by Prescription 461 Sections 34 to 42 of the Statute considered and commented on 463 CHAPTER XXII. The Present Law of Descent Revised Statutes of Ontario, c. 106. considered and commented on 468 CHAPTER XXIII. <5oNVEYANCES BY TENANTS IN TaIL UNDER R. S. O., C. 100 504 Former mode of Bar. ■ 504 By Warranty 505 Fine 506 Common Recovery 508 The Act respecting the Assurance of Estate-tail, R. S. O., c. 100, con- sidered and commented on 514 TABLE OF CASES. Ackroyd v Smithson, 206. Acre V Livingstone, ;i53, 362. Adam, Re, 20. AdaiHH V Gibney, 359. Airey v Mitchell, 211. Alcocks V Phillips, 174. Allan V Levesconte, 316. Allen V England, 436. Allan V McTavish, 211, 446. Archbold v ScuUy, 303, 430, 434. Asher v Whitlocli, 271. Ashford v McNaughten, 214. Astley V Earl of Essex, 439. Atty. Gen. of Quebec v The Queen Ins. Co., 48. Austin V Storey, 199, 229. Aveline v Whisson, 340. Bagot V Bagot, 308. Baker v BaJcer, 154. Baker v Hammond, 154. Baldwin v Quesnel, 36. Bandy v Cartwright, 359. Bank of Montreal v Taylor, 161. Barnes v Boomer, 160. Barrett v The Merchants Bank, 161. Bayley v Williams, 315. Beiides v Higgs, 175. Beard v Steele, 46. Beaaley v Cahill, 37. Beatty v Beatty, 139. Beaumont v Barrett, 19. Beaven v McDonell, 314. Bennett v Davis, 316. Bennett v Holden, 315. Biscoe V "Van Bearle, 307. Bishop of NaUl, Re The, 18, 20, 35, 51, 140. Blake v Blake, 131. Blewett V Tregonning, 459. Bourne v Bourne, 206. Boustead v Whitmore, 156, 219. Bowlby V Woodley, 467. Bowie's Case, 136, 143, 308, 309, 316. Boice V O'Loane, 72, 211, 446. Bradfield v Hopkins, 366. Bradford v Belfield, 202. Breakenridge v King, 154. Bromley v Smith, 252. Brook V Brook, 18, 52, 140, 287. Brook V Stones, 211. Brown t McNabb, 299. Brown V Stuart, 184. Brown v. Woodhouae, 205. Buckingham (Earl of) v Drury, 149, 150. Bullock V Bennett, 411. Burke v Annis, 405, 414. Burroughs v McCreight, 442. Burrows v Cairns, 460. Burrows v Gore, 455. Burton v Powers, 405, 414. o. Cadell v Palmer, 247, 248. Calvin's Case, 20, 28;^. Cameron v Gunn, 353, 362. ! Cameron v Kyte, 19. Camerop v Todd, 222. Campbell v Baxter, 164, 175. Campbell v Royal Canadian Bank, Hi, Campbell v Shields, 306. Carpenter v Parker, 217, 218. Carr v Foster, 465. Carrick v Johnston, 65. Carrick v Smith, 147. Carroll v Robertson, 204, 211. Carruthers v Carruthers, 151. Cartwright v MnPherson, 303. Chadwick v Broadwood, 430. Chamberlain v McDonald, 318. Chanaplin v Baldwin, 478, 489. Chapman v Buchman, 208. Cherry v Heming, 340, 341, '^2. Chesterfield (Earl of) v Janusen, 252. Chisholm v Tiffany, 142. Clark v Stevenson, 341. Claxton V Gilbert, 370. Clay V Thackerah, 466. Clayton v Blakey, 165, 169. Clowes V Awdry, 413. Clun'sCase,71, 134. ColdweU V Hall, 210. Cole V Batley, 479, 489. Collard v Sampson, 408, 409. CoUver v Shaw, 353. finger v Piatt, 144. ConoUy v Woolrich, 1.39. Converse v Michie, 161. Cooke v Crawford, 202. Cooper V Emery, 448. Copp V Holmes, 214. Corbet v Corbet, 149. Corbyn v French, 400. Craig V Templeton, 146. Crawford v Armour, 193. Crawford v Cunagh, 406. 407. Creak v Justices of Brighton, 174.^ Croft v Croft, 407. Crombie v Jackson, 47, 49. i XIV TABLE OF CASES. Cronvn v Widder, 36. Crookewit v Fletcher, 843. (Jurran v Taylor, 477. Cushing V McDonald, 454. Cuvillier v Aylwin, 51, 52. Dalby v India and London Assurance Co., 195. Davidson v Cooper, ;M5. Davies v. Lowndes, 508. Dawson v Small, 415. Dean of Christchurch v. Duke of Buckingham, 21». Delaney v Fox, 218. Dennett v Pass, 71. Deimie, Injre, 208. Dickenson v Lee, 491. Dike V Dunston, 65. Dilke V Douglas, 191. Dobson V Land. 197, 211. Doe V Bramston, 448. Doe V Carter, 4.S7. Doe V Davies, 353. Doe V Henderson, 437, 444. Doe V Hessel, 393. Doe V Lightfoot, 213, 215, 227. Doe V Jjiversedge, 441. Doe V Martin. 329. Doe V Prince, 235. Doe V Rock, 439. Doe V Rollings, 303. ; Doc V Stuart, 302. Doe V Williams, 445. Doe d Anderson v Todd, 299. Doe d Angell v Angell, 428. Doe d Baadeley v Massey, 446. Doe d Baker v Clark, 2!»9, 464. Deo d Bastow v Cox, 209. Doe d Bennett v Turner, 170, 171. Doe d Blackbuni v Blackburn, 470. Doe d Burr v Denison, 343, 344. Doe d Connor v t'onnor, 362. Doe d Cundy v Sharpley, 173. Doe d Cuthbertson v MuGillis, 4.32. Doe d Davies v Thomas, 16(>, 167. Doe d Davy v Oxenham, 434. Doe d Delaplaine v .Tones, 488. Doe d Garrod v Olley, 208. Doe d Graves v Wills, 302, 303. Doe d Hall v Mouldale, 441. Doe d Jukes v Sumner, 443. Doe d Loucks v Fisher, 390. Doe d Maiianne v Alexander, 106. Doe d Marmion v Bingham, 430. Doe d Meyers v Marsh, 334. Doe d McLean v Fish, 454. Doe d Nichols v Saunder,8 312. Doe d Palmer v Eyre, 446, Doe d Perry v Jones, 249. Doe d Prince v Girty. 362. Doe d Qumsey v Caniffe, 437. Doe d Rigge v Bell, 169, 170. Doe d Sams v Garlick, 405, 414. Doe d Snyder v Masters, 385. Doe d Stevens v Snelling, 405, 414. Doe d Tatum v Cotomore, 343. Doe d Thompson v Thomiwon, 435. Doe d Tindal v Rowe, 173. Doe d Whitaker v Hales, 217. Doe d Wigan v Jones, 153. Doe d Wight v Cundell, 405, 414. Dohertyv Allman, 806. DolsoD, Re 517. Dowsett V (Jox, 4.31; Drake v Wigie, 366. Drury v Drury, 150. Duberley v Day, 316. Dudley v Simpson, 203. Duke of Leeds v Earl Amherst, 439 Dumble v Johnson, 515. Dumpor's case, 372, 373. Dunne v O'Reilly, 35, 287. Dyke v Rendall, 149. Eaton V Swansea Waterworks Co., 466. Eccles V Ijowry, 314. Ecclesiastical Commissioners v Werral, 356. Edmonds v Waugh, 211. Eitch field v Ready, 213. Elliott V McConnell, 220. Elmsley v Madden, 297. Emrich v Sullivan, 318. Engerson v .Smith, 221. Evans v Elliott, 213, 216, 217. Ewart V Snyder, 290. Eyre v Walsh, 446. Fairbairu v Hilliard, 229. Fairweather v Archibald, 154. Farquharson v Morrow, 447, 448. Farrell v Farrell, 404, 414. Farrer v Earl of Winterton, Faulkner v Equitable Society, 204. Featherston v McDonell, 313, 314, 315. Ferguson v Gibson, 298. Fillier v Phippard, 305. Fisher v Jameson, 150, 151. Flack v Longmate, 145. Fletcher v Ashburner, 206. Flight v Bentley, 67. Flight v Thomas, 466. Ford v Agar, 446. Ford v Allan, 211. Ford v DePontes, 411. Ford V Jones, 209, 214, 215. Ford V Alden, 205. Forrester v (ysmpbell, .330. Forster v Ho','gard, 202. Foster v Emerson, 437. Foster v Geddes, 339. Fox's Case, 3.55. Francis v St. Germain, 314. Fraser v Fralick, 343. Freeman v Edwards, 208. Fogmorton v Holy day, 405, 414. Furneas v Mitchell, 1.56, 318, 319- Fursdon v Clogg, 443. . TABLE OF CASES. XV G. Gabriel v Derbishire, 54. Galbraith v Morrison, 221. Gallagher v Gallagher, 315. Garden v Ini^am, 198. Gardner v Collins, 477, 488. Garth v Cotton, 126, 300. Gascoigne v Barker, 329. Gaston v Wedd, .305. Gent V Harrison, .308. Gerrard v Tuck, 438. Gibson v Gibson, 154, 404, 411. Gilchrist V liamsay, 313, 315. Gilkison v Elliott, 149. Gillespie v Grover, 316, Godfrey v Harrison, 320. Goodhue. Re, 45. Goodill V Brighain, 153. Gordon v Goidon, 144. Gorman v Byrne, 15;}. Goulin V Cofdwell, 306. Gowland v Garbett, 192. Grace v Whitehead, 313. Graham v Graham, 528. Graham et ux. v Law, 139, 141. Grant v Ellis, 428, 430. 432, 434. Green v Hewer, 108, 229. Greenlaw v Fraser, 4.30. Gregory v Connolly, 258, 265, 268. Grey v Hatch, 307. Guthrie V Shields, H. Haigh V .Taggar, .3.55. Haley v Ennis, 46.5. Hall V Campbell, 18, 19, 20. 21. Ham V Ham, 145. Hamilton v Geddes, 339. Hancock v Hancock, 72. Harkin v Kabidon, 345. Harman v Bean, 220. Harnett v Maitland, 309. Harris v Davis, 415. Harrison v .Tackson, 358. Haskill V Fraser, 145. Hartley v Jarvis, 67. Harvery v Bridges, 175. Harvey et ux. v Ashly et al. 150. Hele V Lord Bexley, 72. Henderson v Eason, 268. Henry v Low, 143. Heyward's Case, 3.')5. Higginbuthani v Barton, 216, 218. Hobson V Bell, 203. Hodgins v Hodgins, 158. Hodgins v McNeil. 35, 36, 52, 139, 140, 409. Holmes v Mackrell, 433. Holmes v Newland, 443, Hope V White, 67, 72. Houghton V Thomson, 303. Howard v Wilson, 156, 157 Howeren v Bradburn, 211. Huguerim v Baseley, 315. Hunt V AUgood, 303. Hunt V Bishop, 18.3. Hunter v Munt, 71. Hunter v Nichols, 446. Huskinson v Lawrence, 175. Hyde v Hyde, 139. Incorporated Society v Richards, 443. Ingalls V Arnold, 405, 414. Ingram v Morecraft, 6.5. Island of Cajie Breton, Re The, 20. J. James v Dean, 404. •Tames v McGibney, 216. James v Salter, 432. Jameson v Harker, 431. Janes v Whithreail, 431. Jenkins v Jones, 204. Jephson V Riera, 19. .lohnson Ex parte, 193. Johnson v Johnson, 417. Johnson v Jones, 218- .Tones v Cleveland, 448. Jones V Mills, 303, Jones V Provincial Insurance Company, 197. Jones V Ricketts, 137. Jones V Todd, 222. Keech V Hall, 209, 213, 214, 217, 438. Keilly v Carson, 18, 21. Kelly V Isolated Co., 197. Kelly V Macklem, 205. Kerliy v Kerl)y, 210. Kershaw v Kalow, 204. Ketchum v Wigton, 432, 448. Keyse v Powell, 332, Keyworth v Thomson, 203. Kinlock V Is'eville, 466. Kipp V Incorjjorated Synod, 444. Knajip V Windsor, 482. Konkle v Maybee, 214. Knox v Kelly, 4-55. Lake v Currie, 413, Lampleigh v Brathwait, 218. Latch V Furlong, 204, 209. Laur V White, 343. Lawler, Re, 577. La Vaswaire v Heron, 208. Lee V Lorsch, 224. Lee V Morrow, 188. Lees V Whiteley, 188. Leventhorpe v Ashbie, 124. Lewis V Brooks, 'M5. Lindsay Petroleum Co. v Pardee, 288. Liney v Rose, 434. Linfoot V Duncombe, 158. Little V Aikman, 401. 5 1 . i '■ I XVI TABLE OF CASES. Lloyd V Jackson, 118. Lloyd V Lloyd, 147, 182. Lord Baybrook v IriHkip, 201. Lord Bishop of Natal, Re, 18. Lord Oxford v Churchill, 491. liord Ward v Lumley, 343, Lowe V Carpenter, 46.5. Lucaa v Denniaon, 444. Lundy v Dovey, 170. L'Union de St. Ja ;a 1^ XVlll TABLE OF CASES. Ward V Robin*, 465. WatkinB v McKeUor, 205. Watt V Feader, 35,3. Weaver v BurgeBU, 137. Webb V Rorke, 206. West V Fritchie, 216. Western v Macdermot, 222. Whateley v Whateley, 404. Whicker v Hume, <34. White V Bayley, 437. Whith V Hope, 250. Whyte V Treadwell, 161. Wigle V Settering, 330. Wilcox V Wilcox, 19. Wilkinson v HaU, 209, 214, 216. Williams v Bryant, 329. Wilson V Bennett, 202. Wilson V Hart, 222. Wilton V Dunn, 219. Wittrock V Hallinan, 67. Wooley V Clark, 441. Woolsey v Finch, 141. Wragg V Jarvia, 'M, Wright V Rose, 206. Wyth V Blackman, 491. Y. Yarmouth, Re. 185. Yellowbey v Gower, 3'^'. Young V Lord Waterpaik, 455. Young V Young, 313. ERRATUM Page 98, line 3, for " 3i Geo. III. " read " 31 Geo. III. a 3L » ( The at larg( as are ) quiry i rights ■^ as are i proper< the rig] and or tions, t objects. Ther tion, an propert man ch world, i ual in \vi\\ gii and foi the pos! which i title; o laws in thority it enouj OF THE RIGHTS OF THINGS. CHAPTER I. OF PROPERTY IN GENERAL. The former book of these Commentaries having treated at large of the jura peraonarum, or such rights and duties as are annexed to the persons of men, the objects of our in- quir)' in this second book will be the jura rerum, or, those rights which a man may acquire in and to such external things as are unconnected with his person, and appertain unto real property. These are what the writers on natural law style the rights of dominion, or property ; concerning the nature and original of which I shall first premise a few observa- tions, before I proceed to distribute and consider its several objects. There is nothing which so generally strikes the imagina- tion, and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individ- ual in the universe. And yet there are very few that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title ; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or au- thority upon which those laws have been built. We think it enough that our title is derived by the grant of the for- /] a" .5 .1 V r I J ; I OF PROPERTY IN GENERAL. mer proprietor, by descent from our ancestoni, or by the loot will and testament of the dying owner ; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature, or in natural law, why a set of words upon parchment should convey the dominion of land ; why the son should have a right to exclude his fellow creatures from a determinate spot of ground, because his father had done so before him ; or why the occupier of a particular field, or of a jewel, when lying on his death-bed, and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. These inquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reasons of making them But, when law is to be considered not only as a matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society. In the beginning of the world, we are informed by Holy Writ, the all-bountiful Creator gave to man " dominion over " all the earth ; and over the fish of the sea, and over the " fowl of the air, and over every living thing that moveth " upon the earth" (a). This is the only true and solid foun- dation of man's dominion over external things, whatever airy metaphysical notions may have been started by fanci- ful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, ex- clusive of other beings, from the immediate gift of the Cre- ator. And, while the eai-th continued bare of inhabitants, it is reasonable to suppose that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required. (a) Gen. i. 28. t.i/i^.j ?. OF PROPERTY IN GENERAL. These general notions of property were then sufficient to answer all the purposes of human life ; and might perhaps still have answered them, had it been possible for mankind to have remained in a state of primeval simplicity : as may be collected from the manners of many American nations when first discovered by the Europeans ; and from the an- tient method of living among the first Europeans tliemselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of those times, wherein "erant omnia commU' " nia et indivisa omnibua veluti unum cunctia patrimo- _ " nium esBet" Not that this communion of goods seems -to^-^vf::**^ eJoi^- ever to have been applicable, even in the earliest ages, to '^"^ « v ^^~'^'**— aught but the suhatance of the thing : iior could it be ex- tended to the use of it. For, by the law of nature and reason, he who first began to use it acquired therein a kind of transient property, that lasted so long as he was using it, and no longer : or, to speak with greater precision, the ri^ld of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular ; yet, whoever was in the occuf)ation of any de- termined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which it would have been unjust, and contrary to the law of nature, to have driven him by force : but the instant that he quitted the use or occupation of it, another might seize it without injus- tice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to its produce ; and yet any private individual might gain the sole property of the fruit which he had gathered for his own repast. A doctrine well illustrated by Cicero, who compares the world to a great theatre, which is common to the publi^, and yet the place which any man has taken is for the tio^e his own. But when mankind increased in numbc^, craft^ and ambi- h 1 >i1 I. ',.■■'- 1: OF PROPERTY IN GENERAL. tion, it became necessary to entertain conceptions of more permanent dominion ; and to appropriate to individuals not the immediate use only, but the very subataTice of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a variety of persons were striv- ing who should get the first occupation of the same thing, or disputing which of them had actually gained it. As hu- man life also grew more and more refined, abundance of conveniences were devised to render it more easy, commo- dious and agreeable ; as, habitations for shelter and safety, and raiment for warmth and decency. But no man would be at the trouble to provide either, so long as he had only an usufructuary property in them, which was to cease the in- stant that he quitted possession — if, as soon as he walked out of his tent, or pulled oflT his garment, the next stranger who came by would have a right to inhabit the one, and to wear the other. In the case of habitations, in particular, it was natural to observe, that even the brute creation, to whom everything else was in common, maintained a kind of per- manent property in their dwellings, especially for the pro- 1 tection of their young ; that tlie birds of the air had nests, and the beasts of the field had caverns, the invasion of I which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve thom. Hence a property was soon established in every man's house and homestall; which seem to have been originally mere temporary huts or moveable cabins, suited to the design of Providence for more speedily peopling the earth, and suited to the wander- ing life of their owners, before any extensive property in I the soil or ground was established. And there can be no I doubt but that moveables of every kind became sooner ap- propriated than the permanent substantial soil : partly be- 1 cause they were more susceptible of a long occupancy which might be continued for months together wilhout any OF PROPERTY IN GENERAL. sensible interruption, and at length by usage ripen into an established right ; but principally because few of them could }>e fit for use till improved and meliorated by the bodily la- bour of the occupant, which b^Qdily>Jftbouribest©w'ed upon any subject which before lay in common to.all'-*aen, is nni- versally allowed to give the fairest and most reasonable title to an exclusive property therein. The article of food was a more immediate call, and there- fore a more early consideration. Such as were not content- ed with the spontaneous product of the earth, sought for a more solid refreshment in the flesh of beasts, which they obtained by hunting. But the frequent disappointments, incident to that method of provision, induced them to gather together such ariimals as were of a more tame and sequacious nature ; and to establish a permanent property in their flocks and herds, in order to sustain themselves in a less precarious manner, partly by the milk of the dams, and partly by the flesh of the young. The support of these their cattle made the article of \i*nier also a very important point, and therefore the book of Genesis (the most venerable mon- ument of antiquity, considered merely with a view to his- tory) will furnish us with frequent instances of violent con- tentions concerning wells, the exclusive property of which appears to have been established in the first digger or occu- pant, even in such places where the ground and herbage remained yet in common. Thus we find Abraham, who was but a sojourner, asserting his right to a well in the country of Abimelech, and exacting an oath for his security, " be- cause he had digged that well" (a). And Isaac, about ninety years afterwards, reclaimed this his father's property ; and> after much contention with the Philistines, was suffered to enjoy it in peace (6). All this while the soil and pasture of the earth remained I' (a) Gen- xxi. 30. (h) Gren. xxvi. 15, 18, &c. 6 OF PROPERTY IN GENERAL. still in common as before, and open to every occupant ; ex- cept perhaps in the neighbourhood of towns, where the necessity of a sole and exclusive property in lands (for the sake of agriculture) was earlier felt, and therefore more readily complied with. Otherwise, when the multitude of men and cattle had consumed every convenience on one spot of ground, it was deemed a natural right to seize upon and occupy such other lands as would more easily supply their necessities. This practice is still retained among the wild and uncultivated nations, that have never been formed into civil states, like the Tartars and others in the East ; where the climate itself, and the boundless extent of their territorj", conspire to retain them still in the same savage state of vagrant liberty, which was universal in the earliest ages, and which, Tacitus informs us, continued among the Germans till the decline of the Roman Empire. We have also a striking example of the same kind in the history of Abraham and his nephew Lot (a). When their joint sub- stance became so great, that pasture and other conveniences grew scarce, the natural consequence was, that a strife arose between their servants, so that it was no longer practicable to dwell together. This contention Abraham thus endea- voured to compose : " Let there be no strife, I pray thee, " between thee and me. Is not the whole land before thee ? " Separate thyself, I pray thee, from me. If thou wilt take " the left hand, then I will go to the right ; or if thou de- " part to the right hand, then I will go to the left." This plainly implies an acknowledged right in either, to occupy whatever ground he pleased, that was not pre-occupied by other tribes. " And Lot lifted up his eyes, and beheld all " the plain of Jordan, that it was well watered everywhere, " even as the garden of the Lord. Then Lot chose him all " the plain of Jordan, and journeyed east ; and Abraham " dwelt in the land of Canaan." (a) Gen. xiii. OF PROPERTY IN GENERAL. Upon the same principle was founded the right of migra- tion, or sending colonies to find out new habitations, when the mother country was overcharged with inhabitants ; which was practised as well by the Phoenicians and Greeks, as the Germans, Scythians, and other northern people. And, so long as it was confined to the stocking and cultivation of desert, uninhabited countries, it kept strictly within the limits of the law of nature. But how far the seizing on countries already peopled, and dviving out and massacring the innocent and defenceless natives, merely because they differed from their invaders in language, in religion, in cus- toms, in government, or in colour ; how far such a conduct was consonant to nature, to reason, or to Christianity, de- served well to be considered by those who have rendered their names immortal by thus civilizing mankind. As the world by degrees grew more populous, it daily be- came more difficult to find out new spots to inhabit, without . encroaching upon former occupants ; and, by constantly oc- cupying the same individual spot, the fruits of the earth were consumed, and its spontaneous produce destroyed, with- out any provision for a future supply or succession. It thei'e- fore became necessary to pursue some regular method of providing a constant subsistence ; and this necessity pro- duced, or at least promoted and encouraged, the art of agii- culture ; and the art of agriculture, by a regular connexion and. consequence, introduced and established the idea of a more permanent property in the soil, than had hitherto been received and adopted. It was clear that the earth would not produce her fruits in sufficient quantities without the assistance of tillage. But who would be at the pains of tilling it, if another might watch an opportunity to seize upon and enjoy the product of his industry, art, and labour ? Had not therefore a separate . property in lands, as well as moveables, been vested in some individuals, the world must have continued a forest, and men have been mere animals of 4' » 21 8 OF PROPERTY IN GENERAL. m prey, which, according to some philosophers, is the genuine state of nature ; — whereas now (so graciously has Providence interwoven our duty and our happiness together), the result of this very necessity has been the ennobling of the human species, by giving it opportunities of improving its rational faculties, as well as of exerting its natural. Necessity begat property ; and, in order to insure that property, recourse was had to civil society, which brought along with it a long train of inseparable concomitants : states, government, laws, pun- ishments, and the public exercise of religious duties. Thus connected together, it was found that a part only of society was sufficient to provide, by their manual labour, for the necessary subsistence of all ; and leisure was given to others to cultivate the human mind, to invent useful arts, and lay the foundations of science. The only question remaining is, how this property became actually vested ; or, what it is that gave a man an exclusive right to retain in a permanent manner that specific land, which before belonged generally to everybody, but particu- larly to nobody. And, as we before observed, that occupancy gave the right to the temporary use of the soil, so it is agreed upon all hands that occupancy gave also the original right to the permanent property in the substance of the earth itself, which excludes every one else but the owner from the use of it. There is indeed some difference among the writers on natural law, concerning the reason why occupancy should convey this right, and invest one with this absolute property : Grotius and Puffendort insisting that this right of occupancy is founded on a tacit and implied assent of all mankind, that the first occupant should become the owner ; and Barbeyrac, Titius, Mr. Locke, and others, holding that there is no such implied assent, neither is it necessary that there should be ; for that the very act of occupancy alone, being a degree of bodily labour, is from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title. OF PROPERTY IN GENERAL. 9 le genuine *rovidence the result )he human s rational wity begat course was , long train laws, pun- ies. Thus of society ur, for the u to others ts, and lay rty became a exclusive ecific land, ut particu- occupancy >il, so it is he original if the earth er from the the writers mcy should e property : occupancy nkind, that Barbeyrac, is no such should be ; a degree of ce, without mm a title. A dispute that savours too much of nice and scholastic re- finement ! However, both sides agree in this, thatiQccupancy]\ is the thing by which the title was in fact originally gained . every man seizing to his own continued use such spots of ground as he found most agreeable to his own convenience, provided he found them unoccupied by any one else. Property, both in lands and moveables, being thus origin- ally acquired by the first taker, which taking amounts to a declaration that he intends to appropriate the thing to his own use, it remains in him, by the principles of universal law, till such time as he does some other act which shews an intention to abandon it ; for then it becomes, naturally speaking, 'puhlicijuns once more, and is liable to be again appropriated by the next occupant. So, if one is possessed of a jewel, and casts it into the sea or a public highway, this is such an express dereliction, that a property will be vested in the first fortunate finder that will seize it to his own use. But if he hides it privately in the earth, or other secret place, and it is discovered, the finder acquires no property therein ; for the owner hath not by this ac^ declared any intention to abandon it, but rather the contrary : and if he loses or drops it by accident, it cannot be collected from thence, that he designed to quit the possession ; and therefore in such a case the property still remains in the loser, who may claim it again of the finder. And this is the doctrine of the law of England, with relation to treasure trove. But this method of one man's abandoning his property, and another seizing the vacant possession, however well founded in theory, could not long subsist in fact. It was calculated merely for the rudiments of civil society, and necessarily ceased among the complicated interests and arti- ficial refinements of polite and established governments. In these, it was found, that what became inconvenient or use- less to one man, was highly convenient and useful to an- other ; who was ready to give in exchange for it some equi- m 5: i 10 {'■:; !i OF PROPERTY IN GENERAL. valent, that was equally desirable to the former propiietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant, or convey- ance : which may be considered either as a continuance of the original possession which the first occupant had ; or as an abandoning of the thing by the present owner, and an immediate successive occupancy of the same by the new proprietor. The voluntary dereliction of the owner, and delivering the possession to another individual, amounts to a transfer of the property ; the proprietor declaring his inten- tion no longer to occupy the thing himself, but that his own right of occupancy shall be vested in the new acquirer. Or, taken in the other light, if I agree to part with an acre of my land to Titius, the deed of conveyance is an evidence of my intending to abandon the property: and Titius, being the only or first man acquainted with such my intention, immediately steps in and seizes the vacant possession : thus the consent expressed by the conveyance gives Titius a good right against me ; and possession, or occupancy, confirms that right against all the world besides. The most universal and efiectual way of abandoning pro- perty, is by the death of the occupant : when, both the ac- tual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and in- tention, ought also to cease of course, i or, naturally speak- ing, the instant a man ceases to be, he ceases to have any ■dominion : else, if he had a right to dispose of his acquisi- tions one moment beyond his life, he would also have a right to direct their disposal for a million of ages after him : which would be highly absurd and inconvenient. All pro- perty must therefore cease upon death, considering men as absolute individuals, and unconnected with civil society : for then, by the principles before established, the next im- mediate occupant would acquire a right in all that the de- ceased possessed. But as under civilized governments which OF PROPERTF IN GENERAL. 11 are calculated for the peace of mankind, such a constitution would be productive of endless disturbances, the universal . law of almost every nation (which is a kind xif aecondaxy law of natui'e) has either given the dying person a power of continuing his property, by disposing of his possessions by will ; or, in case he neglects to dispose of it, or is not per- mitted to make any disposition at all, the municipal law of the country then steps in, and declares who shall be the suc- cessor, representative, or heir of the deceased ; that is, who alone shall have a right to enter upon this vacant possessioui in order to avoid that confusion which its becoming again common would occasion. And, farther, in case no testament be permitted by the law, or none be made, and no heir can be found so qualified as the law requires, still, to prevent the robust title of occupancy from again taking place, the doc- trine of escheats is adopted in almost every country ; whereby the sovereign of the state, and those who claim under his authority, are the ultimate heirs, and succeed to those in- heritances to which no other title can be formed. The right of inheritance, or descent to the children and relations of the deceased, seems to have been allowed much earlier than the right of devising by testament. We are apt to conceive at first view that it has nature on its side ; yet we often mistake for nature what we find established by long and inveterate custom. It is certainly a wise and effectual, but clearly a political, establishment; since the permanent; i ^aJ right of property, vested in the ancestor himself, was no Tiaf li-U ,v ral, but merely a civil, ^vighi. It is true that the transmis- \ sion of one's possessions to posterity has an evident tendency to make a man a good citizen and a useful member of society : it sets the passions on the side of duty, and prompts a man to deserve well of the public, when he is sure that the reward of his services will not die with himself, but be transmitted to those with whom he is connected by the dearest and most tender affections. Yet, reasonable as this foundation of the >".'■ ,\ K^r o>^^ •J r C ,1 A- 12 OF PROPERTY IN GENERAL. n/ right of inheritance may seem, it is probable that its imme- diate original arose not from speculations altogether so deli- cate and refined, and, if not from fortuitous circumstances, at least from a plainer and more simple principle. A man's children or nearest relations are usually about him on his death-bed, and are the earliest witnesses of his decease. They become therefore generally the next immediate occupants, till at length in process of time this frequent usage ripened into general law. And therefore also, in the earliest ages, on failure of children, a man's servants, born under his roof were allowed to be his heirs, being immediately on the spot when he died. For, we find the old patriach Abraham expressly declaring, that " Since God had given him no seed, his stew- ard Eliezer, one born in his house was his heir" (a). While property continued only for life, testaments were useless and unknown : and when it became inheritable, the inheritance was long indefeasible, and the children or heirs- at-law were incapable of exclusion by will. Till at length it was found, that so strict a rule of inheritance made heirs disobedient and headstrong, defrauded creditors of their just debts, and prevented many provident fathers from dividing or charging their estates as the exigence of their families re- quired. This introduced pretty generally the right of dispos- ing of one's property, or a part of it, by testament ; that is, by wT-itten or oral instructions properly witnessed and au- thenticated according to the 'pleasure of the deceased ; which we therefore emphatically style \nsxvill. This was established in some countries much later than in others. With us in England, till modem times, a man could only dispose of one- third of his moveables from his wife and children ; and, in general, no will was permitted of lands till the reign of Henry the Eighth ; and then only of a certain portion : for it was I (a) (ren. xv. 3. OF PROPERTY IN GENERAL. 13 not until after the restoration that the power of devising real property became so universal as at present. Wills therefore, and testaments, rights of inheritance, and successions, are all of them creatures of the civil or munici- pal laws, and accordingly are in all respects regulated by them ; every distinct country having different ceremonies and requisites to make a testament completely valid : neither does anything vary more than the right of inheritance under different national establishments. In Em/land particularly, this diversity is carried to such a length, as if it had been meant to point out the power of the laws in regulating the succession to property, and how futile every claim must be, that has not its foundation in the positive rules of the state. In general only the eldest son, in some places only the youngest, in others all the sons together, have a right to succeed to the inheritance ; in real estates males are preferred to females, and the eldest male will usually exclude the rest (a) ; in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeni- ture is allowed. This one consideration may help to remove the scruples of many well-meaning persons, who set up a mistaken conscience in opposition to the rules of law. If a man disinherits his son, by a will duly executed, and leaves his estate to a stranger, there are many who consider this pro- ceeding as contrary to natural justice; while others so scru- pulously adhere to the supposed intention of the dead, that if a will of lands be attested by only OTie witness instead of two, which the law requires, they are apt to imagine that the heir is bound in conscience to relinquish his title to the de- visee. But both of them certainly proceed upon very erro- neous principles, as if, on the one hand the son had by nature a right to succeed to his father's lands ; or as if, on the other W i 1» ■: {a) In Outario the law is different, the inheritance descending to all equally. (See p«tt, chapter on Descents,) 14 OF PROPERTY IN GENERAL. hand, the owner was by nature entitled to direct the succes- sion of his property after his own decease. Whereas the law of nature suggests, that on the death of the possessor the es- tate should again become common, and be open to the next occupant, unless otherwise ordered for tl e sake of civil peace by the positive law of society. The positive law of society, which is with us the municipal law of England, directs it to vest in such person as the last proprietor shall by will, at- tended with certain requisites, appoint ; and in defect of such appointment, to go to some particular person, who, from the result of certain local constitutions, appears to be the heir- at-law. Hence it follows, that where the appointment is regularly made, there cannot be a shadow of right in any one but the person appointed : and, where the necessary requisites are omitted, the right of the heir is equally strong and built upon as solid a foundation, as the light of the devisee would have been, supposing such requisites were observed. But after all, there are some few things, which, notwith- standing the general introduction and continuance of pro- perty, must still unavoidably remain in common ; being such wherein nothing but an usufructuary property is capable of I being had ; and therefore they still belong to the first occu- pant, during the time he holds possession of them, and no lon- ger. Such (among others) are the elements of light, air, and water ; which a man may occupy by means of his windows, his gardens, his mills and other conveniences ; such also are the generality of those animals which are said to be fer(» naturae, or of a wild and untame^ble disposition : which any man may seize upon and keep for his own use or pleasure. All these things, so long as they remain in possession, every man has a right to enjoy without disturbance ; but if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards. OP PROPKllTY IN GENERAL. And thus the Legislature of England has universally pro- moted the grand ends of civil society, the peace and security of individuals, by steadily pursuing that wise and orderly maxim, of assigning' to everything capable of ownership, a legal and determinate owner. la Note— Some of the viewo expressed by Blackstone in this chapter, have not received the sanction of modem writers of repute. (See Maine's Ancient Law, Chapters). CHAPTER II. OF THE ENGLISH LAWS IN FORCE IN ONTARIO, THE AUTHORITY FOR THEIR APPLICATION, AND FOR LEGISLATION BY TIIK PARLIAMENT OF CANADA, AND BY THE LEGISLATURE OF ONTARIO. Colonies occupanc y- Before entering on the coasideration of the rights apper- taining to real property in Ontario, it may be proper to enquire what laws (Imperial or otherwise) affect those rights in this, a British colony, and by what authority such laws apply. The subject may be exaniihed with reference, 1st, to the (^mode in which colgnieg^kre established or acquired ; 2nd, the system of laws which is to prevail or may be enacted after such establishment or acquisition, and how and by what authority introduced; and lastly, the position in which Canada as a colony, and more especially this Province of Ontario, stands in regard to those two subjects of con- sideration. Colonies may be acquired by occupancy, as when British subjects take possession of and settle in an uninhabited, or uncivilized country (a) ; in which case the right is not only founded on the law of nature, but may be upheld as spreading throughout the world the growth of Christianity and civilization. Of such colonies Australia is an instance, for although not originally uninhabited, the assent or dissent of the uncivilized aborigines, so sparsely^ scattered in an immense continent, cannot be considered, or deemed of suffi- cient account to class that colony among those acquired by I conquest; and the same may be said of the early French possessions in this country. (a) BlackstoBe, vol. I, p. 107. 'J I ENGLISH LAWS IN FORCE 'N ONTARIO. 17 Colonies may also bo obtained by confjuest; whicli, as Con.|uwit. Blackstono says, if not founded on the law of nature, is on that of nations. Again colonies may be obtained by treaty or cession ; a c'l'Mion. right founded on the law of nations. On the acquisition of a new colony by the Crown in any w[^nt Uwh in of the above modes, the question immediately arises as to what system of laws is to be considered in force among tlie inhabitants, and by what authority new laws arc to be introduced ; and tliis brings us to the second subject of consideration. As regards colonies by occupancy, Blackstono says, " It In«Me'">f "c- hath been held that if an uninhabited country be discovered and planted by British subjects, all the English laws then in being, which are the birthright of every subject, are imme- diately in force there ; but this must be understood with very many and very great restrictions. Such colonists carry with them only so much of the English law as is applicable to their own situations and the condition of an infant colony ; such for instance as the general rules of inheritance and of protection from personal injuries. The artificial refinements and distinctions incident to the property of a great and com- mercial people, the laws of police and revenue (such espe- cially as are enforced by penalties), the mode of maintenance for the established clergy, the jurisdiction of spiritual courts, and a multitude of other provisions, are neither necessary nor convenient for them, and therefore are not in force. What shall be admitted anc' what rejected, at what times and under what restrictions, must, in case of dispute, be de- cided in the first instance by their own provincial judicature, subject to the revision and control of the King in council ; the whole of their constitution being also liable to be new modelled and reformed by the general superintending power of the legislature in the mother country." These rules apply not only to an uninhabited, but also to 2 I m •0 ' 18 ENGLISH LAWS IN FORCE IN ONTARIO. an uncivilized country settled by British subjects, at least when in such uncivilized country the acquisition is not at- tended with circumstances of such magnitude and import- ance as that it may be deemed a conquest. Thus it is said " Where Englishman establish themselves in an uninhabited or barbarous country, they caiTy with them not only their own laws, but the sovei-eignty of their own State, and those who live amongst them, and become members of their com- munity, become also partakers of and subject to the same laws " (a). The extent to which such laws are to be rejected as inapplicable to an infant colony is again referred to here- after in the judgment of Chief Justice Robinson in Doe. d- Anderson v. Todd. In these colonies, it is only such laws as were in force at the time of their establishment that are to continue in force, not such as thereafter may be enacted by the British Parlia- ment, unless it is expressed that they are to apply to the colonies, or are of such general import that it can be clearly inferred they are intended to apply to all British subjects (6). The Crown cannot of mere prerogative right alter or impose law or interfere with the interior legislation, as in the case of a colony by conquest, but has nevertheless the right to ap- poii.t governors and other officers for the execution of the law, and of summoning representative assemblies from among its inhabitants, for interior legislation (c). When once, however, the Crown has granted to such a colony, or to one conquered or ceded, a representative assembly, with power to make laws, the prerogative right of the Crown to exercise its former powers is gone, and the power will remain with such assembly, according to its constitution, subject as hereafter explained, to the paramount right of legislation of the Britisli Parliament {d). («) 2 Moo. P. C. N. S. 59. (6) Brookv. Brook, 9 H. L. Cases. See/)o«« p. 52 ( c ) KeilUy v. Carton, 4 Moore. P. C. 85. ( d) Re Lord Bishop of NaUil, 3 Moore P. C. (N. S.) 148 ; Hall v. Campbe/f, 1 Cowp. 204. ENGLISH LAWS IN FORCE IN ONTABTO. 1» Power to enact laws in colonies acquired by occupancy has, however, been conferred on the Sovereign in Council by the Imperial Legislature. The Act 23 & 24 Vic. ch. 121, after reciting that divers of Her Majesty's subjects had occupied, or might thereafter occupy, places being possessions of Her Majesty, but in which she had established no government, enacted that the provisions of 6 tfe 7 Vic. ch. 1 3, by which the Crown is empowered to establish, by Order in Council, laws, institutions and ordinances for the government of her settle- ments in Africa should extend to all her possessions not ac- quired by cession or conquest, nor, " except in virtue of this Act " being within the jurisdiction of the legislature of any of her possessions abroad. In conquered colonies, the laws existing at the time of Of conquest conquest, except, says Blackstone, " those contrary to the law of God," remain in force till altered by the Sovereign, who as conqueror, can impose on the conquered, such laws, British or otherwise, as he or any legislative council appointed by him may please (a). Subject to the exceptions stated by Lord Mansfield in Campbell v. Hall, Cowp. 209, viz., that the power of the King " is subordinate to his own authority in parliament, he cannot make any new change contrary to fun- damental principles ; he cannot exempt an inhabitant from that particular dominion, as, for instance, from the laws of trade ; or from the power of parliament ; or give him privi- ( « ) It has been said that in case of territory acquired by Great Britain by conquest, inasmuch as the Government is not absolutely monarchical, but the authority to impose laws is vested In the Sovereign conjointly with the two Houses of Parliament, that therefore the King alone can exercise no preroga- tive right to impose such laws as he pleases in such territory, and consequently that the mode (hereafter referred to in the text) by which the British laws were introduced into Canada 'after the Treaty of Paris was of no effect. See the opinion of Chief Justice Hey, 2 Lower Canada Jurist, Appx. in Wilcox v. Wilcox, and Lower Ca. Jur. , Vol. 1, 2nd part. pp. 38-48. See also the various judgments in Stuart v. Bowman, Lower Ca. Rep., Vol. 2, and in Appx. to Lower Ca. Jurist, Vol. 2. See, however, Hall v. Campbell, 1 Cowp. 204 ; Jcph- soii v. Riern, 3 Knapp, 130 ; Camcivn v. Ki/tc, 3 Knapp, 346 ; Beaumont v. Bar- rett, 1 Moore P. C. 75. f If I 20 ENGLISH LAWS IN FORCE IN ONTARIO. Of cefsion- Was Canada acquired by conquest or cession ? f:;; leges exclusive of other subjects " : nor can he establish a a court to proceed otherwise than by the Common Law (ft), nor act in many other cases that might be put. It will be borne in mind, however, that on grant of authority to make laws to a representative assembly, the same conse- quences follow as above named in the case of such grant in a colony by occupancy, and the prerogative rights of the Crown cease (6), and it would seem that, even though a constitution has not been given, still if the laws of England have been granted by the Crown, its power to change them is gone (c). The inhabitants, at and after the time of conquest, are not to be deemed aliens, but British subjects. In ceded colonies, the rule is the same as in conquered col- onies, except in so far as the power of the Crown may bo modified by treaty on cession which is to be deemed " sacred and inviolable " (d). The French-speaking historians and jurisconsults of Can ada have generally urged that the late Province of Canaaa is to be classed among those colonies acquired by treaty or cession, and not among those acquired by conquest. Such a question is not always easily determined, for a colony may be conquered and under the control of an enemy, and yet the Parent State be unsubdued (e) ; and there remain to it the possibility of re-conquest. Such was actually the case as regards the late Province of Canada on the French King ceding it to the English King in 1763. If, in such a case, the conquered territory is ultimately ceded by a definitive treaty of peace, it is contended that the ultimate acquisition {a) Be Bishop of Natal, 3 Moo. P. C, N.S., 152 ; Com. Dig. ; Prerogative U. 28 ; 2 Knapp, 78. (6) Hall V. CampheU, 1 Cow. 204 ; Re The Bislwp of .fatal, 11 Jur. N.S., 353, Privy Council. (c) GalcMt Cate,7 Rep. 14. See Be the Iiland of Cape Breton, 5 Moore P. C. 259. {d)nami^U V. HaU, Cow. 208 ; Be Adam, 1 Moo. P. C 470- (e) See the remark of Cockbum, C. J., in a note to his published charge to the Grand Jury in B. v. Eyre, in 1866, p. 19. ENGLISH LAWS IN FORCE IN ONTARIO. 21 is to be referred to the treaty rather than the conquest. Great Britain, it has been said (a), has not adopted this as a principle of international law, but has considered that, by the conquest of a territory, it becomes ipso facto part of the dominions of the Sovereign, and that subsequent cession on the treaty of peace is to be regai'ded merely as a ratification of title. It must be borne in mind also that the fact that a colony is ultimately ceded is by no means conclusive that it had not theretofore been conquered, for conquests are almost universally followed and confirmed, or abandoned, by treaty when a peace is agreed on. Neither is the fact that a colony has been ceded conclusive that the right to it does not rest on other title prior and paramount to, or other than, the ces- sion : thus, the colony of Newfoundland having been first acquired by settlement, it has been held {h) that it is to con- tinue to be deemed as so acquired, and not by treaty or con- (luest, notwitlistanding its abandonment by France by the Treaty of Utrecht in 1713, and that in the wars which pre- ceded that treaty, it had, from time to time, passed under the control of the French and English alternately. Jamaica was acquired by conquest from the Spaniards ; but as they were all driven out of the island, and it was afterwards settled by the English, it is to be classed as a colony acquired by settlement, so far as respects the introduction of the Eng- lish laws (c). Whether the late Province of Canada was ac-^ quired by conquest or by cession would appear to be of little practical importance, so far at least as regards the matters to which this chapter is especially devoted; for it would seem tolerably clear that, except so far as modified by the treaty of cession {d), the power of the Crown to impose the laws would exist as above stated in regard to colonies acquired ! ; m 9: X ; h {a) Le Droit Civil Canndien, Vol. 1, p. 336 ; Wildman InteituUioncd Law, Vol. 1, p. 162. • (6) Keillp V. Cavion, 4 Moore P. C. 85. (c) Campbell v. Hall, Cowp. 204. (d) ante p. 19 n. :! ■ 22 ENGLISH LAWS IN FORCE IN ONTARIO. Nova Scotia. New Brunswick. by conquest ; and this was the rule which, in fact, was acted on, or supposed to have been acted on (a), after the treaty. I'he'prevalence or introduction of any particular system of laws in other Provinces of the Dominion of Canada, prior to its^foundation in 1867, is a matter with which we, in Ontario, are not immediately concerned It may not be ir- relevant, however, briefly to refer to those Provinces. The Province of Nova Scotia, which, with (according to English contention) undefined portions of New Brunswick, formed the French colony known as Acadie, was ceded to England in 1713 by the Treaty of Utrecht, with a reserva- tion of Cape Breton and of certain rights of fishing. Dis- putes afterwards arose between the French and English Governments as to the extent of territory ceded ; the French insisting that no portion of New Brunswick, and only part of Nova Scotia, had been ceded ; by the Treaty of Paris, in 1763, all pretensions of the French Monarch were renounced, and Canada and Cape Breton, and all islands and coasts in the Gulf and River St. Lawrence, except the Islands of St. Pien-e and Miquelon, were ceded to the King of Great Britain: further regulations were also made as to the fisheries. The representation of the Province in the Senate is pro- vided for under the British North America Act, as here- after mentioned ; it is represented at present by twelve Senators, and in the Commons, under 35 Vic. ch. 13, by twenty-one members. New Brunswick in 1784 was separated from Nova Scotia, and formed into an independent colony. The representation of the Province in the Senate is pro- vided for under the British North America Act 1867 : it is now represented by twelve Senators. Under the Act of 35 Vic. ch. 13 it is represented by sixteen members in the House of Commons. (a) poit p. 26. ENGLISH LAWS IN FORCE IN ONTARIO. 28 All claim of the French Crown to Newfoundland was Newfound- abandoned in 1713 by the Treaty of Utrecht. It does not *° * as yet form any part of the Dominion of Canada. Provision, however, is made for its admission into the Dominion by the British North America Act, 1867, as hereafter mentioned (a). Prince Edward Island was ceded by France to the British Prince Crown in 1758, and in 1763 was annexed to Nova Scotia (b). lahmd. Six years later it was constituted a separate colony, and re- mained as such until its admission into the Dominion by Imperial Order in Council, dated 26th June, 1873, taking effect on the first of July of that year, on the terms and stipulations contained in the addresses to Her Majesty of the Houses of Parliament of Canada and of the Legislature of Prince Edward Island. Its representation is now four members in the Senate (British North America Act, 1867), and six in the Commons (Imperial Order in Council, 26th June, 1873), to be increased as to the latter under the provisions of the British North America Act 1867 (c). By the admission of this colony the number of Senators from Nova Scotia and New Brunswick will be reduced from twelve in each of tnese latter Provinces as vacancies occur, subject, however, to increase under the direction of the Queen under section 147 British North America Act, 1867. British Columbia, pursuant to power given by the British British North America Act, was annexed to the Dominion by Im- ° "™ *** perial Order in Council of 1 6th May, 1871, taking effect after 20th July, 1871, and on the terms and stipulations contained in the Addresses to Her Majesty of the Houses of Parliament of Canada and of the Legislature of British Columbia. The Province was under the Order to be, and is RepresenU- now, represented by three Members in the Senate, and by six in the House of Commons, to be increased, as to the 1 i J 3;f tion. (a) See pott p. 40. (6) post p. 44. (c) Section 52. 24 ENGLISH LAWS IN FORCE IN ONTARIO. Kuper and the North - ■weat Terri- tory. latter, under the provisions of the British North America Act. Brt'B Land Kupert's Land and the North-west Teiritoiy, abandoned by Frpioe by the Treaties of Utrecht and of Paris, were, I iivp ■ J ' ) power given by the British North America Act, conp* ; - ^r\ part of the Dominioix by Imperial Order in Council of 23rd June, 1870. The order recited the sur- render to Her ^'' i sty under the Imperial " Rupert's Land Act, 1868," 01 Lhr ligi is and territory held by the Hudson's Bay Company (which temtory was in the Act referred to as " Rupert's Land," and was so designated in the Chai-ter of Charles II. granting the same to the Company), and it de- clared the admission of Rupert's Land and the North-west ^(V / 26 ^ rci^Sa Territory to the Dominion, from and after 15th July, 1870, subject to certain rights of, and payments to, the Hudson's Bay Company. Out of part of the country thus annexed to Canada, the Province of Manitoba has been formed, the resi- due being designated by Statute as the North-west Terri- tories, of which the Lieutenant-Governor of that Province is Lieutenant-Governor, and provision has been made for administration of justice therein. The Province of Manitoba was created by the Act of 33 Vic. ch. 3, out of a portion of Rupert's Land and the North- west Territory, which had been annexed to the Dominion under the Order in Council above referred to. The bounda- ries are given by the Act, which provides also for its repre- sentation in the Senate of Canada by two members, with provision for increase according to population, and for re- presentation in the Commons by four members, with provis- ion for readjustment after the Census of 1881, according to s. 51 of the " British North America Act." Having shown the authority of the Crown to impose on the late Province of Canada such laws as it pleased, except Manitoba. Aa to Canada. See 32 & 33 Vic. ch. 3 ; 34 Vic. c. 16 ; 33 Vic. c 3 ; 34 * 35 Vic. ch. 28 Imp. ENGLISH LAWS IN FORCE IN ONTARIO. 80 far as restricted by the treaty of cession, and that, in the absence of interference by the Crown, the laws existing at the time of cession would continue in force, we have now to consider what laws were allowed to exist, what were im- posed by the Crown, what the Crown could not interfere with or impose by reason of the treaty, and how it comes that the Crown has lost its rights, and we enjoy the right to legislate for ourselves, subject only to the power of the Crown to withhold its assent to a proposed measure becoming law, and of the British Parliament to impose laws on us, except so far as restrained in regard to taxation by Stat. 18 Geo. Ill, c. 12, Con. Stat. Can. p. xiv. Prior to the capture of Quebec by General Wolfe, in 1759, the late Province of Canada bielonged to the French. On capitulation of the town, it was provided in the Articles that the inhabitants should be maintained in possession of their goods, houses, privileges, and in the exercise of their religion. Montreal subsequently surrendered to the British, and by the terms of the capitulation, the inhabitants were guaran- teed the free exercise of their religion, but the guarantee did not extend to their laws, usages, or customs. In 17G3, by the Treaty of Paris (a), the French possessions Treaty of were ceded by that government to the King of Great Britain, " in the most ample manner and form, without restriction ;" the King of Great Britain agreeing, however, " to grant the liberty of the Catholic religion to the inhabitants of Canada," and to give orders " that his new Roman Catholic subjects may profess the worship of their religion, according to the rites of the Romish Church, as far as the laws of Great Britain 'permit." Afterwards, in the same year, the King, in the exercise of his prerogative right, issued a Proclama- frociamatiom ... introducing tion introducing the law of England, civil and criminal, in English liaw. (aj See " Chalmers' Treaties," vol I. p. 467. 26 ENGLISH LAWS IN FORCE IN ONTARIO. 1'4 general terms (a), into the ceded territory, then formed into the Province of Quebec ; but by some inadvertence, the ter- ritory was so described as to exclude the greater part, in re- gard to which no provision was made for its civil govern- ment. The Proclamation declared that powers had been given by Letters Patent to the Goveniors of the newly ac- quired territories (which had been erected into four distinct Governments — of Quebec, East and West, Florida and Gra- nada) with the advice and consent of the Members of Coun- cil to call General Assemblies, and with such consent and that of the representatives of the people to make laws, etc., and in the meantime all persons might confide in the King's protection for the enjoyment of the benefit of the Laws of England, for which purpose, it was declared, power had been given to the Governors with the advice of the Councils to constitute Courts for hearing and determining causes, civil and criminal, according to Law and Equity, and as near as might be " agreeable to the laws of England," with right of appeal in civil cases to the Privy Council. Under this Proclamation and the King's Commission and instructions to the Governor, civil government in lieu of the then existing military tribunals was established in the Province of Quebec, The legislative power was exercised by the Governor and Council, and in September, 1764, a Provincial Ordinance was passed, establishing a Superior Court of Queen's Bench, with power to hear and determine all civil and criminal cases " agreeable to the laws of Eng- land," and the Ordinances of the Province. The French Canadian populace were dissatisfied with the introduction of the British law ; in 1766, the Attorney and Solicitor-General, to whom the Imperial Government had referred, reported in favour of re-establishing the French (a) See ante p. 22.— It was said in the Cauadian cases there referud to, that the Proclamation only amounted to a promise or intention to introduce the British Laws. ENGLISH LAWS IN FOKCE IN ONTARIO. 27 law in civil matters ; in 1772 and 1773, the Advocate-Gen- eral, the Solicitor-General (afterwards Lord Chancellor Loughborough), and the Attorney-General (afterwards Lord Chancellor Thurlow), to whom the question had again been referred, reported to the same effect; England became involved in difficulties with the other North American Colo- nies ; and in 1774, the British Statute 14 Geo. III., c. 83 Con. imp. Stat. 14 Stat. Can., p. ix. was passed, which after reciting the ^' '^' ' defect in the proclamation of 1763, enlarged the limits assigned by it to the Province of Quebec, and defined those limits, (a), which included, apparently, with other territory, the whole of what was formerly Upper Canada. By the same Act, after reciting therein that the provisions made by the Proclamation for the Civil Government had, on experience, been found to be inapplicable to the state and circumstances of the Province, the inhabitants whereof, it was further recited, amounted at the conquest to 65,000, pro- fessing the religion of the Church of Rome, and enjoying an established form of constitution and system of laws, by which their persons and property had been protected and I governed for a long series of years, it was provided that the Proclamation should be revoked, that in all matters re- lating to civil riprhts and the enjoyment of property, and customs and usages, resort should be had to the laws of Canada (meaning the French laws in force before the Pro- Reintroduced iclamation), until varied by such Ordinances as might from ^'etich Law, [time to time be passed by the Governor and Legislative Council, to be appointed as set forth in the Act, and the Roman Catholic inhabitants were guaranteed in the free exercise of their religion. It was, however, provided that the Act should not extend to lands granted or to be granted by the Crown in free and common socage ; and that the owner of lands, goods or credits might devise or bequeath (a) These limits have be«n abridged and defined by various Treaties with the United States. h • ■ i Si >• 28 Except criini- iial. French civil law in force till 1792. Upper Canada formed into a separate Pro- vince and granted a con- stitution . I^anda to be granted in free and common socage. ENGLISH LAWS IN FORCE IN ONTARIO. the same, notwithstanding any law or custom prevalent in the Province to the contraiy ; and the criminal law of Eng- land was retained as introduced by the Proclamation of 1763. The Act took effect on Ist May, 1775. Thus it was that, with the exceptions above named, the old French law was again in force. As applied to lands, it partook in its nature, in some respects, more of the feudal system than did the then existing British law, and perhaps, until recent changes, there were few parts of the world where some of the relics of the feudal system were preserved so intact as in Lower Canada. The French law, with the above exceptions to it, con- tinued in force until the Provincial Act 32 Geo, III., c. 1, 1792, modified, however, from time time, by Ordinances ^ under 14 Geo. III., c. 83, of the Governor and Council, who, until the granting of a constitution under the Imperial Act of 31 Geo. III., c. 31, had the legislative control of the Pro- vince. The most important changes under those Ordinances, were the introduction of the writ of Habeas Corpus, in 1784, by Ordinance of 24 Geo. III., c. 5, and of trial by jury, in 1785, by Ordinance of 25 Geo. III., c. 2. By Imperial Act 31 Geo. III., c. 31, 1791, Con. Stats. Can, 15. the powers given by 14 Geo. III., c. 83, to tht Governor and Council, to legislate, were repealed, and the former Pro- vince of Quebec was divided into the two Provinces of Upper and Lower Canada, a separate constitution and representative form of government granted to each, and the power of legis- lation vested in the Legislative Council and Legislative As- sembly of each Province, to be appointed as set forth in the Act, the assent of the Crown, which might be expressed through the Governor, being always required to any measure becoming law. It was also provided that all lands to be granted in Upper Canada should be in free and common socage, and that if the grantees desired it, grants should be on the same tenure in Lower Canada. This Act, however, EN still left the i of the Goverr Under the 32 Geo. III., pally settled 1 Canada (meai the Act 14 G( regarded pro] the laws of C in such matte land as the i with regard matters of fac expressly ex( the Governor except so far as also ecclesi diction of th( of limitations equitable jur: in England n after explain^ By the sec fact were to Ifwrelve juroR Act was nee nance above still the verd ity of nine g trial of an is and British s half British ; tween Britisl (a) See the eff( S. U. C. 9, poat ENGLISH LAWS IN FORCE IN ONTARIO. 89 still left tho former French Canadian law and Ordinances of the Governor and Council in force in Upper Canada. Under the first Act of the Parliament of Upper Canada, First Act nf 32 Geo. III., reciting that Upper Canada had been prinbi- ;utro.iucHH pally settled by British subjects unaccustomed to the law o^' 171)2. Canada (meaning the French law), the provision made by the Act 14 Geo. III. c. 83, that in matters of controversy as regarded property and civil rights resort should be had to the laws of Canada, was repealed, and it Wiis declared that in such matters " resort should be had to the laws of Eng- land as the rule for decision of the same ;" and the same with regard to evidence, legal proof and investigation of matters of fact. The English poor and bankrupt laws were expressly excepted. The Ordinances theretofore made by the Governor and Council were to remain in force however, except so far as necessarily repealed by the above provisions, as also ecclesiastical rights, forms of proceedings, and juris- diction of the courts (a). The English Statutes of jeofails, of limitations, and for the amendment of the law, and the equitable jurisdiction and powers of the Court of Chancery in England not being introduced till subsequently, as here- after explained. By the second Act of the same Parliament, all issues in Trial i>>- .rijry. fact were to be determined by the unanimous verdict of ^elve jurors, conformably to the law of England. This Act was necessitated by the fact that although the Ordi- ^ nance above named, of 1785, did introduce trial by jury, still the verdict was not required to be unanimous, a major- ity of nine governed, and the Ordinance provided that on trial of an issue between a Canadian (i, e. French) subject and British subject, half the jurors should be Canadian and half British ; between Canadians, all Canadian jurors ; be- tween British, all British jurors. (a) See the effect of this Act of 32 Geo. III. c. 1, fully expressed in the Cob. Is. U. 0. 9, pM« p. 37. i I 30 ENGLISH LAWS IN FORCE IN ONTARIO. From loth October, 1792, the day on which these Acts were passed, the English laws, aa tfiey existed on that day^ so far as regarded property and civil rights and trial In- jury, evidence, legal proof, and investigation of matters of fact, wore re-introduced into Upper Canada, with the excep- What EngiiMh tiona above mentioned ; and to these nnist be added another laws not iiitni- duccd. important exception not expressly mentioned by the legis- lature, viz., that of such English laws as were not applies bio to the state and condition of the Province. What If are to be deemed inapplicable, and consequently never lu force in Upper Canada, we will now consider. In Doe dem Anderson v. Todd, (a), this question was very fully considered. The question there was whether the Statutes of Mortmain were introduced into Upper Canada by the above Act of 32 Geo. III. c. 1. JDir J. B. Robinson, C. J., in giving judgment, after referring to the early constitutional history of Canada, and terminating at the first Provincial Act of 32 Geo. III., proceeds : — " On this foundation rests our right to the enjoyment of the laws of England, except as regards the criminal law, which, hav- ing been introduced by the royal proclamation into vhe Province of Quebec, as there defined, was afterwards, by the Statute 14 Geo III., ch. 83, extended to the whole territoiy (including Upper Canada), which was by that Act made to constitute the Province of Quebec, and has ever since been al- lowed to con^^'nue in force there,being expressly recognised in Upper Canada by 40 Geo. III., c. 1, and modified by that and subsequent statutes. Except for the purpose of tracing the history of the introduction of the laws which govern tliis colony, it was unnecessary to the decision of the point before us to have gone further back than the Statute 32 Geo. III., chap. 1 ; whatever was done before cannot afiect the ques- tion, though some things which have been done afterwards («) 2 U. C. R. 82. may. The: statute, it ii tion of the regards the have been, i ination of ( in those ter on which tl which they pics of the been first in restrictions the Commei Grant in th( 1 think in tl in such gen€ have been 1 cepted in sp ing inapplici net '.vish to is impossibk words they Statute Boo true indeed their enactn are not unc English Poo were both o Statutes. I unius exclu> legislature pression tha Bankrupt L used before province. 11 ENGLISH LAWS IN FORCE IN ONTARIO. St may. Then looking in the first place at the words of this statute, it is my opinion that they do not place the introduc- tion of the English law on a footing materially different as regards the extent of the introduction from what would have been, or rather from what was, the effect of the procla- mation of Quebec of 7th October, 1763 (before refen*ed to), in those territoiies to which it extended, or from the footing on which the laws of England stand in those colonies in which they are merely assumed to be in force on the princi- ples of the common law, by reason of such colonies having been first inhabited and planted by British subjects. Th<' restrictions intimated in the passage which I have cited from the Commentaries above set out, and the reasons of Sir Wnu Grant in the case of the Attorney General v. Stuart, apply I think in the case of an introduction by express enactment in such general terms as well as in the other case. It would have been hardly possible for the legislature to have ex- cepted in special terms all those British Statutes which, be- ing inapplicable to the condition of the colony, they might uot wish to include as parts of the law of England. .And it is impossible to allow that they could have intended by the words they used to embrace every provision in the British Statute Book which they did not specially except. It is true indeed that they have made some special exceptions; in their enactment they have been careful to jirovide that we are not under the general words used by them to take the English Poor Laws and Bankrupt Laws with the rest; these were both of them systems of law framed wholly by English Statutes. It cannot be denied to be a maxim that ' mentio uniua eocclusio est alterius.' And it may be said that the legislature in making these two exceptions evinced their im- pression that if they had riot made them, the Poor Laws and Bankrupt Laws would, under the words which they had used before in the statute, have been introduced into the province. The argument consequently a{)plies quantuvv i s X ' ! 32 ENGLISH LAWS IN FORCE IN ONTARIO. 'valeat; but I km of opinion that we cannot allow it so much force as to admit that every English statute of a general na- ture not excepted, is in force because it was not excepted. The legislature looking on the Poor Laws and Bankrupt Laws as unsuited to the condition of the colony, wer«i deter- mined to leave no room for doubt as to their exclusion ; and therefore for greater caution expressly excepted them ; but if we were therefore now to hold that all statutes vt^hich they have not excepted, and which could by their nature be enforced here, must therefore be binding on us, we should be making great and I fear absurd changes in our system of laws, as it has been always hitherto received and acted upon here. The Game Laws, for instance, are not excepted in the statute ; nor the statutes which disable persons from using a trade who have not served seven years' apprenticeship ; nor any of the multitude of acts relating to certain trades and manufactures ; and indeed it would be easy to enumer- ate a long list of statutes, all actually capable of being acted upon in this country, but which having been passed upon groundsandfor purposes peculiartoEngland,and either wholly, or in a great degree, foreign to this colony, have never been attempted to be enforced here, and have never been taken to apply to us. And indeed several occasions have arisen in which this court has determined, with respect to certain British Statutes, passed before our Provincial Statute 32 Geo. III., ch. 1, that they formed no part of the law of this Pro- vince, not having provisions in their nature applicable, and such as it could be supposed the legislature intended to in- troduce under the general words used by them ; these words too, it must be remarked, are not such as expressly intro- duce the whole civil law of England ; they seem rather in- tended to be more prudently limited to the purpose of giving the principles of English law, modified of course as they may have been by statutes, as the rule of decision for settling questions as they might arise relative to propeiiy and civil I ENGLISH LAWS IN FORCE IN ONTARIO. 33 rights. Still it must be confessed that a wide field is opened for disputes by the term civil rights. Among a man's civil rights it may be argued is the right of disposing of his pro- perty as he thinks fit ; and when he has made a disposition of it, the legality of which is questioned, that seems to pre- sent a point which must be solved, since our Statute 32 Geo. Ill, ch. 1, by considering what a man, in the exercise of his civil rights, might in such a case do in England, and taking that as the rule for deciding the controversy between the persons claiming under the disposition which may be ques- tioned, and the person who would be entitled to the pro- perty as the representative of the deceased, if he had not the power to dispose of it as he has done. To decide these con- stitutional points, for such they are, upon principles so mani- festly clear and consistent as to keep free from all appear- ance of conflicting decisions, is more, I appreliend, than it can be hoped to attain. That, ' misera servitus,' which is said 7,ytCc4u^ ^'^■f- to exist where 'Jus est vngum' is so justly dreaded in these ^o-*-- » Y '^^, "- times, that no one can consent to admit that there exists in '' ^''^^'^' ^ - any tribunal an arbitrary discretion to say what British Statutes shall be in force here, and what not ; and yet, on the other hand, in the present state of our jurisprudence, there cannot be said to be any other method of settling all these doubts, as they arise, than for courts of justice to de- termine them, not by any arbitrary exercise of their will, for they can claim no such right, but upon the best views which thev can take of arguments which cannot in their nature lead to any clear and incontestable conclusion. To repeat what I have already quoted from Mr. Justice Blackstone, what shall be admitted and what rejected, at what times and under what restrictions, must, in case of dispute, be decided in the first instance by the provincial judicature, subject to the revision and control of the king and council ; and we may add subject also to any express provision which the 3 :t -i X .'a I 84 ENGLISH LAWS IN FORCE IN ONTARIO. legislature of the mother country or the province may think lit to make." The judgment of tlie court was that the Statutes of Mort- main were in force in this country ; but it was based rather on the ground that the Provincial Legislature, by various enactments, had assumed they were in force (and thus itself, as to those statutes, expounded the Statute of j32 Geo. III.), than on a unanimous view of the court that, apart from the action of the legislature, those statutes were to be considered in force. The Chief Justice looking at the abstract question as to whether by virtue of the Statute of 32 Geo. III. alone, the Mortmain Acts were introduced into Canada, was of opinion they were not, as imposing restrictions and contain- ing provisions not applicable to the circumstances of the colony. This view would appear upheld by a subsequent case (a) in England, in which the question arose as to whether the same Statute of 9 Geo. II. was to be considered as intro- duced into New South Wales under a Statute of 9 Geo. IV^,, oh. 83, s. 24', providing that all laws in force in England, at the passing of that Act, should be applied in the administra- tion of justice in New South Wales as far as the same could be applied within tho colony, and that as often as doubts should arise as to the application of any such laws, the Governor in Council was to declare whether such laws did apply, and in the mean time, till such declaration, the Supreme Courts ou trial of any action were to decide ; it was Jield in the Court of Appeal in Chancery in England, that the Statute of 9 Geo. II. was not in force in New South Wales, by vir- tue of the Statute of 9 Geo. IV., as not suited to the circum- stances of the colony. Though subsequent cases here follow Doe V. Todd, they are decided mainly on the ground, that that case must govern courts of concurrent jurisdiction until reversed in a Superior Court. TheE by mere It does of an Im fore othe If aB] Act of 32 wards in tion in C Geo. II., , tions of tl regulating ing of dis ing Solici repealed I tinue to Canada (c In consi sec. of the Canada p. ded ah.vay or be cons said Prov: of Great ing or re colonies ai of the saic made cone tions, shal the said P: was mainl (a) Whicker v. IJumc, 16 Jur. 3'Jl. /.N r^ ENGLISH LAWS IN FORCE IN ONTARIO. 35 The English Ecclesiastical laws are not introduced on and by mere settlement of a new country (a). It does not follow, however, that because some provisions of an Imperial Act are to be rejected as inapplicable, there- fore other provisions of the same Act are to be rejected (6). If a British Statute were introduced by the Provincial Act of 32 Geo. III., ch. 1, the fact of its being repealed after- wards in England would not prevent its continued applica- tion in Canada. The Imperial Legislature by Statute 22 Geo. II., ch. 46, together with provisions respecting exac- tions of the occupiers of locks and weirs on the Thames, for regulating the assize of bread, and for preventing the spread- ing of distemper among cattle, made also provisions respect- ing Solicitors and Attorneys ; and though this statute wavS repealed by Imperial Statute 6 & 7 Vic, it was held to con- tinue to apply to gentlemen of the profession in Upper Canada (c). In considering what British Statutes are in force, the 18th sec. of the Imperial Statute 14 Geo. III.,ch. 83, Con. Stat, of ///y Canada p. ix. may be referred to. That section enacts, " Provi- ded ahvays, that nothing in this Act contained shall extend, or be construed to extend, to repeal or make void, within the said Province of Quebec, any Act or Acts of the Parliament of Great Britain, heretofore made for prohibiting, restrain- ing or regulating the trade or commerce of His Majesty's colonies and plantations in America ; but that all and every of the said Acts, and also all Acts of Parliament heretofore made concerning or respecting the said colonies and planta- tions, shall be and are hereby declared to be, in force within the said Province of Quebec, and every part thereof" It was mainly on the effect of that section that the Statute 5 (a) Se Bishop of Natal, 11 Ju . N. S. 353, per Lord Chancellor. (6) Regina v. Roblin, 21 IJ. C. R. 354, per Ro4)in8on, C. J. See this case a» to English Marriage Laws, and English Laws generally applicable here. (f) Du7hM V. O'Eeilly, 11 C. V. 404. See Uodyim v. McNtil, 9 Grant, 305. I X ] •I 36 ENGLISH LAWS IN FORCE IN ONTARIO. Gpo. II., ch. 7, has been held to be in force here, to which the right to the writ of ji. fa. against lands, and of proceed- ings against lands in suits against executors, owes its foun- dation. That Act was passed according to its intituling, " for the more easy recovery of debts in His Majesty's plan- tations and colonies in America." At that time Canada was not a British colony, but belonged to the French ; the Act was not part of the General Law of England, but local in its application ; as stated by Sir J. B. Robinson, C. J., in Gardner v. Gardner, (a) " The doubt that had been raised was whether the 5 Geo. II. was in force in this Province, being a colony acquired by conquest since the passing of that statute, and the English Law having been introduced as the rule of decision, by the Colonial Statute of 1792 (32 Geo. III). It was decided that the statute was in force, if not otherwise, yet certainly under the 18th sec. of 14 Geo. III., c. 83." It appears singular, and is to be regretted, that our system j of judicature should be such that frequently it may be diffi- cult to determine what laws are in force (6), and that not I only as to civil but also as to criminal matters ; in one case it | is a question whether a particular statute is in force to re- strain a man from disposing of his property by will in a certain I way ; in another, whether (before rights of entry could be conveyed) he is liable, under an English Statute (32 H, VIIL, c. 9), which had not been acted on for a century, to a penalty to the value of the land, for buying or selling a disputed title to it, with knowledge of the dispute and of some other I (a) 2 O. S. 537 (b) Baldwin v. Quesnel, O. S. 166, E. T. 3 Wm. IV. ; Wragg v. Jamis, 4 O.S.I 320 ; Shea v. Choate, 2 U. C. R. 211 ; Rcgina v. Seeker, 14 U. C. R. 604 ; Regml V. Bell, 15 U. C. R. 287; Cronyn v. Widder, et ah, 16 . U, C. R. 366 ; RcginX V. Mercer, 17 U. C. R. 602 ; Reijina v. McCoi-mick, 18 U.C. R. 131 ; Afars/w/lj V. Piatt, 8 C. P. IT. C. 189: Reid v. Inglis, et al., 12 C. P. U. C. 191 ; Hod] gins V. McNeil, 9 Grant, 305, ENGLISH LAWS IN FORCE IN ONTARIO. m person having been in adverse possession for a year or more (a). Superadded to these uncertainties arising from the intro- duction of the English Law in general terms (as to which reference is again made to the concluding part of the lan- guage of the learned Chief Justice above quoted) is frequent doubt ..'hether, under the Act creating the Dominion, the Parliament of Canada, or the Provincial Legislature, has power as to some particular subject matter of legislation, and also whether any Act, though assented to by the Gov- ernor-General or Lieutenant-Governor, and which has be- come law, may not attHrwards be disallowed (h) Having now examined how the English laws, as they ex- w^^at laws in- isted on the 15th Oct., 1792, were introduced into Upper g^;'*'^'^ *^'«' Canada, and with what exceptions, we have to consider in a general point of view what laws were subsequently intro- duced, and by what authority. Until the Imperial Act of 3 & 4 Vic. hereafter referred to, re-uniting the Provinces of Upper and Lower Canada, the authority, after the passing On what au- of the Imperial Statute 31 Geo. III. c. 31, and of the first °" ^' statute of Upper Canada, rested on these statutes alone, and on the paramount right of the British Parliament to impose laws on us. By the Provincial Act 2 Geo. IV., ch.l, the English Statutes of Jeofails, of Limitations, and for the amendment of the law, except those of mere local expediency, were introduced, as they then (on the passing of the Act) were in force in England. The Consolidated Statute for Upper Canada, ch. 9 (R. S. 0. c. 92), thus expresses what is above stated : — 1. "In all matters of controversy, relative to property and Expression of civil rights, resort shall continue to be had to the laws of c. of introduc- England as they stood on the said loth day of October, 1792, j^^.^ "^ " f X ■t i (a) Beatkif v. Cahill, 2 U. O. R. 320. fb) See p. 44. ; I 38 ENGLISH LAWS IN FORCE IN ONTARIO. as the rule for the decision of the same ; and all matters rela- tive to testimony, and legal proof in the investigation of fact, and the forms thereof, in the several courts of law and equity in Upper Canada, shall continue to be regulated by the rules of evidence established in England, as they existed on the day and year last aforesaid, except so far as the said laws and rules have been since repealed, altered, varied, modified, or affected by any Act of the Imperial Parliament still having force of law in Upper Canada, or by any Act of the late Province of Upper Canada, or of the Province of Canada, still having force of law, or by the Consolidated Statutes relating to the Province of Canada, or to Upper Canada exclusively." 2. " The Statutes of Jeofails, of Limitations, and for the amendment of the law, excepting those of mere local expe- diency, which, previous to the 17th day of January, 1822, had been enacted respecting the law of England, and then continued in force, shall be valid and effectual for the same purposes in Upper Canada, excepting so far as the same, have since the day last aforesaid, been repealed, altered, varied, modified, or affected in the manner mentioned in the first section of this Act." By 7 Wm. IV, ch. 2, the Court of Chancery for this Pro- vince was established. The general jurisdiction and rules of decision are given in the Revised Statutes of Ontario, c. 40, as follows : — Jurisdiotionof The Court shall hav^ the like jurisdiction and power as Chancery. ^Y ^^^ ^^-ws of England were on the fourth day of March, 1837, possessed by the Court of Chancery in England, in respect of the matters hereinafter enumerated, that is to say : — (1.) In all cases of fraud, and accident ; (2.) And in all matters relating to trusts, executors and administrator, co-partnership and account, mortgages, awards, do\\ -r, in- fants, idiots, lunatics and their estates ; (3) And also to stay waste; (4) To compel the specific performance of agree- ENGLISH LAWS IN FORCE IN ONTARIO. 39 inents ; (5) To compel the discovery of concealed papers or evidence, or such as may be wrongfully withheld from the party claiming the benefit of the same ; (6) To prevent mul- tiplicity of suits ; (7) To stay proceedings in a Court of Law, prosecuted against equity and good conscience ; (8) To decree the issue of Letters Patent from the Crown to right- ful claimants ; (9) To repeal and avoid Letters Patent issued erroneously or by mistake, or improvidently, or through fraud ; (Sec. 34) And generally, the like jurisdiction and power as the Court of Chancery in England possessed on the tenth day of June, one thousand eight hundred and fifty- seven, as a Court of Equity to administer justice in all cases in which there exists no adequate remedy at Law ; (Sec. 36) Tlie Court shall also have jurisdiction as to alimony ; (Sec. 43) And as to lunatics, idiots, and persons of unsound mind and their property, further jurisdiction is given, (s. 58.) In regard to the partition and sale of estates of joint tenants, tenants in common and coparceners, the Court shall possess the same jurisdiction as by the laws of England on the tenth of August, one thousand eight hundred and fifty, was possessed by the Court of Chancery in England, and also as bj the laws of Upper Canada is possessed by the Courts of Queen's Bench and Common Pleas or by the County Courts, (Sec. 53.) The Court has also jurisdiction in matters of partition under R. S. O. ch. 101. .>, ') By Statute of the Province of Canada, 28 Vic. ch. 7 (R. S. 0. ch. 40, s. 85), the same jurisdiction was given to the Court in this Province, as the Court of Chancery in England has, in regard to leases and sales of settled estates, and in regard to enabling minoi-s to make binding settlements of their real and personal estate in marriage ; and in regard to questions submitted for the opinion of the Court in the form of special cases on the part of such persons, as may by them- selves, their committees or guardians, or otherwise, concur therein, s. 1. I 4r u i'l X >- ! : I 40 ENGLISH LAWS IN FORCE IN ONTARIO. Act of Union of Upper and liower Canada, V British North America Act, 1867. Formation of the Dominion. Admission of other Territory. By s. 2, (R. S. 0. ch. 40, s. 37), the Court has the same equi- table jurisdiction in matters of revenue as the Court of Ex- chequer in England possesses. By Imp. Act 3 & 4 Vic, c. 35, 1840, Con. Stat. Can. p. xix., the Provinces of Upper Canada and Lower Canada were re- united into the late Province of Canada, and a new constitu- tion gi'anted : the power of legislation was vested in Her Majesty, with the advice and consent of a Legislative Council and Assembly, the latter body being elected, the former appointed by the Governor for life : (by Provincial Statute 19 & 20 Vic. c. 140, the Council was also made elective). The Act of Union also provided that all laws, courts of jus- tice, commissions, administrative and judicial officers, and good government of any territory not included in any Province. The Canadian Acts 32 & 33 Vic. ch. 3, and 33 Vic. ch. 3, were confirmed ; and, except as regarded the above Jl' I I 3 X >• 42 ENGLISH LAWS IN FORCE IN ONTARIO. Four Provin- ces formed. power to vary the limits, Parliament was prohibited from varying the above Act of 33 Vic. so far as it related to Mani- toba, or any other Act thereafter establishing a new Pro- vince, subject to the right of the Legislature of Manitoba, to alter the law respecting qualification of electors and mem- bers of the Legislative Assembly, and to make laws I'espect- ing the elections. By the same " British North America Act, 18G7," the Dominion was divided into four Pi-ovinces, named Ontario, Quebec, Nova Scotia and New Brunswick, s. 5. : Ontario to be composed of what was formerly Upper Canada ; Quebec of what was formerly Lower Canada, s. 0. ; and Nova Scotia and New Brunswick to have the same limits as before the Act, s. 7. Existing Except as otherwise provided by the Act, all laws in Officers, &c.,' force in the united Provinces at the Union^and all courts of civil and criminal jurisdiction, all legal commissions and pow- ers, and all officers, judicial, administrative, and ministerial, existing therein at the Union were continued in the newly formed Provinces respectively, as if no Union had been made ; subject, nevertheless (except as to such as were enacted by or existed under Imperial Acts) to be repealed or varied by the Parliament of Canada, or by the Legislature of the re- spective Provinces, according to the authority of the Parlia- ment, or that of the Legislature, under the Act, s. 129. The Executive power was continued vested in the Queen, s. 9 ; power was given to the Governor-General to form a Privy Council, s. 11 ; powers and functions subsisting at the time of Union in the Governors or Lieutenant-Gov- ernors of the various Provinces were, as far as consistently might be after the Union in relation to the government of Canada, continued to the Governor-General to be exercised by him, with the advice of the council or individually as the case required, subject, except as to such as existed under Im- perial Acts, to variation by the Parliament of Canada, s. 12. Executive power. ENGLISH LAWS IN FORCE JN ONTARIO. 48 As to the Legislative power of Canada, it was enacted that Leffwlative Tin WPP there should be one Parliament, consisting of the Queen, and Upper House styled the Senate, and the House of Commons. In relation to the constitution of the Senate, that body was. Senate, subject to the provisions of the Act as to admission of other colonies, increased in number and otherwise to consist of seventy -two members, ss. 21-27. The Dominion was formed into three divisions, Ontario and Quebec each forming one, and Nova Scotia and New Brunswick conjointly another division : each division to be represented by twenty-four Senators ; Nova Scotia and New Brunswick each to be re- presented by twelve, s, 22 ; with provision for reduction to ten, as hereafter mentioned, on admission of Prince Edward Island, which would be represented by four Senators, s. 147. Senators could be appointed for the Provinces of British Columbia, Newfoundland, and Prince Edward Island, and for the unorganized regions of Rupert's Land and the North- West Territory, on their admission into the Union, as pro- vided by s. 146, before referred to. On admission, however, of Newfoundland and Prince Edward Island, or either of them, each was to be entitled to four Senators ; and on ad- mission of Newfoundland the normal number of Senatora (notwithstanding anything in the Act) was to be seventy- six, and the maximum number eighty-two ; but Prince Ed- ward Island, when admitted, was to be deemed comprised within the division whereof Nova Scotia and New Brunswick were composed, so that after admission of the Island (whe- ther Newfoundland were admitted or not) the representa- tion of Nova Scotia and New Brunswick were, as vacancies occurred, to be reduced from twelve to ten Senators respec- tively, and not to be increased beyond ten, except under the provisions of ss. 26, 27, for appointment by the direction of the Queen of additional Senators, s. 147. Addition of three or six members, representing equally the three divisions, might be made by the Governor-General if Her Majesty a^ J! ^ i :- y 44 ENGLISH LAWS IN FOItCE IN ONTARIO. nionti. .T) Vic. ch. 13. thought fit to direct an addition, bh. 26, 27 ; the Governor- General to summon qualified persons to the Senate, ss. 24-27 ; those first summoned to be approved of by the Queen, s. 25 ; Senators to hold their places for life, s. 2f) ; with power to resign, s. 30 ; and subject to forfeiture, s. 31. Htmst'ofCom- The House of Commons was, subject to the provisions of the Act as to admission of other colonies, before referred to, H. 140, power to increase in members, s. 52, and decennial reiidjustmont of representation, according to population of the respective Provinces, s. 51, to consist of one hundred and eighty-one members, of whom eighty-two were to be elected for Ontario, sixty-five for Quebec, nineteen for Nova Scotia, and fifteen for New Brunswick, s. 37. Since the census of 1871, the House of Commons is, by the Act of 35 Vic. ch. 13, to consist of two hundred mem- bers, of whom eighty-eight are foi- Ontario, sixty-five for Quebec, twenty-one for Nova Scotia, sixteen for Now Brunswick, four for Manitoba, and six for British Columbia. The admission of Prince Edward Island into the Dominion has increased the number of members of the Hou> of om- mons to two hundred and six. Eoyal assent Qn a Bill being presented to the Govcrnor-G al for the to, and dis- " * allowance of. Queen's assent, he is to declare that he gives or withh -ids the same, or reserves the Bill for signification of Her Ma- jesty's pleasure, s. 55. If the Governor-General assents to a Bill, a copy is to be sent to one of the Secretaries of State, and if within two years after its receipt the Queen in Council thinks fit to disallow the Act, it is to be deemed an- nulled from the day whereon the Governor-General may have signified such disallowance, s. 56. A Bill reserved for Royal assent has no force unless within two years from the day when presented to the Governor-General for assent he signifies that assent has been given, s. 57. The Parlia- ment and Government of Canada shall have all powers neces- sary or proper for performing the obligations of Canada or of Bills. ENGLISH LAWS IN FORCE IN ONTAUIO. 45 any Province thereof, as part of the British Empire, towards foreign countries, arising under treaties Ijctween the Empire and sucli for^iign countries, s. 132. PROVINCIAL CONSTITUTION OF ONTAUIO. The Governor-General is to appoint a Lieutenant-Gover- nor for each Province, .s. 58, to hold office during pleasure, but not removable within five years from appointment, exce{)t for cause a.ssigned, s. 59. The Executive Council in ^iitario is at the nomination of the Lieutenant-Governor, ss. C3, 134. Powers exercisable by the Lieutenant-Gover- nor before the Union are continued so far as capable of being exercised thereafter, s. 05. The Legislature for Ontario is to consist of the Lieutenant- Governor and of one House, styled the Legislative Assembly of Ontario, section 09, and composed of eighty-two members, to be elected to represent various districts, s. 70. The foregoing provisions, respecting the Parliament of ^ ana- la, relating to assent to Bills, disallowance of Acts, signification of pleasure on Bills reserved, are by s. 90 made apply as if re-enacted by that section with the substitution ut' Lieutenant-Governor for Governor-General, of the Gover- nor-General for the Queen, and for a Secretary of State, of one year for two years, and of the Province for Canada, s. 90 (a). By s. 91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Law« ibr the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Provincial C'onHtitutiun of Ontario, Executive Ijower. LeKiHlative powur in Ontario. Leffislative Autiiority of Parliament of Canada. («) This ill-framed section will be found difficult to construe, or rather, it will be found that the subntitutions directed cannot be made as directed so as to give the proi>er effect intended to the lang^iage when the siibstitution is made: gee the remarks of Draper, C. J. of Appeal, in Re Goodhue, 8 U. C. L. J. (N.S.) 38, but these remarks are omitted in the report of the same case in 19 Grant 366, The word " following" in this section is a misprint for " foregoing." SI J J i >■ i 40 ENGLISH IA.WS IN FORCE IN ONTARIO. Legislatures of the Provinces ; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwith- standing anything in this Act) the exclusive Legislative Authority of the ParMnment of Canada extends to all Mat- ters coming within the Classes of Subjects next hereinafter enumerated ; that is to say : — 1. The Public Debt and Property. 2. The Regulation of Trade and Commerce (a) (6). 3. The raising of Money by any Mode or System of Taxa- tion. 4. The borrowing of Money on the Public Credit. 5. Postal Service. 6. The Census and Statistics. 7. Militia, Military and Naval Service, and Defence. 8. The fixing of and providing for the S laries and Al- lowances of Civil and other Officers of the Govern- ment of Canada. 9. Beacons, Buoys, Lighthouses, and Sable Island. 10. Navigation and Shipping. 11. Quarantine and the Establishment and Maintenance of Marine Hospitals. • 12. Sea Coast and Inland Fisheries. 13. Ferries between a Province and any British or Foreign Country or between Two Provinces. 14. Currency and Coinage. 15. Banking, Incorporation of Banks, and the Issue of Paper Money. 16. Savings Banks. 17. Weights and Measures. 18. Bills of Exchange and fromis iory Notes. 19. Interest. (a) See Begina v. Taylor, 36 U. C. R. 18;>. (6) See Beard v. Steele, 34, U. C. R. 43 ; see Sever* v. Tke Queen, i Supreme Court of Canada Rep. p. 70. ENGLISH LAWS IN FORGE IN ONTARIO. 47 20. Legal Tender. 21. Bankruptcy and Insolvency (a). 22. Patents of Invention and Discovery. 23. Copyrights (h). 24. Indians, and Lands reserved for the Indians. 25. Naturalization and Aliens. 26. Marriage and Divorce. 27. The Criminal Law, except the ConstitutioTi of Coui-ts of Criminal Jurisdiction, but including the Procedure in Criminal Matters (c). 28. The Establishment, Maintenance, and Management of Penitentiaries. 29. Such Classes o? Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Pro- vinces. And any Matter coming within any of the Classes of Sub- jects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Natui-e comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Pro- vinces. 92. In each Province the Legislature may exclusivelymake-Subjects nf Laws in relation to Matters coming within the Classes of viuoiiil Lf,'U- Subjects next hereinafter enumerated, that is to say, — I. The Amendment from Time to Time, notwithstanding (a) See Crombie v. Jackson, 34 U. C. R. 575. (M The Parliament of Canada has the exclnnive control of colonial copyritjlit to the'exclusion of the Provincial Legislatures in the same way as it has in bank- ing, insolvency, &c. , but has no greater power than the Provincial Legislatures had before Confederation. Smiles v. Belford, 23 Grant, 590, s. c. 3 App. R. 43«. As to the control of the Imperial Legislature in matters of copyright see Rautkdije V. Low, L. R. 3 E. & I. App. 100 post p. 55. (c) It would seem that to this Section is a further exception of those cases where power to lejfislate is given to tha Provincial Legislatures ; per Richur Js, C. J. Rtyitvi V. Boardman, 30 U. C. R. 550. it T^ 'I it: ^ X I 48 ENGLISH LAWS IN FORCE IN ONTARIO. anything in this Act, of the Constitution of the Pro- vince, except as regards the Office of Lieutenant- Governor. 2. Direct Taxation within the Province in order to the raising of a Revenue ^or Provincial Purposes (a). 3. The borrowing of Money on the sole Credit of the Province. 4. The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers. 5 The Management and Sale of the Public Lands be- longing to the Province and of the Timber and Wood thereon. 6. The Establishment, Maintenance, and Management of Public and Reformatoiy Prisons in and for the Pro- vince. 7. The Establishment, Maintenance, and Management of | Hospitals, Asylums, Charities, and Eleemosynary In- stitutions in and for the Province, other than Marine | Hospitals. 8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, Auctioneer, and other Licenses I in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes (6). 10. Local Works and Undertakings other than such as are | of the following Classes, — a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other works and Un- dertakings connecting the Province with any other or others of the Provinces, or extending | beyond the Limits of the Province : (d) See The AtVy Gen'l of Quebec v. The Queen Insurance Co., L. R. 3 App i Cart. 1,090. (()) See Severn v. The Queen, 2 Supreme Court Canada Kep>70 ; AU'y Ocn'loil Quebec v. The Queen Insurance Co., supra. 11 . Tl C 12. Th 13. Pre 14. Th ing of Jul int 15. The Im ma< the 16. Gei Nai 93. In sively ma according ENGLISH LAWS IN FORCE IN ONTARIO. 4& the Pro- 3utenant- ler to the 3(a). lit of the ial Offices Provincial Lands be- md Wood gement of r the Pro- gement of iynary In- an Marine I ir Licenses | Provincial, mch as are Railways, | :s and TJn- ) with any I extending b. Lines of Steam Ships between the Province and any British or Foreign Country. c. Such works as, although wholly situate within the Province, are before or after their Execu- tion declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces. 11. The Incorporation of Corapanie'^' with Provincial Objects. 12. The Solemnization of Marriage in the Province. 13. Property and Civil Rights in the Province (a). 14. The Administration of Justice in the Province, includ- ing the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts. 15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section (b). 16. Generally all Matters of a merely local or private Nature in the Province (c). 93. In and for each Province the L'igislature may exclu- Legislation sively makfe Laws in relation to Education, subject and cation.*"'^ according to the following Provisions : — ^ (1.) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any class of Persons have by Law in the Province at the Union : (2.) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the •3 D ■I (a) See CromhU v. Jnckton, 34 U. C. R. .''.7.5 anU p. 47. (6) See Regiiia v. Boardman, 30 IT. C. R. 556, ante n. c, p. 47. (f) See UUnion St. Jacques de Montreal v. Belialt, L. R. 6 C. P. 31. 50 ENGLISH LAWS IN FORCE IN ONTAKIO. Separate Schools and School Trustees of the Queen's Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen's Protestant and Roman Catholic Subjects in Quebec : (3.) Where in any Province a System of Separate or Dissen- tient Schools exist by Law at the Union or is there- after established by the Legislature of the Province, an Appeal shall lie to the Governor-General in Coun- cil from any Act or Decision of any Provincial Au- thority affecting any Right or Privilege of the Pro- testant or Roman Catholic Minority of the Queen's Subjects in relation to Education : (4.) In case any such Provincial Law as from Time to Time seems to the Governor-General in Council requisite for the due Execution of the Provisions of this Sec- tion is not made, or in case any Decision of the Governor-General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the circum- stances of each Case require, the Parliament of Canada may make remedial Laws for the due Exe- cution of the Provisions of this Section and of any Decision of the Governor-General in Council under this Section. Education. AKriciilture and inimif,'ia- tion. ProviHion for uniformity of laws. Each Province may legislate exclusively as to educa- tion, subject to certain exceptions and provisions, s. 98 ; and subject to i)aramount power thereon given to the Parliament of Canada, may legislate as to agriculture and immigration within its limits, s. 95. The Parliament of Canada may make provision for the uniformity of laws throughout the Union, relating to prop- erty and civil rights, and the procedure of the Courts, but I ENGLISH LAWS IN FORCE IN ONTARIO. Sfi no such provision is to take effect in any Province until adopted by the Legislature thereof, s. 94. The Governor-General has the power to appoint the .ludicature. Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick, ss. 96, 97, 98 ; the salaries of such Judges, except as aforesaid, to be fixed and provided by the Parliament of Canada, s. 100. The Judges of the Superior Courts to hold office during good behaviour, but removable by the Governor-General, on address of the Senate and House of Commons, s. 99 (a). The Parliament of Canada has power to provide for the Court of Ap- constitution and maintenance of a general Court of Appeal tionat'courts.' for Canada, and for the establishment of any additional courts for better administration of the laws of Canada, s. 101. The ultimate resort in cases decided in Colonial Courts is Court of last to the Queen in Council. It is the settled prerogative of the ''''^°'^- Crown to receive appeals in all colonial cases (6). The right of appeal is one of the rights of the subject with which the Crown, by its mere prerogative cannot interfere ; for the Crown has no power to deprive the subject of any of his rights ; but the Crown, acting with the other branches of the Legislature, has such power in any country under its dominion (c). Where an Imperial Act declared that all laws passed by a Colonial Legislature should be binding within the Colony, and that the colonial Court of Appeal should be subject to the provisions of any Colonial Act, it was held that a Colonial Act having been passed limiting the right of (o) The Judges of the County Courts in Ontario are removeable by the Lieutenant- Uo, . -nor, for inability, incapacity, or misbehaviour, established to the satiefaction of the Lieutenant-Governor in Council. 33 V. o. 12, s. 1, R. S. 0. c. 42. B. 1. (fc) Per cur. Re Lord Bishop of Natal, 3 Moo. P. C. N. S. 1515 ; and see 25 Hen. VTII., o. 19, s. 4, (*) CuvUlier v. Aylmn, 2 Knapp, 78. f MM id f;2 ENGLISH LAWS IN FORCE IN ONTARIO. Power of Imp. Parliament to impoae laws. appeal to cases beyond a certain sum, that a petition for leave to appeal in a case of less amount could not be re- ceived by the King in Council (a). As before mentioned, the Imperial Parliament can still enact laws which are binding on us notwithstanding the grant of a constitution and of power to legislate for our- selves. Imperial statutes, however, do not apply to Canada, except by " express enactment or necessary intendment" (h), and apart from any such legislative expression the general rule is that colonies having Legislatures are not bound bv Imperial Acts unless they in terms expressly extend to the colonies, or the statutes be in their nature of such universal policy as manifestly to be intended to affect them (c). In Colonial Bank v. Warden, 5 Moore P. C. 354, Parke B. said ; " The 78th section of 2 & 3 Vic. c. 41, says, ' All move- able estate and effects of the bankrupt, wherever situate ; ' thtd would include the colonies." The determination of the British Government to exercise this power, and to impose taxes on the American colonies, for the purpose of contributing to the Imperial revenue, caused the American war of Independence. Various statutes affect the question. By 6 Geo. III. c. 12, 1766, it was de- clared that all the colonies and plantations in America had been, were, and of right ought to be subordinate to and de- pendent on the Imperial Crown and Parliament, who were declared to have power to make laws to bind the colonies in America in all cases whatever ; by 7 Geo. III., c. 46, duties Avere imposed on tea imported into American cv)lonies. By 18 Geo. III. c 12, Con. Stat. Can., the last named statute was re- pealed, so far as regarded the duty on tea, and after reciting (o) Cuvillier v. Ayhoin, supra. (h) See the language of Imp. Act, 3 & 4 Vic. cap. 35, s. 3, uniting Upp«r and Lower Canada. (c) Brook V. Brook; 9 H. L. Cases, 193 ; Routledgev. Low, L. R. H. L., voL 3, p. 100 ; HoJgins v, McNeil, 9 Grant, 305 ; Pcnlep v. Beacon Assurance Co., 10 Giant, 442. ENGLISH LAWS IN FORCE IN ONTARIO. 53 that taxation by the Imperial Parliament for the purpose of raising a revenue in the Colonies in North America had occa- sioned great uneasiness and disorders among His Majesty's subjects, who might be disposed to acknowledge the justice of contributing to the common defence of the empire, if raised under the authority of the general court or assembly of 'J'Hxatiou. each colony, it was declared that thereafter no taxes or duty payable in the colonies in North America or the West Indies should be imposed, except such as it might be ex- pedient to impose for the regulation of commerce, the net produce of such duties to be paid and applied for the use of the colony in the same manner as other duties collected by the authority of the general courts or assemblies of such colonies were ordinarily paid and applied. By Imperial Statute 3 & 4 Vic. c. 35, s. 43 (the Act of Union), reciting this Act of 18 Geo. III., it was declared that " the King and " Parliament of Great Britain would not impose any duty, "tax or assessment whatever, payable in any of His " Majesty's colonies, provinces and plantations in Nortli "America or the West Indies, except only such duties as it " might be expedient to impose for the regulation of com- " merce ; the net produce of such duties to be always paid " and applied to and for the use of the colony, province, or "plantation in which the same shall be respectively levied, " in such manner as other duties collected by the authority "of th'' respective general courts or general assemblies of "such colonies, provinces or plantations were ordinarily " paid and applied ; " and reciting it was necessary for the general benefit of the empire that such power of regulation of commerce should continue to be exercised, subject to the conditions before recited, with respect to the application of any duties which might be imposed for that purpose, it is enacted " that nothing in this Act contained shall prevent or " affect the execution of any law which hath been or shall " be made in the Parliament of the said United Kingdom 5« -4 ! 54 ENOLISH LAWS IN FORCE IN ONTARIO. Navigation and eonmitirce " for establishing regulations and prohibitions, or for the " imposing, levying or collecting duties for the regulation of " navigation, or for the regulation of the commerce between " the Province of Canada and any other part of Her Majesty's " dominions, or between the said Province of Canada or any " part thereof and any foreign country or state, or for ap- " pointing and directing the payment of drawbacks of such " duties so imposed, or to give to Her Majesty any power or " authority, by and with the advice and consent of such " Legislative Council and Assembly of the said Province of " Canada, to vary or repeal any such law or laws, or any " part thereof, or in any manner to prevent or obstruct the " execution thereof ; provided always that the net produce " of all duties which shall be so imposed, shall at all times " hereafter be applied to and for the use of the said Province " cf Canada, and (except as hereinafter provided) in such " manner only as shall be directed by any law or laws which " may be made by Her Majesty, by and with the advice and " consent of the Legislative Council and Assembly of such " Province." By 7 & 8 Wm. III. c. 22, refe'nacted by Imp. Stat. 3 & 4 Wm. IV, c. 59, s. 5(j, all laws, usages, and customs in prac- tice, in any of the plantations, repugnant to any law made or to be made in Great Britain, relative to the plantations, were declared void. The Imperial Act 28 &; 29 V. c. 63, is somewhat to the same effect as to the colonies. The power of the Imperial Parliament to enact laws binding on us had come up for consideration and been ad- mitted in our Courts in a very extreme case (a) : by 5 Geo. (a) Smith v. McGmoav, 11 U. C. R. 399; Gahriell v. Derhishire, 1 C. P. JJ. C. 422 The practical use of these Statutes is much diminished by the decisions in these cases, under one of which it was held that ^* a plaint'ff or defemUnt cannot give evidence in his own favour, so nelthor can his affidavit be receii'ed under these Acts ; and where the aiTidavit tendered is that of a witness, it is pijbable the Court might, on the ground of surprise, or on other circumstances shewTi, grant a new trial, or stay proceedings so as to enable ft commifssion to issue, to ENGLISH LAWS IN FORCE IN ONTARIO. 65 [' for the ilation of between Majesty's da or any r for ap- ,s of such power or : of such •ovince of 'H, or any struct the b produce all times Province ) in such lws which dvice and y of such tat. 3 & 4 s in prac- law made antations, I. c. 63, is lact laws been ad- by 5 Geo. p. u. c. 422 lions in these lUnt caunot oeii'ed under it is piobable inces shewn, k to issue, to II. c. 7, in any action of debt or covenant in any American colony, wherein any person residing in Great Britain shall be a party, the plaintiff or the defendant, or any witness, may verify any matter or thing by affidavit in writing, on oath, to be made before the mayor or chief magistrate of the city, &c., in Great Britain, where the deponent may re- side, with the formalities required b}' the Act, aud the affi- dject« of contra-distinguished from persons : and things are by the law of England distributed into tWo kinds ; things real and things personal. Things real are such as are permanent, ^<"''- fixed, and immoveable, which cannot be carried out of their place; as lands and tenements: things personal are goods, money, and all other moveables ; which may attend the PoraonaL owner's person wherever he thinks proper to go. In treating of things real, let us consider, first, their seve- ral sorts or kinds ; secondly, the tenures by which they may be holden ; thirdly, the estates which may be had in them ; and, fourthly, the title to them, and the manner of acquiring and losing it. First, with regard to their several sorts or kinds, things Things real are ; real are usually said to consist in lands, tenements, or here- ditaments. Land comprehends all things of a pernmnent. Lands. *^ substantial nature ; being a word of a very extensive signifi- cation, as will presently ap[)ear more at large. Tenement is Tenements, a word of still greater extent, and though in its vulgar ac- ceptation* it is only applied to houses and other buildings, ' S. 17. yet in its original, proper, and legal sense, it signifies every thing that may be holden, provided it be of a permanent nature ; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus liberum fenementum, frank tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like : and, as lands and houses are tenements, so is an advowson a tenement ; and a franchise, an office, a right of 5 ii f idO OF CORPOREAL HEREDITAMENTS. common, a peerage, or other property of the like unsubstan- tial kind, are, all of them, legally speaking, tenements. But y Herefiita- an hereditament, says Sir Edwurd Coke, is by much the largest and most comprehensive expression ; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal, or incorporeal, real, personal, or mixed. Thus, an heir-loom, or implement of furniture, which by custom descends to the heir with an house, is neither land, nor tenement, but a mere moveable ; yet, being inheritable, is comprised under the general word hereditament : and .so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament. Hereditaments then, to use the largest expression, are of I Corporeal and two kinds, corporeal and incoi'poreal. Corporeal consist of such as affect the senses ; such as may be seen and handled by the body: incorporeal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation. Corporeal he)'uditaments consist wholly of substantial and jovmancnt objects ; all which may be comprehended under the general denomination of land only. For land, says Sir Edward Coke, compreheudeth in its legal signification any ground, soil, or earth whatsoever ; as arable, meadows, pas- tures, woods, moors, tvaters, marshes, furzes, and heath.* It legally inoludeth also all castles, houses and other buildings; for they consist, sayeth he, of two things ; land, which is the foundation, and structure thereupon ; so that, if I convey the land or ground, the structure or building passeth therewith It is observable that water is here mentioned as a species of j land, which may seem a kind of solecism ; but such is the language of the law : and therefore I cannot bring an action to recover possession of a pool or other piece of water by the name of water only ; either by calculating its capacity, as, for so many cubical yards ; or, by superficial measure, for twenty acres of water; or by general description, as for a j 1 ^^rpore>? ' hero^dita- menfcH. Land. ' S. 18. OF CORPOREAL HEREDITAMENTS. 61 nsubstan- mts. But much the eludes not inherited, )r mixed, which by ther land, iheritable, it : and so man from ion, aro of consist of d hamlled sensation, the mind, ;antial and ided under d, says Sir cation any dows, pas- eath.* It buildings; hich is the convey the therewith. , species of j uch is the an action iter by the ipacity, as, easure, for n, as for a pond, a watercourse, or a rivulet ; but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered ivith tvater. For water is a moveable wandering thing, and must of necessity continue common by the law of nature ; so that I can only have a temporary, transient, usufructuary, propei'ty therein; wherefore, if a body of water runs out of my pond into another man's, I have no right to reclaim it. But the land, which that water • • ' covers, is permanent, fixed, and immoveable : and therefore in this I may have a certain substantial property ; of which the law will take notice, and not of the other. Land hath also, in its legal signification, an indefinite ex- It legal signf- . . ficatiwu. tent, upwards as well as downwards. Cujus est solum, ejus ., est usque ad ccelwm, is the maxim of the law, upwards ; therefore no man may erect any building, or the like, to overhang another's land : and downward, whatever is in a direct line, between the surface of any land and the centre of the earth, belongs ' in general ' to the owner of the sur- face ; so that the word ' land ' includes not only the face of the earth, but everything under it, or over it. And there- fore if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. Not but the particular names of the things are *equally sufficient to pass them, except in the instance of water ; by a grant of which / nothing passes but a right of fishing ' or perhaps the right of What pasaea j/ user of the water, as for mill purposes ' : but the capital dis- ^ * ' tinction is this, that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of ; but by the name of land, which is nomen generalissimum, every- • '- • thing terrestrial will pass. S. 19. s X CHAPTER IV. OF INCORPOREAL HEREDITAMENTS. Definition. An iiicorporal hereditament is a right issuing out of a thing corporate (w)iether real or personal), or concerning, or an- nexed to, or exercisable within, the same. It is not the thing corporate itself, which may consist in lands, houses, jewels or * S. 20. the like ; but* something collateral thereto, as a rent issuing out of those lands or houses, or an office relating to those jewels. In short, as the logicians speak, ccrporeal heredita- ments are the substance, which may be always seen, always handled : incorporeal hereditaments are but a sort of acci- dents, which inhere in and are supported by that substance ; and may belong or not belong to it, without any visible al- teration therein. Their existence is merely in idea and ab- stract contemplation ; though their effects and profits may be frequently objects of our bodily senses. And indeed, if we would fix a clear notion of an incorporet.l hereditament, wc must be careful not to confound together t le profits produced, and the thing, or hereditament, which p'oducos them. An annuity, for instance, 'to a man and his heii's,' is an incor- poreal hereditament : for though the money, which is the fruit or product of this annuity, is doubtless of a corporeel nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental exi.stenco, and cannot be delivered over from hand to hand. iSo tithes, if we consider •S. 21. / the produce* of them, as the tenth sheaf or the tenth lamb, seem to be completely corporeal : yet they are indeed incor- poreal hereditaments : for they being, merely a contingent springing right, collateral to o'. issuing out of lands, can never be the object of sense ; tha'.. casual share of the annual in- OF INCORPOREAL HEREDITAMENTS. 63 ^ r fiv is not, till severed, capable of being shewn to the eye, nor leing delivered into bodily possession. Ii.corporeal liereditaments are principally advowsons, tithes commons, ways, offices, dignities, franchises, annuities, rents, i\: versions and remainders, dependent on freehold estates.' Advowson is the right of jtiesentation to a church or eccle- Advowson. fi iii' 1^ benefice. Advovv^son, advocatio, signifies in client- t;.'').: 'icipere, the taking into protection; and, therefore, is synonomous with patronage, patronatus : and he who has the right of advowson is called the patron of the church. For, when lords of manors first built churches on their own demesnes, and appointed the tithes of those manors to be paid to the officiating ministers, which before were given to the clergy in common, the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such ministei- as he pleased (provided he were canonically qualified) to officiate in that church, of 5 which he was the founder, endower, maintainer, or, in one word, the patron. The instance of an advowson will completely illustrate the nature of an incorporeal hereditament. It is not itself the bodily possession of the church and its appendages, but it is a right to give some other man a titl'j to such bodily possession. The advowson is the object of neither the sight nor the touch ; and yet it peipetually exists in the mind's eye, and in contemplation of law. It cannot be delivered froiJ man to man by any visible bodily transfer, nor can corporal possession be* had of it. If the patron takes cor- poral possession of the church, the church-yard, the glebe, or the like, he intrudes on another mans property ; for to these the parson has an exclusive right. The jiatronage can there- fore be only conveyed by operation of law, by grant, which is a kind of invisible mental transfer : !in termed a By the had the r out of re] any part ( rule in p England, Roman. *An a? with whic a burthen an annuit; of the grfi other the what land it ; but, it account in poration, ; yet a man is merely j will desce sentatives.' 'At con)] if the ann OF INCORPOREAL HEREDITAMENTS. 65 of way over the land granted to that reserved ; and this is termed a v^ght of way by necessity ' (a). By the law of the twelve tables at Rome, where a man had the right of way over another's land, and the road was out of repair, he who had the right of way might go over any part of the land he pleased : which was the established rule in public as well as private ways. And the law of England, in both (h) cases, seems to correspond with the Roman. *An annuity is a thing very distinct from a rent-charge, Annuities, with which it is frequentl}^ confounded : a rent-charge being * ^" ^^• a burthen imposed upon and issuing out oi lands, whereas an annuity is a yearly sum chargeable only upon the 'person Differ from of the grantor. Therefore, if a man by deed grant to an- ^^^ '^ '^'^^^^' other the sum of £20 per annum, without expressing out of what lands it ^hall issue, no land at all shall be charged with [ it ; but, it is a mere personal annuity , which is of so little I account in the law, that if granted to an eleemosynary cor- poration, it is not within the Statutes of Mortmain; and yet a man may have a real estate in it, though his security is merely personal : ' thus if granted to a man and his heirs it I will descend to the heirs and not go to personal reprc- Isentatives.' 'At common law annuities were not apportionable, so that Apportion- lif the annuitant died between the days of payment his le- lueut. (a) Surey v. Pigof, Tudor Lg. Cas. 147, post, s. 298. (6) 1'he doctrine of the text may be true with respeot to waj's of implied Inecessity ; })ut not ho, perhapn, wliere the right of way is chiiiiici] under a |s]iecific grant : if, in the latter case, the gj-antee comphiinsof tlie Imd condition l<)f the road, and asks what remedy he has, if he is not allowed to go out of the Wescribwl line of road ? he might possibly be told now, as a party making a pimilar comidaiut was told long ago by Mr. Justice Suit, that " if he went that hvay before in his :~boes, he might now pluck on his boots : " (Dike v. Uun^lon, fiodb. ii;} ; and see the ;^rd note of Serjeant Williams to the case of Pomfret v. ^Icroft, 1 Saimd. 322 a, and Ingram v. Morecraft, 33 Bea. 49). Highways (as Urd Mansfield said in Tii!/l<>r v. WhiUhtad, Dougl. 749) are governed by a Bitferent principle, and if iaipassible, the adjoining laud may be passed over; pan kk V. Joluuton, 26 U. C. K. 6.>. 5 •f 1 1m . OF INCORPOREAL HEREDITAMENTS. presentatives got no proportion, this is remedied by R. S. 0. c. 13G under which annuities, rents and other periodical payments in the nature of income are to be considered as accruing from day to day and to be apportioned accordingly. The party liable to pay cannot be called on for payment however before the time agreed on.' Rents, Rents are another species of incorporeal hereditaments. Definition. The word rent or render, reditus, signifies a compensation or return, it being in the nature of an acknowledgement given • S. 41. for the possession *of some corporeal inheritance. It is de- fined to be a certain profit i.ssuing yearly out of lands and tenements corporeal. It ronst be a 'profit; yet there is no occasion for it to be, as it usually is, a sum of money : for spurs, capons, horses, com, and other matters may be rendered, and sometimes are rendered, by way of rent. It I ' may also consist in services or manual opei;ations ; as to plough so many acres of ground, to attend the king or the lord to the wai'S, and the like ; which services in the eye of the law are pi-ofits. This profit must also be certain ; or that which may be reduced to a certainty by either party. Itj must isHue out of the thing granted, and not be part of thel land or thing itself ; wherein it differs from an exception inl the grant, which is always part of the thing grants I. Itj must, lastly, issue out of lands and tenements rorporeal, that is, from some inheritance whereunto the owner or| grantee of the rent may have recourse to distrain. There fore a rent cannot be reserved out of an adowson, a couimonJ an office, a franchise, or the like. But a grant of suchl annuity or sum must operate as a |)ersonal contract, andl oblige the grantor to pay the money reserved, or subject hinij to an action of debt ; thougli it doth not affecfthe inheri-j tance, and is no legal rent in contemplation of law. Rent-service. There are at common law tliree manner of rents, rent-serJ vice, rent-charge, and rent-seek. Rentservi/m is .so called 'be-| cause it hath some corporal service incident to it, as at tlw OF INCORPOREAL HEREDITAMENTS. 67 least fealty or the feodal oath of fidelity. For if a tenant holds his land by fealty and * ten shillings rent ; or by the service of ploughing the lord's land, and five shillings rent ; these pecuniary rents, being connected with pei-sonal ser- vices, are therefore called rent-service. And for these, in case they be behind, or in arrear, at the day appointed, the lord may distrain of common right, without reserving any special power of distress ; provided he hath in himself the reversion, or fu- ture estate of the lands and tenements, after the lease or par- ticular estate of the lessee or grantee is expired; 'and if the lessor have parted with his reversion, though the rent was due before, still he cannot distrain (a), for the privity of es- tate is gone ; he may, however, sue for the rent on the cov- enant to pay. The assignee could neither distrain nor sue in his own name prior to 35 Vic. ch. 12, R. S. 0. c. 116, for rent overdue before rtssi^-nmoiHliough expressly assigned to him, for at the time it fell due there was no privity of estate be- tween him and the lessee, and as regards any transfer of the right to sue for the breach of the covenant, it was void at law on the common law principles of maintenance (6), nor does the Stat. 32 H. VIII. c. 34, transfer to him such right (c). Since the Stat, of 35 Vic. ch. 12 (d), authorising assign- ments of choses in action, the assignee of over due rent can perhaps sue in his own name. In one case a lessor liad as- signed by deed future rent with express power to distrain, no f'state in the land was assignovl ; it was considered that the deed operated either as a grant by the assignor of a rent- charge with express power of distress, or of a rent-seek to which, by Stat. 4 Geo. 11., such power is incident, and that in either point of view the assignee might distrain in his own name (d). ' S. 42. 6„ ^ai >. IMAGE EVALUATION TEST TARGET (MT-3) 10 '- i- 1^ l£ 1^ im e m I.I ".'- i^ 1.25 ||.4 III >'<> ^ 6" — v c- r^ 72 OF INCOUPOREAL HEREDITAMENTS. ' The English Act from which the Act revised is taken, B«leue from a judgmciit or execution of makes as to release from a judgment the same provision as part of the land bound. Bent-seek. above, in regard to rent-charges. Assuming that since the Act of 24 Vic. c. 1, s. 10, a judgment in not a lien on land.s (a)) even against the heir, still as an execution is, it is not clear that a relea.se in deed, or by operation of law, from an exe- cution, of part of the lands bound, would not release the resi- due (6), especially if since deliverj- of the writ to the sheriff the residue had passed into the hands of a pui-chaser. A rent-charge may be gi-anted in fee simple, or for a less estate ; of course it cannot last longer than the estate of the grantor; thus, if the grantor have only a life estate, his grant will be commensurate with his estate.' Jient-aeck, redittus aiccvs, or barren rent, is in effect no- thing more than a rent reserved by deed, but without any clause of distress. ' It must be understood, however, that by the deed no reversion is left in the grantor but that he makes over his whole estate (c), for if a reversion be left in him the rent will be rent-service. And it would seem that, strictly speaking, there can be no reservation, qud reserva- tion, of a rent-seek ; for, if the whole estate of the grantor be made over by deed, the rent-seek resei*ved or made pay- able will not enure by way of reservation, but by way of re-grant of the rent ; and if the whole estate be not made over, the rent will not be rent-seek but rent-service (d). A rent seek may arise also on grant of a rent without a clause of distress to a person having no estate or interest in the land ; or, as before mentioned (e), by grant by a lessor or owner of rent -service oi future rent only without the rever- sion (/): but it would seem, as before stated, rent-service actually payable and overdue is not assignable unless per- haps under the R. S. 0. c. 116.' fa) See Leith Real Prop. SUta. 312, n, a, and Boiee v. O'Loane 3 App. R. 169. (bj Htle V. Lord BexUy, 17 Bea. 14 ; Hancock v. Hancock, 1 Ir. Ch. Rep. 444. (c) Watkiu's Com., 9 ed. 286. (d) Watkin'H Com., 9 ed. 288, note. (e) Ante p. 67, notes a & rf. (f) Hope v. White, ante p. 67. OF INCOIIPOREAL HEREDITAMENTS. 73 ' By the Act of 5 Geo. II., ch. 28, the like remedy by dis- Remedy for tress is given to recover rent-seek as exists in case of rent- service reserved in a lease to a reversionor. Rent is ap]5ortionable in like manner, as before explained Apiwti on- in regard to annuities, by R. S. 0., c. 136 ; and also on the death of lessor, tenant for life, by 11 Geo. II., ch. 19, s. 15,. as hereafter mentioned (a).* ^tti'^-rent is only a rent of the full value of the tenement, Rack-rent, or near it. Franchises are another species of incorporeal heredita- FranchiaeH. raent. Their definition is a royal privilege, or branch of the Sovereign's prerogative subsisting in the hands of a subject. Being therefore derived from the Crown, they must arise from the grant of the Sovereign. They are of various kinds. It is a franchise for a number of porsons to be incorporated and subsist as a body politic. (In this case the assent * f the Sovereign is given by the Act of Incorporation.) Among other franchises are those to have waifs, wrecks, estrays, treasure-trove, royal fish, and forfeitures. (a) Pott, 8. 123. CHAPTER V. OF THE FEODAL SYSTEM. A general ac- It is impossible to Understand, with any degree of accu- with"the M. ^^y eitber tbe civil constitution of this kingdom, or the trine*of ?eud8 ^^^^ wbich regulate its landed property, without some gen- necessary. q^i acquaintance with the nature and doctrine of feuds, or tbe feodal law : a system so universally received throughout Europe upwards of twelve centuries ago, that Sir Henry Spelman does not scruple to call it the law of nations in our western world. This chapter will be therefore dedicated to this enquiry. And though, in tbe course of our observations in this and many other parts of tbe present book, we may have occasion to search pretty highly into the antiquities of our English jurisprudence, yet surely no industrious student will imagine bis time misemployed, when be is led to con- sider that the obsolete doctrines of our laws are frequently tbe foundation upon wbich what remains is erected ; and that it is impracticable to comprehend many rules of the modem law, in a scholarlike scientific manner, without hav- ing recourse to tbe ancient. Nor will these researches he altogether void of rational entertainment as well as use ; as in viewing the majestic ruins of Rome or Athens, of Balbec or Palmyra, it administers both pleasure and instruction to compare them with the draughts of tbe same edifices, in their pristine proportion and splendour. * Tbe constitution of feuds had its ori^nal from tbe mili- tary policy of tbe northern or Celtic nations, the Goths, the i Huns, tbe Franks, the Vandals, and tbe Lombards, who, all migrating from tbe same ojfficina gentium, as Crag very justly entitles it, poured themselves in vast quantities into all tbe regions of Europe, at the' declension of the Roman Iti origin. » S. 45. OF TflE FEODAL SYSTEM. 75 empire. It was brought by them from their own countries and continued in their respective colonies as the most likely means to secure their new acquisition : and to that end, lar^^re districts or parcels of land were allotted by the conquering general to the superior officers of the army, and by them dealt out again in smaller parcels or allotments to the in- ferior officers and most deserving soldiers. These allotments were called feoda, feuds, fiefs or fees ; which last appellation in the northern languages signifies a conditional stipend or reward. Rewards or stipends they evidently were : and the condition annexed to them was, that the possessor should do service faithfully, both at home and in the wars, to him by whom they were given ; for which purpose he took the jura- mentum Jidelitatis, or oath of fealty : and in case of the breach of this condition and oath, by not performing the stipulated service, or by deserting the lord in battle, the lands were again to revert to him who granted them. Allotments, thus acquired, natui-ally engaged such as ac* tutted them to defend them : and, as they all sprang from the same right of conquest, no part could subsist independent of the whole ; wherefore all givers as well as receivers were mutually bound to defend each other's possessions. But, as that could not effectually be done in a tumultuous, irregular way, government, and to that purpose subordination, was necessary. Every receiver of lands, or feudatory, was there- fore bound, when called upon by his benefactor, or imme- diate lord of his feud or fee, to do all in liis power to defend him. Such benefactor or lord was likewise subordinate to, and under the command of, his immediate benefactor or superior; and so upwards to the prince or general himself: and the several lords wore also reciprocally bound in their respective g/adations, to protect the possessions they had given. Thus the feodal connection was established, a proper l^ policy, military subjection was naturally introduced, and an army of feudatories was always ready enlisted, and mutually pre- 76 OF THE FEODAL SYOTEM. 'S. 47. pared to muster, not only in defence of each man's own several property, but also in defence of the whole, and of every part of this their newly-acquired country ; the pru- dence cf which constitution was soon sufficiently visible in the strength and spirit with which they maintained their conquests. The univerEality and early use of thi." feodal plan, among all those nations, which in complaisance to the Romans we still call barbarous, may appear from what is recorded of the Cimbri and Teutones, nations of the same northern ori- ginal as those whom we have been describing, at their first irruption into Italy, about a century before the Christian lera. They demanded of the Romans, " ut tnartiua populm " cdiquid sibi terrcB daret, qiuisi stipendium : ooeterum, nt " vellet, manihua atque anmis aula vieretur." The sense of which may be thus rendered : they desired stipendiary lands (that is, feuds) to be allowed them, to be held by military and other personal services, whenever their lord should call upon them. This was evidently i. .. same constitution, that dis- played itself more fully about seven hunch-ed years after- wards ; when the Salii, Burgundians, and Franks broke in upon Gaul, the Visigoths on *Spain, and the Lombards upon Italy ; and introduced with themselves this northern plan of polity, serving at once to distribute and to protect the territories they had newly gained. Scarcely had these northern conquerors established them- selves in their new dominions, when the wisdom of their constitutions, as well as their personal valour, alarmed all the princes of Europe ; that is, of those countries which had formerly been Roman provinces, but had revolted, or were deserted by their old masters, in the general wreck of the empire. Wherefore most, if not all of them, thought it necessary to enter into the same or a similar plan of policy. For whereas, before, the possessions of their subjects were perfectly allodial (that is, wholly independent, and held of OF THE FEODAL SYSTEM. n no superior at all), now they parcelled out their royal terri- .ories, or persuaded their subjects to surrender up and re- take their own landed property, under the like feodal obliga- tions of military fealty. And thus, in the compass of a very its progress, few years, the feodal constitution, or the doctrine of tenure, extended itself over all the western world. Wliich altera- tion of landed property, in so very material a point, neces- sarily drew after it an alteration of laws and customs : so that the feodal laws soon drove out the Roman, which had hitherto so universally obtained, but now became for many centuries lost and forgotten ; and Italy itself (as some of the civilians, with more splf^en than judgment, have expressed it) hclluinaa, atque ferinus, imirumeaqiie, Longohardorum leges accepit. •But this feodal polity, which was thus by degrees estab- * s. 48. lished over all the continent of Europe, seems not to have _,, . , , *^ The nenod of been received in this part of our island, at least not uni- »t« reception in England. vei-sally and as a part of the national constitution, till the reign of William the Norman. Not but that it is reasonable to believe, from abundant traces in our history and laws, that even in the times of the Saxons, who were a swarm from what Sir William Temple calls the same northern hive, something similar to this was in use ; yet not so extensively nor attended with all the rigour that was afterwards im- ported by the Normans. For the Saxons were firmly settled in this island, at least as early aa the year 600 ; and it was not till two centuries after, that feuds arrived at their full vigour and maturity, even on the continent of Europe. This introduction, however, of the feodal tenures into Its gmlual England, by King William, does not seem to have been by the Norman effected immediately after the conquest, nor by the mere "'^"'"* arbitrary will and power of the Conqueror; but to have been gradually established by the Norman barons, and others, in such forfeited lands as they received from the gift of the Conqueror, and afterwards universally consented to II a s .1 i I 78 OF THE FEODAL SYSTEM. the word con guest. by tho great council of the nation^ long after his title was established. Indeed, from the prodigious slaughter of the English nobility at the battle of Hastings, and tl.e fruitless insurrections of those who survived, such numerous forfei- tures had accrued, that he was able to reward his Norman followers with very large and extensive possessions : which gave a handle to the monkish historians, and such as have implicitly followed them, to represent him as having by right of the sword seized on all the lands of England, and Signification of dealt them out again to his own favourites. A supposition, grounded upon a mistaken sense of the word conqueai; which, in its feodal acceptation, signifies no more than ac- quisition ; and this has led many hasty writers into a strange historical mistake, and one which, upon the Blightest examination will be found to be most untrue. However, cei'tain it is, that the Normans now began to gain very large possessions in England ; and their regard for the feodal law under which they had long lived, together with the king's recommendation of this policy to the English, as the best way to put themselves on a military footing, and thereby to prevent any future attempts from the continent, were pro- bably the reasons that prevailed to effect its establishment here by law. And though the time of this great revolution in our landed property cannot be ascertained with exactness, yet there are some circumstances that may lead us to a pro- bable conjecture concerning it. For we learn from the Saxon chronicle, that in the nineteenth year of King William's reign an invasion was apprehended from Denmark ; and the military constitution of the Saxons being then laid aside ; and no other introduced in its stead, the kingdom was wholly defenceless ; which occasioned the king to bring over a large army of Normans and Bretons, who were quartered upon every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might cooperate with the OF THE FEODAL SYSTEM. 7» kingM remonstrances, and the better incline the nobility to listen to his proposals for putting them in a pasture of defence. For, as soon as the danger was over, the king held The Rompiia- a great council to enquire into the state of the nation ; the daybook, and itnmeuiate consequence of which was the compihng of the uf the principal great survey called domesday-book, which was finished in mjl^^ ^ the next year ; and in the latter end of that very year, the '«"*"*• king wns attended by all his nobility at Sarum ; where all the principal landholders submitted their lands to the yoke of military tenure, became the king's vassals, and did homage and fealty to his person. This may possibly have been the aera of formally introducing the feodal tenures by law. This new polity therefore seems not to have been imposed by the conqueror, but nationally and freely adopted by the general assembly of the whole realm, in the same manner as other nations of Europe had before adopted it, upon the same principle of self-security. In consequence of this change, it became a fundamental * s. 51 maxim and necessary principle (though in reality a mere iic- (;onseu. "lord and original proprietor of all the lands in his kingdom : " and that no man doth or can possess any part of it, but " what has mediately or immediately been derived as a gift " from him, to be held upon feodal services." For this being the real case in pure, original, proper feuds, other nations who adopted this system were obliged to act upon the same sup- position, as a substruction and foundation of their new pol- ity, though the fact was indeed far otherwise. And indeed, by thus consenting to the introduction of feodal tenures, our English ancestors probably meant no more than to put the kingdom in a state of defence by establishing a military sys- tem ; and to oblige themselves (in respect of their lands) to maintain the king's title and territories, with equal vigour , and fealty, as t/they had received their lands from his bounty 80 OF THE FEODAL SYSTEM. Ctrievance* which ite in> trmluction into Kngland DCcaHiuneii, * S. 52. caused the in- surrection of the barons, which produ- ced Ma^a Charta. upon these express conditions, as pure, proper, beneficiary feudatories. But whatever their meaning was, the Nonuftn interpreters, skilled in all the niceties of the feodal constitu- tions, and well understanding the import and extent of the feodal terms, gave a very different construction to this pro- ceeding ; and thereupon took a handle to introduce, not only the rigorous doctrines which prevailed in the Duchy of Nor- mandy, but also such fruits and dependencies, such hardships and services, as were never known to other nations; as if the English had, in fact as well as theory, owed everything they had to the bounty of their sovei-eign lord. Our ancestors, therefore, who were by no means beneficiaries, but had barely consented to this fiction of tenure from * the Crown, as the basis of amilitary discipline, with reason looked upon these deductions as grievous impositions, and arbitraiy conclusions from principles that, as to them, had no founda- tion in truth. However, this king and his son William Ru- fus, kept up with a high hand all the rigours of the feodal doctrines ; but their successor, Henry I., found it expedient, when he set up his pretensions to the crown, to promise a res- titution of the laws of King Edward the Confessor, or ancient Saxon system ; and accordingly in the first year of his reign> granted a charter whereby he gave up the greater grievances, but still reserved the fiction of feodal tenure, for the same military purposes which engaged his father to introduce it. But this charter was gradually broken through, and the for- mer grievances were revived and aggravated, by himself and succeeding princes ; till, in the reign of King John, they be- came so intolerable, that they occasioned his barons, or prin- cipal feudatories, to rise up in arras against him ; which at length produced the iirmous great charter at Runny- mede, which, with some alterations, was confirmed by his son Henry III. And, though its immunities (especially as al- tered on its last edition by his son) are very greatly short of those granted by Henry I., it was justly esteemed at the OF THE FEODAL SYSTEM. 81 time a vast acquisition to English liberty. Indeed, by the farther alteration of tenures that has since happened, many of these immunities may now appear, to a common observer^ of much less consequence than they really were when grant- ed ; but this, properly considered, will shew, not that the acquisitions under John were small, but that those under Charles were greater. And from hence also arises another inference ; that the liberties of Englishmen are not (as some arbitrary writers would represent them) mere infringements of the king's prerogative, extorted from our princes by tak- ing advantage of their weakness ; but a restoration of that antient constitution, of which our ancestors bnd been re- frauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Normun arms. ♦Having given this short history of their rise and pro- *S. 53. gi-ess, we will next consider the nature, doctrine, and prin- Nature of cipal laws of feuds ; wherein we shall evidently trace the ground-work of mnnj'^ parts of our public polity, and also the original of such of our own tenures, as were either abol- ished in the last century ov still remain in force. The grand and fundamental maxim of all feodal tenures Maxim of feo- , dal tenure. is this : that all lands were originally granted out by the sovereign, and are tlierefore h olden either mediately or im- mediately of the crown. The grantor was cj, .od the pro- Grantor called prietor, or lord : being he who retained the dominion or vatsai.' ' ultimate property of the feud or fee ; and the grantee, who had only the use and possession according to the terms of the grant, was styled the feudatory or vassal, which was only another name for the tenant or holder of the lands ; though, on account of the prejudices which we have justly conceived against the doctrines which were afterwards graft- ed on this system, we now use the word vassal opprobri- ously, as synonymous to slave or bondman. The manner of the grant was by words of gratuitous and pure donation, dedi et concessi ; which are still the operative words in our Mode of grant l! ti I I \\ Z3 I I Corporal iii' VMUture. ()«thoff«alty HomsKe. S.M. Services due to the lord— in iieace : or THE FKODAL SfHTEM. modern infeodations or deeds of feoffment. This was per- fected by the ceremony of corporal inveutiture, or open and notorious delivery of possessiop in the presence of the other vassals ; which perpetuated among them the sera of the new acquisition, at a time when the art of writing was very little knowii ; and therefore the evidence of property was re- posed in the memory of the neighbourhood ; who, in case of a disputed title, were afterwards called upon to decide the difference, not only according to external proofs, adduced by the parties litigant, but also by the Ii.temal testimony of their own knowledge. Besides an oath oi fealty, or profession of faith to the lord, which was the parent of our oath of allegiance, the vassal ur tenant upon investiture did usually homage to his lord; openly and humbly kneeling, being ungirt, uncovered, *and holding up his hands both together between those of the lord, who sate before him ; and there professing, that " he did become his man, from that day forth, of life and limb and earthly honour :" and then he received a kiss from his lord. Which ceremony was denominated homagium, or manhood, by the feudists, from the stated form of words devenio vester fiomo. When the tenant had thus professed himself to be the man of his superior or lord, the next consideration was con- cerning the sei'vice, which, as such, he waa bound to render, in recompense for the land which he held, ' and which gave rise to the tenendv/m clause in deeds of conveyance, now useless (see post s. 299, n. B.)' This, in pure, proper, and original feuds, was only two-fold ; to follow, or do suit to, the lord in his courts in time of peace ; and in his amiiei j or warlike retinue, when necessity called him to the field The lord was, in early times, the legislator and judge over j all his fudatories : and therefore the vassals of the inferior lords were bound by their fealty to attend their domestic courts baron, (which were instituted in every manor I ^ OF THE ^EODAL SYSTEM. '9. M. m war: barony, for doing speedy and effectual justice to all the ten- ants), in order, as well to answer such complaints as might be alleged against themselves, as to form a jury or hon ii^o for the trial of their fellow tenants ; and upon this account, in all the feudal institutions, they are distinguished V the appel- lation of the peers of the court; pares curtis, or pares curvju. In like iflauaer the barons themselves, or lords of inferior d'''*rict8, were denominated peers of the king's court, and were bound to attend him upon summons, to hear causes of greater consequence in the king's presence, and under the direction of his grand justiciary ; till, in many countries, the power of that officer was broken and distributed into other courts of judicature, the peers of the king's court still reser- ving to themselves (in *almost every feodal government) the right of appeal from those subordinate courts in the last resort. The military branch of service consisted in attend- ing the lord to the wars, if called upon, with such a retinue, and for such a number of days as were stipulated at the first donation, in proportion to the quantity of the land. At the first introduction of feuds, as they were gi'atuitous. How feuds 80 also they were precarious, and held at the will of the lord, hd" ** "* who was then the sole judge whether his vassal performed his services faithfully. Then they became certain for one or more years. Among the ancient Germans they continued only from year to year; an annual distribution of lands being made by their leaders in their general councils or as- semblies. This was professedly done, lest their thoughts should he diverted from war to agriculture, lest the strong should encroach upon the possessions of the weak, and lest luxury and avarice should be encouraged by the erection of permanent houses, and too curious an attention to conveni- ence and the elegant superfluities of life. But, when the general migration was pretty well over, and a peaceable possession of the new-acquired settlements had introduced I new customs and manners ; when the fertility of the soil had I i 84 OF THE FEODAL SYSTEM. S. .v., encourage*! the study of husbandry, and an affection for the spots they had cultivated began naturally to arise in the tillers; a more permanent degree of property was introduced, and feuds began now to be granted for the life of the feuda- tory. But still feuds were not yet Jiereditary, though fre- (juently granted, by favour of the lord, to the children of the former possessor ; till in process of time it became unusual, and was therefore thought hard, to reject the heir, if he were capable to perfonn the services : and therefore infants, wo- men, and professed monks, who were incapable of bear*ing arms, were also incapable of succeeding to a genuine feud. But the heir, when admitted to the feud which his ancestor possessed, used generally to pay a fine or acknowledgment to the lord, in horses, arms, money, and the like, for such renewal of the feud : which was called a relief, because it raised up and re-cstablishod the inheritance; or, in the words of the feodal writers, " incertam et cadwcam Iveredi- tatem relevahat." This relief was afterwards, when feuds became absolutely hereditary, continued on the death of the tenant, though the original foundation of it had ceased. For, in process of time, feuds came by degrees to be uni- versally extended beyond the life of the first vassal, to his sons, or perhaps to such one of them as the lord should name; and in this case the form of the donation was strictly ob- served : for if a feud was given to a man and his sons, all his sons succeeded him in equal portions : and, as they died oft' their shares reverted to the lord, and did not descend to their children, or even to their surviving brothera, as not being specified in the donation. But when such a feud was given to a man and his heirs, in general terms, then a more extended rule of succession took place ; and when the feu- datory died, his male descendants in injinitum were ad- Lineiil mitted to the succession. When any such descendant, who descendants i,, iitii- alone eniitiid thus had succeeded, died, his male descendants, were also ad- mitted in the first place; and, in defect of them, such of j OF THE FSODAL SYSTEM. 85 his male collateral kindred m were of the blood and lineage of the first feudatory, but no others. For this was an unal. terable maxim in feodal succession, that " none was capable " of inheriting a feud, but such as was of the blood of, that "is, lineally descended from, the first feudatory." And the descent, being thus confined to males, originally extended to all the males alike ; all the sons, without any distinction of primogeniture, succeeding to equal portions of the father's feud. But this being found, upon many accounts, incon- venient (particularly by dividing the services, and thereby weakening the strength of the feodal union), and honorary feuds (or titles of nobility) being now introduced, which were not of *a divisible nature, but could only be inherited by the eldest son ; in imitation of these, military feuds (or those we are now describing) began also in most countries to descend, according to the same rule of primogeniture, to the eldest son, in exclusion of all the rest. Other qualities of feuds were, that the feudatory could not alien or dispose of his feud ; neither could he exchange, nor yet mortgage, nor even devise it by will, without the consent of the lord. For, the reason of conferring the feud being the personal abilities of the feudatory to serve in war, it was not fit he should be at liberty to transfer this gift either from him.self or from his posterity, who were pre- sumed to inherit his valour, to others who might prove less able. And, as the feodal obligation was looked upon as re- ciprocal, the feudatory being entitled to the lord's protection, in return for his own fealty and service ; therefore the lord could no more transfer his seignoiy or protection without consent of his vassal, than the 'as ial could his feud without consent of his lord ; it being equally unreasonable that the lord should extend his protection to a person to whom he had exceptions, and that the vassal should owe subjection to a superior not of his own choosing; 'and this ^-crtraint on alienation, as regarded vassals, or tenants at least, seems to All tlie Ron.t e(iiilly. Adoption of the ri^'ht of primo- geniture. ' S. .57. The feudatory could not dib- pose of bis feud without the consent of the lord. Neither could the lord trans- fer without the consent of the vassal. Vassals had tenant8,bound to them by like obliga- tions. imi^' M 86 OF TB£ FEODAL SYSTF^. have continued till the passing of a Statute in the reign of Queen Anne ' (a). These were the principal, and very simple qualities of the genuine or original feudo ; which were all of a military na- ture, and in the handR of military peraons ; though the feu- datories, being under tl'^quent incapacities of cultivating and manuring their own lands, soon found it necessary to com- mit part of them to inferior tenants ; obliging them to such returns in service, com, cattle, or money, as might enable the chief feudatories to attend their military duties without distraction ; which returns, or reditua, were the original of rents, and by these means the feodal polity was greatly ex- tended ; these inferior feudatories(who held what are called in the Scots law " rere-fiefs ") being under similar obliga- tions of fealty, to do suit of court, to answer the stipulated renders or rent-service, and to promote the welfare of their *S. 58. immediate superiors or lords. But this at the same time demolished the antient simplicity of feuds ; and an inroad being once made upon their constitution, it subjected them in the course of time, to great varieties and innova- Changes in the tions. Feuds began to be bought and sold, and deviations feuds. ' were made from the old fundamental rules of tenure and succession ; which were held no longer sacred when the feuds themselves no longer continued to be purely military. Hence these tenures began now to be divided into feodk jn^opria el impi'opria, proper and improper feuds ; under the former of which divisions were comprehended such and such only, of which we have before spoken ; and under that of improper or derivative feuds were comprised all such as do not fall within the other descriptions ; such, for instance, as were originally bartered and sold to the feudatory for a | price ; such as were held upon base or less honourable ser- vices, or upon a rent, in lieu of military service ; such as (a) poit 88. 72, 288, 290. OF THE FEODAL SYSTEM. were in themselves alietiable, without mutual license ; and such as might descend indifferently either to males or fe- males. But, where a difference was not expressed in the creation, such new-created feuds did in all respects follow the nature of an original, genuine, and proper feud. But, as soon as the feodal system came to be considered in the light of a civil establishment, rather than as a military plan, the ingenuity of the same ages, which perplexed all theology with the subtilty of scholastic disquisitions, and bewildered philosophy in the mazes of metaphysical jargon, began also to exert its influence on this copious and fruitful subject ; in pursuance of which the most refined and oppres- sive consequences were drawn from what originally was a plan of simplicity and liberty, equally beneficial to both lord and tenant, and prudently calculated for their mutual protection and defence. From this one foundation, in dif- ferent countries of Europe, very different structures have been raised : what effect it has produced on the landed pro- peity of England will appear in the following chaptei-s. 87 I CHAPTER VI. OF THE ANTIENT ENGLISH TENURES. All lancUi sup- posed to be nolden of some superior lord. The king, lord paramonnt ; his grantees , mesne lords. • S. 60. Tenants par- avail. In this chapter we shall take a short view of the antient tenures of our English estates, or the manner in which lands, tenements and hereditaments, might have been holden, as the same stood in force, till the middle of the seventeenth century. In which we shall easily perceive, that all the par- ticularities, all the seeming and real hardships, that attended those tenures, were to be accounted for upon feodal princi- ples and no other ; being fruits of, and deduced from, the feodal policy. Almost all the real property of the kingdom is, by the policy of our laws, supposed to be granted by, dependent upon, and holden of, some superior lord, by and in consider- ation of certain services to be rendered to the lord by the tenant or possessor of this property. The thing holden is therefore stylead a tenement, the possessoi"s thereof tenants, and the nanner of their possession a tenure. Thus, all the land in the kingdom is supposed to be holden, mediately or immediately, of the king, who is styled the lord paramount, or above all. Such tenants as held under the king immedi- ately, when they granted out portions of their lands to infe- rior persons, became also lords with respect to those inferior persons, as they were still tenants with respect to the king; and, thus partaking of a middle nature, were called mesne, or middle, lords. So that if the king granted a manor to A.,and he gi-anted a portion of the land to B.,now B. was said to hold* of A., and A. of the king ; or, in other words, B. held his lands immediately of A., but mediately of the king. The king, therefore, wa.s styled lord paramount; A. was both tenant and lord, or was a mesne lord ; and B. was called tenant par- OF THE ANTIENT ENGLISH TENURES. 99 avail, or the lowest tenant, being he who was supposed to make avail or profit of the land. In this manner are all the lands of the kingdom holden, which are in the hands of sub- jects ; for, according to Sir Edward Coke, in the law of Eng- land we have not properly allodium ; which, we have seen (a), is the name by which the feudists abroad distinguish such estates of the subject, as are not holden of any superior. So that at the first glance we may observe, that our lands are either plainly feuds, or partake very strongly of the foodal nature. All tenures being thus derived, or supposed to be deiived, from the king, those that held immediately under him, in right of his crown and dignity, were called his tenants in Tenants in ca- capite, or in chief ; which was the most honourable species of tenure, but at the same time subjected the tenants to greater and more burthensome services than inferior tenures did. This distinction ran through all the difierent sorts of tenure, of which I now proceed to give an account. I. There seem to have subsisted among our ancestoi*s four principal species of lay tenure, to which all others may be reduced : the grand criteria of which were the natures of the several services or renders, that were due to the lords from their tenants. The services, in respect of their quality. Services, free, *■ * •' or base ; cer- were either free or base services ; in respect of their quan- t»|n, or uncer- tity and the time of exacting them, were either ceHain or uncertain. Free services were such as were not unbecoming the character of a soldier or a freeman to perform ; as, to serve under his lord in the wars, to pay a sum of money, and the like. Base services were such as were only fit for peasants or persons of a servile rank ; as, to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and (a) Section 47. ■^ M OF THE ANTIENT ENGLISH TENURES. • S. 62. Knight-ser- vice. Free Rocage. Vnienage. could not be exceeded on any pretence; as, to pay a stated an- nual rent, or to plough such a field for three days. The unceV' tain depended upon unknown contingencies ; as, to do mili- tary service in person, or pay an assessment in lieu of it, when called upon ; or to wind a horn whenever the Scots in- vaded the realm, which are free services ; or to do whatever the lord should command, which is a base or villein service. From the various combinations of th^se services have arisen the four kinds of lay tenure which subsisted in Eng- land, till the middle of the seventeenth century ; and three of which subsist to this day. Of these Bracton (who wrote under Henry III.) seems to give the clearest and most com- pendious account, of any author, antient or modem ; of which the following is the outline or abstract. " Tenements are of two kinds, frank-tenement and villenage. And, of frank-tenements, some are held freely in consideration of homage and knight-service ; others in free-socage, with the service of fealty only." And again: " Of villenages some are pure, and others privileged. He that holds in pure vil- lenage shall do whatsoever is commanded him, p'A always be bound to an uncertain service. The otht *' ; i of. villen- age is called villein-socage ; and these viLeii . ;>uiu do vU- lein services, but such as are certain and JetiT otfid." Of which the sense seems to be as follows : fii-st, where the ser- vice was free but uncertain, as military service with hom- age, that tenure was called the tenure in * chivalry, per ser- vitium miUtare, or by knight-service. Secondly, where the service was not only free, but also certain, as by fealty only, by rent and fealty, oic, that tenure was called libei'wm soca- gium, or free socage. These were the only free holdings or tenements ; the others were vUlenoua or servile, as, thirdly, where the service was base in its nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in its nature, but reduced to a certainty, this was still OF THE ANTIENT ENGLISH TENURES. 91 villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum ; or it might be still called socage (from the certainty of its services), but degraded by their haseneaa into the inferior title of villenum socaijium, villein-socage. The first, most universal, and esteemed the most honour- Knight-ser- able species of tenure, was that by knight-service. This ^'*'*' differed in very few points, as we shall presently see, from a pure and proper feud, being entirely military, and the general effect of the feodal establishment in England. To make a tenure by knight-service, a determinate quantity of land was necessary, which was called a knight's fee, feodum militare. And he who held this proportion of land (or a pytjea whole fee) by knight-service, was bound to attend his lord to the wars for forty days in every year, if called upon ; which attendance was his reditus or return, his rent or service, for the land he claimed to hold. If he held only half a knight's fee, he was only bound to attend twenty days, and so in proportion. And there is reason to *appre- •g ^^ hend, that this service was the whole that our ancestors meant to subject themselves to ; the other fruits and con- sequences of this tenure being fraudulently superinduced, as the regular (though unforeseen) appendages of the feodal system. This tenure of knight-service had all the marks of a Nature of strict and regular feud : it was granted by words of pure ^™" ' donation, dedi et concessi ; was transferred by investiture or delivering coi'poral possession of the land, usually called livery of sei^n ; and was perfected by homage and fealty. Consequence*. It also drew after it these seven fruits and consequences, as inseparably incident to the tenure in chivalry, viz., aids, relief, primer seisin, wardship, marriage, fines for alienation, and escheat ; all of which I shall endeavour to explain, and to show to be of feodal original. 1. Aids were originally mere benevolences granted by the Aids. 98 OF THE ANTIENT ENGLISH TENURES. tenant to his lord, in times of difficulty and distress : but in process of time they grew to be considered as a matter of right, and not of discretion. These aids were principally three: first, to ransom the lord's person, if taken prisoner; a necessary consequence of the feodal aitachui-^nt and fidelity ; insomuch that the neglect of doing it, whenever it was in the vjissal's power, was by the strict rigour of the feodal law an absolute forfeiture of uis estate. Secondly, to make the loi'd's eldest son a knight, a matter that was formerly attended with great ceremony, pomp, and expense. This aid could not be demanded till the heir was fifteen years old, or capable of bearing arms: the intention of it beiiig to breed up the eldest son and heir-apparent of the seignory to deeds of arms and chivalry, for the better defence of the nation. Thirdly, to marry the lord's eldest daughter, by giving her a suitable portion : for daughters' portions were in those days extremely slender ; few lords being able to save much out of * their income for this purpose ; nor could they acquire money by other means, being wholly conversant in matters of arms ; nor, by the nature of their tenure, could they charge their lands with this or any other incumbrances. 2. Relief, relevium, was before mentioned as incident to every feodal tenure, by way of fine or composition with the lord for taking up the estate, which w»s lapsed or fallen in by the death of the last tenant. Primer seisin. 3. Primer seisin was a feodal burthen, only incident to the king's tenants in capite, and not to those who held of inferior or mesne lords. It was a right which the king had, when any of his tenants in capite died seised of a knight's fee, to receive of the heir (provided he were of full age) the profits of the lands 'for a certain time.* 4. These payments were only due if the heir was of full age ; but if he was under the age of twenty-one, being a male, or fourteen, being a female, the lord was entitled to the »S. 04. Reliefs . Wardship. OF THE ANTIENT ENGLISH TENURES. 93 wardship of the heir, and was called the guardian in chiv- aliy. This wardship consisted in having the custody of the body and lands of such heir, without any account of the profitsj till the age of twenty-one in males, and sixteen in females. For the law supposed the heir-male unable to per- form knight-service till twenty-one : but as for the female, she was supposed capable at fourteen to marry, and then her husband might perform the service. The wardship of the body was a consequence of the ward- ship of the land ; for he who enjoyed the infant's estate was the properes_t person to educate and maintain him in his infancy : and also, in a political view, the lord was most concerned to give his tenant suitable education, in order to qualify him the better to perfonn those services which in his maturity he was bound to render. 5. But, before ' the heirs ' came of age, there was still an- Marriage, other piece of authority, which the guardian was at liberty to exercise over his infant wards; I mean the right of DUirriaye (mantagiutn, as contradistinguished from matri- monium), which in its feodal sense signifies the power, which the lord or guardian in chivalry had, of disposing of his in- fant ward in matrimony. For, while the infant was in ward, the guardian had the power of tendering him or her a suit- able match, without disparagement or inequality : which, if the infants refused, they forfeited the value of the mar- riage to their guardian ; that is, so much as a jury would assess, or any one would bona fide give to the guardian for such an alliance : and, if the infants married themselves without the guardian's con.sent, they forfeited double the value. G. Another attendant or consequence of tenure by knight- Fines, service was that oi fines due to the lord for every aliena- tion, whenever the tenant had occasion to make over his land to another. This depended on the nature of the feodal connexion ; it not being reasonable or allowed as we have M OF THE ANTIENT ENOLISH TENURES. •S. 72. Escheats. •S. 73. before seen, that a feudatory should transfer his lord's gift to another, and substitute a new tenant to do the service in his own stead, without the consent of the lord : and as the feo*dal obligation was considered as reciprocal, the lord also could not alienate his seigniory without the consent of his tenant, which consent of his was called an attornment. This restraint upon the lords soon wore away ; thai upon the ten- ants continued ' until the passi;ig of a statute in the reign of Queen Anno' (a). 7. The last consequence of tenure in chivalry was escheat ; which is the determination of the tenure, or dissolution of the mutual bond between the landlord and tenant from the extinction of the blood of the latter by either natural or civil means : if he died without heirs of his blood, or if his blood was corrupted or stained by commission of treason or felony ; whereby every inheritable quality was entirely blot- ted out *and abolished. In such cases the land escheated, or fell back to the lord of the fee ; that is, the tenure was determined by breach of tlie original condition expressed or implied in the feodal donation. In the one case, there were no heirs subsisting of the blood of the first feudatory or pur- chaser, to which heirs alone the grant of the feud extended; in the other, the tenant, by perpetrating an atrocious crime, shewed that he was no longer to be trusted as a vassal, hav- ing forgotten his duty as a subject ; and therefore forfeited his feud, which he held under the implied condition that he should not be a traitor or felon. The consequence of which in both casee was, that the gift, being determined, resulted back to the lord who gave it. ' The law as to escheat has been much modified by modem statutes, as explained here- after, s. 252.' • These were the principal qualities, fruits, and consequen- ces of tenure by knight-service : a tenure, by which the (a) See pott ss. 288, 290. OF THE ANTIENT ENGLISH TENURES. W greatest part of lands in this kingdom were holden, and that principally of the king in capite, till the middle of the seven- teenth century ; and which was created, as Sir Edward Coke expressly testifies.for a military purpose, viz.,for defenceof the realm by the king's own principal subjects, which was judged , to be much better than to trust to hirelings or foreigners. The description here given is thatof a knight-service proper ; which was to attend the king in his wars. There were also sraic other species of knight-service; so called, though improperly, because the service or render was of a free and honourable nature, and equally uncertain as to the time of rendering as that of knight-service proper, and because they were at- tended with similar fruits and consequences. Such was the tenure by grand aergeanty, per niagnum aervitium, whereby the tenant was bound, instead of serving the king generally in his wars, to do some special honorary service to the king in person ; as, to carry his banner, his sword, or the like : or to be his butler, champion, or other officer, at his corona- tion. It was in most other respects like knight-service. ,g j^ These services, both of chivalry andof gi-andsergeanty,were Services, ver- all personal, and uncertain as to their quantity or duration, uncertain. But, the personal attendance in knight-service growing trou- blesome and inconvenient in many respects, the tenants found means of compounding for it, by first sending others in their stead, and in process of time making a pecuniary satisfaction to the lords in lieu of it. This pecuniary sati.s- faction at last came to be levied by assessment, at so much for every knight's fee; and therefore the tenure was called, in our Norman French, eamage ; being indeed a pecuniary, Pecuniary instead of a military, service. The first time this appears i* lie^TcaUed to have been taken was in the 5 Hen. II., on account of the **'="*'f*'- expedition to Toulouse ; but it soon came to be so universal, that personal attendance fell quite into disuse. Hence we find in our ancient histories, that, from this period, when our kings went to war, they levied scutages on their tenants, that 't li. . 96 S. 75, S. 70. OF THE ANTIENT ENOLISH TENURES. is, on all the landlioldei's of the kingdom, to defray their ex- penses, and to hire troops. By statute 25 Edw. I. c. 5, 6, and many subsequent statutes, it was provided, that the king should take no aids or tasks but by the common as-sent of the realm ; hence it was held in (Wr old V)ooks, that escuage or scutage could not be levied but by consent of parliament; such scutages being indeed the ground-work of all succeed- ing subsidies, and the land-tax of later times. For the present I have only to observe, that by the degen- erating of knight-service, or personal military duty, into es- cuage, or pecuniary assessments, all the advantages (either promised or real) of the feodal constitution were destroyed and nothing but the hardships remained. Instead of form- ing a national militia composed of barons, knights and gen- tlemen, bound by their interest, their honour, and their oaths, to defend their king and country, the whole of this system of *tenures tended to nothing else but a wretched means of raising money to pay an army of occasional mer- cenaries. In the meantime the families of all our nobility and gentry groaned under the intolerable burthens, which (in consequence of the fiction adopted after the Conquest) were introduced and laid upon them by the subtlety and finesse of the Norman lawyers. For, besides the scutages to which they were liable in defect of peraonal attendance, which however were assessed by themselves in parliament, they might be called upon by the king or lord paramount for aids, whenever his eldest son was to be knighted or his eldest daughter married ; not to forget the ransom of his own person. The heir, on the death of his ancestor, if of full age, was plundered of the first emoluments arising from his inheritance, by w^ay of relief And primer seinn ; and, if under age, of the whole of his estate during infancy. And then, as Sir Thomas Smith feelingly complains, " when he " came to his "/ vn, after he was out of wardship, his woods " decayed, In uses fallen down, stock wasted and gone, lands OF THE ANTIENT ENGLISH TENURES. m " lot forth and ploughod to bo barren," to reduce luni still further, he was yet to pay half a year's profits as a fine for suing out his livei^ ; and also the price or value of his mar- riage, if he refused such wife as his lord and guardian had bartered for, and imposed upon him ; or twice that value, if In; married another woman. Add to this, the untimely and expensive honou»* of knighthood, to make his poverty more completely splendid. And when by these deductions his fortune was so shattered and ruined, that perhaps he was olili^jed to sell his patrimony, ho had not even that poor pri- vilege allowed him, without paying an exorbitant fine for a licence of alienation. A slavery so complicated, and so extensive as this, called aloud for a remedy in a nation that boasted of its freedom. Palliatives were from time to time applied by successive Acts of Parliament, which assuaged some temporary grievances. At length the military tenures, with all their heavy ap- Abolition of pendagea (having during the usurpation been discontinued) ure8bvi2Cftr. were destroyed atone blow by the statute 12 Car. II. c. 24, which enacts, " that the court of wards and liveries, and all " wardships, liveries, primer seisins, and ousterlemaines, val- " ues and forfeitures of marriages, by reason of any tenure • " of the king or others, be totally taken away. And that I " all fines for alienations, tenures by homage, knight-service, " and escuage, and also aids for marrying the daughter or " knighting the son, and all tenures of the king in capite, be I " likewise taken aw^ay. And that all sorts of tenures, held " of the king or others, be turned into free and common " socage ; save only in tenure in frankalmoign, copyholds, and " the honorary services (without the slavish part) of grand I" serjeanty." A statute, which was a greater acquisition to jthe civil property of this kingdom than even magna carta litself : since that only pruned the luxuriances that had grown lout of the militaiy tenures, and thereby preserved them in [vigour; but the statute of King Charles extirpated the 5 ^11 •Si* 'd8 OF THE ANTIENT ENGLISH TENURES. whole, and demolished both root and branches. 'By Imp, Stat. 31 Geo. 3, c.III, s. 43, Con. Stat. Can., p. xviii., all lands to be granted by the Crown in Canada were to be in free and common socage.' CHAPTER VII. OF THE MODERN ENGLISH TENURES. Although, by the means that were mentioned in the pre- The tenure of ceding chapter, the oppressive or military part of the f eodal others,' *° constitution was happily done away, yet we are not to ima- '^^^^ gine that the constitution itself was utterly laid aside, and a new one introduced in its room ; since, by the Statute 12 Car. II. the tenures of socage and frankalmoign, the honor- ary services of grand serjeanty, and the tenure by copy of court roll, were reserved ; nay, all tenures in general, except frankalmoign, grand serjeanty, and copyhold, were reduced to one general species of tenure,then well known and subsist- ing, called free and common socage. And this, being sprung from the same feoilnl original as the rest, demonstrates the necessity of fully contemplating that antient system ; since it is that alone to which we can recur, to explain any seem- ing or real difficulties, that may arise in our present mode of tenure. The military tenure, or that by knight-service, consisted of what were reputed the most free and honourable services, but which in their nature were unavoidably uncertain in re- spect to the time of their performance. The second species of tenure, or free-aocage, consisted also of free and honour- in free socage able services ; but such as were liquidated and reduced to an tlin!*'^ °^' absolute certainty. ' By Imp. Stat. 31 Geo. III., c. 31, s. 42, Cons. Stat. Canada, all lands to be'granted by the Crown in All lands here Upper Canada were to be in free and common socage, in socage, and in England also ' * this tenure has in a manner absorbed • s, 79. and swallowed up (since the statute of Charles the Second) J [ HMI U r. ^ [.: ^' '.< ^ :x: I ir rD ii *" ' ¥■ ' ^ ?■ ? 41 100 OF THE MODERN ENGLISH TENURES. S. 80. almost every other species of tenure. And to this we are next to proceed. Socage, in its most general and extensive signification, seems to denote a tenure by any certain and determinate ser- vice. And in this sense it is by our antient writers con- stantly put in opposition to chivalry, or knight-service, where the render was precarious or uncertain. The service must therefore be certain, in order to denominate it socage ; as to hold by fealty and 20s. rent ; or, by homage, fealty, and 20s. rent ; or, by homage and fealty without rent ; or, by fealty and certain corporal service, as ploughing the lord's land for three days; or, by fealty only without any other service ; for all these are tenures in socage. But socage, as was hinted in the last chapter, is of two sorts : /ree-socage, where services are not only certain, but honourable ; ant villein-soti&ge, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Gianvil, and other subsequent authois, by the name of liben sokemanni, or tenants in free socage. Of this tenure we are first to speak ; and this both in the * nature of its service, and the fruits and consequences apper- taining thereto was always by much the most free and inde- pendent species of any. It seems pi'obable that the socage tenures were the relics of Saxon liberty; retained by such persons as had neither forfeited them to the king, nor been obliged to exchange their tenure, for the more honourable, as it was called, but, at the same time, more burthensome, tenure of knight-ser- vice. This is peculiarly remarkable in the tenure which pre- vails in Kent, called gavel-kind, which is generally acknow- ledged to be a species of socage tenure ; the preserva- tion whereof inviolate from the innovations of the Norman conqueror is a fact universally known. And those who thus preserved their liberties were said to hold in free and com- 1 mon socage. OF THE MODERN ENGLISH TENURES. 101 lis we are As, therefore, the grand criterion and distinguishing mark of this species of tenure are the having its renders or ser- vices ascertained, it will include under it all other methods of holding free lands by Certain and invariable rents and duties; and, in particular, /)e no lands' can be granted in fee simple, except by the Crown, to be held of the grantor, and as therefore, since then, no rent can be reserved on such a grant (6), so neither can any relief be payable.' The Statute of Charles II. reserves the reliefs incident to socage tenures ; and therefore, whenever lands in fee simple are holden by a rent, relief is still due of common right upon the death of a tenant, ' but it might be shown that it was agreed on creating the tenure, that no relief should be payable (Co. Litt. by Harg., 93, A. n., 2; 3 Lev. 145).' 6. Primer seisin was entirely abolished by the statute. 7, Wardship is also incident to tenure in socage ; but of a Wardship, natiue very different from that incident to knight-service. For if the inheritance descend to an infant under fourteen, the wardship of him does not, nor ever did, belong to the lord of the fee ; because, in this tenure, no military or *other * g. 59. personal service being required, there was no occasion for the lord to take the profits, in order to provide a proper sub- stitute for his infant tenant; but his nearest relation (to whom the inheritance cannot descend) shall be his guardian in socage, and have the custody of his land and body till he arrives at the age of fourteen. At fourteen this wardship in socage ceases ; and the heir may oust the guardian, and call him to account for the rents and profits ; for at this age the law supposes him capable of choosing a guardian for himself. It was in this particular, of wardship, as also in that of mar- riage, and in the certainty of the render or service, that the socage tenures had so much the advantage of the military ones. But as the wardship ceased at fourteen, there was this advantage attending it : that young heirs, being left at 80 tender an age to choose their own guardians till twenty- 5on tenure (a) Co. Litt by Harg. 93, A. n. 2 ; 3 Lev. 145. (bj See ante, p. 70. 106 OF THS MODERN ENGLISH TENURES. Court of Chancery can appoint guardian. Surrogate Court. one, might make an improvident choice. Therefore, when almost all the lands in the kingdom were turned into socage tenures, the same statute (12 Car. II. c. 24) enacted, that it should be in the power of any father by will to appoint a guardian, till his child should attain the age of twenty-one. And, if no such, ' or an improper,' appointment be made, the Court of Chancery will frequently interpose, and name a guardian, to prevent an infant heir from improvidently ex- posing himself to ruin ; 'a power in the court which it should seem is not excluded by R. S. O. c. 132, sec. 1 (a), by which it is provided that the right of appointing guardians of in- fants (such infants not having a father living, or any legal guardian authorized by law oo take charge of their persons and estates) may be exercised by the Surrogate Court of the county in which the infant resides ; and by s. 4, such guardians, so appointed, shall have the charge and manage- ment of the real and personal estate, and the care of the per- son and education of the infant. Notwithstanding this sec- tion, the rule in equity is, that money belonging to an infant is not to be paid to the guardian, however appointed, but is secured and paid out for the infant's benefit under the direc- tion of the court, unless the amoiint be small, and required for the immediate u.se of the infant, or there be special cir- cumstances (b)' 8. The value of marriage and fines for alienation are de- molished by the statute of Charles II. 10. Escheats are equally incident to tenure in socage, as they were to tenure by knight-service. Thus much for the two grand species of tenure, under aboUshed^'^^ which almost all the free lands of the kingdom were holden till the restoration in 1660, when the former was abolished and sunk into the latter : so that the lands of both sorts are Tenure by (a) Jte Stannard, Chanc. Chambers Rep. 1.5 ; 6 Grant 632 ; but see per Robin- son, C. J. , Doe Marianne v. Alexander, 1 U. C. R. 120. (&) MUchM y. RiUhty, 13 Grant 44S. OF TB£ MODERN ENGLISH TENURES. 107 now holden by one universal tenure of free aud common socage ; 'which is the tenure under which all grants of lands in Ontario are held (a).' The other erand division of tenure, mentioned by Bracton Villein , , tenure. as cited in the preceding chapter, is that of villenage, as contradistinguished from liberum tenementum^ or frank tenure. And this (we may remember) he sub-divided into two classes, pure and privileged villenages ; from whence have arisen two other species of modern tenures. * III. From the tenure of pure villenage have sprung the • S. 90. present copyhold tenures in England, or tenure by copy of court-roll at the will of the lord : in order to obtain a clear idea of which it will be previously necessary to take a short view of the original and nature of manors. Manors are in substance as antient as the Saxon constitu- Of manors, tion, though perhaps differing a little, in some immaterial circumstances, from those that exist at this day ; just as we observed of feuds, that they were partly known to our an- cestors even before the Norman conquest. A manor, maner- t'ttm, manendo, because the usual residence of the owner, seems to have been a district of ground, held by lords or great personages, who kept in their own hands so much land as was necessary for the use of their families, which were called terrcB dmninicaZea or demesne lands ; being occupied by the lord, or domimis raanerii, and his servants. The other, or tenemental lands they distributed among their ten- ants ; which, from the different modes of tenure, were dis- tinguished by two different names. First hook-land, or char- ter land, which was held by deed under certain rents and free- services, and iu effect differed nothing from the free-socage lands : and from hence have arisen most of the freehold ten- ants who hold of particular manors, and owe suit and service to the same. The other species was called folk-land, which (•) ante p. 98. f s" =3 108 OF THE MODERN ENGLISH TENURES. •Courts baron. S. 91. All manors must have ex- isted before tlie Stat, of quia cmplorcs. Subinfeuda- tions. was held by no assurance in writing, but distributed among the common folk or people at the pleasure of the lord, and re- sumed at his discretion ; being indeed land held in villenage which we shall presently describe more at large. The resi- due of the manor being uncultivated, was termed the lord's waste, and served for public roads and for common of pas- ture to the lord and his tenants. Manors were formerly cal- led baronies, as they still are lordships ; and each lord or baron was empowered to hold a domestic court, called the court-baron, for redressing misdemeanors and nuisances within the manor ; and for settling disputes of property among the tenants. This court is an inseparable ingredient of every manor ; and if the number* of suitors should so fail as not to leave sufficient to make a jury or homage, that is two tenants at least, the manor itself is lost. In the early times of our legal constitution, the king's greater barons, who had a large extent of territory held un- der the Crown, granted out frequently smaller manors to in- ferior persons to be holden of themselves : which do there- fore continue to be held under a superior lord, who is called in such cases the lord paramount over all these manors ; and his seignory is frequently termed an honour, not a manor, es- pecially if it hath belonged to an ancient feodal baron, or hath been at any time in the hands of the crown. In imi- tation whereof these inferior lords began to carve out and to grant to others still more minute estates, to be held as of themselves, and were so proceeding downwards in infinitum, till the superior lords observed, that by this method of sub- infeudation they lost all their feodal profits of wardships, marriages, and escheats, which fell into the hands of these mesne or middle lords, who were the immediate superiors of the terre-tenant, or him who occupied the land : and also that the mesne lords themselves were so impoverished thereby, that they were disabled from performing their services to their own superior. This occasioned the Statute of Westm. OF THE MODERN ENGLISH TENURES. lOJV 3, or quia emptorea, 18 Edw. I. c. I, which directs that upon Quia cmpums, all sales of feoffments of land, the feoffee shall hold the same, not of his immediate feoffor, but of the chief lord of the fee, of whom such feoffor himself held it. * And from *^' ^• hence it is clear that all manors existing at this day must have existed as early as King Edward I. ; for it is essential to a manor, that there be tenants who hold of the lord ; and by the operation of that stiitute and other statutes, no ten- ant in capite since the accession of that prince, and no ten- ant of a common lord, since the Statute of quia emptores' could create any new tenants to hold of himself, 'hence also it follows that no manors exist in Canada.' Now, with regard to the folk-land, or estates held in vil- Tenures in villenage. lenage, this was a species of tenure neither strictly feodal, Norman, nor Saxon ; but mixed and compounded of them all : and which also, on account of the heriots that usually attend it, may seem to have been somewhat Danish in its composition. Under the Saxon government there were a sort of people in a state of downright servitude, used and em- ployed in the most servile works, and belonging both they, their children, and effects, to the ]ord of the soil, like the rest of the cattle or stock upon it. These seem to have been those who held what was called the folk- land, from which they were removeable at the lord's pleasure. On the arrival of the Normans here, it seems not improbable that they who were r.trangei's to any other than a feodal state, might give some sparks of enfranchisement to such wretched persons as fell to their share, by admitting them as well as others, to the oath of fealty ; which conferred a right of protection, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every otiier condition. This they Villeins- called villenage, and the tenants villeins, either from the word vilia, or else, as Sir Edward Coke tells us, a villa ; be- cause the)^ lived chiefly in villages, aud were employed in rustic works of the most sordid kind : resembling the Spartan I ^ if 3 t 110 OF THE MODERN ENGLISH TENURES. S. 93. • S. 94. Tenures by copy of court- roIL helotes, to whom alone the culture of the lands was con- signed ; their rugged masters, like our northern ancostow esteeming war the only honourable employment of mankind. * These villeina, belonging principally to lords of manois, were either villeins regardant, that is, annexed to the manor or land ; or else they were in grofis, or at large, that is, an- nexed to the person of the lord, and transferable by deed from one owner to another. They could not leave their lord without his permission : but if they ran away, or were pur- loined from him, might be claimed and recovered by action, like beasts or other chattels. Tliey held indeed small por- tions of land by way of sustaining themselves and families ; but it was at the mere will of the lord, who might dispos- sess them whenever he pleased ; and it was upon villein ser- vice, that is, to carry out dung, to hedge and ditch the lord's demesnes, £nd any other the meanest offices : and their ser- vices were not only base, but uncertain both as to their time and quantity. A villein could acquire no property either in lands or gc^ds : but, if he purchased either, the lord might enter upon them, oust the villein, and seize them to his own use, unless he contrived to dispose of them again before the lord had seized them ; for the lord had then lost his opportunity. The children of villeins were also in the same state of bondage with their pa*rents. Villeins, by many means, in process of time,gained consider- able ground on their lords ; and in particular strengthened the tenure of their estates to that degree, that they came to have in them an interest in many places full as good as, in others | better than, their lords. For the good-nature and benevo- lence of many lords of manors having, time out of mind, permitted their villeins and their children to enjoy their | possessions without interruption, in a regular course of des- cent, the common law, of which custom is the life, now gave I them title to prescribe against their lords ; and, on perform- ance of the same services, to hold their la^ads in spite of any OF THE MODERN ENGLISH TENUUBS. Ill dotormination of the lord's will. For though in general they arc Htill said to hold their estates at the will of the lord, yet it is such a will as is agreeable to the customs of the manor ; which customs are preserved and evidenced by the rolls of the several courts-baron in which they are entered, or kept on foot by the constant immemorial usage of the several manoi'S in which the lands lie. And as such tenants had nothing to shew for their estates but these customs, and admissions in pursuance of them, entered on these rolls, or the copies of such entries witnessed by the steward, they now began to be called tenants by copy of court-roll, and their tenure itself a copyhold. Thus copyhold tenures, as Sir Edward Coke observes, although very meanly descended, yet came of an ancient house ; for, from what has been premised, it appears, that copyholders are in truth no other but villeins, who, by a long series of encroachments on the lord, have at last established a customary right to those estates, which befoje were held absolutely at the lord's will.* And these encroachments grew to be so universal, that when tenure in villenage was virtually abolished (though copyholds were reserved) by the Statute of Charles II., there was hardly a pure villein left in the nation. For Sir Thomas Smith testifies, that in his time (and he was secretary to Edward VI.) he never knew any vi'Iein in gross throughout the realm ; and the few villeins regardant that were then remaining, were such only as had belonged to bishops, monasteries, or other ecclesiastical cor- porations, in the preceding times of popery. For he tells us, that " the holy fathers, monks and fiiars, had in their con- " fessions, and especially in their extreme and deadly sick- "ness, convinced the laity how dangerous a practice it was, " for one Christian man to hold another in bondage : so that "temporal men, by little and little, by reason of that terror " in their consciences, were glad to maaunlit ail their villeins " But the said holy fathers, with the abbots and priors, did »S. 9«. i 112 OF THE MODERN ENGLISH TENURES. " not in like sort by theirs ; for they also had a scruple in *' conscience to impoverish and despoil the Church so much, " as to manumit such as were bond to their churches, or to " the manors which the church had gotten ; and so kept their " villeirs still." By these several means the generality of villeins in the kingdom have long ago sprouted up into copyholders ; their persons being enfranchised by manumis- sion or long acquiescence ; but their estates, in strictness, remaining subject to the same servile conditions and forfei- tures as before; though, in general, the villein services are usually commuted for a pecuniary quit-rent. *S. 97. *As a farther consequence of what has been premised, we may collect these two main principles, which are held to be the supporters of the copyhold tenure, and without which it cannot exist : 1. That the lands be parcel of, and situate within, that manor, under which it is held. 2. That they have been demised, or demisable, by copy of court-roll, immemoriajly. For immemorial custom is the life of ail tenures by copy ; so that no new copyhold can, strictly speaking, be granted at this day, ' or could ever have existed in Canada.' •S. 98. *Thus much for the ancient tenure of pure villenage, and the modem one of copyhold at the will of the lord, which is lineally descended from it. * S. 101. *Thus have we taken a compendious view of the principal and fundamental points of the doctrine of tenures, both ancient and modern, in which we cannot but remark the mutual connexion and dependence that all of them have upon each other. And upon the whole it appears, that whatever changes and alterations these tenures have in process of time undergone, from the Saxon sera to the 12 Car. II., all lay tenures are now in effect reduced to two species : free tenure in common socage, and base tenure by copy of court-roll ' the former alone existing in the Province of Ontario.' CHAPTER VIII. OF FREEHOLD ESTATES OF INHERITANCE. The next objects of our disquisitions are the nature and properties of estates. An estate in lands, tenements and here- ditaments, signifies such interest as the tenant hath therein : 80 that, if a man grants all his estate in Dale to A. and his heirs, everything that he can possibly grant shall pass thereby (a). It is called in Latin status ; it signifying the i condition or circumstance in which the owner stands with re- gard to his property. And, to ascertain this with proper pre- cision and accuracy, estates may be considered in a threefold I view : first, with regard to the quantity of interest which the tenant has in the tenement ; secondly, with regard to the \time at which that quantity of interest is to be enjoyed ; and I thirdly, with regard to the number and connexions of the ten- lants. First, with regard to the quantity of interest which the The quantity ■ , ,..,,.,. ofiuterest. jtenant has in the tenement, this is measured by its duration ind extent. Thus, either his right of possession is to subsist [for an uncertain period, during his own life, or the life of mother man ; to determine at his own decease, or to remain his descendants after him ; or it is circumscribed within a |!ertain number of years, months, or days ; or lastly, it is in- finite and unlimited, blng vested in him and his representa- lives for ever. And this occasions the primary division of * • g 104 bstates into such as are freehold, and such as are less than treehold. ' The quality of an estate has reference to its tenure, as irhether in common, in joint tenancy, on condition, &c. ' (a) Co. Litt. 346. 114 OF FREEHOLD ESTATES OF INHERITANCE. Definition of an eblate of freehold. An estate of freehold, liherum tenementum, or frank tene- ment ' is such an estate, as at common law ' required actual possession of the land; 'and no other is, legally speaking, free- hold ; ' which actual possession could * prior to the Stat. 14 & I 15 Vic. c. 7 ; R. S. 0. c. 98 (see post, s. 317), by which the im- mediate freehold lies in grant as well as in livery, ' by the course of the common law, be only given by the ceremony called livery of seisin, which is the same as the feodal inves- titure. And from these principles we may extract this de- j scription of a freehold : that it is such an estate in lands as 'was formerly only, ' conveyed by livery of seisin ; or, in tene- 1 ments of an incorporeal nature, by what is equivalent thereto, j And accordingly it is laid down by Littleton, that, where a | freehold shall pass, it behoveth to have livery of seisin. As, , therefore, estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates ' were required to be ' conveyed with the same soleainity, therefore) no others ' were or yet are ' properly freehold estates (a). Estates of freehold (thus understood) are either estates of j inheritance, or estates not of inheritance. The former are| again divided into inheritances absolute or fee-simple ; a (a) It is suggested that the above definition so far as it makes pooeuia^ essential to the existence of a freehold estate, is perhaps at the present day i ject to some qualification. If lands be limited to A. for life, remainder to 6. fori life ; or, to A. for life, remainder to B. in tail, remainder to G. for life oriDf«;| these remainders are still now regarded as freehold estates, though the poaxeuinl is in A. ; and A. as the taker of the first of the freehold estates, is said to ha«re thi ivitnediate freehold. Preston Estates, vol. 1, 214, 216. This distinction is «b] recognised by B. S. O. c. 98, which enacts that corporeal hereditaments bIuI1| as regards the immediate freehold thereof, lie in grant as well as in livery. 1^1 Act clearly recognises freehold estates other than immediate, and consequentlfl not accompanied by possession ; these it does not provide for, as they Uy il grant before the Act, since possession could not be given, or livery miiit| Moreover, possession in the strict sense of the word cannot be had in an inco poreal tenement, and yet a freehold estate may exist in it To this may be iddi that " such interests only as may continue for the period of a life, are estata^ freehold ; all interests for a shorter period, or more properly speaking, for»il»| finite space of time are chattel interests. " Frest. Estates, 203. OF FREEHOLD ESTATES OF INHERITANCE. 115 * S. 105. I inheritances limited, one species of which we usually call fee-tail. I. Tenant in fee-simple (or, as he is frequently styled I- Fee-simple, tenant in fee) is he that hath lands, tenements, or heredita- ments, to hold to him and his heirs for ever : generally, ab- solutely, and simply ; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee (feodum) is the same with that of feud or fief, and in its original sense, it is* taken in contradistinction to allodium; which latter the writers on this subject define to be of every man's own land, which he possesseth merely in his own right, without owing any rent or service to any superior. This is property in its highest degree ; and the owner thereof hath absolutum et directum, dominium, and therefore is said to be seised thereof absolutely in dominico sua, in his own demesne- But feodum, or fee, is that which is held of some superior, on condition of rendering him service ; in which superior the ultimate property of the land resides. And therefore Sir Henry Spelman defines the feud or fee to be the right which the vassal or tenant hath in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services ; the mere allodial property of the soil always remaining in the lord. This allodial property no subject in England has (a) ; it being a received, and now undeniable, principle in the law, that all the lands in Eng- land are holden mediately or immediately of the king. The king, therefore, only hath absolutum et directum dominium : but all subjects' lands are in the nature of feodum or fee : whether derived to them by descent from their ancestors, or purchased for a valuable consideration; for they cannot come to any man by either of those ways, unless accompanied with those feodal clogs which were laid upon the first feu- (o) Co. Litt. L 'IS' f 2 116 • S. 106, Sense of the word fee. OF FREEHOLD ESTATES OF INHERITANCE. datory when it was originally granted. A subject, therefore, hath only the usufruct, and not the absolute property of the soil ; or, as Sir Edward Coke expresses it, he hath dominium utile, but not dominium directum. And hence it is, that, in the most solemn acts of the law, we express the sti-ongest and highest estate that any subject can have by these words : " he is seised thereof in his demesne as of fee." It is a man's demesne, dominicum, or property since it belongs to him and his heirs for ever : yet this dom,inicum, property, or demesne, is strictly not absolute or allodial, but qualified or feodal : it is his demesne, as of fee: that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides. 'And hence it is that the holder of lands, though in fee-simple, is still termed tenant in fee.' •This is the primary sense and acceptation of the word fee. But (as Sir Martin Wright very justly observes), the doctrine, " that all lands are holden," having been for so many ages a fixed and undeniable axiom, our English law- yers do very rarely (of late years especially) use the word fee in this its primary, original sense, in contradistinction to allodium or absolute property, with which they had no con- 1 cem ; but generally use it to express the continuance or ^ quantity of estate. A fee, therefore, in general, signifies an estate of inheritance ; being the highest and most extensive interest that a man can have in a feud ; and when the term is used simply, without any other adjunct, or has the ad- junct of simple annexed to it (as a fee, or a fee-simple)- it is used in contradistinction to a fee conditiongil at the common law, or a fee-tail by the Statute de donis; im- porting an absolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but descendible to the heirs general, whether male or female, lineal or colla- teral. And in no other sense than this is the king said to be seised in fee he being the feudatory of no man. OF FREEHOLD ESTATES OF INHERITANCE. 117 Taking, therefore, fee for the future, unless where other- Distinction be- wise explained, in this its secondary sense, as an estate of real and incor- "inheritance, it is applicable to, and may be had in, any kind amenta ^^^ of hereditaments, either corporeal or incorporeal. But there is this distinction between the two species of hereditaments that of a corporeal inheritance, a man shall be said to be seized in his demesne as of fee ; of an incorporeal one, he shall only be said to be seized as of fee, and not in his de- mesne. For, as incorporeal hereditaments are in their na- ture collateral to and issue out of, lands and houses (a), their owner hath no property, dominicum, or demesne, in the thing itself, but hath only something derived out of it, re- sembling the servitutes, or services of the civil law. The dominicwni or property is frequently *in one man, while * S. 107. the appendage or service is in another. Thus Caius may be seised as of fee of a way leading over the land, of which Titius is seized in his demesne as of fee. The word " heirs " is necessary in the grant or donation, The word in order to make a fee, or inheritance. For, if.J|g,nd be given necessary, to a man forever, or to him and his assigns forever, this vests in him but an estate for life. This very great nicety about the insertion of the word " heirs " in all feoffments and grants, in order to vest a fee, is plainly a relic of the feodal strictness ; by which, we may remember, it was required* * S. 108. that the form of the donation should be punctually pursued. And, as the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee's estate in the land extended only to his own person, and sub- sisted no longer than his life ; unless the donor, by an ex- press provision in the grant, gave it a longer continuance, and extended it also to his heirs. But this rule is now softened by many exceptions. For, 1. It does not extend to devises by will ; in which Not required ia wills. Ca) See S. 20. i 118 OF FREEHOLD ESTATES OF INHERITANCE. as they were introduced at the time when the feodal ri- gour was apace wearing out, a more liberal construction is allowed; and therefore 'even before the 4 Wm. IV. c.'l,' by a devise to a man forever, or to one and his assigns for- ever, or to one in fee simple, the devisee ' took ' an estate x/f inheritance ; for the intention of the devisor ' was ' suffi- ciently plain from the words of perpetuity annexed, though he h^ . omitted the words of inheritance ' In many cases also i\ ^^e A' ould pass by a will though there were no words of perpetuity ; as on a devise to A. coupled with a personal duty which might require that the fee should pass, as to set- tle children in business; but if the duty enjoined were a mere charge on the estate, and the acceptance of the devise in- volved the devisee in no personal responsibility, the fee would not pass (a). And by 4 Wm. IV. c. 1, K. S. O. c. 106,' a devise of land contained in a will shall pass all the estate in the land whereof the devisor was seized, unless it appear on the face of the will that the testator intended to devise a Nor incertain lesser estate, ^Neither ' did ' this rule extend to fines or w- coveries, considered as a species of conveyance ; for thereby an estate in fee passed byact and operation of lawwithout the word " heirs:" as it does also, for particular reasons, by certain other methods of conveyance, which have relation to a former grant or estate ' in fee. Thus a release from one co-parcener to another, or from one joint-tenant in fee to another, of the entire estate (h), of all the right, of the releasor^ will^ w ith- ou t an y.-»(iri" ?^ Hm^tafinn^ convc y a fea It is said also that the word " heirs " is not necessary to pass the fee where one holding under a conveyance in fee grants the lands to another expressing in the grant that the grantee is to have the lands "as fully as they were conveyed to him the I grantor "(c). Nor is the word requisite in case of a release conveyances. (u) Lloyd V. Jack-ton, L. R. 2 Q. B., Ex. Ch. 269. (6) Buttan v RuUan, Mich. T. 4 Vic. XJ. C. (c) 2 Prest. on Est. 2 ; Shepp. Touch.lOl. ^ OF FREEHOLD ESTATES OF INHERITANCE. 119' of a right in extinguishment of the right, and not in the creation or transfer of or to enlarge an estate ; thus a release by the grantee in fee of a rent charge of all his right to the freeholder will pass the fee without use of the woid " heirs :'l and in contracts for sale of lands, as where A. seized in fee contracts to sell to B., without use of the word ." heirs," or defining the quantity of estate intended to be conveyed, it will be assumed to be a contract for an estate in fee ^a).' 3. In grants of lands to sole corporations and their succes- Corporations. sors, the word " successors " supplies the place of " heirs ; " for as heirs take from the ancestor, so doos the sucessor from the predecessor.* But in a grant of land to a corporation * s. 109. aggrep-flte, the word "successors " is not necessary, though usually inserted ; for, albeit such simple grant be strictly only an estate for life, yet, as that corporation never dies, such estate for life is perpetual, or equivalent to a fee-simple, and therefore the law allows it to be one. ' Still it diflfers from an ordinary fee-simple in this, that if by any means the corporation be dissolved whilst holding the land, the interest, it then has will revert to the gi-antor or his heirs, and not go to the Crown by escheat. On such a grant, there- for, though the word " successors " be named, there is what is termed a possibility of reverter.' 4, Lastly, in the case of the king, a fee-simple will vest in him, without the word "heirs" or "successors" in the grant; partly from prerogative royal, and partly from a reason similar to the last, because the king in judgment of law never dies. But the general rule is that the word " heirs " is necessary to create an estate of inheritance. ' The word " assigns " is superfluous.' II. We are next to consider limited fees, or such estates Of limited of inheritance as are clogged and confined with conditions, or qualifications, of any sort. And these we may divide into two sorts : 1. Qualified or tase fees ; and, 2. Fees con- ;-2: '.Mm* ii >• (a) See, further, Preston Est. vol. 2, 42, andpott a. 326. 120 OF FREEHOLD ESTATES OF INHERITANCE. A base or qualified fee. * S. 110. A conditional fee. ditional, so called at the common law; and afterwards fees- tail, in consequence of the statute de donia. 1. A base, or qualified fee, is such a one as hath a qualifi- cation subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. Ai, in the case of a grant to A. and his heirs, tenants of the maror of Dale ; in this instance, whenever the heirs of A. cease to be tenants of that manor, the grant is entirely defeated. So, when Heniy VI. granted to John Talbot, lord of the manor of Kingston-Lisle in Berks, that he and his heirs, lords of the said manor, should be peers of the realm, by the title of Barons of Lisle ; here, John Talbot had a base or qualified fee in that dignity, and, the instant he or his heirs quitted the seignory of this manor, the dignity was at an end. This * estate is a fee, because by possibility it may endure for- ever in a man and his heirs ; yet, as that duration depends on the concurren'je of collateral circumstances, which qualify and debase the purity of the donation, it is therefore a quali- fied or base fee. ' The term " base fee " is frequently made use of in the R.'S. 0. c. 100, as to barring entailed estates; and, as there used, it signifies, by s. 1, that estate infeesim- /ple into which an estate tail is converted, where the issue in tail are barred, but those entitled in remainder or otherwise are not barred : as where there is a protector to the settlement who refuses to consent, to the disposition by the tenant, who conveys in fee simple ; here only the issue in tail are barred, and not those in remainder or reversion, and the estate of the grantee is called a base fee. It will be 'seen such estate is within the definition given above, for it may by possibility endure forever in the grantee and his heira, viz., so long as there is issue of the grantee, the tenant in tail, and its dura- tion depends on that collateral circumstance which qualifies and debases the purity of the grant in fti •■imple.' 2. A conditional fee, at the common law, was a fee re strained to some particular heirs, exclusive of others : as to OF FREEHOLD ESTATES OF INHERITANCE. 121 the heirs of a man's body, by which only his lineal descend- ants were admitted, in exclusion of coUataral heira ; or to the heirs 'jna^ of his body, in exclusion both of collaterals, and line.al females also. It was called a conditional fee, by reason of the condition expressed or implied in the donation of it, that, if the donee died without such particular heirs, the land should revert to the donor. For this was a condition annexed by law to all grants whatsoever ; that, on failure of the heirs specified in the grant, the grant should be at an end, and the land return to its antient proprietor. Such conditional fees were strictly agreeable to the nature of feuds, wlien they first ceased to be mere estates for life, and were not yet an'ived to be absolute estates in fee-simple. Now, with regard to the condition annexed to these fees by the common law, our ancestor held, that such a gift (to a man and the heirs of his body), was a gift upon condition, tliat it should revert to the donor, if the donee had no heirs of his body ; but if he had, it should remain to the donee. They therefore called it a fee-simple, on condition that he had issue. Now, we must observe, that, when any condition is performed, it is thenceforth entirely gone ; and the thing to which it was before annexed, becomes absolute, *and*S. ill. wholly unconditional. So that, as soon as the grantee had any issue bom, his estate was supposed to become absohite, by the performance of the condition; at least for these three purposes : 1. To enable the tenant to aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion (a). 2. To subject him to for- feit it for treason ; which he could not do, till issue bomi longer than for his own life; lest thereby the inheritance of the issue and reversion of the donor, might have been defeated. 3. To empower him to charge the land with rents, commons, and certain other incumbrances, so a^ to bind his issue. And iMU» J>MI (a) Co. Litt 19. 4 1 "" " 122 OF FREEHOLD ESTATES OF INHERITANCE. this was thought the more reasonable, because, by the birth of the issue, the possibility of the donor's reversion was ren* dered move distant and precarious : and his interest seems to have been the only one which the law, as it then stood, was solicitous to protect ; without much regard to the right of succession intended to be vested in the issue. However, if the tenant, did not in fact aliene the land, the course of descent was not altered by this performance of the condition; for if the issue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation, the land, by the terms of the donation, could descend to none but the heirs of hia body, and, therefore, in default of them, must have reverted to the donor. For which reason, in order to subject the lands to the ordinary course o^ des- cent, the donees of these conditional fees simple took care to aliene as soon as they had performed the condition by hav- ing issue ; and afterwards repurchased the lands, which gave them a fee-simple absolute, that would descend to the heirs general, according to the course of the common law. And thus stood the old law with regard to conditional fees ; which things, says Sir Edward Coke, though they seem antient, are yet necessary to be known ; as well for the de- claring how the common law stood in such cases, as for the sake of annuities, and such like inheritances, as are not within the statutes of entail, and therefore remain as at the y7 common law. •S.112. *The inconveniences which attended these limited and ^fwrf**"*^''* fettered inheritances, were probably what induced the judges to give way to this subtle finesse of construction (for such it undoubtedly was), in order to shorten the duration of these conditional estates. But, on the other hand, the nobility, who were willing to perpetuate their possessions in their own families, to put a stop to this practice, procured the Statute of Westminster the Second, 13 Edward I., c. 1 (commonly called the Statute de donia conditioncdibiut) to be made OF FREEHOLD ESTATES OF INHERITANCE. 123 which paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public considerations whatsoever. This statute revived in some sort the antient feodal restraints which were originally laid on alienations, by enacting, that from thence A)rth the will of the donor be observed ; and that the tenements so given (to a man and the heii-s of his body) should at all events go to the issue, if there were any ; or, if none, should revert to the donor. Upon the construction of this Act of Parliament, the judges determined that the donee had no longer a conditional fee- simple, which became absolute and at his own disposal, the instant any issue was born ; but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated a, fee-tail; and investing in the donor the ultimate fee-simple of the land, expectant on the failure of issue ; which expectant estate is what we now call a rever- sion. And hence it is that Littleton tells us that tenant in fee-tail is by virtue of the Statute of Westminster the Second. Having thus shewn the oriqinal of estates-tail, I now pro- What may or ceed to consider ivhat things may, or may not, be entailed un- entailed, der the Statute de donis* Tenements is the only word used *s. 113. in the statute: and this Sir Edward Coke expounds to compre- hend all corporeal hereditaments whatsoever ; and also all incoi-poreal hereditaments, which savour of the realty, that is, which issue out of corporeal ones, or which concern, or are anngxed to, or may be exercised within the same ; as rents, estovers, commons, and the like. Also offices and dignities, which' concern lands, or have relation to fixed and certain .• places, may be entailed. But mere personal chattels, which Wh** cannot •' ^ be entailed. savour not at all of the realty, cannot be entailed ; * nor even chattels real, as terms of years : and in each of these cases, if the gift be in such terras as would in case the donor were seized in fee-simple confer an estate-tail on the donee, such donee will as a general rule, take the whole absolute e 1 124 OF FREEHOLD ESTATES OF INHERITANCE. ^' interest though without issue' (a). Neither can an office ho entailed which merely relates to such personal chattels ; nor -^ an annuity, which charges only the jierson, and not the lands of the grantor : 'that is, it the owner in foe of such an office or annuity (as in the case of grant to a man G»^d his heirs of t-'uch office or annuity, which as before explained would confer an incorporc'il hereditament) should give the same to another and the heirs of his body, such other' hath still a fee-condi- tional at common law, as before the statute; and by his na- tion (after issue born) may bar the ]»eir or reversic '•). " An estate to a man and his heirs for another's life cannot be entailed : for this is strictly no estate of inheritance (as will appear hereafter), and therefore not within the Statute de don is. EstatcH-tail Next, as to the several upeciea of estates-tail, and how they are either j7fn- . trai or special, are respectively created. Estates-tail are either general or special. Tail general is where lands and tenements are given to one and the heira of his body begotten: which is called tail- general, because how often soever such donee in tail be mar- ried, his issue in general by all and every such marriage is, in successive order, capable of inheriting the estate-tail, per formam doni. Tenant in tail-special is where the gift is restrained to certain heirs of the donee's body, and does not * S. 114. go to all of them in general. And this maj' *happen several ways. I shall instance in only one ; as where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten : here no issue can inherit, but such special issue as is engendered between them two; not such as the husband may have by another wife: and therefore it is called special tail. And here we may observe, that the words of inheritance (to him nnd his heirs) give him an estate in fee : but they being heirs to he by him begotten, this makes it a fee-tail ; and the person being also limited, (a) Levtnthorpe y Athbie, Tud. Lg. Ca. 861. (6) Preston Est. Vol. 2, p. 290 ; Taltarum't cote, Tud. Lg. Cft.696. OF FBEEHOLI) ESTATES OF INHERITANCE. 125 a ottice bo tttels ; nor I the lands b an office is heirs of ukl confer bo anotlier foe-condi- bis ' na- m '.). cannot be 36 (as will statute de how they eneral or are given sailed tail- il be niar- Eirriage is, e-tail, per le gift is I does not m several ands and body, on n inherit, lem two; i^ife : and observe, give him begotten, :> limited, on whom such heirs shall bo begotten (viz.: Mary hin present wlfi'), this makes it a feo-tail special. Estates in general and special tail are farther diversified by the distinction of sexes in such entails ; for both of them may either be in tail m"/<^ or im\ female. As if lands be given to a man, and his hfiirs male of Ida body begotten, this is an estate in tail male general ; but if to a man and the heh'H female of hia body on hia present wife bey >l ten, this is an estate in tail-female-special. And, in case of an entail male, tha heirs female shall never inherit, nor any derived from them ; nor, ^ convertto, the heirs male, in case of a gift in tail female. Thus, if the donee in tail male hath a daughter, who dies leaving a son, such grandson in this case cannot inherit the estate-ta,il ; for he cannot deduce his descent wholly by heirs male. And as the heir male must convey his descent wholly by males, so must the heir female wholly by females. And therefore if a man hath two estates-tail, the one in tail male, the other in tail female ; and he hath issue a daughter, which daughter hath issue a son ; this grand- son can succeed to neither of tin; estates ; for he cannot con- vey his descent wholly either in the male or female line. As the word heirs is neces.sary to create a fee, so in further Words neces- limitation of the strictness of the feodal donation, the word fee-tail. body, or some other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular* • s. 115. the fee is limited. If, therefore, either the words of inherit- ance or words of procreat'uix be omitted, albeit the others are inserted in the grant, this will not make an estate-tail. As, if the grant be to a man and his issue of his body, to a man and his seed, to a man and his children, or offspring ; all these are only estates for life, there wanting the words of inheritance, his heirs. So, on the other hand, a gift to a man, and his heirs male or female, is an estate in fee-simple, and not in fee-tail ; for there are no words to ascertain the body out of which they shall issue. Indeed, in last;wills and tes- 126 OF IREEHOLD ESTATES OF INHERITANCE. tenancy in tall. • S. 116. taments, wherein greater indulgence is allowed, an estate-tail may be created by a devise to a man and his seed, or to a man and his heirs male ; or by other in-egular modes of ex- pression. Tncidents to a The incidents to a tenancy in tail, under the Statute Westm. 2, are chiefly these : 1. That a tenant in tail may commit waste on the estate-tail, by felling timber, pulling down houses, or the like, without being impeached, or called to account for the same : ' but after possibility of issue ex- tinct, he may be restrained in Equity from committing hu- moursome or malicious waste, such as tearing down the man- sion-house of an estate without cause' (a). 2. That the, wife of the tenant in tail shall have her dower, or thirds, of the estate-tail. 3, That the husband of a female tenant in tail may be tenant by the curtesy of the estate-tail. 4. That an estate-tail ' might formerly have been ' barred or destroyed by a fine, by a common recovery, or by lineal warranty de- scending with assets to the heir, 'and may now be barred by a conveyance in conformity with the provisions of the Stat. 9 Vic. c. 11, R. S. 0. c. ]00. All which will be hereafter ex- plained at large.' Thus much for the nature of estates-tall : the establish- ment of which family law (as it is properly styled by Pigott,) occasioned infinite diflSculties and disputes. Children grew disobedient when they knew they could not be set aside ; ' farmers were ousted of their leases made by tenants \n tail ; for, if such leases had been valid, then, under colour of long leases, the issue might have been virtually disinherited : cre- ditors were defrauded of their debts ; for, if tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth : innumerable latent entails were produced to deprive purchasers of the lands they had fairly bought; (a) See notes to Garth v. Cotton, 1 W. & T. Lg. Ca. Eq. 697. J OF FREEHOLD ESTATES OF INHERITANCE. 127 ♦ S. 117. of suits in consequence of which oui: ancient books are full : and treasons were encouraged ; as estates-tail were not liable to forfeiture, longer than for the tenant's life. So that they were justly branded, as the source of new contentions and inischiefs unknown to the common law ; and almost uni- versally considered as the common grievance of the realm. But as the nobility were always fond of this statute, be- cause it preserved their family estates from forfeiture, there was little hope of procuring a repeal by the legislature, and therefore, by the contrivance of an active and politic prince, a method was devised to evade it. About two hundred years intervened between the making Estates-tail of the Statute de donis, and the application of common reco- mon recover- veries to this intent, in the twelfth year of Edward IV. ; *^''' which were then openly declared by the judges to be a *suf- ficient bar of an estate-tail. For though the courts had, so long before as the reign of Edward III. very frequently hinted their opinion that a bar might be effected upon these prin- ciples, yet it was never carried into execution, till Edward IV. observing (in the disputes between the houses of York and Lancaster) how little effect attainders for treason had on families whose estates were protected by the sanctuary of entails, gave his countenance to this proceeding, and suffered Taltarum'n case to be brought before the court (a) : wherein, in consequence of the principles then laid down, it was in effect determined, that a common recovery suffered by ten- ant in tail should be an effectual destruction thereof. What common recoveries wei-e, both in their nature and conse- quences, and why they were allowed to be a bar to the estate-tail, must be reserved to a subsequent enquiry. At present I shall only say, that they were fictitious proceed- ings, introduced by a kind of pia fraua, to elude the Statute de donis, which was found so intolerably mischievous, and (a) Tud. RL Prop, Cases, 5S2. 695. 3 .3 Z) !l J— 128 OF FREEHOLD ESTATES OF INHERITANCE. whiuh yet one branch of the legislature would not then con- sent to repeal ; and that these recoveries , however clandes- tinely introduced, became, by long use and acquiescence, a most common assurance of lands ; and were looked upon as the legal mode of conveyance, by which tenant in tail might dispose of his lands and tenements : so that no court would suffer them to be shaken or reflected on, and even Acts of Parliament have, by a side-wind, countenanced and established them. This expedient having greatly abridged estates-tail with regard to their duration, othera were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason (a). The next attack which they suffered in order of time, was by the Statute 32 Hen. VIII., c. 28 (6), whereby certain leases made by tenants in tail, which do not tend to the pre- judice of the issue, were allowed to be good in law, and to bind the issue in tail. But they received a more violent blow, in the same session of parliament, by the construction Fine a tar. put upon the Statute of Fines, by the Statute 32 Hen. VIII., c. 36, which declares a fine duly levied by tenant in tail to be a complete bar to hira and his heirs, and all other persons clainiiii<]f under such entail. This was evidently agreeable to the intention of Henry VII., whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power, of his nobles. Charges to By a statute of the succeeding year (c), all estates-tail which fifliiAiil^M^ tail are liable, are rendered liable to be charged for payment of debts due to the king by record or special contract ; as since, by the (a) 26 Hen. VIII., c. 13, but it would seem that in case of treason tlie life in- tereit of the traitor ia atill liable to forfeiture ; sea po$t, sec. 266, and title Es- cheat. l/b) See pott, s. 319. (c) 38 Hes. VIII. c. 89, s. 75. B. OF FREEHOLD ESTATES OF INHERITAI^CE. 129 i.then con- er clandes- liescence, a }d upon as Lilt in tail it no court , and even lanced and s-tail with id to strip acked was ' time, was ay certain bo the pre- w, and to re violent istruction 32 Hen. tenant in all other evidently policy it their full 8 possible iaken the tates-tail iebts due e, by the ' English ' bankrupt laws, they are also subjected to be sold for the debts contracted by a bankrupt. 'Estates-tail might have been formerly barred by warranty descending with assets to the heir, as well as by a fine or re- covery. The operation of fines and recoveries, their aboli- tion, and the mode of barring substituted therefor, by 9 Vic. c. 11, R. S. O. c. 100, is reserved for future consideration in treating of conveyances by tenants in tail. It may now, Conveyances however, be mentioned shortly, that, by that statute, every under R. S. O. actual tenant in tail in possession, remainder, expectancy, or '^" otherwise, except issue inheritable in expectancy to an estate-tail, and tenants in tail after possibility of issue extinct, and those restrained by the before-named Act of 34 & 35 H. VIII., or by any other Act from barring their estates tail, may by proper assurance under seal to be registered within six months after execution, convey such estate-tail in fee-simple absolute, or for any lesser estate, and thereby bar the issue in tail, and all in remainder or reversion to tlie extent of the estate conveyed ; but if it should happen that at the time of such conveyance there should be a pro- tector to the settlement (generally a person having under the same settlement the first life estate prior to the estate tail), then the consent of such protector is requisite, otherwise the issue in tail only will be barred, and not those in re- mainder or reversion.' ' A further mode of bar may arise by non-claim under the operation of R S. O. c. lOS, ss. 26, 27, 28, which will be ex- plained hereafter ; it suffices here to say that under that Act lapse of time and mere passiveness in the tenant in not enforcing his rights against a person in possession, not acknowledging his title, will bar the tenant and all whom he might himself bar.' '■*• :> i *S. 120. Estates for Ufe. •S. 121. A general grant creates CHAPTER IX. OF FREEHOLDS, NOT OF INHERITANCE. We are next to discourse of such estates of freehold, are not of inheritance, but for life only. And of these &t for life, some are conventional, or expressly created by the act of the parties ; others merely legal, or created by con- struction and operation of law. We will consider thetn in their order. 1. Estates for life, expressly created by deed or grant, (which alone are properly conventional) are where a lease is made of lands or tenements to a man, fc: hold for the tenn of his own life, or for that of any othei person, or for inore lives than one : in any of which cases he is styled tenant for life onlyl; when he holds the estate by the life of another, he is usually called tenant pur auter vie (a). These estates for life are, like inheritances, of a feodal nature ; and were, for some time, the highest estate that any man could have in a feud, which (as we have before seen (b) ) was not in i\& original hereditary. They were given or conferred by the same feodal rights and solemnities, the same investiture or livery of seisin, as fees themselves ; and they are held by fealty, if demanded, and such conventional rents and ser- vices as the lord or lessor, and his tenant or lessee, have agreed on. *Estates for life may be created, not only by the express words befoi'e mentioned, but also by a general grant, with- • tenancy for out defining Oi' limiting any specifip estate. As, if one grants I to A. B. the manor of Dale, this makes him tenant for life. For though, as there are no words of inheritance or heiml (a) See ch. 16. (6) S. 55. OF FREEHOLDS, NOT OF INHERITANCE. 181 mentioned in the grant, it cannot be construed to be a fee (a), it shall however be construed to be as large an estate as the words of the donation will bear, and therefore an estate for life. Also such a grant at large, or a grant for a term of life generally, shall be construed to be an estate for the life of the grantee in case the grantor hath authority to make such grant : for an estate for a man's own life is more bene- ficial and of a higher nature than for any other life ; and the rule of law is, that all grants are to be taken most strongly against the grantor, ' unless in the case of the king granting gratuitously at the suit and instance of the gran- tee' (6). Such estates lor life will, generally speaking, endure as Of estates for long as the life for which they are granted : but there are able upon some estates for life, which may determine upon future '^°'**™8®"*'*«*- contingencies, before the life for which they were created expires. As, if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice ; in these, and similar cases, whenever the contingency hap- pens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely deter- mined and gone. Yet, while they subsist, they are reckoned estates for life ; because, the time for which they will en- dure being uncertain, they may by possibility last for life, if the contingencies upon which they are to determine do not sooner happen. And, moreover, in case an estate be granted to a man for his life, generally, it may also deter- mine by his civil death ' as in case of outlawry, or attain- der for treason or felony ' (c) : for which reason in convey- ances the grant is sometimes made " for the term of a man's natural life ; " which can only determine by his natural (a) See ante 1. 107. (6) As to oonatruction of Crown grants, see post h. 346. (c) Re a. ThoTMon, 7 L. J. N, S. 132, 327 ; Stephen Blackst. vol. I, book ^- The instance given by Blackstone of a monk is no longer law; Re Met- cdUt Witt 23 L. Jv N. S. Chy. 308 ; Blake v. Blake, 7 Ir. Chy. Rep. 349. 132 * S. 122. Of the inci- dents. Reasonable estovers. 2. Emble- ments. OF FREEHOLDS, NOT OF INHERITANCE. death. ' And though the grant be so made and thus not determined till natural death, still in case of attainder the | life estate will, it would seem, be forfeited to the Crown' (a\ *The vncidents to an estate for life are principally the I following ; which are applicable not only to that species of tenants for life, which are expressly created by deed ; but also to those, which are created by act and operation of law. 1. Every tenant for life, unless restrained by covenantor] agreement, may of common right take upon "the land de- mised to him reasonable estovers or botes. For he hath a i right to the full enjoyment and use of the land, and all ib profits, during his estate therein. But he is not permitted I to cut down timber, ' unless possibly to cultivate wild lands' (6), or do waste upon the premises: for the destruction of | such things, as are not the temporary profits of the tene- ment, is not necessary for the tenant's complete enjoyment I of his estate, but tends to the permanent and lasting loss of | the person entitled to the inheritance. 2. Tenant for life, or his I'epresentatives, shall not be pre- 1 judiced by any sudden determination of his estate, because! such a detennination is contingent and uncertain. There-] fore, if a tenant for his own life sows the lands, and dies! before harvest, his executors shall have the emblements, or] profits of the crop : for the estate was determined by the! act of Ood, and it is a maxim in the law, that actus Dei im mini facit injurium. The representatives, therefore, of the! tenant for life shall have the emblements to compensate fori the labour and expense of tilling, manuring, and sowing I the lands ; and also for the encouragement of husbandry,] which, being a public benefit, tending to the increase a plenty of provisions, ought to have the utmost security a privilege the law can give. So it is also, if a man be tenant! (a) See section 256, poit. (h) At to the right to clear wild land, see/xui. OF FREEHOLDS, NOT OF INHERTTANCE. 133 for the life of another, and ceatuy que vie, or he on whose ^ life the land is held, dies after the corn is sown, the tenant pur auter vie shall have the emblements. The same is also the rule, if a life-estate be determined by the act of law Therefore if a lease be made to husband and wife during coverture (which gives them a determinable estate for life), and the husband sows the land, and afterwards they are di- vorced a vinculo matrimonii, the husband shall have the emblements in this case ; for the sentence of divorce is the act of law. But if an estate for life be determined by the tenant's own act (as by forfeiture ; or, if a tenant during widowhood thinks proper to marry), in these and similar cases, the tenants, having thus determined the estate by their own acts, shall not be entitled to take the emblements. The doctrine of emblements extends not only to corn sown, 'but to other annual products of Jinnual labour, as' to roots planted, or other annual artificial profit, but it is otherwise of fruit trees, grass, and the like, which are not planted an- nually at the expense and labour of the tenant, but are either a permanent, or natural profift of the earth. For when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit ; but merely with a prospect of its being useful to himself in future, and to future successions of tenants. 3. A third incident to estates for life relates to the under- As to their un- tenants, or lessees. For they have the same, nay greater "' '^'" indulgences than the lessors, the original tenants for life. The same ; for the law of estovers and emblements with re- gard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place : and greater ; for in those cases where the tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee, who is a third person. As in the case of a woman who holds dur- ante viduitate, her taking husband is her own act, and 5 -I' b i 134 OF FREEHOLDS, NOT OF INHERITANCE. ' II, Of tenancy I in tail, after 1 possibtliti/ of issue extinct. therefore deprives her of the emblements : but if she leases her estate to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger, and could not prevent her. The lessees of tenants for life had also at the common law another most unreasonable advantage ; for, at the death of their lessors, the tenants for life, these under-tenants, might, if they pleased, quit the premises, and pay no rent to any- body for the occupation of the land since the last quai-ter- day, or other day assigned for payment of rent (a). To re- medy which it is now enacted (6), that the executors or ad- ministrators of tenant for life, on whose death any lease determiifed, shall recover of the lessee a rateable proportion of rent, from the last day of payment to the death of such lessor. 'Our Legislature has also enacted that rents, annuities, dividends and other periodical payments in the nature of income, shall, like interest on money lent, be <:onsidered as accruing from day to day, and be apportioned' (c). II. The next estate for life is of the legal kind, as con- tradistinguished from conventional ; viz., that of tenant in tail after possibility of issue extinct. This happens where one is tenant in special tail, and a person from whose body the issue was to spring, dies without issue ; or, having left issue, that issue becomes extinct : in either of these cases the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct. As where one has an es- tate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue : in this case the man has an estate-tail, which cannot possibly descend to any one ; and therefore the law makes use of this long periphrasis, as absolutely necessary to give an adequate idea (o) 10 Rep. 127 ; Tudor El. Prop. Cases, 166. (6) Stat. 11 Geo. II. c. 19, s. 15. (c) R. S. O. c. 136, taken mainly from Imp. Stat. 4 & .5 William IV. c. 22, as to which see notes to Clun's case, Tudor's Lg. Ca. RU Prop, and Shelford Stat of his ei OF FREEHOLDS, NOT OF INHERITANCE. 135 of his estate. For if it had called him barely tenant in fee- tail special, that *would not have distinguished him from others ; and besides, he has no longer an estate of inheritance, or fee, for he can have no heirs capable of taking 2>er formain doiii. Had it called him tenant-in-tail, without isaite, this had only related to the present fact, and would not have ex- cluded the possibility of future issue. Had he been styled tenant-in-tail, without possibility of issue, this would ex- clude time past as well as present, and he might under this description never have had any possibility of issue. No definition, therefore, could so exactly mark him out, as this of ienant-in-tail after possibility of issue extinct, which (with a precision peculiar to our own law) not onl}' takes in the possibility of issue in tail, which he once had, but also states that this possibility is now extinguished and gone. This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring ; for no limitation, conveyance, or other human act can make it. For, if land be given to a man and his Avife, and the heirs of their two bodies begotten, and they are di- vorced a vinculo matrUnonii, they shall neither of them have this estate, but be barely tenants for life, notwithstand- ing the inheritance once vested in them. A possibility of issue is always supposed to exist in law, unless extinguished by the death of the parties : even though the donees be each of them an hundred years old. ' A Court of Equity will, however, often act on supposition to the contrary ; thus, if property be vested in trustees, in trust for a married woman for life, with remainder to the children of the marriage, the Court will, after the wife has attained a certain age, allow the property to be dealt with as the parties may agree on, if each be sui juris, on the assumption that the wife is past child-bearing.' In general, the law looks upon this estate as equivalent to an estate for life only ; but the tenant has some of the ♦ S. 125. f a? 136 OF FREEHOLDS, NOT OF INHERITANCE. advantages of tenant-in-tail, as not to be punishable for waste. * S. 126. *lll. Tenant by the curtesy of England is where a man j Ten&ncy biitht marries a woman seized of an estate of inheritance, that is, ' curtesy. of lands and tenements in fee-simple or fee-tail ; and has by lieu issue^born alive, which was capable of inheriting her estate. In this case he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England. ' The right of the husband, has, in consequence of the re- peated action of the Legislature been the subject of much doubt and litigation. Prior to the Act of 35 Vic. c. 16 (2 March 1872), up to which time. Con. Stat. c. 73, R. S. 0. c. 125, ss. 2, 3 governed, no conveyance or other act of a wife in respect of her real estate shall deprive her husl)and (s. 4 Con. Stat.) of his esttite by the curtesy. See the judg- ment in Furness v. Mitchell, 3 App. Rep. 511. Sections 1 and 2 of the Con. Stat. (ss. 3 & 2 R. S. 0.) deprive the hus- band of his common law right to the pernancy of the profits during life of the wife, but if the marriage were before 5th of Ma}', 1859, and the husband had before that day taken possession, then, s. 2 did not extend to deprive him of such right : Dingman v. Austin, 33 U. C. R. 190. Up to the Act of 35 Vic. c. 16 (2 March, 1872), the wife had no jm disponendi of her realty apart from her husband, as a feiM sole, and he could not without his consent be deprived of his tenancy by the curtesy. It was held in Furness v, Mitchell, Patterson, J. A. dissenting, that the Act of 35 Vic. did not deprive the husband of his estate by curtesy when the wife had not disposed of the land by act inter vivos or by will. The R. S. 0. c. 125, s. 4 is expressly to the same effect, and the remarks made hereafter in treating of that jstatute and of c. 127 should be referred to. The questions under these statutes are such as tx) preclude their being fully dealt with in this work.' OF FREEHOLDS, NOT OF INHERITANCE. 137 *There are four requisites necessary to make a tenant by the curtesy ; marriage, seisin of the wife, issue, and death of the wife. 1. The marriage must be canonical and legal. 2. The seisin of the wife must be an actual seisin or possession of the lands ; not a bare right to possess, which is a seizin in law, but an actual possession, which is a seisin in deed (a). And therefore, a man shall not bo tenant by the curtesy of a remainder or reversion ' expectant on an estate of freehold, though it would be otherwise if expectant on an estate for years, as in the latter case the seisin of the freehold is not in the tenant for years, but in the remainder-man or rever- sioner ; and the possession of the tenant is the possession of the reversioner.' But of some incorporeal hereditaments, 'and of mere equitable interests,' a man may be tenant by the cur- tesy, though there have been no actual seisin of the wife ; as in case of an advowson, where the church has not be- come void in the life-time of the wife ; which a man may hold by the curtesy, because it is impossible ever to have actual seisin of it, and impotentia excusat legem. 3. The issue must be born alive (6). The issue also must be born during the life of the mother ; for if the mother dies in labour, and the Caesarean operation is performed, the husband in this case shall not be tenant by the *curtesy : because at the instant of the mother's death, he was clearly not entitled, as having had no issue born, but the land descended to the child, while he was yet in his mother's womb ; and the estate being once vested, shall not aftei*wards be taken from him (c). In general there must be issue bom: and such issue as is also capable of inheriting the mother's estate. Therefore, if a woman be tenant in tail * S. 127. Its four requi- sites — 1. Marriage — wliich must be legal ; 2. HeiHin of the wife - which muHt be an actual Heitiin : Issue bom alive. » S. 128, {(i) But a Crown grant by letters patent confers sufficient seisin and posses- sion : Weaver v. Burgm, 22 C. P. U. C. 104. (h) As to the evidence, see Jones v. Hicketts, 10 W. R, 676. (c) But see Bowles case, Tud. Lg. Cases, 37, that a child in Ventre ta r.iire is to be considered as in ease. 188 OF FREEHOLDS, NOT OF INHERITANXE. P?ri- 5!™S male, and hatli only a daughter born, tho husband is not thereby entitled to l)e tenant Ijy the curtesy ; because such issue female can never inherit the estate in tail male. And this seems to be the principal 'origin of the rule' that the hus- band cannot be tenant by the curtesy of any lands of wliich the wife was not actually seised : 'viz., that' in order to entitle himself to such estate, he must have be<.'' otten issue that may be heir to the wife: but no one, by the standing rule of law 'prior to 4th Wni. IV. c. 1/ could be heir to the ancestor, of any lands whereof the ancestor was not actually seisfMl (a) ; an-^ therefore, as the husband had never begotten any issue that 'could take as heir to the mother,' he shall not be tenant of them by the curtesy. And hence we may obsei-ve, with how much nicety and consideration the old rules of law were framed ; and how closely they are connected and interwoven together, supporting, illustrating, and demonstrating one another. The time when the issue was born is immaterial, provided it were during the coverture ; for whether it were born before or after the wife's seisin of the lands, wbrHier it be living or dead at the time of the seisin or n the tune of the wife's decease, the husband .shall ' ant by the curtesy. The husband, by the birth of . child, become, tenant by the curtesy initiate, and may ao m&n\ acts to Death of the charge the lands, but his estate is not consuvima till the death of the wife ; which is the fourth and last requisite to make a complete tenant by the curtesy. ' If the wife's estate .should be equitable only, thus if the lands .should be vested in trustees for her and her heirs, her husband will be entitled to be tenant by the curtesy, under the same circumstances as would entitle him in case the legal estate were vested in the wife ; which is one instance of the maxim that equity follows the law. The husband's right in equity to curtesy in the equitable estates of his wife, will. ■wife. Curtesy of «quitaDlti «8tate8. (a) See a. 2C9. OF FREEHOLDS; NOT OF INHKItlTANCE. 189 - H. 12'). Dower. howftver, be alluded to in treating of the widow's right in equity to dower out of the cquitaMo estatoH of her husband, where much the same principles apply. The tenant is entitled to emblements, and liable for waste, which we shall also consider under the head of dower.' 4. Tenant m duwer ' &i law, as distinguished from the light in equity imder R. S. 0. c. 120, and subject also to the exception created by section 2 of that stntute' (a), is where tlic liusband of a woman is seised of nn estate of inheritance, and dies ; in this case, the wife shall have the third i)art of all the lands and tenements whereof he M'as sei.sed atj|any time during the coverture, to hold to herself for the term of her natural life. ' The law of dower may be considered under the following heads: — 1. Who may be endowed. 2. Of what the widow may be endowed at Law. 3. Of what in Equity. 4. How (lower may be barred and defeated, and the right thereto conveyed, o. The mode of endowment, and damages for detention. ' She must be the actual wife ((>) : the rule as to proof Who may be , ..T^^^ endowed. whereof vanes here from the practice in England ; as here Marriage, evi- evidence of co-habitation, and rejiutation of marriage will fn^i'^va^Uditv^' suffice, subject to the presumption arising therefrom being rebutted (c). " Th rule that a marriage which is good in the country As to the va- where it is celebrated is good everywhere (d), is subject to marfiage. (o) See post p. 141. (6) /■■ to marriage, the Acta relating thereto, evidence, &c, see Draper on Dower. . 2 ; the Acts there referred to and commented on are : 33 Geo. III. c. 6 ; 38 Geo. III. c. 4 ; 59 Geo. III. c. 15 ; 11 Geo. IV. c. 36 ; 20 Vic. c. 66; Con. Stat. o. 72 ; Imp. Stat. 5 & 6 Vic. c. 26, and the Statutes of Henry. See also Hodgins V. McNeil, 9 Grant, 305 ; 'Ike Queen v. Boblin, 21 U. C. R. 352 ; Begina v. Chadwick, 11 Q. B. 238. (c) Graham et ux. v. Law, 6 C.P.U.C. 310 ; Beattp v. Beatty, 17 C.P.U.C. 484. {dt See as to marriage by a Christian British subject with a Cree squaw, in 1803, in the Hudson Bay Territory, and cohabitation as man and wife, GonoUy v. Woolrich, Lower Can. Jurist, Vol. 11, p. 197. See also as to marriages entitled to the privileges of necessity, Ruding v. Smith, 2 Hagg. Con. Bep. 371, and as to polygamous marriages; Hyde v. Hyde, L. R. 1 P. & D. 130. .•«:• 140 OF FREEHOLDS, NOT OF • INHERITANCE. Forfeiture by adultery and elopement. ' the qualification that the marriage must not be one prohi- bited by the country' to which the parties belong ; and there- fore a marriage in the United States between parties domi- ciled in Canada, who cannot contract marriage here, would be hold 's oid and illegal in our Courts " (a). The distinction must, however, be borne in mind between void and voidable marriages ; in the latter caso, " after the death of either of the parties, the temporal courts, which have no jurisdiction themselves, and must regard every marriage de facto, as good, until it is declared void by the ecclesiastical courts, will not pei-mit them to declare the marriage void after the death of one of the parties, when their sentence can have no effect on the marriage itself, it being already dissolved by death, and it? only effect will be to bastardize the issue. The result is, that aftei' the death of the parties, the marriage is valid and the issue legitimate de facto but not dejure " (6). Thus a marriage with a deceased wife's sister cannot be questioned after the death of either party to it, and the widow is entitled to dower (c). The Imperial Act 5 & G Wm. 4,ch. 54, does not apply here to make such a marriage void, and there is no tribunal com- petent to dissolve it. "It cannot be said that any ecclesiastical tribunal or jurisdiction is required in any colony or settlement where there is no established Church and in case of a settled colony, the ecclesiastical law of England cannot, for the same reason, be treated as part of the law which the settlers car- ried with them from the mother country" (d). The Legisla- ture can grant a divorce, but they have established no Court having such power.' ' By the Statute of West. 2, if the wife commits adultery and elopes, she forfeits her dower, unless the husband con (a) Draper on Dower, p. 13 ; Brook v. Brook, 7 Jur. N. S. 422; Hodgins v. McNeil, 9 Grant, 305, per Esten, V. C, ^ (b) Hodgim v. McNeil, supra, per Estcn, V. C. (c) Hodgins v. McNeil, supra. \d) Re the Bislmp of Natal, 11 Jur. N. S., 358 per Ld. CUan. OF FREEHOLDS, NOT OF INHERITANCE. 141 \ done the oflFence, and even though the husband abandon the wife^ or the wife leave by reason of her husband's cruelty, she forfeits her dower in case she commits adultery (c).' 'To entitle a widow to dower at law (as distinct from her Requisition, right in equity, which is presently explained), the rule is that she is entitled to beendowed of all lands and tenements of which her husband was seised in fee simple or fee tail at any time during the coverture otherwise than in joint ten- ancy, and of which any issue which she might have had might by possibility have been heirs : an exception how- ever is created by 32 Vic. c. 7, R. S. 0. c. 126, s. 3, as to land which at the time of alienation by the husband, or of his death, if he died seised, was wholly wild and unimproved. ' It will be observed that there is 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 seisin in the husband during coverture, and that of Seisin. an estate of inheritance in possession ; but actual seisin is not requisite, and seisin in law suffices — and even seisin in law is dispensed with since 4 Wm. IV., c. 1 ; R.S.O. c. HO7 sec. R. s. 0. c. 126, 2 (a), if the husband were disseised before coverture and so continued during coverture till death: in such case the widow would yet be entitled to dower, but it must be sued for and obtained within the same period that the husband's right of entry might be enforced. If however tlie husband were once seised during coverture, his subseijueiit disseisin and bar by the Statute of Limitations would not operate against his widow ' (6). ' It is the necessity for seisin in the husband which ex- Dower out of eludes the widow at law from dower in trust estates of the 13- (a) Wooltey v. Finch, 20 C. P. U. C. 1.32 ; Neff v. Thonnon, 20 C. P. U. C. 211 ; overruling Graham v. Law, 6 C. P. U. C. 310. (6) Ante, 139. (c) McDonald v. Mcmilan, 23 Q. B. U. C. R. 302. 142 OF FREEHOLDS, NOT OF INHERITANCE. Old fonn of conveyance to uses to bar dower. Lease out- standing. husband, of which the legal seisin is in the trustee. So also, dower does not attach on a remainder in fee depen- dant on a life estate, if the remainder-man die or alien pend- ing the life-estate (a); for the seisin of the freehold is in the tenant for life, and the remainder also is not an estate of inheritance in 'posaes&ion. But if a remainder or rever- sion be dependant 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 part of the rule now under consideration that the widow was excluded from dower under one form of conveyance to uses to bar dower, in vogue before section one of the statute last referred to : which form shortly stated was this : to the purchaser for life, with remainder on de- termination of that estate by surrender or otherwise, to a trustee and his heirs during the purchaser's life, with re- mainder to the heirs and assigns of the purchaser in fee (6). It will be seen under this form of conveyance that, though quoad the life estate the purchaser is seised in possession, yet that estate is not of inheritance, and although (by force of the rule in Shelley's case hereafter ex- plained) he is entitled to the remainder, which is an estate of inheritance, still it is not an estate of inheritance in pos- session! 'If the estate be subject to a term of years granted before coverture by way of mtn'tgage, the widow of the mortgagor will be entitled to dower at law, with a cesser executio during the term (c), and in equity be entitled to redeem if she thinks fit. If the lease be absolute, the widow will be entitled to a third of the rent immediately, and also dower of the land with a cesset executio during the term (d).' (a) Gumming v. Alyuire, 12 U. C. U. 330 ; Pulker et al. v» Evans, 13 U. C. R. 646. (6) More fully explained pott, p. 151. (c) Chitholm V. I'iffanp, 11 U. €. K. 338. (d) Free. ch. 260. OF FREEHOLDS, NOT OF INHERITANCE. 143 ustee. So fee depen- ilien pend- shold is in i an estate r or rever- possession le seisin of tach; and y. It was sideration ae form of ection one bly stated der on de- rwise, to a , with re- iser in fee jnveyance is seised anoe, and eafter ex- an estate 36 in pos- ted before nortgagor tio during em if she V will be Iso dower ' The seisin of the husband for a transitory instant only, when the same act which gives him the estate conveys it out of him again, will not entitle the wife to dowe** ; for the land was merely in transitu, &nd never rested in the hus- band. Thus, the widow of a grantee in fee to uses, from whom the use is immediately executed into possession in the cestui qui use by the Statute of Uses, is not entitled to dower : as if A grants to B and his heirs to the use of C and his heirs ; here the widow of B shJA not have dower, for the seisin of B was but transitory, the same conveyance which gave him the estate also immediately took it from him by declaring a use on which the Statute of Uses would operate (a). But if the land abides in the husband for the interval of but a single moment, the wife shall be endowed thereof (6) : as where a vendor executed a deed of conveyance to a pur- chaser in fee, who in pursuance of a prior agreement, and without his wife joining, immediately after such execution, reconveyed the lands to the vendor by way of mortgage, to secure the unpaid purchase money, it was held the widow of the purchaser wat entitled to dower (c). But in such a case the dower allotted will be chargeable in favour of the holder of the mortgage with a third of the interest of the mortgage, unless the dowress will pay a third of the mort- gage debt (d) and the acquisition o? the equity of redemp- tion by the owner of the legal es.^ate, or mortgagee, will not cause a merger so as to preclude him as against the dowress from insisting that the mortgage is on foot and unsatisfied (e).' A transitory seisin not suffi- cient. as of grantee to uses. Secus, if the seisin rested at all in the husband. as on convey- ance an i re- conveyance bj' way of mortgage. The widow entitled, but chargeable as with one-third of the mort-i gage. (a) Per Eaten, V. C, Norton v. Smith, in Appeal,? U. C. L. J. 263. (6) Cro. Eliz. 503. {e):Polts V. Mepers, 14 F. C. R. 499 ; Norton v. Smith, 20 U. C. R. 213 ; s. c. in Appeal, V U. C. L. J. 203 ; Hcneij v. Low, 9 Grant, 265. {d) HtuCy V £&!0, supra, and set Campbell v. Royal Canadian Bank, 19 Grant, 341 (e) Heney v. Lmv, 9 Grant, 265 ; see, however, the judgment of Esten, V. C. as to the necessity of some evidence of express intention in the owner of the legal estate to keep alive the mortgage by assignment to a trustee or otherwise ; see also as to dower on merger, Bouics't case, Tud. Lg. Oa. 37. • *'<*« ! 144 OF FREEHOLDS, NOT OF INHERITANCE. Not of part' nership pro- perty. Nor in case contract to sell before marriage. If husband, trustee or mortgagee. ' When the parties desire quoad the purchase money, to be placed in the relative positions of mortgagor and mortgagee, and the wife of the purchaser declines to bar dower, the lands may be conveyed by common law conveyance or by gi-ant, to the purchaser and his heirs, to the use of the pur- chaser and his heirs till default in payment of the purchase money, and on default to the use of the vendor in fee. On the happening of the event, viz., default, the use limited to the vendor will arise and the fee pass to him, and the wife of the purchaser not be entitled to dower ; for the estate is limited to the purchaser, not simply in fee, but as a condi- tional limitation, restricted and liable to be defeated by the very terms of the conveyance (a).' '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 (b) ; for such property ii^ considered in equity as personal estate, and therefore not liable to dower, and moreover the husband is ti-ustee for the partnership : the defence also can be raised of by equitable plea at law (c). So also if the husband before TYiarriage had contracted to sell, or gi-anted a right of pur- chase of, his real estate : here, if the contract 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 (d). In these cases, as also in the case of the widow of a trustee, or of a mortgagee when the equity of redemption is forfeited at law but is subsisting in equity (in which case the mortgagee is still in equity con- sidered as trustee for the mortgagor), the widow, it has been said (e), before the days of equitable pleas at law, is in strict- (o) Watkins' Con v. 9 ed., p. 103 and note. (6) PhilHpa v. Phillips, 1 My, & K. 649 ; Con(/er v. Piatt, 25 U. C. R. 277. (c) See form of plea Conger v, Piatt, supra. ((/) Parke on Dower, 106 note o. ; see poH, and Oordon v. Ocrrdon, 10 Grant, 466. (e) Lewin on Trusts, 7th ed. 224. OF FREEHOLDS, NOT OF INHERITANCE. 145 ness at law entitled to dower ; for there was in the hus- band all that was acquired to entitle his widow to dower assuming him to have been seised in fee ; but, as remarked in one case on the point, " if the wife of a trustee or mort- gagee were to be so ill-advised as to prosecute her legal claim, equity would undoubtedly saddle her with all the costs, and restrain the action at law." Now, the defence can be set up by equitable plea.' ' The widow of a mortgagee will not be entitled to dower, where the estate of the mortgagee never becomes absolute, but is defeated by perfoi'mance of the condition ;^a). When a mortgage has become absolute, and the equity of redemp- tion is extinct at the time of the claim made for dower, by lapse of time and other circumstances, still if that state of things did not exist at the death of the husband (the mort- gagee), and the equity of redemption was then still subsist- ing, his widow will not be entitled to dower ' (h), ' The seisin must have been a sole seisin ; therefore the Sole Seisin. ' widow of a joint tenant is not, though the widow of a ten- ant in common is, entitled to dower (c). In case of exchange of lands, the widow is not entitled to Exchange, dower in the land both taken and given in exchange : she is in such case put to her election as to the lands out of Avhich she will be endowed (d). Where dower is allowable, it matters not though the hus- band aliene or incumber the lands during the coverture ; for he alienes them liable to dower.* ' Prior to the Statute 4 W^m. IV. c. 1, a widow was not en- t\^^ right in titled to dower out of trust estates of her husband, though ii."s%.c. 126. they might have been equitable estates of inheritance in / in satisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, she has her election after her husband's death, as in dower ad ostium ccchsiw, and may either accept it or refuse it, and 1 letake herself to her dower at common law ; for she was not capable of con- senting to it during coverture. And if by fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted or turned out of possession, she shall then (by the provisions of the same statute) have dower pro tanto at the common law.' ' A more usual mode, in Ontario at least, of preventing right of dower in present or future acquired property, is by settlement or agreement before marriage, by which the in- tended wife accepts any provision in her fav^our which is declared to be in lieu of dower in .such present or future to be acquired property : and if the intended wife were adult at the time of the agreement, the inadequacy, pre- cariou,sness, or failure of the provision for her will not, as to purchasers from the husband, prevent her being barred : on this point Lord St. Leonards (6) thus expresses himself — Bar under Stat, of Uses, Requisites of jointure. Bar by ante- nuptial settle- ment. Though inade- quate or it fails. (<() Oilkison v. Elliott, 27 U. C. R., 95. (6) Dyke v. Rendall, 2 De Gex. Mac. & Gor. 209 ; see also Earl of Buckingham V. Drm-y, 2 Eden, 60 ; Corbet v. Corbet, 1 S. & S. 612 ; see also, Tud. Lg. Ca.. 3 ed., p. 76. 'W ■I I U .1 150 For the bar is good by the contract. Infantf) barred rt law by le- gal jointure, but not by ante-nuptial agreement, but bound in equity bjr good equitable jointure. OF FREEHOLDS, NOT OF INHERITANCE. " If the present were a jointure operating as a bar under the Statute of Uses the case wouhl have been governed by section 7 of that statute ; but hi equity the bar resffi solely on contract, and my opinion is that in this couit, if a woman, being of .age, accepts a particular something in satisfaction of dower, she must take it with all its faults, and must look at the contract alone ; and cannot in case of eviction come against one in possession of the lands on which otherwise her dower might have attached ; this has nothing to do with the performance of covenants or the like. . , . My conclusion is, that the plaintiff' has accepted in lieu of dower payment of money at least, and that she is also concluded by the acceptance of the bond, and that, though the bond was not satisfied, she has no right to resort to lands of her husband bought and sold during marriage." ' 'Infants may be barred at laiv by sufficient legal jointure under the Statute of Henry VIII., as already explained. If the jointure be competent it will be good though it be not of the value of the dower (a) : and though at law an infant may not be bound by her ante-nuptial agreement to accept a provision in lieu of dower, still in equity a provision made for an infant on her marriage, at least if with the assent of her father or guardian, and in all respects as certain, secure, and substantially equivalent to a good legal jointure, would be sufficient as a good equitable jointure, to restrain her from enforcing her legal right to dower (6). A mere precarious and uncertain provision, however, which she might never enjoy, though it might bar an adult on her contract to accept it as above mentioned, would not bar in (a) Earl of Buckingham v. Dmri>, 3 Bro. P. C. , Tonil. ed. 492 ; Drury v. Drttry, 4 Bro. C. 0. ."506, note ; Hmrep et ux. v. Ashley et al. , 3 Atk. 607. (6) See cases last note ; Tud. Lg. Ca., 3 ed., p. 76 ; see also Davidson Conv., vol. 3, 2 ed., p. 728 note a, where the law is fully discussed ; Sugd. Statutes, 2 ed., 246 ; but see Fisher v. Jameson, 12 C. P. U. C. 601, in which caae, how- ever, the provision made was precarious, insecure, and failed; see also this case in Appeal, 2 Error & Appeal Reports. 242, the remarks of Esten, V. C. OF FREEHOLDS, NOT OF INHERITANCE. 151 oar under governed bar rests ;his court, le thing in its faults, in case of lands on ; this has r the like, accepted hat she is and that, i to resort Triage." ' ,1 jointure lined. If it be not an infant to accept }ion made he assent 8 certain, [ jointure, restrain A mere hich she t on her ot bar in ry V. Drury, case of an infant (a) : thus a settlement of an estate on an infant for life, after the death of the intended husband and of some third person, will not be a bar as a good equitable jointure ; for the third person might survive not only the husband, but the wife, who might therefore never take anything.' 'A conveyance to a husband may be so drawn, that he Former mode .,, .., , „,. .„ ,. A**^ conveyance may reconvey without tlie dower or his wire attaching. A so that dower „ » , 11 , never even lorm or such conveyance once used, was by common law attached. conveyance to convey to the purchaser (the husband) and his heirs to hold to such uses as he should appoint, and in default of and till appointment 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 forfeiture or otherwise, to the use of the dower tinistee and his heirs, or executora and administra- tors 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 pur- chaser. 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 seized in possession, during his life, would be the life-estate ; and the remainder in fee is pre- vented from becoming an estate of inheritance in possession hy force of the rule in Shelley's case and of the law of merger, in consequence of the i itervening estate to the trustee (6). Such limitations as the above will, however, Xow useless now no longer suffice, unless indeed the husband exercised iJg. ' ' '°' the power, for by R. S. 0. 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 ^ __ t^y '■ '^ (a) Carrvtherg v, Carruthers, 4 Bro. C. C. 500, 513 ; Smith v. Smith, 5 Vea. 188 ; Fisher v. Jameson, supra. (6) Watk. Conv. 9th ed., p. 91, and notes. ;'«!:r v*^ ji»«* :t5^ 152 OF FREEHOLDS, NOT OF INHERITANCE. such interest, whether wholly etjuitable, or partly legal and partly equitable, is an estate of inheritance in possession, or e(|ual to an estate of inheritance in possession (other than an estate in joint tenancy), then his widow shall be entitled in ecjuity to dower out of the same lands." Under such limita- tions as the above, the estate, it will be observed, is partly legal and partly equitable, equal to an estate of inheritance in possession.' Another form ' Another form sometimes adopted, and which can yet be can yet be udoiited uniler adoi)ted with cttect, so far as to enable the husband to con- will attacfi, vcy free of dower, is to convey to the purchaser in fee defeated." (the husband), to such uses as he should appoint, and in default of and till appointment, to him in fee • (the limita- tions were usually more complex than as above in fee, but it simplifies so to state them) (a). Under such limitations, dower does attach, subject to be divested, on exercise of the power of appointment ; for the hu.sband, till exercise of the power, is seized 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, to B f^he husband), in fee, to such uses as ho (B) shall by deed appoint, and in default of and till appointment, to him (B) in fee, B sells to C, and conveys • and appoints the estate to C in fee, reciting the power of appointment : the whole transaction is now to be i-ead 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 paramount to the right of dower. Of course, if B die (a) As to the covenants for title, 1 Smith, Lg. Ca. 5th ed., p. 64. See forms of conveyances, Davidson's Conv. vol. 2, 169-173. OF FREEHOLDS, NOT OF INHERITANCE. 153 r legal and isession, or ler than an entitled in nch linnta- 1, is partly iheritance can yet be nd to con- ser in fee it, and in he limita- n fee, but mitations, ise of the, ISO of the assession ; purchaser nveyance eration of nt to the eflfect of law con- such uses i" and till [ conveys power of ) )'ead as to B ana Id under 1 C, and^ , if B die. without exercise of the power, then if the limitation be in the simple form put, the widow of B would be entitled to her dower, which was never divested (a).' ' The acceptance by a widow of what is tjiven to her ex- Deviiie or be- pressly in lieu of dower is a good bar to her claim for dower : of ilower. so also if it can be clearly implied from the will that the provision was to be in lieu of dower ; " it is not enough to say that on the whole will it is fairly to be inferred that the testator did not intend that his widow should have dower ((() There are probably few points in the hiw of real pro;)i rty which have been the Hubject of more conflictini,' weighty authority tlian that stilted in the text. At one time it was supposed that iniinmueh as an estate limited in de. fault, or till exercise of a power, is a vested estate, and tlierefore as dower did attach, that it could not lie defeated by subsetiuunt exercise of the power. It seems, however, quite clear that it can be so defeated ; see Park on Dower, 180; Sugden on Powers, 8th ed, 1114, 479; see also Ru\j v. Pang, 5 B. & Aid. Ml ; s, c, 5 Madd. 310 ; anil as to judgments and executions being thus defeated, Lotd. Wii/an v. Jnnca, 10 B. & O. 45'J ; Tunntull v. Trappes, S Sim. 300. It was, however, on another point that tlie chief ditiiculty arose, viz., whether, where the estate is not limited to some tkird person to uses, but directly to the purchaser himself as stated in the text, so that he is in h;/ the common law, any uses declared in his favour or on his appointment are not void. It was said that a common la .v seisin and a use or power cannot be co-existent in the same estate in the same persim ; that the power would be merged in the fee ; that the purchaser being in, and having the wlude fee, as at common law, any further uses declared in his fivour or on his appointment were simply nugatory and void ; that in order that any such uses should have any effect, it would be requisite to separate the seisin and the use, as by conveyance to some third per^ son to such uses as the purchaser should appoint, and till appointment to the use of the purchaser. These views were strongly advocated by men as eminent as Mr. Saunders and Mr. Preston : see Saunders on Uses, Vol, 1, p. 15.5 j Preston Conveyancing, Vol. 2, p. 482 ; Vol. 3, pp. 205, 271, 494 : see also the Jirst part of the note to Watkin's Conveyancing, 9th ed., j). 281 ; and Goodill v, Briijham, 1 B. & P. 192. This constitutes a formidable array of authority against the doctrine in the text ; on the other hand there is no less weighty and more modern authority in its favour. Lord St. Leonards (Sugden) in his work on Powers, 8th ed., p. 93, reviews all the authorities, and comes to the conclu- sion that an estate under an appointment created as named in the text, can well take effect ; and of this opinion also is Mr. Coventry : see his note in brackets to the fii-st part of the note in Watkin's Conveyancing above referred to : see also per Draper, C. J., in Lystcr v. Kirkpatrick, ^26 U. C. R. 228. The con- veyancer may avoid all question by limiting the estate by common law convey- ance, or by grant under R. S. 0. c. 98, to some third person in fee to such uses as the purchaser may appoint, and in default of and till appointment to the use- of the purchaser and his heirs. It is submitted, however, that this precaution is quite unnecessary : see also Gorman v. Byrne, 8 Ir. C. L. Rep. 394. f :> I 154 OF FREEHOLDS, NO! OF INHERITANCE. in order to justify the Court in putting her to her election, it must be satisfied that there is a positive intention to ex- clude her from dower, eiti^er expressed or implied " (a). ^ The mere gift of an annuity out of the estate will not render it compulsory on the widow to elect between it and her dower, she will be entitled to both. Parol evidence of the intention of the testator to exclude dow'er is not admissible. In order that the widow be barred by acceptance of the provision in lieu of dower, there must have been an oppor- tunity to elect, and the acceptance must not have been in ignorance of the provision being in lieu of dower.' (&). ' It has been said tkat in order that the election to take should be a defence at km), the intention that the provision Pleading elec- should be in lieu of dower must be expressed on the face of the will, and not left to be gathered or inferred from it, in which latter case, before equitable pleas were allowed at law, it M'as said the defence was in equity only (c). In the latter case therefore it will be advisable to plead the election by way of equitable plea (d). The time By 43 V. c. 14, s. 3 (e) where a dowress has, after the actio'n mustbe death of her hus])and, actual possession of the land of which roug t. gj^g |g dowable, either alone or with heirs or devisees of her husband, the period of ten years within which her action of dower is to be brought shall be computed from the time when such possession of the dowress ceased.* ' By the Revised Stat. Out. c. 108, s. 25 : " No action of or (a) Gibson v. Gibson, 1 Drew. .51 ; see also generally Baker v. Baker, 2.5 U. C. R 448 ; Walton v. HiU, 8 U. C R. 5G2 ; Pulker v. Evans, 13 U. C. R. rA6; Parker v. Soirerbi/, 4 De. G. M. &G. :V21 ; Buktr v. Hammond, 12 Grant 485; McLemmn v. Grant, 15 Grant, 65 ; Fairwcatker v. Archibald, 15 Grant, 255, (b) Sopwith x.Mauijhan, 30 Bea. 2.'J,>. ((•) Walton V. HiU, 8 U. C. R. 562, per Robinson, C. J. ((/) As to pleading the election see Walmslei/ v. Walmsley, 26 U. ('. R. 392; Breakenridf/e v. King, 4 U. C. U. O. S. ISO; Reynolds v. Reynolds, 29 IT. C. E. 225, and Walton v. Hill, supra (e) See the Statute in Appendix. OF FREEHOLDS, NOT OF INHERITANCE. 155 er election, tion to ex- 3d "(a). ^ Dt render it her dower, to exclude nee of the an oppor- e been in )n to take provision .he ffice of ^rom it, in illowed at i In the le election after the I of which ees of her action of the time ion of or er, 25 U. C. C. J{. 54G; Grant 485 ; I'ant, 25-j. 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, thu time which would bar the husband will also bar the wife, notwithstanding her coverture ; and if the bar against the hu.sband be not complete on his death, the time which has run against him will count as against the widow ; for the R. S. O. c. 126, s. 2 (a), Avhich 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 vight might be enforced.' 'By R. S. 0. c. 108, s. 16, " no arrears of dower or dam- ages on account of such arrears shall be recovered or obtain- ed by any action or .suit for a longer period than six years next before the commencement of such action or suit." ^y^"^ Dower may also be barred by deed of the married woman Bar bj- deed executed as required by the statutes authorising this mode of bar (6).' 'The R. S. O. c. 126 s. 5 provides that" a married woman [ may bar her dower in any lands or hereditaments by joining ) with her hu.sband in a deed or conveyance thereof in which j a release of dower is contained." The R. S. 0. c. 127, s. 3 pro- vides for conveyance by a married woman of the age of 21 years of her interest in real estate, and enacts that " .she may also, by deed, bar her dower, and any right or inchoate right of dower" (c). It will be observed that c, 126 is silent as \% '^^j^ :.? J ' «^i» I ■JiV £J ' ;:■*::•: ^**" (a) See the Statute in Appx. (6) See statute in App.x. Sue also R. S. 0. c. 127, ss. 3, 12. And as to i-on- veyance by a married womiin of her right to dower of lands of a deceased former husband, nee Leith, Real Prop. Stats, p. 2;?7. (c) Chapter 127, bs. 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 leference to dower beinj^ omitted, doubts were raised whether right to dower could be ex- tinguished : Shelford 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- 15G OF FREEHOLDS, NOT OF IXHERITAN'CE. to tlie woman being of age. It would seem that in tlio*o cases to which c. 120 is applicable c. 127 will not ^ effect as to age, and this conclusion is entirely ind^ j mlent of any argument to be drawn from s. 12 of c, 127 ; wiiioh section, indeed, may aflford no argument (a). 'By R. S. 0. c. 126, s. 5, (^) " A married woman may also bar her doworb}' executing either alone or jointly witli other persons, a deed or conveyance to which her husband is not a party containing a release of such dower ; but no sue', deed or conveyance shall be effectual to bar her dower unless made in conformity with the married woman's real estate act, R. S. 0. c. 127." ' 'Provision is also made by c. 12G (c), for the case of lun- acy of the wife, and for the case of the husband having agreed to sell, and retainer by the purchaser of part of the purchase money as indemnity against dower, and for the ed that e. 120 applied only when the hnsljand w is conveyin;,' some dowable in- terest, and the wife joined to release dower, and would not apply where if was the dower only which was being released : Miller v. Wiley, 10 C. P. U. C. .308, 17 C. P. r. C, s. c. ; Howard v. Wilson, 9 U. C R. 450. {a) Fiirness v. MiU'hdl, ;} App. Rep. 510; but see Boustead v. Wluimoir,22 Grant, 222, per Proudfoot, V. C. ill) There is a clifficulty as to the construction (,f this section arising out of the fact that to conform with c. 127 the husband mi st be a party, as that Act, s. 3, ex])ressly requires it, and indeed there is nothing else to which there can l)e conformity. Unless so much of s. 5 as retpiires conformity is to i)e rejected, it would appear that the only mode of i)n)ceeding would be luider s. 4 of c. 127 and to procure a judge's order dispensing with the lece.isity of the husband being a party. It would seem, however, that section •: was intended only to ppply to cases therein Bi)ecified, and others ejusdem gen ris, and not to such a case as mere temporary, though lengthy, absence of tie husband. The words " any other cause " are to bec(Mistrued with reference to the context, and the maxim noscitur a socii» applies. The Legislature seems to have erred in referring to c. 127 at all , the language of s. 5 of that Statu'.e is the same as the Con Stat. c. 84, 8. .5, and all that the latter Statute reipiired was examination of the wife by the iiroper official as to her consent to be b.'.rred. When the Con. Statute was in force, there was, till 30 V. c. 18, no su.'h provision as above in relation to a judge's order. Probably so much of s. 5 '*8 requires conformity is to be rejected, for it can hardly be that the Legislatu' « is to be understood as saying that a woman might bar by deed to ■vvhich '.er husband is not a party, but that the deed should not ojierate unless he w'.re a party, or a judge dispensed with his being a party. (f ) See the Act in Appendix. case of tl two year alimony; plies. 'I' '.■JMons.' 'By R the huslj by the )wer, tl OF FREEHOLDS, NOT OF INHERITANX'E. 167 I it in til 0^1 >t V ■<-l^'l' iident 27 ; "wiiioh iiy also bar v'itl) other and is not it no sue', 'i, I' vver unless real estate se of 1 un- ci having 'art of the d for the dowable in- where i^ was '. U. C. :m, Vhitmoir, 22 ig out of the at Act, M. 3, here can be rejected, it . 4 of 0. 127 sband being; ly to i'pply ch a case as vords " any the maxim 'erring to c. I'on Stat, c, the wife by Statute was elation to a be rejected, ying that a lit that the ;d with his 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 (a) extends these pro- ■HT.:. 'By R.S.O. c. 126, s. 11, where before the 2nd March, 1877 informalities the husband has conveyed the land, then any deed executed by the wife before that day for the purpose of barring )wer, to which deed the husband is not a party is to be ■ leeined effectual notwitlistanding the formalities by the Acts then in force were not comi)lied with (b). The R. S. 0. c. 55, alluding to actions for dowei*, provi les as follows : " No such action shall be hereafter maintained in case the demandant hat-; joined in a deed to convey the lands, or to release her dower therein to a purchaser for value, although the acknowledgment required by law at the time may not have been made or taken, or though any in- formality may have occurred or happened in the mak- ing, taking or certifying such acknowledgment (c). The acknowledgment and certificate above referred to were those required by Con. Stat. c. 84, under which any mar- ried woman may bar her dower by joining with her hus- band in a deed in which a release of dower is contained, but where the husband is not a party, then an acknowledg- ment and certificate were required as to absence of coei'cion on the part of lier husband : a distinction based on no sufticient reason, and which, considering the object of the acknow- ledgment, should rather have been rei[uired where the hus- band was a party ' ((/). Chapter 55 of the Revised Statutes of Ontario gov- erns proceedings in suits for dower. It authorizes also, (a) See the section in Appendix. {h) See also R. S. (). c. 127, 88. 2, ."?, 12. (c) Leith'w Real Prop. Statutes aH to tliis section, p, 238. (| Improve- ments. WUd land. Compulsory assignment of dower. where the property out of which dower is souglit is impartible, as a mill, the allotment of an annuity in lieu of flower, and further provides against the right of the widow to the benefit of permnnent improvements made after alienation by, or death of, the husband (a). Section 3 of R. S.O. c. 126 precludes the recovery ot dower out of any separate and distinct lot v/hich, at the time of the alienation by, or death of, the husband, if he died seized, was in a state of nature and unimproved by clearing, fencing, (fcc. The demandant's right to have woodland 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. 0. c. 55, by sections 3 and 21, relieves owners of lands from the uncertainty consequent on a claim for dower not prosecuted : by those sections the dowress can be com- pelled to an assignment of dower, and thus the land not assiifned for dower relieved from the claim.' tm (a) See remarks on these provisions, and how far they apply if the husband died before 18 May, 1861, and as to dower out of the improvements; Leith's Real Prop. Statutes, p. 247, n. a. 248 ; and as to improvements and damages ; Hod'jiiis V. Hodgins, 13 C. P. U. G. 151, per Draper, C. J. ; Lin foot v. Dan- combe, 21 C. P. U. C. ; Wallace v. Moore, 18 Grant ; Doe. Riddell v. Gwinnel, 1 Q. B. 082. U^ CHAPTER X. OF ESTATES LESS THAN FREEHOLD. *0f estates that are less than freehold, there are three sorts: 1. Ests^tes for years; 2. Estates at will ; 3. Estates by- sufferance. I. An estate for years is a contract for the possession of lands or tenements, for some determinate period; and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee, and the lessee enters thereon. If the lease be but for half a year or a ([uarfer, nr any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings ; a year being the shortest term which the law in this case takes notice of. And this may, not improperly, lead us into a short digression, concerning the division and calculation of time by the English law. The space of a year is a detei'minate and well-known period, consisting commonly of 305 days; for, though, in bis*sextile or leap-years it consists properly of 360, yet by the statute 21 Ren. III. the increasing day in the leap-year, together with the preceding day, shall be accounted for one day only. That of a month is more ambiguous : there being, in common use, two ways of calculating months ; either as lunar, consisting of twenty-eight days, the supposed revolu- tion of the moon, thirteen of which make a year : or, as calendar months of unecjual lengths, according to the Julian division in our common almanacs, conunencingat the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty-eight days, unless otherwise expressed ; not only because it is always one 'ini- form period, but because it falls naturally into a quarterly * S. 140. Three estates les.s than free- hold. I. An estate for years. 1 , Of the division' ' f' of time. 3 ' * S. 141. «::» ^m Year. Month. ■«» ■•*• Lunar or .aii.«. calendar. i IGO OF ESTATES LESS THAN FREEHOLD. ISIeaning of month in Provincial Statute. Ini division by weeks. Therefore a lease for "twelve months" is only for forty-eight weeks ; but if it be for "a twelve- month," in the singular number, it is good for the Avhole year. For herein the law recedes from its usual calculation, be- cause the ambiguity between the two methods of computation ceases ; it being generally understood that by the space of time called thus, in the singular number, a twelvemonth, is meant the whole year, consisting of one solar revolution. ' The statement that a month in law jueans lunar month, unless otherwise expressed, is subject to an exception, created by 12 Vic. c. 10, R. S. O. c. 1, s. 8, under wiiich, in all Acts passed in that year and subseiiuently, the word month means calendar month, unless inconsistent with the context or ob- ject of the Act. A similar provision was made by 31 Vic. e. 1, the first of the Legislature of this Province, and sub-section 15 of sec. 8, R. S. 0. c. 1, is to the same effect. In the con- struction of contracts, the meaning of the word month has always depended much on the intention and understanding of the parties, and will be construed as calendar if the inten- tion to that efiect can be clearly gathered from the contract, or, as has been held (a) by evidence of what was intended though the contract is in writing. In mortgage transac- Ibions, the word month has been construed to mean calendar month (b). Commercial usage also governs the meaning, as in the cnse of bills of exchange and promissory notes.' In the space of a day all the twenty -four hours are usually reckoned; the law generally rejecting all fractions of a day in order to avoid disputes : therefore if I am bound to pay a certain sura of money ' within ten' days, 1 discliarge the obligation if I pay before twelve o'clock at night oi' the last day ; ' but bills of exchange and promissory nott- require to be paid before three of the afternoon of the day when payable' (c). 'Andtl judicial the day writ of noon of (a) Barnes v. Boomer, 10 Grant, .WS. (6) Davidson Conv. Vol. '2, 2nd Ed, p. 7:^2. ((•) Con. Stat. c. 42 ; Siitfiir v. Bobimn, 16 T^". C. R. 211. 7Q months" "a twelve- ' the whole julation.be- omputation he space of vemonth, is olution. mar month, ion, created in all Acts ontli means text or ob- SlVic.c.l, sub-section In the con- month has lerstandin;? f the inten- le contract, s intended transae- n calendar leaning, as es.' In the reckoned; in Older to rtain sum ration if I lay ; ' but ,0 be paid yable' (c). OF ESTATES LESI. THAN FREEHOLD. 161 ' And the general rule i" that Acts of the Legislature and judicial proceedings take effect from the earliest moment of the day on which they originate or come into force (a). If a writ of execution issue and be tested at four in the after- noon of the first day of January^ it will not be in force till a corresponding hour on the fii-st day of January following, but the whole of the day of its issuing will be included, and consequently the whole of the first day of January following be excluded, and at midnight of the thirty-first day ot Decem- ber, the writ will expire unless renewed or acted on (6). As to this the language of the Execution Act, R. S. 0. c. GG, s. 11, is that the writ " shall remain in force for one yeax from the teste," &c.. The law does not reject the consideration of a portion of a day in any case in which it is requisite to con- sider it, as for instance in determining the priority of deli- very of executions to a sheriff. The rule, as stated in a recent case, that judicial proceedings are, where it is necessary to si"5tain them or to preserve their priority, to have relation to the earliest hour of the day, is a fietion not to be extended or applied when it is not necessary for these purposes' (c). But to return to estates for years. These estates were Lessees form- originally granted to mere farmers or husbandmen, who every dered mere year rendered some equivalent in money, provisions, or other lord! rent, to the lessors or landlords : but in order to encourage them to manure and cultivate the ground, they had a |ier- manent interest grauteil them, not determinable at the will of the lord. And yet their possession was esteemed of so httle consequence, that they were rather considered as the bailiffs or servants of the lord, who were to ^receive and ac- ' s. 145. count for the profits ot a settled price, than as having any property of their own, ' and from this has sprung the principle I -/ i 488. (a) Conterse v. Michie, IC C. P. U. C. 167 ; White v. Treadwell, 17 C. P. U. C. (i) Bank of Montreal v. Taijlor, IC. P. U. C. N. S. 107. (c) Barrett v. The Merch nts Bank, 20 Graut, 409. 11 162 OF ESTATES LESS THAN FREEHOLD. i\ y\jicC( of law that the possession of the tenant is the possession of the landlord or reversioner.' • 143. *Every estate which must expire at a period certain anrl What consti- pi efixed, by whatever words created, is an estate for years tutea an estate i ' •' ^ -^ for years And therefore this estate is frequently called a term, tarmi- oius, because its duration or continuance is bounded, limited and determined : for every such estate must have a certain beginning, and certain end. But id certuni est, quod cerium reddi potest ; therefore, if a man make a lease to another, .xa[.\^o<-^fQi' so many years as J. S. shall name, it is a good lease for years ; for though it is at present uncertain, yet when J. 8. hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this estate, it begins from the making, or delivery, of the lease. A lease for so many years as J. S. shall live, is void from the beginning ; for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the lease : 'but pos- sibly if on such a lease, livery of seisin were made by a lessor seised of the freehold, it might operate as a feotiment 2'>ur aider vie, viz : for the life of J. S. ; (a) and if this be so, as the freehold now by R. S. 0. c. 98, lies in grant as well as in livery, it would seem that such a freehold would passbyadeed of grant.' Bit a lease for twenty years, if J. S. should so long live, or if he should so long continue parson, is good : for there is a certain period fixed, beyond which it cannot last; though it may determine sooner, on the death of J. S., or his ceasing to be parson there. We have before remarked, and endeavoured to assign the '4^ A lease for _ mule toTom^ reason of, the inferiority in which the law places an estate ^um-notM, ^^^' year-s, when compared Avith an estate for life, or an in- a lease for life, j^gj.j^g^j^gg . observing, that an estate for life, even if it be pur auter vie, is a freehold; but that an estate for a tlious- and years is only a chattel, and reckoned part of the personal (a) Co. Litt. 45 B. N. ri. 2, by Hargrave. issession of ;ertain and ! for years, irni, fenni- ed, limited e a certain nod cerium io another, d lease for when J. S. tainty. If ;ion of this he lease. A d from the be reduced i : 'butpos- by a lessor ftment imr is be so, as 3 well as in ,ss by a deed should so is good: for iannotlast; r. S., or his assign the i an estate or an in- ^en if it be or a tlious- he personal OF ESTATES LESS THAN FREEHOLD. IGS t'state. Hence it follows, that a lease for years may be made to commence infiduro, though a lease for life cannot. As^ if I grant lands to TiLiu.s to hold from Michaelmas next for ♦twenty years, this is good ; but to hold from Michaelmas *h. 144. next for the term of his natural life, is void. For no estate of freehold can commence in faturo ; because it cannot be created at common law without livery of seisin, or corporal possession of the land; and corporal pos.se.ssion cannot be t^^nless by eon- . vevatice under given of an estate now, which is not to commence now, but stat. ir^e.s. hereafter. ' The statement that no estate of freehold can be created to commence infuiaro, must however, be considered as confined to such creation by common law conveyance ; for by deed of bargain and sale or other conveyance operating under the Statute of Uses, wherein livery of seisin or prior possession in the grantee is not required, a freehold estate can be limited to commence infuturo : thus A. can bargain and sell to, or covenant to stand seized to the use of, B. and his heirs, from a future day, on the arrival of which the estate will vest, the seisin of the freehold in the meantime remaining in the bargainor or covenantor.' And because no livery of seisin is necessary to a lease for years, such lessee is not said to be seised or have true legal seisin of the lands, nor indeed otherwise till does the bare lease vest any estate in the lessee, ' unless a use interesse for the term be raised in the lessor for the lessee, which can be executed into possession by the Statute of Uses ; see iwst, s. 332 ; ' but only gives him a right of entry on the tenement, which right is called his interest in the term, or, interes.se termini : when, however, he has actually so entered, and thereby accepted the grant, the estate is then, and not be- fore, vested in him, and ho is possessed, not properly of the land, but of the term of years; the possession or seisin of the land remaining still in him who liath the freehold. Thus the word term, does not merely signify the time specitied in the lease, but the estate also and interest that passes by that lease; and therefore the term may expire during the continu- 4 r :i 164 OF ESTATES LESS THAN FKEEHOLD, ance of the time ; as by surrender, forfeiture, and the like. For which reason, if I jijrant a lease to A. for the term of three years, and after the exj)iration of the said term to B. for six years, and A surrenders or ftjrfeits his lease at the end of one year, B's interest shall inmicdiately take effect: but if the remainder had been to B, from and after the ex- piration of the said three years, or from and after the ex]»ira- tion of the said time, in this case B's interest will not com- mence till the time is fully elapsed, whatever may become of A's term. • S. 145.3 *Wit)i regard to emltlements, or the profits of lands sowed Emblements, by tenant for years, there is this difference between him and the tenant for life ; that where the term of tenant for years de- pends upon a certainty, as if he holds from Midsummer for ten years, and in the last year he sows a crop of corn, and it is not ripe and cut before Midsummer, the end of his teiiti' the landlord shall have it ; for the tenant knew the expira- tion of his term, and therefore it was his own folly to sow what he never could reap the profits of. But where the lease for years depends upon an uncertainty ; as, upon the death of the le.ssor, being himself only tenant for life, or being a husband seised in the right of his wife ; or if the term of years be determinable upon a life or lives, ' or on notice by either party, and the lessor give the notice' (a) ; in all these cases the estate for years not being certainly to expire at a time foreknown, but merely by the act of God, or of the lessor, the tenant, or his executors, shall have the emble- ments in the same manner that a tenant for life or his exe- cutors shall be entitled thereto. Not so, if it determine by the act of the party himself ; as if a tenant for years does any thing that amounts to a forfeiture ; in which cas^ the em- blements shall go to the lessor and not to the lessee, who- hath determined his estate by his own default. (a) Campbell v. Baxter, 15 C. P. U. C. 42. OF ESTATES LESS THAN FREEHOLD. 165 the like. 3 tcMlll of irm to B. i.se at tlie ■ke C'ftect: er the ex- ile expira- not com- becoine of ids sowed 1 him and ■ years de- miiier for irn, and it his tei'iii' le expira- ly to sow the lease ;he death r being a e term of notice by all these pire at a or of the le emble- i- his exe- I'mine by does any ^ the em- fc.see, who ' Estates less than freehold, though chattels only in the eye Estate*, less „,ii i- 1 ii nil 1, *'""* freeholJ, of the law, yet inasmuch as they savour ot the realty, are clmtteU real, sometimes termed chatteh real, tbt^ devolve on death to executors and administrators, and not to the heir : and the proper limitation in a lease for years is to executors, though it will be sufficient if such limitation be omitted, as the law in such case will cast the estate on the executors or adminis- trators. It follows also that these estates are not saleable by the sheriff under a writ against lands, but are under a writ ajjainst jfoods. The mode of creation and of transfer of these estates is treate»Mrl »»•• TW ■ « ! 168 OF ESTATES LESS THAN FREEHOLD. as both parties please, especially where an annual rent is reserved ; in which case they will not suffer either party to detennine the tenancy, even at the end of the year, without reasonalile notice to the other, which is to be, under ordin- ary circumstances, half a year at least prior to the expiry of the current year of the tenancy. Thus, if the tenancy corn- Note months, mencedonthe tenth day of July, 1871, a notice to quit given on the next tenth day of January would be too late, and the tenant be entitled to hold for another year from the tenth day of July, 1872, and be entitled further to a proper notice, to be given him half a year at least prior to such last But 183 days, named day. The notice is to be half a year, not six months- and the difference is material if February happen to be one of the months included in the period, in which case the period would not comprise half a year. And it would seem that the half year is to be a full half year, and thus not 182, but 183 days.' * Service of a notice to quit need not be pei'sonal ; a notice by parol to the tenant is good : it must be positive and not in the alternative, thus notice to quit " or that you agi'ee to pay double rent" would be bad (a). The acts and conduct of the parties may afford evidence of its waiver and inten- tion to continue the tenancy (6). The necessity for it by the landlord may be dispensed with by disclaimer of the tenancy by the tenant, which is hereafter alluded to (c).' Inferences of The leaning of the courts against uncertain tenures at will lft\(^ 111 fftVOlU* of tenancy in favour nf the more certain tenures from year to year have year. ^^*' caused the latter to be of no unf requeut occurrence. It may be stated, as a general rule, that wherever there is a tenancy- and a payment of rent with reference to a year, or some aliquot part of a year, and there be no evidence from which it can be shown that a tenancy of another nature was-agreed , on, the law will assume the tenancy to be one from year to (a) ptr Lord MannMd, I Dvuglai 176, Woodfall, 11th ed. 312. (6) Woodfall, 3rd ed. .320. (c) Pott s. 276. OF ESTATES LESS THAN FREEHOLD. 169 il rent is party to , without ler ordin- expiry of ncy com- 3 to quit ! too late, • from the a proper such last !C months- to be one case the )uld seem i not 182, ; a notice D and not I agree to I conduct tid inten- for it by Br of the to (c).' res at will year have It mav I tenancy- or some )m which as-agreed^ 1 year to 2. year : and where a tenant, having no certain interest, pays rent, with reference to a year, or aliquot part of a year, this unexplained is evidence of a tenancy from year to year : but the payment must be with reference to a certain period of holding : for if there be an agreement without reference to any certain period of holding, and the rent reserved accrue dtie, or be paid de die in diem, or without reference to any fixed jiortion ofa year, theieby alone a tenancy from year to year will not arise (a). And if the intention of the parties be express and apparent to create a mere tenancy at will, even the fact of the rent being reserved payable with reference to a year, or aliquot portion, as for instance quarterly, or year- ly, will not create a tenancy from year to year, and ovenide the clearly expressed intention of the parties (b). Though payment of rent with reference to a year, or aliquot portion, unexplained, gives rise to an implication of a yearly ten- ancy; still both payer and receiver may show the ciicum- stances under which payment was made for the purpose of repelling the implies 'on (c). If a person enter under a void Void lease, lease (as being for more than three years, and not under seal, as required by R. S. O. c. 98), or under an agreement for a lease, and afterwards pay rent as above, a tenancy from year to year will be implied ; so also if a tenant hold over after the expiry of his term and pay rent. And in these cases the terms and stipulations in the void, intended, or expired lease will govern as far as reasonably applicable * to a yearly tenancy ; if for in.stance it contained a power in the landlord to re-enter for non-payment of rent, or a coven- ant by the lessee to repair, such power, and obligation to repair will be applied to the new tenancj' from year to year. There is this peculiarity, however, in the two first named cases of a tenancy created by pi yment of rent '^fter entry (ay for the leir yearly my tenant, itice of his ver up the I, he shall time as he 5 former (4 l notice to of tenant t given by it the upon demand made in writing to go out of possession, his landlord or the agent of the landlord may apply to the county judge of the county in which the land lies, who, on a proper case made out as re- quired by the statute, is to appoint a time and place to in- quire and determine whether the persoit complained of was tenant to the complainant for a time or period which has ex- pired or has been determined by a notice to quit or other- wise, and whether the tenant without any colour of right holds the possession against the right of the landlord, and whether the tenant does wrongfully refuse to go out of pos- session. If it so appears to him the judge may order a writ to issue to place the landlord in possession. The proceedings are removeable by certioraH into either of the Superior Courts of Common Law.' ' Mere non-payment of rent or breach of covenant by the tenant does not determine the le;ise, unless there be a right reserved to the landlord to re-enter thereon ; and even then so much does the law lean against forfeiture, that to deter- mine a lease for forfeiture for non-payment of rent srreat nicety exists, unless, as is now usual, the proviso for re-entry dispenses therewith. Thus, 1. A demand must be made of the rent; 2. On the very day when due ; 3. For the precise 146. («) Doe Cmdy v. SharpUy, 15 M. & W. 568 ; Doe Tindal v. Roe, 1 DowL P. C Right of re- entry on non- payment of rent, or on breach of covenants. Strictness re- quisite on entry for non* payment of rent. • t ■I (b) Woodf. Land. 4 Ten. M4, 11 ed. ■u t 174 OF ESTATES LESS THAN FREEHOLD. sum, a penny more or less makes the demand bad ; 4. A con- venient time before sunset ; 3. On the land, and at the most notonous place on it ; 0. And this though no one be on the land ready to pay, in one case (a) it was held a demand at half-past ten in the morning was too early, and not a good f ;«iiant. neces.sary. On this point in one case (6) Parke B. thus ex- Th3' a freeholder, who, in order to get into pos. session of his land, assaults a person wrongfully having possession of it Jigainst his will, although the freeholder may be responsible to the public in the shape of an indictment for a forcible entry, he is not liable to the other party. I j j^^j^j^ ^^^ .^^ cannot see how it is po.ssible to doubt that it is a perfectly dictment ■*• i J thnn^h not to good justification to .say that the plaintiff was in po.ssession civil action, of the land against the will of the defendant, who was owner, and that he entered upon it accordingly, even though in so doing a breach of the peace was committed." The weight of opinion and authority are in favour of the dictum ol the learned baron (c). It must, however, be borne in mind that his observations apply only to a justification in a c'lv'd action, for there wouldbe no defence in proceedings of a crim- inal nature ( show the existence of the person on whose life he holds, and remedies are givon in cases of holding over (a).' ' We have heretofore attended to rents and the nature of them, and their various kinds (6), and shall hereafter speak of the creation and assignment of estates less than free- hold (t); (a J Woodfftll Ld. * Ten. 8. (bj S. 41. (cj S. 318-327. Beside which we there is all estate up* upon the event, wh enlarged, I have chi more prop species of a fee, a f r provjsiom understoo plied : 2 Inst may pledge : '■. 5. Estates known ht I. Esta of an esta essence an in words, rally, wit hereto a s his office, grantor oi son. For by mw-tw 1, after ilw Me infant, H held, are tied in re- ihii tenant ) he holds, nature of fter speak than free- -327. ■.) CHAPTER XI. OF ESTATES UPON CONDITION. Besides the several divisi' n^^ '>F estates in point of interest, Of nuta* which we have considered in the three preceding chapters, tion. there is also another species still remaining, which is called an estate upon condition ; being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either orginally created, or enlarged, or finally defeated. And these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves ; seeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates then, upon condition, thus understood, are of two sorts : 1. Estates upon condition im- plied : 2. Estates upon conditions expressed : under which last may be included, 3. Estates held in vadio, gage, or pledge : 4. Estates by statute merchant or statute staple : 5. Estates held by elegit ; ' of these, the two latter are un- known here.' I. Estates upon condition implied in law, are where a grant i- Estates , . ... '11,.. uponconditioB 01 an estate has a condition annexed to it inseparably from its implied inbkw. essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, gene- rally, without adding other words ; the law tacitly annexes hereto a secret condition that the grantee shall duly execute his office, on breach of which condition* it is lawful for the • s. i63. grantor or his heirs to oust him, and grant it to another per- son. For an office, either public or private, may be forfeited by mia-vser or noriruser, both of which are breaches of this 12 ■ c^-^- 178 OF ESTATES UPON CONDITION. implied condition. 1. By mia-uaer or abuse ; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-user, or neglect ; which in public offices, that con- cern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture ; but non- user of a private office is no cause of forfeiture ; unless some special advantage is proved to be occasioned thereby. For in the one case delay must necessarily be occasioned in the affiiirs of the public, which require a constant attention : but private offices not requiring so regular and unremitted a ser- vice, the temporary neglect of them is not necessarily pro- ductive of mischief: upon which account some special loss must be proved, in order to vacate these. Franchises also. being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them ; and therefore they may be lost and forfeited, like offices, either by abuse, or by neglect. Upon the same principle proceed all the forfeitures which * are given by law of life estates and others ; for any acts 'ditional limitation limits the esMal over to a stranger, and of itself causes the determination of the particular esUte,! without any act such as entry or claim, to be done or made by him who has thtl next expectant interest : whereas, in the case of an estate upon condition, pr»l perly BO called, advantage must be taken of ihe breach thereof, by the activitf| of the grantor, hia heirs or assigns. ( Wooddeson, 24th Vin. Lect.) A conditional limitation partakes of the nature both of a condition and ofil remainder. It ia to b« observed, that it was formerly held, whenever the whobl OF ESTATES UPON CONDITION. 181 rs a certain s limited, it id avoid the >n condition not strictly ill base fees ■. Thus an nor of Dalt, rs continue annuity be liis body, as ,minster the remains, as the grantee siple depend e mentioned ;. : these are t marry (6), hese *8ubse- igencies; by nor of Dale, itinuiug sole ach grantee, itioyi in deei ;s also a cm- iflfers from whil s proper effect oi se claiming fron limits the ertite particular estate, him who hastbt a condition, pr» , by the activity act.) mdition and of 1 1 unever the whobl dit'ion in law. For when an estate is so expressly confined and liinited by the words of its creation, that it cannot en- dure for any longer time than till the contingency happens upon which the estate is to fail, this is denominated a limi- tation ' and often a conditional limitation ;' as when land is granted to a man so long as he is parson of Dale, or while he continues unmarried (<»), or until out of the rents and profits he shall have made £500 and the like. In such cases the estate determines as soon as the contingency happens, (when he ceases to be parson, marries a wife, or has received the £500) and the next subsequent estate, which depends upon such determination, becomes immediately vested, with- out any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, upon condition in deed (as if granted expressly iqyon condition to be void upon the payment of £40 by the grantor, so that the grantee con- tinues unmarried (b), or provided he does not go to York, fee, or even freehold, was first limited, no condition or other quality could be annexed to this ptioT estate to defeat it, so as to pass the estate to a stranger. For, as a remainder it was void, being in abridgment or defeazance of the estate firet limited : and as a condition it was void, since no one (it was held) but the donor or his heirs could take advantage of a condition broken, and an 'tnity by them unavoidably defeated the livery upon which the remainder to the stranger depended. On these principles it was impossible by the old law to limit (by deed, at all events, whether it could be done by will or not) an estate to a stran. ger upon any event which went to abridge or determine an estate previously limited. But the convenience of such limitations has established them ; and under the doctrine of uses, and of executory trusts, such limitations are now permitted to take effect. They partake of the nature of conditions, inasmuch as they defeat the estates previously limited : aud they are so far limitations, as upon the contingency taking place the estate passes to a stranger. (Hargr; note Ho Co. Litt. 203 d). (a) See next note. (6) It will be seen in the next section that certain conditions are void as con- trary to law ; a condition in restraint of marriage generally, which is the case put in the text, is within this riile as against public policy ; the consequence is, the gruntee would hold the estate discharged of the condition, as being a condi- tion lubtcquent void in its creation ; Smith Rl. Prop, void conditions — Scott v. Tyler, 2 W. & T. Lg. Cas. Eq. 144— the case of a grant to> man while he con- tinues unmarried, which is above put as a valid instance of a conditional limi- tation, has been said to depend on a different principle, and to be valid, at least where there is a gift over on the marriage ; for that in such case there is nothing to carry the gift beyond the mr.rriage, id. 187. A condition subsequent, which : iv; 182 OF ESTATES UPON CONDITION. &c., the law permits it to endure beyond the time when such contingency happens, unless the grantor or his heirs or Rvssigns take advantage of the breach of the condition, and make either an entry or a claim in order to avoid the estate. But, though strict words of condition be used in creation of the estate, yet, if on breach of the condition the estate be limited to a third person, and does not immediately revert to the grantor or his representatives (as if an estate be grant- ed by A to B, on condition that within two years B inter- marry with C, and on failure thereof then to D and heirs) ♦S. 156. this the law construes to be a limitation and not a *condi- tion : because, if it were a condition, then, upon the breach thereof, only A or his representatives, as presently explained, could avoid the estate by entiy, and so D's remainder might be defeated by their neglecting to enter ; but, when it is a limitation, the estate of B determines, and that of D com- mences, and he may enter on the lands, the instant that the failure happens. So also, if a man by his will devises land to his heir-at-law, on condition that he pays a sum of money, and for non-payment devises it over, this shall be considered as a limitation ; otherwise no advantage could be taken of the non-payment, for none but the heir himself could have entered for a breach of condition. Right of entry ' It was a rule at common law that a right of entry for not assignable i,-,,.. iiii ii at common breach 01 condition subsequent could only be reserved to the grantor and his heirs, and not to a stranger ; and when re- served, it could not be assigned, the simplicity of the com- mon law requiring that every man should assert his own right of entry or action. The consequence was that in the would have been void as in restraint of marriage, is yet valid in the case of • testator providing for his widow, for the law recognises in the husband an k' terest in his wife's widowhood : Lloj/d v. Lloyd, 2 Sim. N.S. 263 ; Neietm v. Marsden, 2 Johns. & H. 356. The latter case indeed shews that this exceptiot to the rule as regards widows is not confined to provisions by their* former Aiu- handB ; and that even where the restraint is imposed merely by condition sub- sequent and without gift over, it is not against public policy that any periot shoidd endeavour to restrain a widow from marrying again. time when his heirs or idition, and d the estate. I creation of le estate be ately revert ite be grant- ars B inter- and heirs) )t a *condi- the breach y explained, inder might '^hen it is a t of D com- ant that the devises land m of money, e considered be taken of ' could have f entry for erved to the id when re- yf the com- )rt his own that in the OF ESTATES UPON CONDITION. 18^ common case of a right of reentry reserved to a lessor and his heirs for non-payment of rent, or other cause, the assig- nee of the lessor could take no advantage of the clause of reentry. This was remedied so far as regards grantees of revereions by 32 Henry VIII. c. 34, under which they have the same benefit of a condition in case of a breach subse- quent to the grant to them, as their grantors would have had, provided it relate to the payment of rent, the restric- tion from waste, or other like object tending to the benefit of the reversionary estate ; and althougli by R. S. 0. c 98, Otherwise right;? of entry are now assignable, it has been held that this 0. c. 98, ex- does not include rights of entry for condition broken, but dition broken, only relates to rights of entry as on a disseisin, &c. (a) : the consequence is the right of an assignee to enter for condi- tion broken whilst assignee still rests on the statute of Henry, and for condition broken before assignment he can- not enter (6).' In all these instances of limitations or conditions subse- Of the nature quent, it is to be observed that so long as the condition, interest, either express or implied, either in deed or in law, remains unbroken, the grantee may have an estate of freehold, pro- vided the estate upon which such condition is annexed be in itself of a freehold nature ; as if the original grant express either an estate of inheritance or for life ; or no estate at all, which is constructively an estate for life. For, the breach of these conditions being contingent and uncertain, this un- certainty preserves the freehold : because the estate is ca- pable to last for ever, or at least for the life of the tenant, supposing the condition to remain unbroken. But where the estate is at the utmost a chattel interest, which must determine at a certain time, and may determine sooner (as br 11: ,!■■ ' ! ^ (a) Hunt V. Bishop, 8 Ex. 675. (6) See further post, ss. 290. 327. A statute was in force here, 12 Vic. c. 71. «nce repealed by 14 & 15 Vic. o. 7, which gave power to assign a right of en- try for condition broken, i.e., broken before assignment. ^^ iA GonditioDB hovr avoided. •8.167 i OF ESTATES UPON CONDITION. a grant for ninety -nine years, provided A, B, and C, or the survivor of them, shall so long live), this still continues a mere chattel, and is not, l)y such its uncertainty, ranked among estates of freehold. These express conditions, if they be impossible at the time of their creation, or afterwards become impossible by the act of God or the act of the feoffor himself ; or if they be con- trary to law, or repugnant (a) to the nature of the estate, are void. In any of which cases, if they be conditions svhm- quent, that * is, to be perfoi*med after the estate is vested, the estate shall become absolute in the tenant. As, if a grant be made to a man in fee-simple, on condition that, unless he goes to Rome in twenty-four hours, or unless he marries with Jane S. by such a day (within which time the woman dies, or the feoffor marries her himself), or unless he kills another, or in case he alienes in fee, then and in any of such cases the estate shall be vacated and determined : here the condition is void, and the estate made absolute in the feoffee. For he hath by the grant the estate vested in hiin which shall not be defeated afterwards by a condition either impossible, illegal, or repugnant. But if the condition be precedent, or to be performed before the estate vests, as a f^ grant to a man that, if he kills another, or goes to Rome in fl^ a day, he shall have an estate in fee ; here, the void condi- i tion being precedent, the estate which depends thereon is also void, and the grantee shall take nothing by the gi-ant, for he hath no estate until the condition be performed. There are some estates defeasible upon condition subse- quent, that require a more peculiar notice. Such are, III. Estates held in pledge. III. Estates held in vadio, in gage, or pledge, which are of two kinds, vivum vadium, or living pledge, and mortuim vadium, dead pledge, or mortgage, rimm radium Vivum vadium, or living pledge, is when a man borrows or living ' o i o > pledge. — ■ -- — — (a) Brmon v. Stuart, 12 U. C. R. 510. £>' fSM ff d C, or the ontinues a ty, ranked [it the time i by the act jy be con- ) estate, are ions subse- is vested, As, if a ition that, unless he h time the r unless he 1 in any of ined : here [ute in the ted in him tion either iidition be rests, as a o Rome in 7oid condi- thereon is the gi-ant, ■med. ion subse- are, which are Tnortuum n borrows i OF ESTATES UPON CONDITION. 185 a sum (suppose £200) of another, and grants him an estate, as of £20 per annum, to hold till the rents and profits shall repay the sum so borrowed. This is an estate conditioned to be void so soon as such sum is raised. And in th's case the land or pledge is said to be living ; it subsists and sur- vives the debt, and, immediately on the discharge of that, results back to the borrower. Cases of this kind are very un- MorUmm w- dtM)», ormort- usual, and are known as Welsh mortgages ; (a) but mortuum gage. vadium, a dead pledge, or mortgage (which is much more common than the other), is where a man borrows of another a specific sum, (e. g. £200) *and grants him an estate on con- s. 158. dition that if he, the mortgagor, shall repay the mortgagee the said sum of £200 on a certain day mentioned in a deed, that then ' the grant shall be deemed void ; or,' that then the mortgagee shall reconvey the estate to the mortgagor. In this ease, the land which is so put in pledge is by law, in case of non-payment at the time limited, for ever dead and gone from the mortgagor ; and the mortgagee's estate in the lands is then no longer conditional, but absolute. As soon as \\he mortgage is created, the mortgagee may '"-/aOfiiately enter upon the lands, but is liable to be dispos- ." J. upon performance of the condition by payment of the d' 'g.age-money at the day limited. And therefore the u. . a1 way is to agree that the nortgagor shall hold the land till the day assigned for pa^mient ; when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possi- bility at law of being afterwards evicted by the mortgagor, to whom the land now is foreve^ dead. But here again the courts of equity interpose ; and, though a mortgage be thus forfeited, and the *estate absolutely vested in the mortgage •s. 169. at the common law, yet they will consider the real value of the tenements compared with the sum borrowed, and they (a) For an instance of a Welsh mortgage in this Province, see Re Yarmouth, 26 Grant, 593. 18(5 OF ESTATES UPON CONDITION. will allow the mortgagor to recall or redeem his estate, pay- ing to the mortgagee his principal, interest, and expenses, for otherwise in strictness of law an estate worth £1,000 might be forfeited for non-payment of £100 or a less sum. K. S. o. c. 108, ' It is, however, provided by R. S. 0. c. 108, s. 19 (voat c. 21) time for re- .11 11 demption that the mortgagor shall not be entitled to redeem but within ten years next after the time that the mortgagee shall obtain possession or receive rents, unless in them«^an- time an acknowledgment in writing shall have been given by the mortgagee of the right of the mortgagor, in which case the right to redeem is limited to ten years from such acknow- ledgment.' This reasonable advantage, allowed to mort- gagors, is called the equHy of redemption : and this enables a mortgagor to call on the mortgagee, who has possession of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest, thereby turning the mortuum into a kind of vivum vadium. But, on the other hand, the mortgagee may ' sell the estate ' either ' by aid of a court of equity, or under a power of sale, if any, in his mortgage, or under the power conferred by 42 Vic. c. 20, when the mortgage deed contains no power of sale,' in order to get the whole of his money immediately ; or else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be forever foreclosed from redeeming the same ; that is, to lose his equity of redemption without possibility of recall. And also, in some cases of fraudulent mortgages (a) ' as giving a second mortgage without disclos- ing the first,' the fraudulent mortgagor forfeits all equity of R. S. O. c. 51. redemption whatever. ' By 7 Geo. II. c. 20, and R. S. O. c. sometimes *an ^l, ss. 71, 72, the common law courts under certain circum- forfelturfr"*^* stanccs Can exercise equitable power after forfeiture ; thus if no suit be pending for foreclosure or redemption, and the mortgagee bring ejectment, the court in which the action is registe person (a) 4 & 5 W. & M. c. 16. OF ESTATES UPON CONDITION. 187 ate, pay- jxpenses, £1,000 less sum. }oat c. 21) eem but lortgagee he iP'^an- given by hich case acknow- to moi-t- 8 enables ession of rents and [ interest, . vadium. le estate ' of sale, if )y 42 Vic. ■ of sale,' r ; or else lently, or, edeeming I without -audulent it disclos- jquity of I. S. O. c, I circum- :e ; thus , and the action is pending can stay the proceedings and compel the mortgagee to reconvey on payment of principal, interest, and costs, pro- vided the right to redeem he not denied, or the amount with which the premises are chargeable, is not contested.' ' It; an ordinary mortgage in fee simple, following the ha- bendum, come, Ist, the proviso for redemption ; 2nd, the cove- nant for payment ; 3rd, the covenants for title. Certain spe- cial clauses are frequently introduced to furnish further security and remedy to the mortgagee, as, 4th, a covenant to insure and keep up insurance ; 5th, a power of sale on de- fault ; 6th, an attornment clause, or a power of distress ; 7th, provisions for reduction or increase of interest according to punctual payment ; and lastly the provision for possession by the mortgagor till default.' * The case of a mortgage by tenant in tail for any freehold intei-est (other than pur aider vie) is by R. S. O. c. 100, s. 9, as hereafter explained, an exception to the general rule that the beneficial interest results on redemption as of the old estate in the absence of evidence of intent to the contrary ; for such a mortgage is a bar to the heirs in tail to the extent of the estate created, notwithstanding intention express or implied to the contrary. Thus on a mortgage in fee the equity of redemption will belong to the mortgagor not as tenant in tail but freed of the entail, and will descend to heirs general instead of to the heirs in tail (a).' ' The provisions of the Registry Act, R.S.O. c. Ill, s. 67, 68, as regards releases of mortgages, are to the efiect that " when any registered mortgage shall have been satisfied, the regis- trar, on receiving a certificate executed by the mortgagee, or if the mortgage has been assigned and such assignment registered, then executed by such assignee, or by such other person as may be entitled by law to receive the money and to discharge such mortgage," in the form given by the Act, Oil mortgage by tenant iu tail for a free- hold interest heirs general entitled to re- deem. ,5 '^ t «!i> k !'• .:3r i I',' i .«., ' Release under . i RegiHtry Act. 1 «»•. 4 (a) See post cLap. on Assorancea by tenants in tail. h\ 188 As to release of part only. Danger of re- leasing part of the lands. lielease will not operate till registry, nor unless the mortgage and assignment, if any, be regis- tered. OF ESTATES UPON CONDITION. or to that effect shall register the .same, " and such certifi- cate so registered shall be as valid and effectual in law as a release of such mortgage, and as a conveyance to the mortga- gor, his heirs, executors, administrators or assigns, or any person lawfully claiming by, through or under him or them, of the original estate of the mortgagor." And by s. G8, " in case the mortgagee or any assignee of the mortgagee, desires to release part only of the lands contained in such mortgage, or to release only part of the money specified in the mort- gage, he may do so by deed or by a certificate to be made, executed, proved and registered in the same manner as in cases where the whole lands and mortgage are wholly re- leased and discharged ; and such deed or certificate shall con- tain a precise statement of the amount or sum so released." By s. 71, provision is made for discharge by a Sheiiff, or Di- vision Court Bailiff, or other officer who, under execution, may have seized a mortgage and received the amount or part.' ' In considering hereafter the Act of R.S.O. c. 99, s. 5, the danger is pointed out of releasing part of the lands to the mortgagor with notice of sale by hina of another part against which he has agreed to indemnify the vendee against the mortgage. It is to be observed that a release under the Act will not operate as a re-conveyance till registered ; till then it is but evidence of payment (a) ; nor will it apparently so operate unless the mortgage be registered, and if assigned, unless the assignment be registered. The form of release given by the Act implies that such registration must precede the exe- cution of the release (h).' (a) Lee v. Morrow, 25 U. C. R. 604. (6) Assuming that it was expedient to deny efficacy to a discharge under the Act unless the mortgage, and assignments, if any, are registered (which may be doubted), the Act certainly gives unnecessary inconvenience in requiring the hour and minute a^d number of registry of the mortgage and all assignments to be set forth, for it frequently happens in practice that a discharge which would OF ESTATES UPON CONDITION. 189 ' Section 68 was unnecessary ; the law was before thia lO Sec. (W..f Re- the same effect as thus enacted as to a discharge under 'Jie neceHHarv! "" Act of part of the lands (a) : and it hardly required spe- cial legislation to enjoin in case of part payment that the amount paid should be specified : or to give ability " to re- lease or discharge part of the money ;" or when the inten- tion was " to release or discharge part of the lands " to authorize the mortgagee " to do so by deed." The discharge under the Registry Act does not contain Action ..n Mf- the ordinary covenant against incumbrances which is uni- leiwomot m- versal on re-conveyance by deed ; it may be added to the form, but unless scaled it will only operate as a mere asser- tion and not as a covenant. An action would, however, lie against the releasor, on the assertion in the form given in the Act that he was entitled to receive the money, in case by his own act or wilful default he should not have been 80 entitled.' ' Section 69 provides for discharge of a mortgage by a mar- ried woman. It is not easy to understand why the hus- band should be required to join in the release, unless it was executed pursuant to R. S. O. c. 127, which equally requires the husband to join unless a judge dispenses with his joining. This is a point to which allusion is hereafter made in treating of conveyances by married women. The revised Act is taken from c. 9 of 32 Vic , and it may be doubtful whether there was any necessity for that Act, or for its continuance, considering that the certificate is a mere receipt for the money, and that it is only by force of the Act that it operates as a conveyance. If the woman can receive the money as skfeme sole it seems singular that she otherwise be executed, uannot be granted for the reason that the deeds are not forthcoming to furnish the information as to their registry, and payment and discharge both stand over till the registrar can be written to for the particulars. In this and other respects the Act seems to be drawn more for the convenience of the registrars than of the public, (a) Re Ridout, 2 C. P. U. C. 477. iti m R.H. (). c. no, ». 7. II 190 OF ESTATES UPON CONDITION. should not &h such be enabled to release the security. One of several executors can release the mortgaged lands on ac- tual payment, on the principle apparently, as hereafter ex- plained, that one can receive the mortgage debt and give a valid receipt.' 'The first part of R. S. 0. c. 99, s. 7 (a) is framed to meet the rule in Equity that if the trust be of such a nature that the person paying the trustees may reasonably be expected to see to the application of the money, he will be bound to do so. The rule and the exceptions are given fully in the text books (b) ; they may be briefly illustrated by stating that if the trust be for payment of legacies, or specified scheduled debts, the purchaser has to see that the money is properly applied, but not so when the trust is for payment of debts generally. Payment to This section does not prevent the application of the rule tntorHftiuiBur- requiring payment to trustees to be made to all jointly, or ga^'ee*! wlnda on their joint receipt, or to their attorney authorized by all to receive the money (c). Payment to one of several exe- cutors would suflice (<^). Payment made malajide will not suftice, as if made with knowledge of intention by the payees to misapply the money (e).' 'As to the payment to surviving mortgagees (/) : mortga- (a) This section and the cases thereon are treated of in Leith, Rl. Prop. Stats. p. 84. " The bond fide payment of any money to, and the receipt thereof by, any person to whom the same is payable upon any express or implied trust, or for any limited purpose, and such payment to and receipt by the survivor or survivors of two or more mortgagees or holders, or the executes or administra- tors of such survivor, or their or his assigns, shall effectually discharge the per- son paying the same from seeing to the application, or 'being answerable for the misapplication thereof, unless the contrary be expressly declared by the instru- ment creating the trust or security." (b) Sug. Vend. 14 ed. 657 ; Lewin on trusts, 7 ed. 409. (f ) Ewart V. Snyder, 13 Grant, 57, per Mowat, V. C. Payments to the attor- ney of all have been questioned, Davidson Conv. vol 3, 3 ed. p. 223 n. m. Sug. Vend. 14 ed. 549. (d) See poit in treating of R. S. O. c. 99, s. 5. (e) Lewin on Trusts, 7 ed. 414 n.e. See Femie v. Maguire 6 Ir. Eq. Rep. 137. (/) See, as to this section, the well-known let<^r .> of Mr. Ker, given ia Leith Rl. Prop. Stat., p. 84. OP ESTATES UPON CONDITION. 191 gee? are tenants in common both of the hvnds and mortgage money, there is no right of survivorship, and, apart from the provisions of the Act, payment to a surviving mortgagee did not suffice, if he misapplied the money. " The Statute, in terms, only refers to the bona fide payments of money. It does not expressly extend its protection to a mortgagor, who, instead of actually paying the debt, chooses to enter into some different arrangement for securing it " (a). There- fore purchasers from a mortgagor who bought and paid on an agreement by the mortgagor to indemnify against a mortgage to three mortgagees, were held, as against the per- sonal representatives of deceased mortgagees, not to be en- titled to any benefit from a registered discharge of the mort- gage given by the surviving mortgage^, to whom no money payment had been made, and who, instead thereof, had ac- cepted securities which turned out worthless. But other purchasers who had bought other parts of the lands mort- gaged after the registered discharge, and in reliance on it, were protected (b)' 'The R.S.O. c. 99, s. 5 (c), remedies an inconvenience which Executors may ,.,,,. assign or re- frcquently happened when a mortgagee died, and his per- lease the sonal representatives, or a legatee, became entitled to thcmort- and the lamic gage moneys, whilst the legal estate descended to the heir- at-law in the absence of any disposition thereof by the mort- (a) Dilke v. Douglag, 5 App. Rep. 77, per Moss, C. J. (5) Dilke v. Douglas, mpra. (c) 5. When any person entitled to any freehold land by way of mortgage has departed this life, and his executor or administrator has become entitled to the money secured by the mortgage, or has assented to a bequest thereof, or has assigned the mortgage debt, such executor or administrator, if the mortgage money was paid to the testator or intestate in his life time, or'on payment of the principal money and interest due on the mortgage, or on receipt of the con- sideration money for the assignment, may convey, assign, release or discharge the mortgage debt and the legal estate in the land ; and such executor or ad- ministrator shall have the same power as to any portion of the lands on pay- ment of some part of the mortgage debt, or on any arrangement for exonerat- ing the estate, or any part of the mortgaged lands without payment of money ; and such conveyance, assignment, release or discharge, shall be as effectual as ^ if the same had been made by the person having the legal estate. J 192 OF ESTATES UPON CONDITION. The Act does not warrant release of part when residue is not of suffi- cient vahie, nor a sale or release of part when releasor has notice of a jjrior sale of another part with an agree- ment by mort- gagor to pay the mortgage, but a Tt ortga- gee can still Hell under a power in the gagee. The heir-at-law thus became trustee for the person entitled to the moneys, and on payment thereof was the party to reconvey. The power given by this section to release part of the land on payment of part of the debt in no way prevents the application of the rule, that personal representatives, or others occupying a fiduciary position, must in any such transaction proceed with due caution at their peril, and see that the value of the security is not prejudiced by a release of part. It ixiay be also where part of the security is released for a manifestly inadequate amount, and the remainder is not sufficient to answer the mortgage debt, that the execu- tor or administrator so releasing would not only be person- ally responsible, but the release avoided as against the re- leasee and all claiming under the release with notice as a breach of trust (a).' ' So also where the mortgagor has sold part of the property, and agreed with the vendee to pay off the mortgage, if the mortgagee release the residue or join with the mortgagor in an absolute sale of it as free from the mortgage, with notice of the prior sale and agreement, and without the assent of the first vendee, the part sold him will be released from the mortgage ; even though the mortgagee, and not the mortga- gor, have received the proceeds of the second sale \ and this will equally be so if the sale be under a decree Jn a suit by the mortgagee to which the first vendee is no party ,(6). The principle is that, as between the mortgagor and the first vendee, the lands unsold become principally and solely lia- ble, and the mortgagee, having notice, can do nothing to prejudice the right oi the owner of lands first sold to have assigned to him on payment of the mortgage debt the lands so principally liable to him. But the mortgagee can sell un- (e) Davidson Convey. 3 ed. vol. 2, p. 835 ; Lewin on Trusta, 7 ed., p. 613. (/) Oowland v. Oarbett, 13 Grant, 578; see ako Outhrie v. Shieldt, therein referred to. OF ESTATES UPON CONDITION. 193 or the person ereof was the e part of the prevents the jentatives, or in any such peril, and see I by a release ty is released remainder is at the execu- [y be person- ainst the re- notice as a the property, rtgage, if the mortgagor in e, with notice the assent of ased from the )t the mortga- mle ^ and this ) in a suit by arty ,(&)• The and the first nd solely lia- io nothing to sold to have ebt the lands 3 can sell un- I, 7 ed,, p. 613. , Shieldt, therein der a power of sale in his mortgage, for the power is para- mount to any right of the vendee. So also where a mort- gagor sells part with an agreement to pay off the mortgage, a release by the mortgagee to the vendee will not prejudice his security as against a purchaser of the mortgagor's inter- est who had notice of the prior sale (a).' ' One of several executors can release the lands mortgaged on receipt of the mortgage debt (6). This would seem to rest on the ground that one of several executors can receive and discharge debts due the testator, and that ten- der to c.:e is a good tender. But probably the power to re- lease the security will not be extended to those cases where one executor never had power to act alone ; as, for instance, the case of releasing part of the lands without payment, un- der R. S. 0. c. 99, 8. 5, ore. 111,'s.s. G8, 69 (c).' ' The covenants for title are the same as in ordinary pur- chase deeds, except that the covenant for quiet enjoyment is made to take effect only after default in ^.ciyment of the mortgage money. The covenants alt'O are not limited as in case of an ordinary purchase to the acts of the grantor : this has been complained of on the ground that the result is after foreclosure or sale under a power of sale in the mortgage, that the mortgagor continues liable more extensively on his covenants which run with the land, than if he had sold the estate in the first instance ; no doubt this is so. On the other hand, if through defect in title, the mortgagee lost the security of the land on recovery by a stranger through some defect in title not occasioned by the mortgagor, and the cove- nants for title were limited to his acts, the mortgagee might be in a very precarious position in case the day appointed for payment of the principal were distant ; whereas, if the covenants were general, he might "ue on them at once in mortgage, or releane to a purchaser as against a Bub- sequent pur- cbaser of the equity with notice. Belease by one of several executors. Covenants fhr titU. (a) Orawford v. Armour, 13 Grant, 576. (6) Ex parte Johntonfi Prac. Rep. 225. (c) See McPhaddm v. Bacon, 13 Grant, 694. 13 ■i-f- 1 ij .1 I J 194 Fire and life insurance. 9 OF ESTATES UPON CONDITION. such case without waiting for the day appointed for pay- ment, and the measure of damages would be, it is appre- hended, the amount of the loan ; for the mortgagee is entitled to what he stipulated for, viz., the security of the land, and failing that, to be reinstated and to a return of his money.' ' Insurance policies again.st lass by fire, and policies that are payable on the death of the uiortgagor, frequently form a most important part of the security in a mortgage where the chief value of the property consists in buildings, in the one case, or the mortgagor should have but a life or limited in- terest in the property in the other (a).' ' Objections are frequently made to lending on property where fire insurance is essential to the sufficiency of the security. This arises from the risk of the policy being void in its inception from improper description of the property insured, or from other inattention to important particulars, or becoming vitiated after its creaoion on violation of the conditions by increase of risk or otherwiso The mortgagee also is frequently put to expense and trouble on a loss hap- pening. In very many cases when a loss occurs, the insur- ance company is not legally liable, and it is more than probable that if mortgagees and others insured were now to examine the conditions endorsed on their existing policies, and the facts attendant on and subsequent to the insurance, they would find that their only security rested on moral obligation, or the fact that the companies know well that it is not to their interest to insist on strictly legal objections. On this Lord St. Leonards says (a), " very few policies against fire are so framed as to render the company legally liable; generally the property is not accurately described with reference to the conditions under which you insure. They are framed by the company, who probably are not (a) As to life policies in connection with a niort.«:age, see Davidson Oonr. 3 ed. «73. ; Leith Rl. Prop. Stats. 367. (a) Handy Bonk, 5 ed. p. 46. OF ESTATES UPON CONDITION. 195- for pay. is appre- is entitled land, and is money.' icies that tly form a where the in the one imited in- property cy of the )eing void i property articulars, on of the Mortgagee I- loss hap- the insur- nore than were now g policies, nsurance, on moral ell that it bjections. r policies ly legally described )u insure. are not idson OonT. imwilling to have a legal defence against any claims, as they intend to pay what they deem a just claim, without taking advantage of any technical objection, and to make use of their defence only against what they believe to be a fraud though they may not be able to prove it." He goes on to mention the difficulty he had in endeavouring personally to effect a proper insurance. If after a policy has been assigned to a mortgagee, the mortgagor should effect further insurance and assign the policy, or if any grantee of the mortgagor- should further insure, it would seem that the first assignee could obtain only a pro ratd payment with the other insured on a loss happening. In practice it is not usual for tho mortgagee to enquire into the validity of the insurance effected by the mortgagor.' ' There is this distinction between an insurance against Distinction ,.„ . , , , between fire loss by fire and an msurnuce on a hie, viz., that the latter is and life assur- a contract to pay a fixed sum, and at least where a man in- sures his own life, quite independent of any question of in- demnity or loss consequent on death, whereas the former is •• strictly a personal contract for indemnity to the insured -^^t/ii. against loss, and does not extend beyond the amount of loss (a). The consequence is, that where the insured absolutely Fire insurance conveys the property insured, the polic}' ceases to be effec- veyance with- tual, for the insured can suffer no loss as to property not his ; rnsurer^*" ** and in order that in such case the policy, if assigned, should continue effectual, the consent of the insurers sKoiiTarbe ob- tained on the assignment (b). This, it will be observed, is quite independent of any conditions of the policy providing that on any transfer of the property or of the policy, the consent of the insurers shall be obtained and signified in some particular way.' . (p) Dolby V. India and London Auurcince Company, 15 C. B. 365 ; Smith Iig. Ca. 8 ed. Vol. 2, p. 291, 304. (6) Sadltn' Companv v. Badcock, 2 Atk. 557 ; Lynch v. Fa'iell, A Bro. P. C. 431. 5 -if: t^i ««•«.• [ V ■1^ V, 196 OF ESTATES UPON CONDITION. gage. Covenant to keep up in- iiiirance. unless con- ' As however upon a mortgage, an interest is still left in way*of mort-^ the mortgagor, a transfer by way of mortgage would not, perhaps, be within the principle above alluded to applicable to absolute transfers, and an action might still be sustained in the name of the mortgagor, unless indeed the conditions of the policy vitiated it on assignment without consent (a). Frequently it will be found, the conditions of a policy are so worded as in stiictness to render a consent of a particular nature to the proposed transfer requisite before the transfer, and that further notice of it should be given after it actually takes place.' ' If an existing policy be assigned the covenant to keep it up so long as any moneys remain due should contain a stipulation to pay the annual premium requisite so to do, two or three days at least before the policy would expire, and produce the receipt on demand : this gives time to the mortgagee after default to pay, or insure himself before the policy expires. It should provide also that the mortgagor will do or suffer nothing whereby the policy may be vitiated, and that thereon or on any default by the mortgagor in keeping up the policy, the mortgagee may keep up the in- surance or otherwise insure, and that the premiums so paid shall be charged on the land. Where, however, no power is given to the mortgagee by the mortgage to insure, then on omission to pay for insurance, which, by the terms of the mortgage, ought to be paid, the mortgagee may insure and add the premium to the principal money at the same rate of interest. This is under power given by 42 Vic. c. 20, to which we shall again refer.' ' It frequently happens where there is no policy in exis- tence, and time is of importance, that the mortgagor effecta an insurance, and as some delay necessarily ensues before the policy can issue, he takes what is termed an interim re- Objections to interim re ceipta for in- surance. (a) Davidson Gonv. -3 ed. p. COl, n. p. OF E3TATKS UPON CDNDITION. 197 itill left in would not, applicable 5 sustained conditions onsent (a). policy are particular le transfer, it actually to keep it contain a B so to do, uld expire, ime to the before the mortgagor 36 vitiated, rtgagor in up the in- ms so paid LO power is e, then on cms of the lay insure the same 42 Vic. c. cy in exis- iigor effects mes before nterim re- ceipt not under the corporate seal of the company, express- ing that the property is insured and that a policy will be issued, and the lender accepts the mortgage and rests satisfied with an assignment of this receipt. This is a course which may lead to difficulty, not only because when the policy sub- sequently does issue in favour of the mortgagor, it may perhaps be requisite to go through further formalities as to its assignment and notice, but also because, at law at least, on any loss happening before the policy issues, the company has been held not to be liable to pay the loss («), on the general principle that corporations cannot contract except Absence of under their corporate seal. In any such event the company g^^"'* ^ might be compelled in equity to make good their contract, and pay the loss (b) ; at law also an action would lie on a refusal to issue the policy (c). As to executed contracts of corporations within the scope of their business and authority of which they have received the benefit, the tendency of recent cases is to relax the rule under which they were held not liable on the grounds of absence of the corporate seal (<,?). ' If the mortgagee should insure at his own expense, with- Cases where out having any right under the mortgage deed or otherwise suring may to recover the premium from the mortgagor, then he is con- neys"on losT" sidered as havir.g insured for his own benefit, and not for ^lyJlJ^gon^he that of the mortgagor, or of the estate, and could retain the mortgage, insurance money and also recover the mortgage money with- out any deduction ; and in this respect he stands on much the same footing as a lessor insuring under like circum- stances (e) : his position may, however, be modified by the Act now next alluded to.' ' The Act, 14 Geo. III., c. 78, s. 83, is to the effect that the 14 Geo. ill., c. 78, 8. 83. as to compelling in- {a) Jones v. Provincial Insurance Co., 16 U. ('. R. 477 ; Kelly v. Isolated Co., 26 W. C. C. P. 299. (6) Penley v. Beacon Ass. Co., 7 Grant, 130, (c) Jones V. Provincial Insurance Co., 16 U. C. R. 477, per Robinson, 0. J. (d) Pirn V. Municipal Council Ontario, in appeal, 9 C. P. U. C, 304 ; White- head V. Buffalo A Lake Huron Railroad Co., in appeal, 8 Grant, 157. (<) Dobion V. Land, 8 Hare, 216 ; Russell v. Robertson, 1 Chy. Cham. 72. ;? ■■J !hli««!' 198 OF ESTATES UPON CONDITION. surance com- insurance companies, on the request of any person interested itete ipBteS"' in property destroyed or damaged by fire, or on cny giounds insured"*' ^^'^ ^^ suspicion, shall cause the insurance money to be laid out in rebuilding or reinstating the property, unless within sixty days after adjustment, the parties give sufficient security to the company that the money shall be so laid out, or a settle- ment be come to among the parties to the satisfaction of the company. It has been held (b) that this section appUes here, and it seems to follow that though as above stated a mort- gagee insuring for his own sole benefit without any right to charge the premium agaiust the mortgagor, would be en- titled to the mortgage money without deduction on account of any insurance money received on a loss, still practically the mortgagor, by application of this section, can get the benefit of the insurance by requiring the moneys to be ex- pended on the estate : so also on the other hand in the same way a mortgagee might obtain the benefit of a policy not assigned to him affected by a mortgagor. One 'consequence attendant on insurers expending, towards reinstatement of the pi'operty insured, the moneys payable to the mortgagee on an insurance effected by him without any right given him by the mortgage to charge the mortgagor or the property witli the premiums, would seem to be that he would have such right on such reinstating.' ' Apart even fiom the operation of the above Act, it is said ihat though there were no assignment of the policy, or any agreement in regard to it, a mortgagee would still be entitled in equity to insist on the insurance money accruing on any loss being laid out in reinstating the property, provided tl^e insurance existed at the time of the mortgage (a).' .• iai-a»i<' ( (ir '„;. ■ f to U.J'-, " laid out ill reinstatiiijT property. i'-t- (a) Stinton v. Pennock, 14 Grant, 604 ; see also lie Barker, 34 Law J. Bktcy. 1. Davidson Conv. 3 ed. , C04. (6) See Davidson on Conv. 3 ed., vol. 2., p. 600, referriug to Garden v. In- iiram, 23 L. J. Ch. 478, per Ld. C. ; but see Lees v. Whiteley, L. R. 2, Eq. 143 — a case of non-existing insurance. See also Oreen v. Hewer, 21 C. P. U. 0. 540. interested lygi'ounds )e laid out thin sixty jecurity to )r a settle- bion of the )plies here, ed a mort- any right uld be en- )n account practically ,n get the I to be ex- 1 the same policy not msequence nent of the agee on an en him by perty with have such t, it is said Lcy, or any be entitled ng on any ovided tl^e raw J. Bktcy. jarden v. In- R. 2, Eq. 143 P. U. C. 540. OF ESTATES Li'ON CONDITION. ' By R. S. 0. C.136, 8.12, " the person entitled to the benefit of a covenant on the part of a lessee or mortgagor to insure against loss or damage by fire, shall, on loss or damage by fire happening, have the same advantage from any then sub- sisting insurance relative to the building or other property covenanted to be insured, effected by the lessee or mortgagor in respect of his interest under the lease or in the property, or by any person claiming under him, but not effected in conformity with the covenant, as he would have from an in- surance effected in conformity with the covenant." . This section is taken from the English Act 22 & 23 Vic. c. 35, s. 7.' ' If a policy be assigned, and nothing said as to how, in the case of loss, the insurance moneys are to be applied, then if the mortgage moneys be not payable on the loss happening, the mortgagor is entitled to have the insurance moneys re- ceived by the mortgagee applied in reconstruction of the property^ The mortgagee is not compellable against his con- sent to apply them in reduction of his mortgage before it becomes payable, nor to invest them for the benefit of the mortgagor ; neither is he himself entitled, without the con- f»ent of the mortgagor, to lay out such moneys on invest- ment, or (at least if not in possession) in reconstruction of the mortgaged premises. On the other hand, should the mort- gagor withhold the consent to recouj.truct, the moneys can remain idle in the hands of the mortgagee, who will not, before the mortgage become payable, be charged with in- terest on them, or be liable to any deduction of principal or interest on his mortgage (a). The principle to be applied is that the insurance moneys represent the pi'operty.' ' The Act of 42 V.c. 20 (b), is copied, with some variations, from the Imp. Act 23 & 24 V,, c. 145. It provides that after default in insuring, and lapse of a certain time after 199 Mortgagor lias the benefit of an informal insurance. If a policy be assigned, and loss under it happens, how] the moneys are to be ap- plied. <3 -I* '-m f. ) J |I««M> 42 y. c. 20 as to insurance and sale. I (") Atistin V. Storff, 10 Grant, 306. (6). See the A.ct in Appx. 200 OF ESTATES UPON CONOITION. default in payment of principal or interest, a mortgagee shall have powc to sell on certain terms: that before sale notice of intended sale be given to those interested : that, however, the title of a purchaser shall not be impeached by reason of certain improprieties in the sale : that the notice of sale may be registered : and for application of the purchase money. If, however, the deed contain a power of sale, then so much of the Act as provides for a power of sale is not to apply ; and if it contain a power to insure, then so much u relates to power to insure is not to apply, nor is the Act to apply if the deed declare it shall not. The English Act gives authority to vary or limit the powers, which authority is wanting in the Act of Ontario. Sec. 9 is romewhat pe- culiar ; it authorizes the vendors to sell the whole estate and interest which the person who creates the charge had power to dispose of ; so that it in terms seems to warrant a sale of the fee, if the mortgagee were seized in fee, though he might have granted a lesser interest only.' Power of sale. ' For the transfer of the legal estate of the mortgagee at law no power of sale is requisite, and the assignee or vendee will take subject to such rights as may be subsisting in the mortgagor, or those who claim under him, of possession, redemption, or otherwise (a): and thus a sale and convey- ance of the estate by the mortgagee to a vendee, though made professedly as on a power of sale in the mortgage, is valid to pass the legal estate of the niortgagee, even though no power of sale existed, or were improperly exercised; and when the mortgagor's right to possession is gone, the vendee can maintain ejectment : he occupies in fact the position of assignee of the mortgage (t). The chief object of the powei" is to enable the mortgagee or other party claiming through him to sell and convey the property free from the equity of (a) See post p. 210. (6 See Netbitt v. Bice, 14 C. P. U. C. 409. OF ESTATES UPON CONDITION. 201 mortgagee )efore sale ited: that, eached by e notice of B purchase sale, then e is not to o much SA le Act to glish Act authority ewhat pe- lole estate barge had warrant a ie, though >rtgagee at or vendee ing in the possession, id convey- e, though )rtgage. is en though iised; and he vendee tositicn of the power y through equity of redemption of the mortgagee, and of all claiming through him subsequent to the mortgage, whether by express charge or by execution, or otherwise, and thus avoid the expense of proceedings in equity to foreclose or sell.' ' The power of sale is now commonly made use of, and although at first sight its insertion may appear prejudicial to the interests of the mortgagor, yet in truth it is not so, if only to be exercised on reasonable notice after default and at public auction. The absence of such a power may be very prejudicial to the interests of both mortgagor and mort- gagee, where the equity of redemption becomes incumbered by executions or otherwise, as on a suit of foreclosure or sale the incumbrancers have to be made parties, sometimes at great expense. As regards any objection on the ground of possibility of improper exercise of the power by an individual, which could not happen on sale under direction of the court, it will be seen m the sequel that a Court of Equity by application of the principle that the mortgagee is trustee for the mortgagor, will closely scrutinize his con- duct, and, if improper, afford relief.' ' The power of sale should be given to the mortgagee, his Tower of sale^ executors, administrators and assigns: it should not be given given to per- to heirs instead of the personal representatives, as the latter real represen- are entitled to the money, and the heirs are but the parties * '^^'' to convey the legal estate vested in them, which they hold as trustees for the parties entitled to the moneys, in which latter they may be in no way interested.' ' The word " assigns," as referable to the mortgagee, should The power never be omitted, for in its absence it is said (a) an assignee to aatiffneft, (a) Byth. Jar. Con., by Sweet, vol. 5, p. 105 ; but it is to be observed that the cases referred to, which are named in the two next following notes, were cases of trustees and ti-usts for sale, and not of a mere mortgage with a power of sale. In a case of a trust created, it is clear the trust cannot be delegated, for it implies a personal coniidence in the party named ; ate further, Lord Bay- broke V. Inskip, Tudor Lg. Ca., 3 ed. pp. 1002, et seq., in notes. 1^ 202 OF ESTATES UPON CONDITION. Frame of IHjwer aH to notice. Notice to .«8Bigna. •of the mortgage could not exercise the power of sale {a), and that it may be doubtful whether a devisee could (6).' ' The power should not be made conditional on notice being given, but notice should be provided for by a separate cov- enant by the mortgagee not to sell till after the specitied notice (c), As regards the clause or covenant providing that notice be given before sale under the power, if assigns are to re- ceive notice, ample scope may be given as to the mode of giving it, and it might be provided that the notice need not be personal, but may be left on the premises, and need not be addressed to any person by name or designation, or may be sent by post addressed to the party at the post office next his residence {d).' (a) DavidHon Conv., 3 ed. vol. 2, 621 ; Bradford v. Beljield, 2 Sim. 264 ; Bee last note. (b) Cooke V. Crawford, 13 Sim. 91 ; Wilson v. Bennett, 5 De G. & Sma. 475; Stevens v. Austen, 7 Jur. N. S, 873; Macdonald v. Walker, 14 Bea. 556; sec also Ridout v. [lowland, 10 Grant 547. {c) Forster v. Boggard, 15 Q. B. 155 ; see post pp. 203, 229. (d) In Major v. Ward, 5 Hare 598, the power of sale was conditional on de- fault and notice in writing to the mortgagor, his heirs, executors, administra- tors or assigns, or left at his or their last or most usual place of abode, requiring ])a5'ment ; it was held that notice to the mortgagor alone was sufficient, and that it was well served by fixing it on the door of a house, alleged to have been his last known place of abode ; at least that the onus was thrown on the parties objecting to the sale that something more should have been done. It was also held that it was not requisite to prove that the mortgagor was alive. This case has been referred to as warranting the proposition, that in case of an assign- ment of the equity of redemption, notice need not be given to the assignee, but it hardly wan'ants so broad a statement : it was a case (to put it simply) of a conveyance from W to S, declared void as against the creditors of W in a suit at their instance, but it was good as regarded a subsequent bona fide mortgagee for value from S ; it was insisted the creditors should have had notice, and that the notice as served was insufficient. It will be observed the creditors did not stand in the position of assignees of the mortgagor, they did not claim under, but in fact paramount to the mortgage, and therefore the case perhaps, is hardly an authority that the notice would have been good if there had been an assignee. In a case wherein the mortgage provided that no means should be taken by the mortgagee to obtain possession till he should have given a month's notice in writing after default demanding payment, it was held on ejectment brought by the mortgagee that a notice signed by his attorney on record in an action on the covenant in the mortgage to recover the mortgage debt, a month OF ESTATES UPON CONDITION. ^WB ' If a power of sale be inserted in the mortgage, so that the operation of the Act of 42 Vic. before referred to is excluded, then it is important to provide, as that Act provides, that any sale by the mortgagee shall be valid as regards the pur- chaser in all events of impropriety in the sale, leaving the former personally liable for improper conduct, if any ; and that the purchaser shall not be bound to enquire as to whe- ther notice has been given, or default made, or otherwise as to the validity of the sale. In the absence of such a clause the mortgagee selling may have sometimes difficulty in en- forcing the sale against an unwilling purchaser (a). But such a clause will not protect a purchaser who has express notice that the notice of sale stipulated for has not been given (6).' ' The power usually Authorizes a sale by private contract or at public auction, for cash or on credit, in whole or in lots, from time to time, under any special conditions of sale as to title or otherwise, with power at any sale at auction to buy in and re-sell, without being responsible for any loas or diminution of price occasioned thereby, and to rescind or vary any contract of sale that may have been entered into (c).' ' On any sale under the power, the vendor must be careful so to act as that the interests of the mortgagor be not pre- judiced by any negligence or misconduct. The duty of a mortgagee on sale by him resembles that of a trustee for sale (d), though perhaps a greater latitude may be allowed ClauHe provid- ing for validity of sale in any event. Frame of power of Bale. Mode of exer- cise of power —duty of mortgagee. ? .'JiJi :j prior to the ejectment, in which action the same attorney was also attorney on record, was sufficient, and that no proof need be given of the authority of such attorney : Keyvmrth v. Thomson, 16 U. 0. E. 178. (a) See Hobson v. Bell, 2 Bea. 17. (6) Parkinson v. Hanbury, 8 W. H. blh. (c) As to the object and necessity for these provisions, see Jarman Byth Conv. bv Sweet, 3rd ed. vol. 5, p. 412 ; Davidson Conv. vol. 2, p. 619, 3rd ed ; Dait Vendors, 5th ed. p. 71, et »tq. ; Lewin on Trusts, 7th ed. 398 ; Dudley V. Simpson, L. R. 2 Ch. App. 102. (rf) Richmond v. Evans, 8 Grant, 508 ; Latch v. Furlong, 12 Grant, 306, per Mowat, V.C. See also ante n. c. 204 OF ESTATES UPON CONDITION. ^^»? raien where wale Bet aside as improperly conducteu. Value of im- provements allowed. R. S. 0. c. 99, right of mort- gagee to pur- chase himself. to a mortgagee than to a bare trustee not interested iu the proceeds, and the court might restniin a sale by a trustee under circumstances in which they would not restrain i mortgagee (a). It is more advisable, of course, to avoid any ground of complaint of insufficiency of price or of unfaii sale, that the property should be sold at public auction, in^ stead of by private contract, even though the power autho- rize the latter. In one case where the mortgagee expressed a desire to get his debt only, and made no effort to sell, and never having advertized, sold at private sale at a great un- dervalue, the sale was set aside, though it did not appear that the purchaser was aware of the negligence of the mort- gagee (h). Due notice by advertisement of the intended sale should be given, and perhaps as to this the practice which governs on sales by the direction of the Court of Chancery would be the safest guide. Unnecessary and too stringent conditions of sale as to title and production of title deeds or otherwise should be avoided as likely to prejudice the sale ; and if in this, or other respects the conduct of the mortgagee be improper, not only will he be held responsi- ble, but under circumstances the sale may be s«t aside (c) ; but the circumstances must be very strong to induce the Court to set aside a sale as against a purchaser acting bona fide (d), and if the sale were set aside as against such pur- chaser, ho might be allowed for his improvements (e).' ' A mortgagee cannot, under R. S. 0. o. 99, s. I, purchase himself on sale under the power. As regards the right so to purchase apart from the statute, it is quite clear that a (a) As to cases wherein the Court declined to interfere : Matthie v. Edwardi, 11 .Jut. 7C1 ; Kernhaw v. Ka'aw, 1 Jur. N. S. 974 ; see also Faulkner v. Equit- able Society, 4 Jur. N. S. 1214. (6) iMtch V Furlong, 12 Grant, .S03. (c) Richmond v. Evans, 8 jrant, .508 ; Jenkins v. Jones, 2 Law T. N. S 128; Latch V. Furlong, 12 Grant, .H03, ante n. a ; Mc Alpine v. Young, 2 Chan. Cham. Rep. 171. As to depreciatory conditions, see Davidson Conv. 3rd ed. vol 1, p. 441 ; Sug. Vend. 14th ed. p. 63 ; Dart 5th ed. p. 73. (d) See ante, n. a. (e) CaiToll v. Robertson, 15 Grant, 173. or ESTATES UPON CONDITION. 205 •ested in the by a trustee Dt restrain a to avoid any or of unfair 5 auction, in- power autho- fee expressed t to sell, and i a great un- [I not appear of the niort- the intended the practice ;he Court of sary and too ction of title to prejudice induct of the eld responsi- #t aside (c) ; induce the acting bona it such pur- ts (e).' I, purchase the right so clear that a tkie V. Hdwardi, ulkner v. Eqiiit- wT. N.S 128; 2 Chan. Cban. . 3rd ed- vol 1. irant, 173. mortgagee has no such riglit, and that notwithstanding any Riich purchase, ho will still continue mortgagee, aud liable to redemption. A mortgagee stand-s an above remarked, much in the position of a trustee for sale ; his duty as ven- dor is to obtain as much as possible for the property, his in- terest as purchaser is the reveriso of this, and that the pro- perty shall sell for as low a price as possible. Courts of Equity forbid a man placing himself in this position, whore- in his interest may conflict with his duty. So jealous are the courts in allowing the mortgagee to deal with the inter- est conveyed to him, that at one time it seemed question- Riort^asrc able whether where the mortgagee should purchase on a V}'^y ''"^ '" " o I the eHtatK sale for taxes the iands mortgaged, he would not still hold f"'" ''"""• them as mortgagee, and as liable to redemption on the terms of the mortgage (a). And where a mortgagee bought the Purcha«e from equity of redemption under pressure of an insolvent mort- uniler^res gagor, at considerably less than its value, the i)urchase was *"*• set aside at th . instance of the assignee in bankruptcy of the mortgagor (b). It has been held, however, that a second mortgagee buying the legal estate on a sale by the first Second mort- mortgagee, under a power of sale in his mortgage, takes the estate on salt- estate as any stranger, free from the equity of redemption g^e"*"^ """^ (c). And if the mortgage of the second mortgagee be in trust for sale on default, instead of with the usual power of sale, so that the mortgagee stands more in the position of a trus- tee, it is said (d) even then he can purchase from a prior mortjjagee.' Whoever is entitled to the right to redeem is the person Application of who is entitled to the residue of the ^yroperty left unsold ^eSs'of sale. (a) SmaH v, Cottle, 10 Grant, 60, per VanKoughnet, C; Scholjield v. Dickinton, 10 Grant 226. That on such purchase he can hold absolutely, see Kellff v. Mack- Im, 14 Grant, 29. (6) Ford V. Olden, L. R. 3 Eq. 461 ; Davidson Conv., 3rd. ed. 864, n. m. ; Bee also Webb v. Borke, 2 Sch. & Lef. 661. (e) iihaw V. Burny, 11 Jur. N.S. 99 ; Parkinton v. Hanhury, 13 \V. R. 331 ; Waikint v. McKeUor, 7 Grant, 581 ; Brow* v. noud/ioHie, U Grant, 684. {d\ Fisher rotge, 3 ed. 490. ■^•rt» ••••■• if """31 20ft OF ESTATES UPON CONDITION. DistresB for interest. after satisfaction of the mortgage debt, and the surplus pro- ceeds if all be sold. If the mortgagor of a freehold does not intend this, but intends a conversion in the event of a sale and that the proceeds shall go as personal estate, then that should be clearly expressed ; for when there is a mere power and not an absolute trust tor sale, and a sale takes place after the death of the mortgagor, the surplus proceeds -will go to the heir, even though the trust of them be declared in favour of the pei-sonal representatives (a). On a badly drawn mortgage, by inattention to the above, the mortgagee may frequently be misled into payment to the wrong party. Where a sale is had in the lifetime of the mortgagor, the surplus proceeds will go to personal representatives on his death before payment. The general principle is, the property or its proceeds will where there is a mere power of sale, go to real or personal representatives, according to the state in which it was on the death of the mortgagor.' ' A right of distress (&) is sometimes given by the mortgage Royal Canadian (a) Wrif/ht V. Rose, 2 Sim & Stii. 323 ; Bourne v. Bourne, 2 Hare, 35 ; Lewin on Trusts, 7 «1 813 ; see aLio Fletcher v. Ashbumer and Ackroiid v. SmiUison, 1 White & Tr ' ,g. Ca. equity, in notes. (6) This very important matter, especially as connected with the Act as to Short Forms of Mortgages, has been much discussed in our Courts. In Royal Canadian Bank v. Kellp, 20 C. P. U. C. 519, 22 C. P: U. C. 29, in Appeal, the 1*^ 3»' anh V. Aelli/. ^^^^ ^^^^ ^ follows : The appellant mortgagee (Kelly) had more than six months after Ist January, 1867, distrained on goods of the bank on the mort- gaged premises for interest (as rent), claimed to be due on a mortgage from one Dewey, dated 23rd February, 1866, payable with principal and interest in one sum on Ist January, 1867. The mortgage was according to the statutory forro, containing a provision, as in the Act, that the mortgagee might distrain for arrears of inte'^'St, and that till default the mortgagor might remain in posses- sion : it was not executed by the mortgagee. The mortgagor had, after 1st January, 1867 (the day named for payment), continued in possession, and there was no evidence as to any agreement in respect of such continuance, or of either assent or dissent to it by the mortgagee. The principal and interest were impaid. The distress was for interest from date of mortgage to tim<» for its pay- ment (1st January, 1867), as also for interest from that time, till Jst January, 1868. The bank replevied. The Court of Common Pleas had decided' in favour of the right of distress; this decision was reversed on appeal. Gwynne, J., who gave the judgment in ibe Court below, concurring, as stated in the report, " only on the ground that after Ist January, W)7, interest was not due as of right, but Anly as damagM. OF ESTATES UPON CONDITION. 2or mrplus pro- Ad does not it of a sale, e, then that more power takes place roceeds will declared in )n a badly ! mortgagee Tong party, tgagor, the ives on his he property of sale, go the state in le mortgage ire, 35 ; Lewin I V. Smitluion, 1 the Act as to rts. In Royal in Appeal, the more than six k on the mort- tgage from one interest in one itatutory form, ht distrain for main in posses- had, after Ist sion, and there tinuance, or of d interest were ime for its pay- 1 Ist January, ht of distress; le judgment in he ground that ly as damof^M. as a security for payment of interest. This is effected in two modes, either by simple grant of right to enter and dis- A point which, he said, had not been raised in the Court below." The written judgment of the Court was lost, and so the report is merely as above, and the reasons for reversal are not given. Mr. Leith was of counsel for the bank on the appeal. It will be observed that there could be no doubt that there was the posi- tion of landlord and tenant created up to January, 1867, but the chief question was whether it was at a rent. There can be little doubt that afterwards, in consequence of total absence of all evidence as to any continuance of an y tenancy, the mortgagor was not a, tenant at will, but a mere overholding tenant, and, if such, then certainly either a tenant at sufferance or trespasser at the election of the landlord, and consequently liable to no rent. It was con ■ tended for the appellantG that even though there was a tenancy for a term or at will down to the time of distress, yet it was not at any rent at any time, and that the distress clause gave only a personal licence to take the mortgagor's own Koods, and did not at any time create a reservation of rent, or give all the rights of a landlord as on a lease at a rent. Even admitting that it did, still the tenancy nt a rent was only up to Ist January, and the distress was bad, 1st, in- asmuch as for the rent (interest) which fell due on Ist January, the distress was more than 'six months overdue, and could not be upheld under 8 Anne e. 14; and 2nd, no rent accrued due after 1st January, as the mortgagor after then was (as contended at least) a mere overholding tenant; and 3rd, even though he were, after 1st January, a tenant at will or other tenant, yet there was no fixed rent, since interust after that time was not due as of right, but oBly as damages. It will be seen that on this'latter ground only, viz., that after first January no rent could accrue due, Gwynne, J., concurred in reversing judgment : there being no doubt but that the distress for the rent (if any rent were payabL qua rent) due up to 1st January was too late. Whether the other learned members of the Court confined their judgment tO' this reason does not appear by the report. They may have considered that the distress clause was a mere license by the mortgagor to take his own goods and dispose of them as landlord on distraining ; or, that even though it were intended to create the position of landlord and tenant at a rent, still the reservation was bad, for the reasons as contended for the appellants and shewn in the report: In Trust and Loan Company v. Laurason, 46 U. C. R., the Court virtually Trust d- Loan held that the distress clause in the Act as to Short Forms of Mortgages does ^o. v. Laura- create the position of landlord and tenant at a rent e- 'nvalent to the interest pay- "'"* able by the mortgage, with all the rights of a landlord under an ordinary lease at a fixed rent. Armour J. however, gave no judgment as he only heard part of the argument, he expressed himself, however, when judgment was given as en- tertaining a view against it. Cameron J. expressed himself as concurring with the Chief Justice with some hesitation, thinking the distress clause somewhat an evasion of the Chattel Mortgage Act. Under these circumstances, and con- sidering the decision at Nigi Prius of Mr. Justice Cameron in La Vam-.ire v. Heron, 45 U. C. R. 9, that under the statutory clause goods not belonging tothe mortgagor, could not be distrained, which was not referred to in the judgment of the Court : that, as a matter of construction, the clause points far 1«bb to the ;f n 208 OF ESTATES UPON CONDITION. lord's reme- diM. MSk. train for arrears of interest and expenses, and to dispose of the distress as landlords may do for rent in arrear ; or, by the operation of an attornment clause actually creating at a rent position of landlord and tenant. If the remedy be given by the former mode, viz., by mere grant of right to distrain, then it will be seen it is less efficacious than the Does not con- latter, for it can operate as nothing more than a mere per- sonal license to take the goods of the mortgagor ; it cannot operate so as to give the mortgagee the ordinary right of landlords to take the goods of third persons on the premises demised (a). Neither can it operate as a grant of a rent charge for want of an estate in the mortgagor whereout to grant it (6), his estate having been conveyed by the mort- fttornment 8^S®- ^^ ^^ more to the interest of the mortgagee to consti- clauie. creation of rent service than to a mere license ; since, if a rent service were in- tended, the simple course would have been to have added to the possessory or at- tornment clause " at a rent equivalent to the interest ;" whereas if a mere licente to take the mortgagor's own goods were intended, it would be difficult to draft more concisely that which a conveyancer with any foresight, to avoid disputes would provide for, viz., the mode in which the goods seized should be disposed of, and which is done by reference to the mode in which landlords may act : that if, as suggested by Mr. Justice Cameron, the clause, construed as giving a right to rent as rent service is of questionable validity as an evasion of the Chattel Mortgage Act, then, %t res magia valeat quam pereat, it should be construed asi license ; for if construed not as a license, but as intended to create rent service, and yet invalid for that purpose, it is entirely nugatory for any purpose : that not construed as a license the goods of the mortgagor cannot be seized off the premises : considering the above, and the language of Mr. Justice Gwynne, ae above mentioned, on the giving of judgment in the appeal of the Bank v. Kelly, and that in the case of the Trust and Loan Company there was, at least in the mere language of the mortgage, a distinction from the Bank case, the authors may be excused if they suggest that it may be prudent for a mortgagee if he use* he mere statutory forms, to add to the possessory clause the words "the tern hereby granted is at a rent, equivalent to, and payable on the same days as the interest, and when paid will be in satisfaction thereof," or to that effect. The mortgagee should execute the mortgage if the term granted by the clause re- quires to be in writing ; Swatman v. Ambler, 8 Ex. 72 ; Pitman v. Woodbury, 3 Ex.4. (a) Chapman v. Beechman, 3 Q. B. 723 ; Fisher on Mortgage, 3rd ed. fl8 ; La Vauaire v. Heron, 45 U. C. R. 9 ; Freeman v. Edwards, 2 Ex. 732 ; Royal Canadian Bank v. Kelly, 19 C. P. U. C. 196, per Gwynne, J. (b) Per Patteson, J., Doe d. Oarrod v. OUey, 12 A. k E. 481 ; see per Park, B., in freeman v. Edwards, 2 Ex. supra. tute the year at a former is party wi rent is pr care mus gagee at otherwise mortgage might be standing notice to fore the ment clai will be I usual ek in defauii 'The t mortgago otherwise mises con lent to satisfacti( raents, ac with a pi on certair ant, entei tenancy a ground ol is hereaft 'The 01 (a) Turnet (c) Melrop y. B. 122 ; Id) Wilkir u OF ESTATES UPON CONDITION. 209 tute the mortgagor his tenant, either at will, or from year to year at a rent: the latter tenancy is to be preferred, as the former is defeasible by the death (a), or alienation of either party with notice to the other (6), and consequently the rent is precarious. If a tenancy from year to year be created, care must be taken to introduce a clause enabling the mort- gagee at any time after default to determine the tenancy, as otherwise, unless intent to the contrary were apparent on the mortgage, the ordinary right given to the mortgagee to enter might be overridden, and the mortgagor might, notwith- standing default by him, be entitled to the usual half-year's notice to quit, incident to a tenancy from year to year, be- fore the tenancy could be determined (c). If an attorn- ment clause as above, creating a tenancy, be introduced, it will be unnecessary, perhaps indeed improper, to insert the usual clause authorizing the mortgagor to retain possession ia default.' 'The tenancy is created by a clause declaring that the Attornment or tenancy mortgagor attorns and becomes tenant from year to year (or clause, otherwise) to the mortgagee, his heirs or assigns, of the pre- mises conveyed, at a yearly rant of the sum named equiva- lent to the interest, and expressed to be, when paid, in satisfaction thereof, payable in half-yearly or other pay- ments, according to the days fixed for payment of interest, with a proviso that the mortgagee, his heirs or assigns may on certain events, as default in payment, or breach of coven- ant, enter and determine the tenancy without notice. This tenancy would not seem to be open to any objection on the ground of want of cei-tainty in the term (d) : a subject which is hereafter considered,' 'The operation of the proviso for quiet enjoyment by the Proviso for quiet enjoy - - — — ment till de- fault. (o) Turner v. Barnes, 2 B. A. 8. 435. (6) Post p. 216, n./. (e) iretrop(4itan Society v. Brown, 4 H. & N. 428 ; Doe d, Bastow v. Ojx, 11 (j. B. 122 ; see further the notes to Keeoh, v. HiUl, 1 Smith Lg. Ca8es,523. (<<) Wilkinson V HaU, 3 Bing. N. C. 53.1 ; Ford v. Jones, 12 C. P. U. C. 368. U M 210 Inadvisable that mort- gagee should take posses- sion. Liability thereon to account What charges allowed as against mort- gagor. OF ESTATES UPON CONDITION. mortgagor is hereafter alluded to (a) : it will there be seen that it is frequently invalid for the purpose intended. Questions on this proviso frequently arise in actions of eject- ment, and on its effect depends also the period from which the Statute of Limitations will begin to run against the mortgagee.' ' Unless there be some absolute necessity for the mortgagee to enter into possession, such a course is usually avoided, for it involves an account between him and the mortgagor. A mortgagee in possession is liable to account for what he has received, or for what, without wilful default, he might have received (b). He is chargeable with an occupation rent in respect of pioperty held by himself, and is liable for volun- tary waste, (as in pulling down houses and ©pening mines). As a mortgagee in possession is regarded in some measure in the light of a trustee, he will, if he assign the mortgage and possession to another without the assent of the mort- gagor, continue to be accountable and chargeable for rents and profits after as.signment (c) ; a matter of some im- portance where they should be large, and the assignee should receive, or, but for his wilful default, might have received, more than sufficient to pay the mortgage debt. For many improvements he might make he will not be allowed, as otherwise by large expenditure he might preclude the mort- gagor from redeeming (d). This would be what has been termed " improving the mortgagor out of his estate" (c).' ' In the absence of any contract by the mortgagor to insure, or that he, the mortgagee, may, he cannot add any premiums he may pay for insurance to the mortgage debt as a charge (■) Po$t p. 212. (6) Ab to the nature and extent of liability, see Coldwell v. HaU, 9 Grant, 110; Paul V. Johnson, 12 Grant, 474 ; see also generally as to liability of mortgagw, Taylor Cha. Orders, 3 ed. p. 2.32. (r) Fisher on Mortgage, 3 ed. 939. {d) Kerby v. Kerli), 6 Grant, 687. («) Sandon v. Hooper, 6 Bea. 24«. on the pr perty des Act befor his actual commissic nor charg< however, time and I reasonable He will be upholding 'By R. overdue c( as the mor mortgagor cestor, and and the eq avoid circu tack to his though exc And where is no incum ^agee has s( :eeds on ha ire recover; ire only bai juage of R. As regai lave been n a) Diib»oH V. Mefield v. Lo (ft) CnrrM V. (<■) Edmonds ' »• 296; ford (rf) Allan V. i ere be seen ! intended, ins of eject- frora which igainst the ) mortgagee avoided, for 'tgagor. A vhat he has might have Dion rent in 5 for volun- ling mines). tne measure IB mortgage f the mort- >le for rents f some im- gnee should ve received, For many allowed, as le the mort- at has been estate" (c).' or to insure, y premiums as a charge *"• ^r -> 214 OF ESTATES UPON CONDITION. and the mortgagee's right of entry will uccinie only on default (a). On default. 5. On default in the last instance the mortgagor becomes tenant at sufferance. Possessoiy C. If the duration of the intended demise be unceitain.or right on un- i i . i i certainty of couched m the shape only of a tieguhve covenant by the mere negative mortgagee, it has been said this will not operate as a valid the^mortgagee demise (b). Thus a mere covenant by the mortgagee that no en er. ^^ ^^^ ^£ non-payment on the da\' named he would not • enter till after a month's notice in writing, has been said to be invalid as a demise, on the double objection of want of certainty, and of affinnative language. And even though there were affirmative language giving to the mortgagor a possessory right, it will not avail unless the period for pos- session be fixed and certain; thus an agreement that the mortgagor might remain in possession till a month's notice in writing to quit after default, would not create a terra certain. Where, as is usual, the mortgage names a day for payment of principal money with intermediate days for pay- ment of interest, and a provision that till deffiult in payment the mortgagor may remain in possession, no objection can be made on the ground of want of certainty. Such pro- vision operates as creating a term till the day named for payment of the piincipal, with a cesser of the term on de- fault in payment of interest. A lease for ten years, if the lessee so long live, is a good lease. PoBsessoiy 7. If by the operation of an attornment clause, as before tornment. explained, the mortgagor should expressly become tenant to (a) WVkinsmi v. HaU, ,S Bing. X. C. 533 ; Ford v. Jones, 12 C. P. U. C. 358. See remarks under the sixth head. (6) See the notes to Keech v. Half, 1 Smith Lg. Ca. 8 eil p. SSO ; see also on the question as to certainty, Ashfovd v. McNaughten, 11 U. C. K. 171 ; Mc- Malion V. McFaul. 14 C. P. U- C. 433 ; KonUe v. Mai/bee, 23 U. C. K. 274; Side!/ V. Hardcastk, 11 U. C. K. 102; Copp v. ffolmeg, 6 C. P. U. C. 37" Bichardton v. Lamjridye, Tudor's Lg. Ca. 3 ed. p. 1.5, and cases there referrLii to ; see also a review of the cases in Royal Canadian Bank v. Kelly, 19 C. P. U. C. 196. i-ue only on gor becomes uncertain, or nant by the te as a valid rtgagee that ; would noi been said to of want of !ven though mortgagor a 'iod for pes- nt that the )nth's notice ?ate a terra es a day for ays for pay- in payment yection can Sucli pro- named for term on de- ^ears, if the B, as before le tenant to . P. U. C. 3M. iO ; Bee also on '. It. 171 ; Jiff U. C. K. 274; \ U. C. 37". there referr^jii ;/, 19 C. P. U, OF ESTATES UPON CONDITION. • 215 the mortgagee, either at will or from year to year, at a rent, then he will have the ordinary right to possession of any such tenant, except in so far as such right may be qualified by the mortgage itself in giving right to entry without notice on de- fault in payment, or non-observance of covenants. 8. Those cases where, as in the fourth and seventh instances On non-exe- cution by above, the proviso for possession is valid as a re-demise by mortgaRee of the mortgagee if the mortgage were executed by him, but if not so executed, might fail to create the term intended, as not being in compliance with the Statute of Frauds, or R. S 0. c. 98, s. 4.' ' It would seem that where the proviso for possession would give a right to possession exceeding three years, though sub- ject to earlier determination on default by the mortgagor, that non-execution by the mortgagee will cause the Non-execution . of mortgage proviso to be invalid to create the term, or nght to pos- by mortgagee, session intended (a) ; unless irfdeed the mortgage can operate to execute the term by way of use. Thus it may well be be'^exlcuted'by contended that on a mortgage in fee by way of release or Y^v °^ "f® »" o o J J favour of statutory grant, wherein the day for payment should be more mortgagor, than three years from execution of the mortgage, with a proviso for possession by the mortgagor till default, that it might operate to create a use for the term in the mortgagee for the mortgagor, which the statute would execute (6), and (o) Swittman v. Ambfer, 8 Ex. 72 ; Pitman v. Woodburu, 3 Ex. 4 ; Doe \ Light- foot, 8 :M. &\V. 553 ; Wilkinson v. Hall, 3 Bing. N. C, 533 ; Ford v. Jones, 12 C. P. U. C..358. See Trust and Loan Co. v. Laurason, argued iu Q. B., E.T., 1880, not yet reported. See Ante p. 206, note, a. {h) Morton v. Woods L. R. 3 Q. B. 658, per Blackburn, J.; in argument and judgment, see Simpson v. Hartman, 27 U. C. R. 460, wliere a mother seised in fee in consideration of five shillings and natural love, granted, bargained, and sold to her daughter, and her heirs, to their own use, for ever, " reserving, never thelessi.to my (the grantor's) own use, benefit, and behoof, the occupation, rents, issues, and profits of the above granted premises during my natural life." The Court .C(/nsi(lered that the fee passed to the grantee. The operation of the Statute of Uses was not alluded to ; and if it had been, it would seem that taking the conveyance to operate by way of grant (whatever might have been the case if it were to operate as a covenant to stand seized, or by way of bar- gain and 8al«), the use in favour of the grantor would still have been a use upon use, and so unexecuted by the statute, and a mere trust. This case, therefore, does not conflict with what is stated in the text 216 OF ESTATES UPON CONDITION. as to which the execution by the mortgagee would be imma- terial. If, however the conveyance should be unto and to the use of the mortgagee, or otherwise there should be a use on a use, or the mortgage were to a corporation, in whom no use can be executed, then no legal estate in the term would be executed for the benefit of the mortgagor (a).' ' Where the term intended to be created cannot be executed in the mortgagor under the Statute of Uses, and assuming, as would seem to be the case (b), that where it would exceed three years, the non-execution by the mortgagee would pre- vent its taking effect, the, clause as to possession would still be evidence of a tenancy at will : and if there be an at- tornment clause in the mortgage under which the mortgagor agrees to pay as rent sums equivalent to the interest, and oc- cupation subsequently by him, the position of landlord and tenant will be created at a rent, and the mortgagee can dis- train (c) : nor would it seem t® be necessary for such purpose that rent should theretofore have been paid qua rent (d). Probably, also, if rent were paid qua lent, witji reference to a year or aliquot part of a year, and there was nothing in the mortgage shewing that a tenancy at will only were intended, v/ a tenancy from year to year would be created (e).' Sub-lease by a 'If the mortgagor be tenant at will to the mortgagee, an tenanrit will, assignment or sub-lease Ijy the mortgagor, does not per se without notice to the mortgagee determine the tenancy (f). (tt) See Simpson v. Hartman, supvi. (fc) Ante note 6. (c) West V. Fritche, 3 Ex. 216 ; JMorton v. Woods, L. R. 3 Q. B. 658 ; P^oyal Canadian Bank v. Kelly, 19 C. P. U. C. 196, ante p. 206. See Trust and Loan Co. V. Laurason, ante p. 207, note. (ol) Per Blrckburn, J., in Jl/brtort V. Woods, supra. (e) See j4 n<« p. 169. {f) Pinhom v. Souster, 8 Ex. 763. Melting v. Leak, 1« C. B. 632, 66S. Richard- son V. Langridge, 1 Tud. Lg. Cases, 3rd ed. 20. The position of a tenant of a mortgagor, himself tenant at will to the mortgagee, seems to be involved in some obscurity. As a general rule a lessor being reversioner can treat the tenant of his tenant at will as a trespasser ; but there is a case " which gees so far aa to show that a mortgagor in possession, who is not treated by the mortgagee as a trespasser, may confer on his lessee the legal possession, although tie mortgage was in fee." Doe. d. Higginbotham v. Barton, 11 A. & E. 307. Jcmes v. Mc- Gibncy, 24 TT. C. R. 158, per Draper, C. J. See also Evans v. Mliott, 9 A. & E. 342, per Ld. Denman, C. J. is said . OF ESTATES UPON CONDITION. 217 lid be imina- unto and to uld be a use in whom no term would be executed d assuming, ould exceed would pre- ision would re be an at- 3 mortgagor -est, and oc- mdlord and Tee can dis- ich purpose la rent (d). •eference to Ming in the e intended, rtgagee, an not perse snancy (/"). eft. B. 658 ; pLoyat 'u»t and Loan ln< and tenants of tenants, and on default m payment, or otherwise, has become themurtgAgor, . 1 1 i i 1 • 1 1 1 • after the disentitled to the possession, the mortgagee may, by recogmz- mortgage, ing the possession of the tenant, preclude himself from being able to treat him as a trespasser ; and it is said he becomes tenant to the mortgagee on payment to him of the rent re- served by the mortgagoi- (a). But it would seem that the mere receipt of interest by the mortgagee from the mort- gagor will not amount to such recognition (b). The mort- gagee cannot without some assent of such tenant, express or implied, constitute him his tenant, and cause him to hold of him the mortgagee ; and without such assent evidencing a new tenancy between the mortgagee and the tenant, no "<* privity •' " •= between them. privity of estate exists between them, and the mortgagee would not, as in the case of a. tenant before mortgage, have the rights and remedies of the mortgagor to the rent (c). It is said " that in order to create a tenancy between the mort- gagee and the tenant let into possession by a mortgagor, there must be some evidence whence it may be inferred that such relation has been raised by mutual agreement, and that in such case the terms of the tenancy are to be ascertained (as in an ordinary case), from the same evidence which proves its existence : and where the tenant does consent to hold under the mortgagee, a new tenancy is created, not a con- tinuation of the old one between him and the mortgagor " ((/). It would seem however, that the consent must be of a (a) Keech v. JTall, 1 Smith, Lg. Ca. 8 ed., p. 578 ; Doe. d. Whitnker v. Hales, 7 Bing. 322. (b) Doe. d. Rogerg v. Cadwallader, 2 B. & Ad. 473 ; see how- ever, Evans v. Elliott, 9 A. & E. 342, per Denman, C. J. (c) Evans v. Elliott,. 9 A. & E. 342 ; Partington v. Woodcock, 6 A. & E. 690, per Patteson, J. id) Moss V. OulUmore, 1 Smith Lg. Ca., in notis 8th ed. p. 637. Of what nature would be the new tenancy between the mortgagee and tenant ? For inetance, if the demise from the mortgagor were by deed having more than three years to run with covenants to repair, or cultivate in a particular mode, and all that passed between the mortgagee and the tenant was a verbal consent under threat of eviction to hold of the mortgagee, on payment of the rent re- served by the old lease, it would seem that at most this could not create a greater interest than from year to year ; per Cockbum, 0. J., Carpenter v. Parker, 3 C B. N. S. 235. If so, would the terms of the old lease as to repairs and cultiva- tion govern and be incorporated into the new tenancy ? See ante p. 169. i^l ;? J 218 OF E8TATKS UPON tX)NDITION. How by act of distinct character to create such new tenancy, at least to have tenant inav bo the cfFcct of absolving the tenant from liability to pay the rent liability t<> to tho mortgagor reserved on the lease from him, when the mor ga^for. ^^pfj^j jj^a not been actually paid under some constraint to the mortgagee, and that mere consent alone to hold of the mort- gagee will not have this effect. Thus mere notice by the mortgagee to such a tenant will b(> no defence to nn action by the mortgagor either for it'ut due before or aftei' the no- tice. Tho ordinary principle as to a tenant is that he must pay rent, (^r for use and occupation, to tho person from whom he took, and cannot deny his landlord's right short of evic- tion, or what is tantamount to eviction V)y a title para- mount to the landlord, or payment under constraint of par- amount charges as rent charges, or other claims issuing out of the land (a) . Applying these principles to the case of the mortgagor's tenant on demise after mortgage, then it is clear if the tenant be rightfully evicted by the mortgagee and let into possession again on a new agrconiont between him and the mortgagee, that the old lease ceases : so also it would seem to be, (though it is by no means clear), if there be only a constructive eviction, as for instance a threat to evict, coupled with an attornment to the mortgagee as his tenant (6). And though there have been no eviction, either actual or constructive, and no attornment or new tenancy created between the mortgagee and the tenant, still payment to the former under constraint in discharge of his claims will be a good defence by the tenant in an action for the rent by the mortgagor (c). But as be .or-*, mentioned, Wf^re notice by the mortgagee to the tenant who becomes such after the mort- gage will not absolve the tenant from liability to his lessor for past or future rent ; and there has been some question as ('i) Notes to Lampleigh v. Brathwait ; Smith F^g. Ca/Sth ed. p. 177. (h) Doe d. Higginbotham v. Bartun, 11 A. & E. 315 ; Mayor of Poole v. Whitl, 15 M. & W. 571 ; but see the juc' ^ents in Delaney v. Fox, 2 C. B. N. S. 768 ; •Carpenter v Parker, .3 C. B. N. 8, 237. (c) Johnson v. Jomej, 9 A. & E. 809. See also Murdiff v. Ware, 21 U. 0. R.68. ast to have ay the rent when the aint to the ' the mort- tice by the 1 action by UP the no- %i he must rom whom rt of evic- title para- int of par- ssuing out the case of , then it is brjagee and iween him 50 it would re be only to evict, bis tenant her actual V created ent to the 3 will be a nt by the ice by the the mort- his lessor nestion as 177. w?e V, Whitt, i. N. S. 768 ; LU.O.R.68. OF ESTATE8 UPON CONDITION. 21!) to whether notice from the mortgagee, though couplod with payment of the rent, is any defence to an action by the inortgngor if the rent was overdue before notice given (a).' ' So far as regards tenants on a demi.sc from the mortgagor Position of 1 1 • 1 i. /• mortKagee and pnor to the mortgage, tlic mortgagee, snbject to the enectof tenant of a valid provison that till default the mortgagor may remain demiHe heforo in possession , or receive the rents and profits, occupies the '""'■'***^^- ordinary position of assignee of the reversion on a lease, and has th' same rights, remedies and liabilities as regards the lesse Attornment by the tenant to the mortgagee is not reqv... a.nd until the mortgagee interferes with the ten- ancy the tenant is safe in paying the rent to the mortga- gor (by 'it not unfrequently happens that the mortgagee permits Right of mort- the mortgagor to receive the rents, and does not in any waj' rente' interfere with the tenancy, and that the tenant omits to pay rent to either, the question then arises, how the mortgagor can enforce payment. It is clear that where there is no sub- sist m(j re-demise to the mortgagor, and the mortgagee is the reversioner, that the mortgagor is not entitled to sue or dis- train in his ov, XI name, and so no proceedings can be had un- less in the name of the mortgagee : recent ca.ses go to shew that under such circumstances as above, the mortgagor is " presumptione juris authorised," "if it should become necessary, to realize the rent by distress, and to distrain for it, in the mortgagee's name, and as his bailiff" (c) It is to be observed that those cases however, were cases in which there was no re-demise in the mortgage io the mortgagor, and from all that appears in them, there was no right to pos- session in the mortgagor. In any case in which there should •# § 5 H •«•# ,r.«* ■^3 -:•» •■»« -tm «.*«t|f «;S:' fe;r l» (a) Wilton v. Du7in, 17, Q. B. 29.5 : see also per Hagarty, J., in Fnxrhairn v. HiUiard , 27 U. C. R. Ill, and WaddUfive v. Rornel, 2 Bing. N. (J. 538. (b) 4 Anne, c. 16, h. 10 ; Trent v. Hunt, 9 Ex. 21. , per Alderson, B. (c) Trent v. Hunt, 9 Ex. 24, per Alderson B. ; Snell v. Finch, 13 C. B. N. S. 051 ; see also the Dean of Christchurch v. Duke of Buckingham, 17 C. B. N . S. 391, per WiUes, J. l^-' 220 OF ESTATES UPON CONDITION. fc mm Assignment of mortgage, mortgagor should join in. assignee takes subject to equities be- tween mortga- gi^e and mort- gagor. be a let^e at a rent, and then the lessor should mortgage his reversion with a re-demise to himself, then it would seem that during the right of a mortgagor to the pernancy of the profits, any distress for rent due from the tenant during such subsistence, should be by the mortgagor and in his name only. He would appear then to be the reversioner, not in- deed of the whole reversion, but of part, and so entitled to the rent and to distrain. If A seised in fee demise for a thousand years at arent, and,{)ending the lease, demise to B for five years, B becomes reversioner and entitled to the rent as to the first lease during the term granted to him, and instead of enjoying the possession of the land, he takes the rent («)• The position of B the second lessee, and of the mortgagor, in the case above put, appear in principle iden- tical.' ' To every assignment of a mortgage, the mortgagor, if possible, should be a party ; if not a party, he should at least recognize the existence of the mortgage debt, and if the mortgagee be in possession, assent to the transfer (6). The object of making the mortgagor recognize the mortgage debt as subsisting, arises from the fact that the assignee takes subject to all the equities and settlement of accounts between the mortgagor and mortgagee. Thus, if nothing weie ever due on the mortgage, or it were obtained by fraud and without copsideration, an assignee, though for value and without notice, would stand in no better position than the mortgagee (« if I 224 OF ESTATES UPON CONDITION. The Act as to ' The forms given in the Act respecting Short Forms of mortga^^^ **^ Mortgages differ occasionally from the most approved forms in England, and as they are at variance with some of the sug- gestions heretofore made, it may be requisite to consider tliem. The statute may be of service to the draftsman, and save expense in registry, but it is unfortunate that the all- important power of sale is not in better form, and attention must be paid to one or two inconsistencies, which will be presently pointed out. Considering the defective character of the power of sale, it would seem that a mortgagee will find it to his advantage to omit it, and so leave the mort- gage to the operation of the power of sale given by the Act of 42 Vic. before allued to (a).' Precautions as ' Great care is requisite if the short forms in column one forttir"^ ** are to be in any way varied from, to suit particular circum- stances. The Act provides that " parties may introduce into, or annex to any of the forms in the first column any express exceptions from or other express qualifications thereof re- spectively, and the like exceptions or qualifications shall be . taken to be made from or in the corresponding forms in the second column ; " if, therefore, the alteration be made in the language of the form, and it is not an exception or qualifi- cation within the above clause, then the particular covenant or clause will, it would seem, be without the Act, and left to the ordinary meaning of ths words used (b).' would be bound to indemnify his trustee against loss. Still the pecuniary posi tion of the person selected as trustee might not be such as that he cuuld suffer loss, and if he suffered no actual loss, he might be satisfied not to call on his cestui que trust to relieve him. The propriety of such a course it is for the par ties adopting it to consider. That such an assignment is not to be deemed fraudulent so as to be vacated by the lessor, see Woodfall L. and Tenant, 11 ed. pp. 2G2, 263 ; Rowley v. Adnms, 4 My. & Cr. 534. The mortgagor might also, if he were the original lessee and so always liable after assignment on his cove- nants, reasonably object to assign to a person who could nut indemnify him against non-performance of his covenants ; but if he were an assignee, such ob- jection would not hold, as after assignment his liability ceivses (a) AnU p. 200. (6) See remarks on the Act as to Short Forms of Conveyances, Leith Rl. Prop. SUts. p. 103, and Lee v, Lorsch, 37 U. C. K. 262. of the m OF ESTATES UPON CONDITION. 226 ■ It may be questioned whether the Act applies to leasehold The Act does interests, for though by a liberal construction the term fewef^it^. ** " real property " in the first clause might include chattels real, if aided by the context in the Act, the inference to be drawn from the context is the other way. The whole frame of the statutory form is applicable to a freehold interest only ; in clause 4 the word " lands " is made to extend to freehold interests oaly ; and there is the absence of any provision, as in the Act relating to short forms of leases, that " where the premises are of freehold tenure the covenants -ihall be taken to be made with, and the proviso for re-entry apply to, the heirs and assigns of the lessor, and where of a leasehold tenure to his executor'^!, !if'«n:anistrators,and assigns." lu strictness the term " real px'operty " does not include per- sonal property (a). It lias been held also that leaseholds will not pass under a general devise of " real estate " unless aided by other words (&). Till decision to the contrary, it would be advisable not to apply the Act to mortgages of leasehold.' ' Clause 2, it will be observed, does not extend to perform- CI. 2 does not ance of covenants, as for instance to keep up a life or fire fault in cove- 1,1, . , nanta, its ap- insurance, and repay the mortgagee any premiums he may plication as to pay on default of the mortgagor. Inasmuch as this clause applies at most only to payment of taxes till default in pay- ment of principal or interest, it would appear that under none of the ^orms would the mortgagor be liable to the mortgagee for taxes, &c., after default.' ' Notwithstanding that by clauses 3 and 4 the covenant for clauses 3 and payment is made to the mortgagee and his heirs, it is clear for^'pl'^rnent that the personal representatives will not be deprived there- toTefrs""* ^ by of their ordinary right to the moneys as being personalty, or of the right to sue for them in their own names. Assum- ing that the interest conveyed is one of freehold, then the (o) Williams Real Prop. 8th ed. p. 8. (b) Swift V. Swift. 1 D. F. & J. 160. J ^m- ■V. i |: I 226 OF ESTATES UPON CONDITION, word " heirs " is, as regards all the other covenants, the ap' propriate word, as such covenants (including perhaps that for insurance) run with the lands and go to the heir.' Clauses 7, 14 ' Clauses 7, 14 and 17, conflict with each other as to the and 17 conflict . , „ • /-.i ►, • i as to rigrht to right oi possession. Clause 7 gives the mortgagee right to should be ' possession in default of payment of principal or interest, and also apparently of taxes and statute labour : clause 14 gives the right only after default in payment of principal or in- terest, and then only after a certain written notice : clause 17, on the other hand, allows the mortgagor right to posses- sion till default of payment of principal or interest, or in observance of covenants. Thus the right of the mortgagee to possession is more extensive under the grant of the lands to him and of clause 17 negativing his right to possession, than under the positive eifect of clauses 7 and 14, giving him the right to enter. If these various clauses be used to- gether without any modification, as is probable, then it would seem that they may yet to a great extent be recon* ciled. Thus, suppose the covenant to insure be inserted, and default be made therein by the mortgagor, whereon the mort- gagee should bring ejectment : the mortgagor would con- tend that clauses 7 and 14, which give a right to the mort- gagee to enter do not extend to breach of covenant, and that clause 14 requires written notice to be given before entry. The proper answer of the mortgagee apparently would be, that the effect of the conveyance is to give him the imme- diate estate and right to possession ; that such effect is con- trolled solely by clause 1 7, which allows the mortgagor posses- sion only till breach of covenant ; that there is no other clause giving possession to the mortgagor, and consequently the general effect of the conveyance must govern : and so far as regards clauses 7 and 14, that they do not expressly negative any right the mortgagee otherwise has, nor do they positively confer any right to possession on the mortgagor : that clause 7 operates only as a covenant for quiet enjoyment against ants, the ap< perhaps that heir.' ;r as to the gee right to interest, and use 14 gives icipal or in- itice : clause ht to posses- iterest, or in e mortgagee of the lands possession, id 14, giving 1 be used to- ,ble, then it !nt be recon- nserted, and Dn the mort- would con- to the mort- int, and that efore entry. [y would be, I the imme- ifFect is con- 1 ;agor posses- other clause squently the | md so far as isly negative 3y positively : that clause lent against OF ESTATES UPON CONDITION. 227 interruption, not to come into operation on default of the co- venant to insure (to which it does not extend), but only on default in payment of the mortgage moneys, taxes or stat- ute labour, and " in the meanwhile, though the mortgagee is equally to have power to enter and enjoy the land, yet he must content himself with his own title against interruption by strangers there being no covenant by the mortgagor to protect him during that period ; whereas if he be disturbed after default in the covenant to insure he may have recourse to his remedy on the covenant" (a). Clause 14 is capable, perhaps of a somewhat similar construction ; at any rate it would seem that on breach of the covenant, the mortgagee might eject, though no default were made in the payment of the mortgage moneys, taxes or statute labour.' ' Clause 9, being the covenant for further assurance, is made Cl. 9, objec- to operate only after default ; in this respect it is " objec- too limited, tionable, as it might well happen that some act for further assurance might be required to be done before default " (6). It need hardly be mentioned that, so long at least as the equity of redemption subsists, the mortgagor cannot under this covenant be required to convey except subject to the proviso for redemption ; nor can he be required after de- fault to release his equity of redemption.' ' Clause 10, that the mortgagor will produce title deeds, is Cl. 10 shou-d " " f ' not be adopt- a clause which, without some explanation, might strengthen ed. a practice unfortunately once too prevalent, viz., that the title deeds may be left in the hands of the mortgagor. This should never be permitted, if only (apart from other reasons) on the ground of the frequent impossibility of ever afterwards obtaining any production of the title deeds. (a) Doe d. Roylanee v. Lightfoot, 8 M. & W. 553, in which case there was no right to posseaaion given to the mortgagor, but the covenant for poasesaion was that after default the mortgagee might enter, poaaess, Ac. ; the question was wb 'bur the mortgagee had right immediately on execution of the deed, or only after the default— aeo ante p. 213. (6) Davidson Conv. 3 ed. vol. 2, 659. i 1 228 Cl. 12 as to insurance. OF ESTATES UPON CONDITION. and the consequent depreciation in the value of the pro- perty, and difficulty in carrying out a sale. When the mortgagor makes default, and the mortgagee proceeds to enforce his claim by foreclosure or sale, an hostility fre- quently springs up, and the mortgagor, so far from pro- ducing the title deeds, does all in his power to thwart the mortgagee. The remedy on the covenant will frequently be found useless, and when a foreclosure or sale- has to be resorted to, the mortgagor is generally in such circumstances that, on a sale, any proceedings on the covenant to produce, only entail expense on the mortgagee, and on a foreclosure any order for delivery up of the title deeds might be of no avail. The form may be of service where the title deeds cover other property to be retained by the mortgagor and not included in the mortgage ; or where the mortgagor has sold part of the property covered by the title deeds, and himself given his vendee a covenant to produce. Even in these cases a prudent mortgagee will obtain possession of the title deeds to himself, or at least to some trustee for both parties. When the mortgagor objects on the ground that the deeds cover other property, the mortgagee may himself offer to covenant to produce ; and when the objec- tion is that the mortgagor has covenanted to produce to a former purchaser, the mortgagee may urge that the cove- nant would also be binding on him during the continuance of his estate as running with the lands (a).' ' Clause 12. The nature of the covenant to insure has been already considered (6). It will be observed that the statu- (a) Sugden Vendors, 14 ed., 4.'53. It must not be supposed that the facto! a vendor having given a covenant to produce on sale of part of the property, en titles him, on sale of the residue, to retain the title deeds to answer hii covenant ; in the absence of any contract on the subject, it would seem he will have to deliver them ovA- to the purchaser of the residue ; he can neither retaio them or deliver them to the first purchaser. The vendor would, however, in such a case be entitled tp have the covenant recited in the conveyance of the residue, or endorsf^d un it, so as to create notice, and might fairly require i covenant from the purchaser to perform it : Sugden Vendors, 14 ed. 434. (6) Ante p. 196. OF ESTATES UPON CONDITION. 22ft tory form is framed rather to meet the case of a future than of an existing insurance. If at the time of the mortgage there be a policy of insurance, and the same be not actually assigned to the mortgagee, it may be questionable how far this clause will be of any avail to him as regards that speci- fic policy, as the mortgagor only covenants to insure "unless already insured ; " and so far as regards that part of the covenant which is to keep insured and assign the policy it may be contended it does not apply to the case of a policy existing at the time of the covenant, as the covenant con- templates a future policy in such proportions and in such office as the mortgagor thereafter may require (a).' ' Nothing is said in this form as to how the insurance moneys that may be paid on any loss are to be applied (6) ; clause 14, it is true, does provide to a certain extent for application of the moneys, but it would seem not to reach the case of in- ^ surance moneys received before default by the mortgagor, but is apparently confined to the position of the mortgagee after sale under the power.' ' Clause 14 conferring the power of sale and providing for qi ^4^ the application of moneys is one which varies much from the ^y"* framed, modern approved forni.s. The objection will be understood from what has been before explained in treating of the power of sale (c). It conflicts apparently as regards right to possession with clauses 17 & 7 [d). It does not extend to breach of covenants as do those clauses. The power should clause 14. be given to the personal, not to the real representatives (e). ^ail. ^*'^*' °^ It should not be dependant on notice, but the provision as to notice should be by a covenant by the mortgagee that notice shall be given ; and the purchaser should be expressly relieved from any necessity as tc seeing that notice was 1 I 4-«..,„ 3 (o) But gee Green v. Hewer, 21 C. P. IT. C, .540, per Gwynne, J. See the R. S. 0. c. 136, s. 12, ante p. 199, containing f^rovisions in favour of a mortgagee. (b) As to necessity for this see ante p- 198 ; Awtin v. Story, 10 Grant 306. (c) Ante p. 200. (d) AnU p. 226. (e) Ante p. 201. «i M 230 OF ESTATES UPON CONDITION. given (a). There is no power to the mortgagee to buy in at auction and re-sell without being responsible for loss or defi- ciency on re-sale (b) ; or to rescind or vary any contract of sale that may have been entered into : or to sell under spe- cial conditions of sale (c) (the latter, however, may be per- missible when the conditioas are not of a depreciatory character). The application of insurance moneys is not suffi- ciently provided for ; nor would they be received by the heirs (as assumed by the clause), but by executors, if payable to any representatives of the mortgagee. The sui-plus of sale should not be made payable exclusively to the personal repre- sentatives, for on sale after death of the mortgagor, the heirs are entitled to the surplus (d) ; in this respect the form might mislead the mortgagee to his prejudicie. There is no clause relieving a purchaser from seeing that default was ^ made, or notice given, or otherwise as to the validity of the sale ; the importance and benefit of which to the mortgagee, and even to the mortgagor, was before alluded to (e). The provision that the giving the power of sale shall not pre- judice the right to foreclose is unnecessary (f).. It is per- haps to be regretted that a better form of power of sale had not been adopted (//).' (a) Ante p. 202. (6) Jarman Byth. Con. by Sweet 3 ed., vol. 5, p. 567, n. 6, and p. 412 ; see also aiUe p. 203, n. c. (f) As to the object of these pro- visionB, gee p. 203, n. c. ( to buy in at loss or defi- contract of under spe- may be per- lepreciatory is not suffi- v^ed by the i, if payable ■plus of sale sonal repre- or, the heirs ;t the form There is no lefault was idity of the mortgagee, ;o (e). The all not pre- . It is per- of sale had vol. 5, p. 567, 3t of these pro- 13. by the statute, Ilia is found tu dave to be pre- sire to adopt a lora is to add a ir piincipal or f sale may be y be varied Or being respon- ^, if thought )in seeing that ) regularity of OP ESTATES UPON CONDITION. 231 ' Clause 17. The inconsistency as to right to possession be- ^ ^^ ^ j,, tween this section and sections 7 & 14 has been before al- ^.^n^cts"'^ luded to (a). It would seem that this section is not open to v.iUi^clause^ the objection of being invalid for the purpose intended ; viz. to operate as a redemise to the mortgagor, or of operating further than as creating tenancy at will. The nature of this objection has been fully explained (b) : it suffices here to say that the argument in favour of the objection would be, that, as the right of possession and demise to the mortgagor is till default in payment of principal, or interest, or in observing covenants, the demise is void for uncertainty as to the term of its duration. It is apprehended however, that, though such objection would hold good if the right of possession were given only till default in observing covenants, and the cov- enants or any of them were uncertain in their nature as to the time of their performance or of breach, still, as in this section, a certain day is named for payment of principal, it will operate as a valid demise and creation of a term till that day, subject to be defeated in the meantime on non-observ- ance of covenants or non-payment of interest (c).' ('0 Ante p. 226. (6) AnU p. 213. (c) Ante p. 213 ; and Royal Canadian Bank V. Kelly, 19 C. P. U. U. 196, ante p. 206. iiiiip. o.^x • S. 163. Estates in pos- segsion. CHAPTER XII. OP ESTATES IN POSSESSION, REMAINDER, AND REVERSION. * Hitherto we have considererl estates solely with regard to their duration, or the quantity of interest which the owners have therein. We are now to consider them in ano- ther view ; with regard to the time of their enjoyment, when the actual pernancy of the profits (that is, the taking, per- ception, or receipt, of the rents and other advantages arising therefrom) begins. Estates, therefore, with respect to this consideration, may either be in possession or in expectuncy: and of expectancies there are two sorts ; one created by the acts of the parties, called a remainder ; the other by an act of law, and called reversion (a). I. Of estates in possession (which are sometimes called estates executed, whereby a present interest passes to and re- sides in the tenant, not depending on any subsequent cir- cumstances or contingency as in the case of estates ear tory), there is little or nothing peculiar to be obsei ved. the estates we have hitherto spoken of are of this kind ; foi, in laying down general rules, we usually apply them to such (a) The learned commentator clasaes all remainders, contingent as wellu vested, imder the head of estates ; and (s. 169) speaks of a contingent remainder as an estate. A contingent remainder is, however, perhaps hardly entitled to be advanced to the dignity of an estate : it is a mere possibility which, when the person is fixed and ascertained, is coupled with an interest: it gives no estate in the land, and would appear to be more properly defined as an interest in thi; land. See 1 Preston Estates, pp. 75, 62, 88. If a contingent remainder is to be considered an estate in expectancy, then every ptossibility coupled with an in- terest, or even a mere possibility (as on a limitation to the sun'ivor of several), would seem to stand on the same footing. So little does the common law regard a contingent remainder as an estate, or in any other light than as a mere right, that it refused to recognise the validity of its alienation to a stranger (post e. 290). See also TVmg, El. Prop., 5 ed., p. 242 : " A contingent remainder is no estate, it is merely the chance of having one." EVERSION. with rogard ' which the hern in ano- iment, when taking, per- .ages arising ipect to this expectancy: ated by the sr by an act bimes called is to and re- sequent cir- bates ear served. s kind ; fui, liem to such ;ent as well as gent remainder rdly entitled to ty which, when gives no estate 1 interest in the aainder is to be ed with an in- vor of several), non law regard 8 a mere right, tranger (puxtt. emainder is no i|< -i • 3. 164. OF ESTATES IN POSSESSION. 238 estates as are then actually in the tenant's possession. But the doctrine of estates in expectancy contains some of the nicest and most abstruse learning in the English law. These will therefore require a minute discussion, and demand some de^ee of attention. II. An estate, then, in remainder may be defined to be, an Estate in re- mainder. estate limited to take effect and bo enjoyed after another estate is determined. *A8 if a man seised in fee-simple granteth lands to A. for twenty years, and, after the deter- mination of the said term, then to B. and his heirs forever : here A. is ttimnt for years, remainder to B. in fee. In the first place, an estate for years is created and carved out of the fee, and given to A. ; and the residue or remainder of it is given to B. But both these interests are in fact only one estate ; the present term of years and the remainder after- wards, when added together, being equal only to one estate in fee. They are indeed difierent parts, but they constitute only one ivhole ; they are carved out of one and the same inheri- tance : they are both created, and may both subsist, together ; th ,iiic )Ssession, the other in expectancy. So. if land ^Tunted to A. for twenty years, and after the determina- lion of tho d term to B. for life ; and after the determina- tion of B.'s estate for life, it be limited to C. and his heiis foj ver; this makes A. tenant for years, with remainder to B. for life, remainder over to C. in fee^ Now, here the estate of inheritance undergoes a division into three portions. There is first A.'s estate for years carved out of it ; and after that B.'s estate for life ; and then the whole that rcijmins is limited to C. and his ' turs. And here also the first estate, and both the remainders, for life and in fee, are one estate only ; being nothing but parts or portions of one entire in- heritance : and if there were a hundred remainders, it would still be the same thing ; upon a principle grounded in mathe- matical truth, thai all the parts are equal, and no more than equal, to the whole. And hence also it is easy to collect, •-.; -•••il 234 OF ESTATES IN POSSESSION. u if ^.1 that no remainder can,' by common law conveyance,' be limit- ed after the grant of an estate in fee-simple; because a fee- simple is the highest and largest estate that a subject is capable of enjoying ; and he that is tenant in fee hath in him the whole of the estate : a remainder, therefore, which is only a portion, or residuary pari, of the estate, cannot be reserved after the whole is disposed of. A particu far estate, with * S. 165. all * the remainders expectant thereon, is only one fee-sim- ple ; as 40^. is part of lOOZ., and 60^. is the remainder of it : wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than after the whole 1001. is appropriated there can be any residue subsisting. Kules to be ' It must be borne in mind that the above statement that served in crea- . ■■ i t -i. j i? • i i .i i? n tion of re- HO remainder can be Innited on a tee simple, and the follow- otherwise than ing remarks apply to estates created by conveyance oporat- iJses'or by °^ ^"S ^^^Y ^^ ^^ common law, and not under the Statute of WiUk. Uses, nor to those created by will. Wills and springing ^.nd I shifting uses are not fettered by the following common law rules. Thus much premised we shall be the better enabled to comprehend the rules that ai"e laid down by the common law to be observed in the creation of remainders, and the rea- sons upon which those rules are founded.' ' Some estate I. And, first, there must necessarily be some paiticular called the "par- estate, precedent to the estate in remainder. As, an estate icu at es a e. £^^. years to A., remainder to B. for life ; or, an estate for life to A., remainder to B, in tail. This precedent estate is called the particular estate, as being only a small part, or parti- cula, of the inheritance ; the residue or lemainder of which is granted over to another. The necessity of creating this preceding particular estate, in order to make a good remain- der, arises from this plain reason ; that rf*nainder is a rela- tive expression, and implies that some part of the thing is previously disposed of : for where the whole is conveyed at once, there cannot possibly exist a remainder ; but the inter- est granted, whatever it be, will be an estate in possession OF ESTATES IN POSSESSION, 235 An estate created to commence at a distant period of time, without any intervening estate, is therefore properly no re- mainder ; it is the whole of the gift, and not a residuary part. And such future estates ' could at common law,' only be made of chattel interests, which were considered in the light of mere contracts by theancientlaw, to beexecuted either DOW or hereafter, as the contracting parties should agree ; but an estate of freehold must ' except by way of remainder, or executory devise, or by conveyance under the Statute of Uses, have been created to commence in^mediately. For it is an ancient rule of the common law that an estate of free- hold cannot be created to commence infuturo (a), but it ought to take etFect presently, eitherinpossessionorremainder: because at *common law (befoie 14 & 15 Vic. c. 7, R. S. O. c. 98, s. 2.), no freehold in lands could pass without livery of seisin ; which must operate either immediately, or not at all (6). It would therefore have been contradictory, if ar estate which was not to commence till thereafter, could have been granted by a conveyance which imported an immediate pos- session. Another reason sometimes assigned, was, that the freehold should not be placed in abeyance, the doing which, inasmuch as certain real actions had to be brought against the tenant of the freehold, would have led to the inconven- ience, whilst the freehold is in abeyance, of there being no An estate of freehold to aommence at a future period, without any intervening estate, is no remainder, and could not be at common law. (n) The dictum of Maule J., in Doe v. Prince, 20 L. J. C. P. 223 must not be taken as implying that since the R. S. O. c. 98, s. 2, by which the immediate freehold lies in grant as well as in livery, an estate of freehold not to take effect immediately can be granted by force of that Act. In that case (to put it »hort!j ) the words were " in consideration of love, Ac. , I grant to, &c. , and that he is to take possesBion on Michaelmas Day next." It was contended that the 236 31 •«• OF ESTATES IN POSSESSION. tenant of the freehold against whom to bring the action : again, if the freehold could have been placed in abeyance, there would have been no feudal tenant to perform the feu- dal duties. Therefore though a lease to A. for seven years, to commence from next Michaelmas, is good ; yet a convey- ance ' not operating under the Statute of Uses,' to B. of lands, to hold to him and his heirs forever from the end of three years next issuing, is void(tt). So that when it is intended to grant an estate of freehold ' independently of the Statute of Uses, by way of remainder,' whereof the enjoyment shall be deferred till a future time, it is necessary to create a pre- vious particular estate, which may subsist till that period of time is completed ; and (before the freehold in lands lay in grant as well as in livery, R. S. O., c. 08), for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be giving possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A. for three years, with remainder to B. in fee, and makes livery of seisin to A. ; here, by the livery, the freehold is immediately created, and vested in B., during the continuance of A.'s term of years. The whole estate passes at once from the grantor to the grantee, and the rer^ainder-man is seised of his remainder at the same (a) See ante, s. 165, n. a. , as to grant of immediate freehold tn futuro. It was alHo before stated in the text that " at common law no freehold could paBs without livery of seisin, which must iterate either immediately or not at all." 'llie editors have not presumed to qualify the statements in the text, as they have been retained in all editions. It is submitted however, on the authorities hereinafter referred to, that some qualification is requisite. Thus, in Nolan v. v. Fox, 15 C. P. U. C. 575 that a deed of feoffment dated the 27 tb to hold from the 30th day of March " might if executed on the day of date, and livery of seisin given on that day, be void ; yet if it was not"executed until after the day whereon it was to begin to operate, or if livery was not delivered till after that day, then it would be good," referring to the Touchstone, 219-251. See also Co. Litt. 48 6. n. 1., to the same effect. See also Go. Litt, 49 a n. 1, that if A. makes a lease for years to B., and afterwards a charter of feoffment to him, being in possession, with letter of attorney to deliver seisin ; before livery he may use the deed as a confirmation in fee, and after livery as a feoffment" OF ESTATES IN POSSESSION. 237 ihe action: abeyance, ■ra the feu- m years, to a convey- B. of lands, id of three ntended to Statute of mt shall be Bate a pre- it period of mds lay in grantor to tenant of be giving ind that of ite in law. remainder ere, by the ested in B., rhe whole ■antee, and the same in futuro. It old could pass or not at all." ! text, as they he authorities 9, in Nolan v. 1 the 27th to ' of date, and ited until after >t delirered tilt (, 219-251. See 19 a n. 1, that f feoflFment to ; before livery ft feoffment" time that the termor is possessed of his term. The enjoy- ment of it must indeed be deferred till hereafter ; but it is to all intents and purposes an estate commencing in prce Mnti, though to be occupied and enjoyed in futv,ro. ' And here the attention of the reader is directed to the * S- '^^• fact, that he may frequently observe herein that a particu- The rules of Iftw soiTiBMincs lar state of the law still continues as law, although the reiiiain,though , 1 ., ■ • 11 >• 1 1 1 the reason on grounds or reasons whereon it was originally founded, have which founded ,,•1.. , . .1 . 1, "ij have ceased. by legislative enactment or otherwise ceased to e^ist, and that the maxim " ceasante ratione ceasat et ipsa lex," does not apply. Thus the principle on which it was first estab- li.shed that no freehold estate could be created by deed, to take effect in futuro, viz., that there was a necessity for immediate delivery of seisin, no longer holds good, since by R. S. 0. c. 98, corporeal hereditaments, so far as regards the immediate freehold thereof, lie in grant as well as in livery ; and, independently even of the aid of the Statute of Uses, Under Stat, of TTfiriR ATI 6Sfiftti6 which will presently be alluded to, lands can be conveyed of freehold can • , 1 ill- ■ Ai he created in Without actual possession accompanying the conveyance ; f„(aro. still the rule of law holds good as firat established that no immediate freehold estate can be created by deed to com- mence in futuro. This, however, m\ist be understood as referring to a deed operating as a common law cotxveyance, by transmutation of possession, as a feoffment, or release (see s. 310), because it will be seen (s. 334) that bj' the aid of the Statute of Uses an immediate estate of freehold can be created by deed, to take effect in futuro. Thus A., for suf- ficient consideration, can bargain and sell to B., to hold to ^ him and his heira after the expiry of three years, or on the happening of a future event ; and so also covenant to stand seised to the use of B. ani his heirs on such event or expiiy. In these instances, howevei", the estate limited to B. and hi.i heirs is granted and created ns a future estate, hy way of futuH) or springing use, to take effect on the happening of the future events the freehold in the meantime remaining if i ( .<'i}- ■'< II 11 238 OF ESTATES IN POSSESSION. I in A. ; and when the event happens, the bargainor or cove- nantor holds for the benefit or use of the bargainee or cove- nantee, and on this the statute immediately executes the itse, and transfers to the latter the legal estate in possession in fee simple. Such an estate is not limited or created hy tvay of remainder, and therefore its creation or existence does not conflict with the rules herein laid down as against re- mainders ; for the freehold is at no time in abeyance, no estate even passes from the conveying party till the given event happens : and when it does happen, what has been called the magic effect of the statute supplies the place of livery of seisin, and the bargainee or covenantee is assumed to be in possession ; s. 333.' What estate As no remainder can be created without such a precedent remtdnder.'^ * particular estate, therefore the particular estate is said to support the remainder. But a lease at will is not held to to be such a particular estate as will support a remainder over. For an estate at will is of a nature so slender and precarious, that it is not looked upon as a portion of the in- heritance ; and a portion must firsf. be taken out of it, in order to constitute a remainder. Besides, if it be a freehold remainder, livery of seisin must ' at common law have been' given at the time of its creation ; and the entry of the S. i£7. grantor to this determines the estate at will *in the very instant in which it is made ; or if the remainder be a chattel interest, though perhaps the deed of creation might operate as a future contract, if the tenant for years be a party • to it, yet it is void by way of remainder ; for it is a sepa- rate independent contract, distinct from the precedent estate at will ; and every remainder must be part of one and the same estate, out of which the preceding particular estate is taken. And hence it is generally true, that if the particular estate is void in its creation, or by any means is defeated afterwards, the remainder s\ipported thereby shall" be de- feated also : as when the particular estate is an estate for OF ESTATES IN POSSESSION. 239t' or or cove- se or cove- tes the n which it therefore a may never re A. Nor to A. were particular lot come to )f that par- n to whom amount to ars, or any IS if land be I fee to the right heirs of B., this remainder is void : but if granted to A. for life, with a like remainder, it is good. For, unless the freehold passes out of the grantor at the time when the remainder is created, such freehold remainder is void : it cannot pass out of him, without vesting somewhere, and in the case of a contingent remainder, it must vest in the particular tenant, else i^' can vest no where : unless there- fore the estate of such particular tenant be of a freehold nature, the freehold cannot vest in him, and consequently the remainder is void. Contingent remainders might be defeated at common law Defeated by (now varied by R. S. O. c. 95) by destroying or deter- particular" ° mining the particular estate upon which they depend, before ®^***''' the contingency happens whereby they become vested. Therefore when there was a tenant for life, with divers re- mainders in contingency, he, at common law, might, not only by his death, but by surrender, merger or forfeiture, destroy and determine his own life-estate, before any of those re- mainders vest : the consequence of which was that he utterly defeated them all. As, if there be tenant for life, with re- mainder to his eldest son unborn in tail, ' with remainder to A. in fee,' and the tenant for life, before any son is born, surrender 'this life- estate' to A., or take from A. a convey- ance of the fee, he by that means defeated the remainder in tail to his son : for his son not being in esse, when the par- ticular estate determined ' by merger in the fee,' (a) the re- mainder could not then vest ; and, as it could not vest then, by the rules before laid down, it never could vest at all. In these cases therefore it was necessary to have trustees ap- Trustees to pointed to preserve the contingent remainders ; in whom tingent re"-'' there was vested an estate in remainder for the life of the '"*"' ^'^' tenant for life, to commence when his estate determined. If therefore his estate for life determined otherwise than by 3 5 •>•»' tmt ■J i(«) As to merger, see post. s. 177. 244 OF ESTATES IN POSSESSION. 4 Strict settlo- ment. his death, the estate of the trustees, for the residue of his natural life, would then take effect and become a particular estate in possession, sufficient to support the remaindei*s de- pending in contingency. ' A atnct settlement is framed with regard to the above ; thus, lands are limited to A. for life, with remainder to trus- tees, during the life of A., to take effect immediately on the determination, in A's. lifetime, of that estate, by surrender or otherwise, with remainder after the death of A., to his 9 first and other sons st the la'v considers it in the light of a virtual surrender of the inferior estate. But, in an estate tail, the case is otherwise ; the tenant for a long time had no powei' at all over it, m as to liar or ^o destroy it ; and now can only do it by certain special modes (a) : it would therefore have been strangely improvident, to have permitted the tenant in tail, by pur- chasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue ; and hence it has be- come a maxim, that a tenancy in tail, which cannot bo surrendered, cannot also be merged in the fee. 'On pui'chase of reversionary interest.^ and on dealings with expectant heirs a court of equity would foi'uierly 251' Must meet in the same right. Exception- as to merger when estate- tail and rever- sion in fee meet. • S. 179. ;5 :3 Purchaser of reverHion must }{ive reason- (a) Gh. 23. m* 4|K • 252 OF ESTATES IN POSSESSION. able value, or have relieved such persons from a disadvantageous bar- anide in equity, gain ; on the principle that persons standing in such a position needed protection in dealing with their interests with designing men against the consequences of their own improvidence, and that they generally deal on unequal terms with the other party, and mostly under pressure, and in difficulties. The general rule was that it was incumbent oa the purchaser to shew on a bill filed to rescind the transaction, that it was reasonable, or the price given adequate or reason- able, if not the full value : we cannot here enter into the question as to what would be considered a reasonable trans- action or adequate price, and moreover each case must de- ])end much on its own circumstances ; the subject is also fully discussed elsewhere (6). The rule under consideration R. S. 0. c. 95, applied until recently in Ontario, but now by the R. S. 0, c. 95, ss. 5 and 6, it is enacted that on any attempt to set aside a sale for undervalue made before the 4th of March, 18C8, the onus of proof as to value shall lie upon the plaintiff, and bona fide purchasers without fraud after that date are not to be disturbed on the ground of undervalue. (a) Earl oj Cheaterficld v. Jannscn, 1 W. & T. Lg. Cases, 428 ; Salter v. Brad- nhaw, 5 Jur. N. S. 831 ; Bromley v. Smith, lb. 833. (6) Jilorei/ V. Totten, C Grant, 176. ageous bar- in such a ir interests f their own lequal terms lure, and in cumbent on transaction, .6 or reason- ter into the nable trans- se must de- fect is also onsideration 18 R. S. 0, c, ) to set aside Vlarch, 18G8, plaintiff, and date are not Salter v. Brai CHAPTER XIII. OF ESTATES IN SEVERALTY, JOINT TENANCY, COPARCENAUY, AND CPMMON. *\\e now come to treat of estates, with respect to the » s. 17!>.. number and connexions of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four dif- ferent ways : in severalty, in joint-tenancy, in coparcenary, and in common. I. He that holds lands or tenements in severalty, or is sole i. of estates tenant thereof, is he that holds them in his ow:i right only, "^ ^®^^™ *y- without any other person being joined or connected with him in point of interest during his estate therein. This is the most common and usual way of holding an estate ; and therefore ve may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter ; that there is Uttle or nothing peculiar to be remarked concerning it, since ail estates are supposed to be of this sort, unless where they are expressly declared to be otherwise ; and that in laying- down general rules and doctrines, we usually apply them to such estates as are held in severalty. We shall therefore proceed to consider the other three species of estates, in which there is always a plurality of tenants. 'It may be mentioned ^y ^ g q at the outset, that in this Province, so far as regards the ere- iJ'^%\J^^ ation of estates in ioint tenancy and tenancy in common, in pant«'ea, &c., J J J ' taken as ten- one respect a different rule prevails from that existing at -'-^^^ »" com- comrnon law, of which Mr. Justice Blackstone speaks ; forsiuce the 1st July, 1834, two or more grantees or devi- 254 '1 II. Of estates in joint-ten- . ancy. * S. 180. OF ESTATES IN SEVERALTY. sees taking togetlier, will be deemed to take as tenants in coram )n, and not as joint tenants, unless an intention suffi- ciently appear on the face of tlie instrument under which they take, that they shall take as joint tenants (R. S. 0. c. 105, s. 11). Trustees and executors are excepted by the statute; the reason being that it is more convenient in their cases, and more in accordance with the personal nature of the of- fice, that the estate should vest in the survivor only. Joint mortgagees, though in one sense trustees for the mortgagor subject to their own lien, are not trustees within the above section so as to take as tenants in common.' *II. An estate in joint-tenancy is where lands or tene- ments are granted to two or more persons as trustees or ex- ecutors, or with intent apparent on the face of the instru- ment that they shall take as joint tenants, (R. S. 0. c. 105), to hold in fee-simple, fee-tail, for life, for years, or at will. In consequence of such grants, an estate is called an estate in joint-tenancy, and sometimes an estate in jointure, whicli word, as well as the other, signifies a union or conjunction of interest ; though in common speech the term jointure h now usually confined to that joint estate, which, by virtue of the statute 27 Hen. VIII. c. 10, ' may be ' vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower. In unfolding this title, and the. two remaining ones, in the present chapter, we will fii-st enquire how these estates may be created ; next, their properties and respective incidents ; and lastly, how they may be severed or destroyed. ' Before continuing the text of Sir W. Blackstone, we may mention that, by ignorant conveyancers, an attempt is some- times made to create a joint tenancy in fee by limiting the estate to the grantees and the survivors and survivor of them and the heirs of the survivor ; this gives the grantees only life interests with a contingent remainder in fee to the sur- vivor. This is not a joint tenancy in fee carrying with OF ESTATES IN SEVERALTY. 255 i tenants in ention suffi- inder which S. 0. c. 105, the statute ; their cases, s of the of- 3nly. Joint mortgagor 1 the above ds or tene- stees or ex- the instru- . 0. c. 105), i, or at will. an estate iii ture, whicli conjunction jointure is [i, by virtue Bsted in the 'faction and ones, in the astates may incidents ; I ne, we may ipt is some- miting the v'or of them intees only to the sur- •ying with it as an incitient the right of any gi-antee, to destroy the right of survivorship and convert the joint tenancy into a tenancy in common with its incidents. The pro- per mode of creating a joint tenancy is simply to add to the names of the grantees, and words of limitation (if any), the words " as joint tenants " : though even this is unne- cessary in the case of grant to trustees or executors as such.' 1. The creation of an estate in joint- tenancy, depends on the wording of the deed or devise, by which the tenants claim title : for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of the law\ If, ' i)rior to the Provincial statute re- ferred to,' an estate ' wei-e ' given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate ' were ' granted to A. and B. and their heirs, this at common law made them joint-tenants in fee of the lands. For the law interpreted the grant so as to make all parts of it take effect, which can only be done by creat- ing an equal estate in them both. As therefore the grantor has thus united their names, the law ' gave ' them a thorough union in all respects. For, 2. The properties of a joint estate are derived from its unity, which is fourfold ; the unity of interest, the unity of /(//(', the unity of time, and the unity of j^ossession ; or, in other words, joint tenants have one and the same interest, accruing by one and the same conv.'yance, commencing at one and the same time, and held by one ami the same undi- vided possession. *First, they have one and the same interest. One joiul- tenant cannot be entitled to one period of duration or quan- tity of interest in lands, and the other to a different; one cannot be tenant for life, and the other for years ; one can- not he tenant in fee, and the other in tail. But if lands ' were ' limited to A. and B. for their lives, this ' made ' them joint tenants of the freehold ; if to A. and B. and their heirs, joint- 1. The crea- tion of this es- tate dejjendH on the wonl- ing of the in- strument. 2. Its proper- ties are deri- ved from— •S. 181. Unity of in- terest ; I* .3' 250 OF ESTATES IN SEVERALTY, Unity of limf ; and 91 ^•.•. tenants of the inheritance. If lands ' were ' granted to A. and B. for their lives, and to the heii-s of A., here A. and B. ' were ' joint-tenants of the freehold during their respective lives, and A. 'had the remainder of the fee in severalty; or if lands 'were given to A. and B., and the heirs of the body of A. ' : here both ' had ' a joint estate for life, and A. a sev- eral remainder in tail. Secondly, joint-tenants must also Unity of ^7/e ; have a unity of title : their estate must be created by one and the same act, whether legal or illegal ; as by one and the same gi'ant, or by one and the same disseisin. Joint-ten- ancy cannot arise by descent or act of law ; but merely by purchase, or acquisition by the act of the party : and, unless • that act be one and the same, the two tenants would have different titles ; and if they had different titles, one might prove good and the other bad, which would absolutely des- troy the jointure. Thirdly, there must also be an unity of time; their estates must be vested at one and the same pe- riod, as well as by one and the same title. As in case of a present estate made to A. and B. ; or a remainder in fee to A. and B. after a particular estate ; in either case A. and B. are joint-tenants of this present estate, or this vested re- mainder. But if, after a kase for life, the remainder be limited to the heirs of A. and B. ; and during the continu- ance of the particular estate A. dies, which vests the re- mainder of one moiety in his heirs ; and then B. dies, whereby the other moiety becomes vested in the heir of B. Now, A.'s heir and B.'s heir are not joint-tenants of this re- mainder, but tenants in common ; for one moiety vested at one time, and the other moiety vested at another. * Yet where a feoffment was made to the use of a man, and such wife as he should afterwards marry, for term of their li . es, and he afterwards married ; in this case it seems to have been held that the husband and wife had a joint-estate, though vested at different times : because the use of the wife's estate was in abeyance and dormant till the intermar- •S. 182. OF ESTATES IN SEVERALTY. 267 I to A. and A., and B. respective severalty : ' the body 1 A. a sev- must also ed by one le and the Joint-ten- merely by nd, unless ould have one might utely des- 1 unity of ) same pe- case of a r in fee to A. and B. vested re- lainder be 3 continu- ts the re- L B. dies, heir of B. of this re- vested at r. * Yet , and such heir li . es, s to have int-estate, se of the intennar- riage ; and, being then awakened, had relation back, and took eflect from the original time of creation. ' The doctrine as to unity of time seems to be confined to limitations at com- mon law, for under the Statute of Uses, as in the last case mentioned, and under wills, by analogy to the decisions un- der the 4Statute of Uses, persons may take as joint-tenants, though at different times (a).' Lastly, in joint-tenancy there must be a unity of poaseasion. Joint-tenants are said to be Unity of pos- seised per my et per tout, by the half or moiety, and by all : that is, they each of them have the entire possession, as well of every parcel as of the ivliole. They have not, one of thera, a seisin of one half or moiety, and the other of the other moiety ; neither can one be exclusively seised of one acre, and his companion of another ; but each has an undi- vided moiety. And therefore, if an estate in fee be given to Husband and a man and his wife, they are neither properly joint-tenants nor tenants in common, for husband and wife being consid- ered as one person in law, they cannot take the estate by moieties, but both are seized of the entirety, per tout et non per my : the consequence of which is, that neither the hus- band nor the wife can dispose in fee of any part without the assent of the other, but the whole must remain to the sur- vivor. ' This rule is not varied by the R. S. 0. c. 105, s. 11 (J)).' Ujion these principles, of a thorough and intimate union of interest and possession, depend many other consequences Consequences and incidents to the joint-tenant's estate. If two joint- dents, tenants let a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint-reversion. If their lessee surrenders his leap„ to one of them, it shall also enure to both, because of the privity, or relation of their estate. On the same reason, livery of seisin, made to one joint-tenant, shall enure to both of them. In all actions also relating to their joint-estate, one joint- ;:> 17 (a) Morley v. Bird, Tnd. Lg. Cases, 876. \h) Re Shaver v. Hart, 31 U. C. R. 603. 258 OF ESTATES IN SEVERALTY. m 9 ><*<>. tenant cannot sue or be sued without joining the other. Upon the same ground it is held, that one joint-tenant can- not have an action against another for trespass, in respect of his land ; for each has an equal right to enter on any part of it (rt). But one joint-tenant is not capable by himself to do any act, which may tend to defeat or injure the estate of the other unless it be such an act as severs the joint- tenancy ; thus he may lease his share, such a lease being pro tanto a severance of the tenancy (h). So, too, though at common law no action of account lay for one joint-tenant against another, unless he had constituted him his bailiff or receiver, yet now by the Statute 4 Anne, c. IG, joint-tenants may have actions of account against each other, for receiving more than their due share of the profits of the tenements held in joint-tenancy (c) ; * and a court of equity also has Account and jurisdiction to compel an account. Again in cases of ouster by one joint-tenant of the other, the tenant ousted may bring ejectment ; and the same in cases equivalent to ouster, as by denial of right of entry (cZ).' From the same principle also arises the remaining grand incident of joint-estates ; viz. the doctrine of survivorshi]) : by which when two or more persons are seised of a joint- estate of inheritance, for their own lives, or 'pur auter vie, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivoi" ; and he shall be entitled to the whole estate, whatever it be, whether an inheritance, or a common freehold only, or even a less estate. This is the natural and regular consequence of the union and entirety of their interest. The interest of two ♦S. 184. joint-tenants * is not only equal or similar, but also is one ejectment lie. Right of sur- vivorship. (a) Sed quarc, in cases of original ouster of the whole, Murray v. Hall, 7 C. B. 441. (6) Co. Litt., 183 A. (c) Gregory v. ConoUy, 7 U. C. R. 500 ; Thomas v. Thomas, 19 L. J. Ex. 175. (d) Murray v. HaU, 7 C. B. 4-54. OF ESTATES IN SEVERALTY. 259' he other. nant can- respoct of ly part of self to do estate of he joint- ase being ), though nt-tenant bailifi'or it-tenants receiving enements also has of ouster sted may to ouster, ing grand ivorshi}) : f ajoint- auter vie, he entire is to the i he shall tiether an n a less ice of the st of two so is one V. Hall, 7 C. J. Ex. 175. and the same. One has not originally a distinct moiety from the other ; but, if by any subsequent act (as by aliena- tion or forfeiture of either) th '^ % '/ s Photographic Sciences Corporation ^^^ "^.V 33 WEST MAIN STREET WEBSTER, N.Y. 145S0 (716) 873-4503 260 OF ESTATES IN SEVERALTY. time, which respects only the original commencement of the joint estate, cannot indeed (being now past) be affected by any subsequent transactions. But, 2. The joint-tenants' estate may be destroyed, without any alienation, by merely disuniting their poaaeaaion. For joint-tenants being seised per my et per tout, everything that tends to narrow that interest, so that they shall not be seised throughout the whole and throughout every part, is a severance or destruc- tion of the jointure. And therefore, if two joint-tenants part their lands, and hold them in severalty, they are no longer joint-tenants, for they have now no joint-interest in the whole, but only a several interest respectively in the several parts. And for that reason also the right of survi- By partition, vorship is by such separation destroj'ed. By common law all the joint-tenants might agree to make partition of the lands, but one of them could not compel the other so to do ; for this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession without a similar universal consent. ' Partition can either be enforced by the Court of Chancery, by R. S. 0. c. 40, ss. 52-56, or at law and in equity under the Partition Act, R. S. 0. c. 101, as explained hereafter (s. 194) in regard to tenants in com- mon.' 3. The jointure ma}' be destroyed by destroying the unity of title. As if one joint-tenant alienes and conveys his estate to a third person : here the joint-tenancy is severed, and turned into tenancy in common ; for the grantee and the remaining joint-tenant hold by different titles (one de- rived from the original, the other from the subsequent, grantor), though, till partition made, the unity of possession continues ' and a valid agreement to convey will be a sever- ance in equity.* But a devise of one's share by will* is no severance of the jointure, for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of Enforcib^e in equity or at law. By convey anoe. •8. 186. ^fl OF ESTATES IN SEVERALTY. 261 ent of the fFocted by it-tenants' by merely ing seised rrow that ghout the destruc- nt-tenants ley are no nterest in ily in the 1 of survi- mmon law ion of the r so to do ; le act and it any one without a )e enforced 2-56, or at 1. 0. c. 101, its in com- roying the id conveys is severed, tin tee and ss (one de- ibsequent, possession )e a sever- w'ill* is no I effect till the right reation of the estate, and has therefore a priority to the other, is already vested. ' It may well be, however, since the Acts of 32 Vic. c. 8, and 36 Vic. c. 20 (R. S. 0. c. 106), under which a will speaks from death, and nothing done by the testator after execution of the will relating to the estate, except a revoca- tion, is to prevent the operation of the will as to such inter- est in such estate as the testator could dispose of on his death, that if a joint-tenant devise, and afterwards sever the tenancy and convert it into one in common, and then die, the devise will operate.' 4. It may also be destroyed by destroying the unity of interest And therefore, if there be two joint tenants for life, and the inheritance is pur- chased by and descends upon either, it is a severance of the jointure ; though, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure without merging in the inheritance ; because, being created by one and the same conveyance, they are not separate estates (which is requisite in order to be a merger), but branches of one entire estate. In like manner > if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure, for it destroys the unity both of title and of interest. And whenever or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with it. Yet, if one of the three joint tenants aliencs his share, the two remain- ing tenants still hold their parts by joint-tenancy and survi- vorship ; and, if one of three joint-tenants releases his share to one of his companions, though the joint-tenancy is des- troyed with regard to that part, yet the two remaining parts are still held in jointure, for they still preserve their original constituent unities. But when, by any act or event, differ- ent interests are created in the several parts of the estate, or they are held by different titles, or if merely the posses- sion is separated, so that the tenant have no longer these four indispensable properties, a sameness of interest, and i 5 I 5 liiki •S. 187. The conae- ]ueiic«8 of 262 OF ESTATES IN SEVEBA.,T/. and undivided posse&sion, a title vesting at one and the same time, and by one and the same act or grant, the jointure is insttintly dissolved (a). *In general, it is advantageous for the joint-tenants to dis- solve the jointure ; since thereby the right oi: survivorship ig alving the taken away, and each may transmit his own part to his own joint-eHtate. "^ ... heirs. Sometimes, however, it is disadvantageous to dis- solve the joint estate : as, if there be joint-tenants for life, and they make partition, this dissolves the jointure ; and, though before they each of them had an estate in the whole for their own lives and the life of their companion, now they have an estate in a moiety only for their own lives merely ; and, on the death of either, the reversioner shall enter on his moiety. Estates in co- HI- ^^ estate held in coparcenary is where lands of in- parcenary. heritance descended from the ancestor to two or more persons. It arose either by common law or particular custom ' and it would seem that now no such estate can arise (s. 191).' At common law, where a person seised in fee-simple, or fee-tail, died, and his next heirs were two or more females, his daughters, sisters, aunts, cousins, or their representatives ; in this case they would all inherit, as will be more fully shewn, when we treat of descents hereafter ; and these co- heirs ' were ' then called coparceners ; or, for brevity, par- ceners only. ♦S.188. *The properties of parceners are in some respects like Of the nature those of joint-tenants ; they have the same unities of inter- and properties. "^ . . . i est, title, and possession. They may sue and be sued jointly for matters relating to their own lands ; and the entry of one of them shall in some cases enure as the entry of them all : 'but by R. S. 0. c. 108, s. 11, the possession of one is (a) It sometimes happens that where there are two or more trustees, and one desires to retire, and another is to be appointed in his place, that such trustees convey directly to the continuing and new trustee ; this is not the proper mode of conveying. See Leith BL Prop. Stat. p. 19. OF ESTATES IN SEVERALTY, 263 d the satne jointure is mts to difi> ivorshipis to his own us to ilis- its for Hfe, ture; and, the wliole , now they es merely; 1 enter on nds of in- re persoas. m ' and it 191).' At or fee-tail, males, his entatives ; nore fully i these co- mity, par- pects hke i of inter- ed jointly entry of ' of them of one is «e8, and one uch trustees proper mode not the possession of all, so as to prevent the Statute apply- ing in favour of the possessor, and barring by time the par- cener not in possession.' They cannot have an action of trespass against each other. Parceners also differ materially from joint tenants in four other points : 1. They always claim by descent, whereas joint-tenants always claim by purchase. Therefore, if two sisters purchase lauds, to hold to them and their heirs, they are not parceners, but ' tenants in common ' : and hence it likewise follows, that no lands can be held in coparcenary, but estates of inheritance, which are of a descendible nature. 2. There is no unity of time necessary to an estate in coparcenary ; for if a man hath two daughters, to whom his estate descends in coparcenary, and one dies before the other, the surviving daughter and the heir of the other, or, when both are dead, their two heirs, are still parceners ; the estate vesting in each of them at different times, though it be the same quantity of interest, and held by the same title. 3. Parceners, though they have a unity, have not an entirety of interest. They are properly entitled each to the whole of a distinct moiety ; and of courpo there is no jus ciccrescendi, or survivorship between thorn ; for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lauds continue in a course of descent, and united in pos- session, so long are the tenants therein called parceners. But if* the pos.session be once severed by partition, they are "S. 189. no longer parceners, but tenants in severalty ; or if one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but in commop. Parceners are so called, saith Littleton, because at com- Of the making non law they may be constrained to make partition. ' By R. S. 0. c. 98, s. 4., every voluntary partition shall be by Partition, deed. The present mode of compulsory partition is as men- tioned hereafter in regard to tenants in common (a).' (a) S. 194. ~~" J ■* If. -I* «■ ••• 264 In cMeof frank-mar- rifOigt. Hotoh-pot. S. 191. ^llli OF ESTATES IN SEVERALTY. • There is yet another consideration attending the estate in coparcenary : that if one of the daughters has had ar estate given with her in frank marriage by her ancestor (which we may remember was a species of estate-tail, freely given by a relation for advancement of his kinswoman in mar- riage) (a), in this case, if the lands descend from the same ancestor to her and her sistere in fee-simple, she or her heire shall have no share of them, unless they will agree to divide the lands so given in frank-marriage in equal proportion with the rest of the lands descending. It is denominated bringing those lands into Jiotch-pot, which word I shall ex- plain by ueing • the very words of Littleton : " It seemeth " that this word hotch-pot, is in English a pudding : for in a " pudding is not commonly put one thing alone, but one " thing with other things together." By this housewifely metaphor our ancestors meant to inform us, that the lands, both those given in frank -marriage and those descending in fee-simple, should be mixed and blended together, and then divided in equal pc ons among all the daughters. But this was left to the choice of the donee in frank-marriage : and if she did not choose to put her lands into hotch-pot, she was presumed to be sufficiently *provided for, and the rest of the inheritance was divided among her other sistei's. The law of hotch-pot took place then only, when the other lands descending from the ancestor were fee-s imp le : for if they descended in tail, the donee in frank-marriage was entitled to her share, without bringing her lands so given into hotch- pot. And the reason is, because lands descending in fee- simple are distributed by the policy of law, for the mainte- nance of all the daughters ; and if one has a sufficient pro- vision out of the same inheritance, equal to the rest, it is not reasonable that she should have more : but lands descend- ing in tail are not distributed by the operations of the law, but by the designation3 of the giver, per fmnnam doni : it (a) See S. 115. !■' le estate in 1 ar estate tor (which 'eely given a in inar- i the same r her heire e to divide proportion nominated I shall ex- t seemeth ^ : for in a e, but one )use wifely the lands, Bending in , and then But this iage : and )t, she was he rest of tei-s. The ther lands 'or if they IS entitled ito hotch- g in fee- e mainte- uient pro- , it is not descend- the law, doni : it OF ESTATES IN SEVERAL'! Y. 265 matters not, therefore, how unequal this distribution may be. Also no lands, but such as are given in frank-marriage, shall be brought into hotch-pot ; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage portion. And, therefore, as gifts in frank-marriage arc fallen into disuse, I should hardly have mentioned the law of hotch-pot had not this method of Hotchpot in- division been revived and copied by the statute for the dis- s. o. c. los, a*. tribution of personal estates, 'and introduced in principle under the last statute as to descent of real estate which we shall hereafter consider at large.' The estate in coparcenary may be diaaolved, either by par- tition which disunites the possession ; by alienation of one parcener, which disunites the title, and may disunite the interest; or by the whole at last descending to and vest- ing in one single person, which brings it t j an estate in sev- eralty. ' And here, it may be remarked, that it is doubtful Co -parcenary ftlK>li8h6(l by whether, since 14 & 15 Vic. c. 6, R. S. 0. c. 105, s. 37, an es- r,s.o.c. io5. state can descend in •coparcenary, that statute enacting that when an inheritance or share of inheritance shall descend to several persons under the provisions of the act, they shall take as tenants in common. The change effected by the sta- tute is of no great practical importance, unless, perhaps, as regards the action of account given by statute, as will pre- sently appear, to one tenant in common against the other, whilst it is doubtful whether it extended to coparceners (a).' IV. Tenants in covvmon are such as hold by several and Tenancy fa distinct titles, but by unity of possession; because none knoweth his own severalty, and therefore they all occupy promiscuously. This tenancy happens, therefore, where there is a unity of possession merely, but perhaps an entire disunion of interest, of title, and of time. For if there be two tenants in common of lands, one may hold his part in 4 m- •••■> (o) Oregory v. Connolly, 7 U. C. R 600. •J \ r I fffPT 4/> 266 OF ESTATES IN SEVERALTY. C I IL.' J a'" mi fee-simple, the other in tail, or for life ; so that there is no •8. 192. 'necessary unity of interest : one may hold by descent, the other by purchase ; or the one by purchase from A., the other by purchase from B. ; so that there is no unity of title : one's estate may have been vested fifty years, the other's *>"♦ yesterday ; so there is no unity of time. The only unity there is, is that of possession ; and for this Littleton gives the true reason, because no man can certainly tell which part is his own : otherwise even this would be soon destroyed. By the destruction of the two other estates, I mean such destruc- tion as does not sever the unity of possession, butonly the unity of title or interest: as,if one of two joint-tenants in fee alienea his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common ; for they have now seve- ral titles, the other joint-tenant by the original grant, the alienee by the new alienation ; and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So, if one joint-tenant gives his part to A. in tail, and the other gives his to 6. in tail, the donees are tenants in common, as holding by different titles and conveyances. If one of two parceners alienes, the alienee and the remaining parcener are tenants in common ; because they hold by different titles, the parcener by descent, the alienee by purchase. In short, whenever an estate in joint- tenancy or coparcenary is dissolved, so that there be no par- tition made, but the unity of possession continues, it is turned into a tenancy in common. • s. 193. * 'A tenancy in common may be created by devise or con- -5 / ' veyance ; for, since the statute 4 Wm. IV. c. 1, R. S. 0. c. By devise or 105, s. 11, all grantees and devisees, other than executors and R'srSTcHoB, trustees, shall, contrary to the common-law rule, take as ten- *' ants in common, and not as joint-tenants, unless an intention By descent, by to the Contrary sufficiently appear on the face of the instru- 8. 37)in Ueu oi nient under which they take. This tenancy may arise also <»p^iury. ijy descent ; for the 37th section of R. S. 0. c. 105, provides If I «r? OF ESTATES IN SEVERALTY. 267 there is no descent, the rom A., the lity of title ; e other's '«iit only unity tleton gives 1 which part stroyed. By ich destruc- dytheupjty a fee alienes id the other re now seve- I grant, the lave several the alienee ves his part , the donees t titles and alienee and n ; because descent, the ite in joint- B be no par- inues, it is vise or con- , R. S. 0. c. Msutors and lake as ten- n intention the instru- r arise also •5, provides that since the 1st of January, 1852, the parties shall take as tenants in common ; a provision which, it is apprehended, has abolished the estate in coparcenary, unless such as ex- isted prior to that year.' As to the incidents attending a tenancy in common : 'Prior • S. 194. to tlie statute 4 Wm. IV. c. 1, R. S. O. c. 51, s; 74, which l^^^^*"**- abolished the old writ of partition,' tenants in common, like joint-t'enants, were compellable, by the statutes of Heniy VIII. and Wm. III., before named, to make partition of their lands; which they were not at common-law, as parceners Pwt»tion at law and in were- ' Partition may now be had under R. S. 0. c. 40 & equity. js . >^ 101. By R. S. 0. c. 98, the partition, if voluntary, must /fii^ I (9 • T^ / be by deed. A singular mode of sale and quasi partition is authorized among co-heirs by the statute abolishing pri- mogeniture, R. S. 0. c. 105, ss, 45, 46, 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 shares of the others and report the same to the courts, and preference 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 en- forced, in equity (a) ; so may it yet : in fact, as regards equitable fees-simple, such court, under the Provincial sta- tute has exclusive jurisdiction (b). Singular questions some- impartible times arose under proceedings for partition, from the im- P™P«'*y- partible 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 (c). Difficul- 4i :.i (a) 2 White & Tudor, Lg. Cases, 468 ; R. S. 0. c. 101, 8. 7. (M R. S. O. c. 101, 8. 7. (c) In Turner v. Margin, 8 Yea. 14.3, there was a decree in a partition of a tingle house ; and Sir Samuel Romilly, in hia ar^ment, mentioned a case where 11 m f 268 OF ESTATES IN SEVERALTY. Account. ties, however, arising from the nature of the property, can now be overcome by the court directing a sale under the Acts before mentioned (a).* Tenants in common properly take by distinct moieties, and have no entirety of interest, and therefore there is no survivorehip between them : their other incidents are such as arise merely from the unity of posses- sion, and are, therefore, the same as appertain to joint-ten- ants merely on that account, such as being liable to recipro- cal actions of account by the statute 4 Anne, c. 10, s. 27 (6); for by the common law, no tenant in common was liable to account with his companion for embezzling the profits of the estate. ' An account is more conveniently had in equity that at law ; but as the statute of Anne alone gives the re>- medy, it would seem no account could be had in equity un- less where an action would also lie at law under that Act Ejectment and (c). If one tenant in common actually turns the other out of possession, however, an action of ejectment will lie against him, and trespass also will lie {d). Ejectment and trespass will also He under circumstances equivalent to actual ouster, as by denial of the right of entry to the co-tenant, and ad- verse continuance in possession of the others. If one ten- ant in common has been in possession of the whole without excluding his co-tenant, he will not be chargeable with occu- pation rent, but it is otherwise in case of exclusion, or what is tantamount to it. On receipt of rent from tenants, also, he would have to account. Where there has been mere pos- trespass. a partition was carried out by building up a wall in the middle of the houM. After the oommisaion was executed in Turner r. Morgan, the defendant excepted on the ground that the commisaionei's allotted to the plaintifif the whole of the chimneyd, 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 bet- ter partition ; that he granted the commission with great reluctance, and it muit be a strong case to . nduoe the court to interpose, as the parties ought to buy and seU. (a) In re Dennie, 10 U. C. R. 104. See St. in appendix, and pott c. 14. (6) Gregory v. Connolly, 7 U. C. B. 500 ; Thomatv. TItonuu, 19 L. J. Ex. 176, and see Sandford v. BttlUirU, :i3 Beav. 401, .30 Beav. 109, S. C. (c) Henderton v. Eaton, 2 Phill. C. C. 308. {d) Murray v. HaU, 7 C. B. 441. Ii« f«r operty, can e under the roperly take nterest, and their other y of posseg- o joint-ten- e to recipro- 10,8.27(6); as liable to profits of id in equity ;ives the re- I equity un« ler that Act le other out 1 lie against •s. 19B. I COME now to comider, lastly, tho *titly to things real, with the manner of acquiring and losing it. There were 'formerly' several stages or degrees requisite to form a complete title to lands and tenements. We will con- sider them in a progressive order. 1. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate ; without any apparent right, or shadow or pretence of right, to hold and continue such possession. This may happen when one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands ; which is termed a disseisin, being a deprivation of the actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after •S. 196. the death of the ancestor and before the entry of *the heir, or after the death of a particular, tenant and before the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out him that had a right to enter. ' So again if a stranger take possession of vacant land in the lifetime of him entitled to possession.' In all which cases, and many others that might be here sug- gested, the wrongdoer has only a mere naked possession, which the rightful owner could put an end to, ' formerly,' by a variety of legal remedies, as will hereafter more fully appear. But in the meantime, till some act be done by the rightful owner to divest this possession and assert his title, such actual possession is, prima facie, evidence of a legal title ' in fee' in the possessor, 'and the interest of such possessor may pass by devise or descent, and is sufficient whereon to main- OF THE TITLE TO THINGS REAL, IN GENERAL, 271 poaaesaioii. tain trespass or ^ectment against any trespasser or person not claiming as, or under, the rightful owners' (a). It may also, by length of time, and negligence of liuii who hath the right, by degrees ripen into a perfect and indefeasible title. 2, The next step to a good and perfect title is the right The right o£ 0/ possession, which may reside in onts uian, while the actual jiuosession is not in himself but in another. For if a man be disseised, or otherwise kept out of po.ssf^ssion by any of the means before mentioned, though the arfual possession be lost, yet he has still lemaining in him the right cf pos- session ; and may exert it whenever ho thinks proper, ' till barred by time,' by entering upon the disseisor, and, 'without breach of the peace' (h), turning him out of that occupancy which he has so illegally gained, 'or by action of ejectment.' 'Sir W. Blackstone goes on to state, among other things, Rlghtjif that the nossession and right of possession may be gone, and still the owner retain the right of property, whereon he might in a real action recover the lands, and he says, "*if a disseisor turns me out of possession of my lands, he thereby gains a mere naked possession, and I still retain the right of possession and Hght of property. If the disseisor dies, and the lands descend to his son, 'which was termed a descent (mV, the son gains an apparent right of possession, but I still retain the actv/il right both of possession and property. If I acquiesce for thirty years, without bringing any action to recover possession of the lands, the son gains the actual right of possession, and I retain * nothing but the mere right *s, 199^ of property. And even this right of property will fail, or at least it will be without a remedy, unless I pursue it within the space of sixty yeara : and one man may have the posses- don, another the right of possession, and a third the right of property." ' ' The law, as stated by the learned commentator in this property. •S. 198. 5 •If (a) Athtr v. Whitlock, L. B. 1 Q. B. 1. (6) ante p. 175. ■I II 272 OF THE TITLE TO THINGS REAL, IN GENERAL. chapter, is so changed by modern legislation that it will here be but briefly alluded to, especially as it will be considered hereafter at length. The following will suffice to show how complete is the change : thus, in the case above put, at present the descent to the son would give him no better right than his ancestor the disseisor had, for by R. S. 0. c. 108, s. 10, no descent cast defeats or tolls a right of entry or action, and I am in no worse position than before the death of the ancestor. If also I fail to enforce my right for even ten years, I am barred entirely, unless in exceptional casesi and retain no right of property distinct from right of posses- sion ; for by section 15 of the last mentioned Act, when my right of possession against the disseisor or his son claiming under him is gone, all other right and title is extinguished. Formerly, certain actions founded on the right of possession might have been brought within thirty years ; after which period such actions were barred, but the owner could still r«sort to a real action droiturel, founded on the right of property, at any time within sixty years. A right of pro- perty cannot now exist as a mere ri^hi as formerly, nor be of avail unless accompanied with an existing right to pos- session, present or future (a). (a) Hayes Con. 208, and pott chapter 2L RAL. it will here considered show how ove put, at ^ no better r R. S. 0. c. of entry or e the death fht for even ional casesi it of posses- t, when my on claiming ttinguished. f possession liter which could still he right of ight of pro- erly, nor be ight to pos- CHAPTER XV. OF TITLE BY PURCHASE, AND FIRST, BY ESCHEAT. 'The followint' observations of the learned commentator as Definition of . , purchase. to the sense and meaning of the word i-mrchaae, apply more particularly and arc of most practical value in questions of descent prior to the statute 14 & 15 Vic. c. 6 ; for that sta- tute particularly specifies how, under the different circum^ stances named therein, the estate to descend shall go. It provides for those cases in which the estate came to the intes- tate on tJie part of the father or oftJie viother, which is made to include, contrary to the former law, not oily descent, but also a gift or devise from the father or mother, or from any relation of the blood of one of th m. On any such gift or devise, as, for instance, from the mother of an intestate 4ying seised, a preference is given, to those claiming ex parte materna; whereas under the former law the intestate would have been deemed to have taken as a purchaser,'' a,nd the estate held with all the qualities of an estate acquired by purchase, and so the preference would have been to those claiming ex parte paterna. The present law further enacts that in cases not specifically provided for the Statut'e of Distributions shall be the guide. It therefore changes, very considerably, the meaning of the word pur- chase as it theretofore existed, and this must be borne in mind in considering the following observations. The con- sequence is, tlfiat the peculiar distinctions and niceties form- erly attending tne question as to whether an ancestor from whom descent was to be traced was to be considered as hav- ing taken by purchase or not, cease to be of much practical importance when the statute of Victoria governs the descent. The other remaining question on the effect whereof consists 18 --' 274 OF UTLE BY PURCHASE. principally, says Sir "^/. Blackstone, the difference between acquisition by purchase and by descent, viz., the liability of the heir for the specialtj-^ debts of the ancestor from whom he inherits as having aaaeta by descent, is, in actual practice at least, of no great importance with us ; as such liability is seldom enforced against the heir, the lands descended to him being usually reached by process against the personal repre- sentatives of the ancestor. For though they are not, strictly speaking, assets in their hands as chattels are, still they are subject under the Statute 5 Geo. II. c. 7, confirmed by 27 Vic. c. 15, R. S. 0. c. 66. s. 40, and R. S. 0. c. 107, s. 13 to the like remedies, proceedings, and process for seizing, extending, or selling for satisfaction of debts, as personal estate.' Purchase, perquiaitio, taken in its largest and most ex- tensive sense, is thus defined by Littleton : the possession of lands and tenements, which a man hath by his own act or agreement, and not by descent from any of his ancestors or kindred. In this sense it is contradistinguished from ac- * quisition by right of blood, and includes every other method of coming to an estate, but merely that by inheritance, wherein the title is vested in a person, not by his own act or agreement, but by the single operation of law. What is con- Purchase, indeed, in its vulgar and confined acceptation, ing^byp^r* l^ applied only to such acquisitions of land, as are obtained hydemnt * ^Y "^^Y ^^ bargain and sale, for money, or some other valu- able consideration. But this falls far short of the legal idea of purchase ; for if I give land freely to another he is in the eye of the law a purchaser ; and falls within Littleton's de- finition, for he comes to the estate by his own agreement, that is, he consents to the gift. A man who has his father's estate settled upon him in tail, before he was born, is also a purchaser ; for he takes quite another estatejthan the law of descents would have given him. Nay, even if the ancestor ice between liability of from whom tual practice h liability is nded to him raonal repre- not, strictly till they are rmed by 27 107, s. 13 for seizing, as personal nd most ex- )ossession of I own act or ancestors or ed from ae- ther method inheritance, his own act acceptation, .re obtained other valu- le legal idea he is in the tleton's de- agreement, his father's m, is also a I the law of le ancestor OF TITLE BY PURCHASE. 275 devises his estate to his heir-at-law by will sueh huir shall take ' as a devisee and not by descent (a).* *If a remainder be limited to the heirs of Sempronius, * s. 242. here Sempronius himself takes nothing ; but if he dies dur- ing the continuance of the particular estate, his heirs shall take as purchasers (h). But if an estate be made to A. for Rule in Shel- life, remainder to his right heirs in fee, his heirs shall take by descent ; for it is an ancient rule of law, that wherever the ancestor takes an estate for life, the heir cannot by the same conveyance take an estate in fee by purchase, butj only by descent. And, if A. dies before entry, still his heii shall take by descent, and not by purchase ; for, where the heir ta kes anything that m ight have vested in the ance stor, he takes by way o f descent . The ancestor, during his life, beareth innunself all his heirs ; and therefore, when once he is or might have been seised of the lands, the inheritance so limited to his heire vests in the -ancestor himself : and the word " heirs " in this case is not esteemed a word of pur- chase, but a word of limitation, enuring so as to increase the estate of the ancestor from a tenancy for life to a fee- simple. And, had it been otherwise, had the heir (who is uncertain till the death of the ancestor) been allowed to take as a purchaser originally nominated in the deed, as must have been the case if the remainder had been expressly limited to Matthew or Thomas by name, then, in the times of strict f eodal tenure, the lord would have been defrauded by such a limitation of the fruits of his seigniory, arising from a descent to the heir. ' The effect of such a limitation in a conveyance or will as above, viz., to A., with remainder to his right heirs in fee, is in fact to give to A. an immediate estate in fee, with the power of alienation and all other incidents attached to such (a) R. S. O. c. 10.5, 8. 6. (6) But for the purpose of tracing descent under stat. 4 Wm. IV. the ancea- tor shall be deemed the purchaser ; R. S. O. c. 106, s. 7. hi*:'' 276 OF TITLE BY PURCHASE. an estate. This is under the well-known rule in Shelley'i I case (a), which rule is thus expressed, viz., that where the ancestor by any gift or conveyance takes an estate of free- hold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, in such cases the " heirs " are words of limitation, and not of purchase : that is to say, in the first case an estate in fee, in the second case an estate tail, will vest in the ancestor, and on his death his heirs will take, not as purchasers under the gift or conveyance, but as heirs of their ancestor by descent, If the estate limited to the heirs be not immediate but me- diate, as to A. for life, remainder to B. for life, remainder to the heire of A, in fee, still the rule will apply, and A. will take an estate for life, with a vested remainder in fee. It will be observed the limitations must be by the same in- strument ; for if a person by deed give an estate to his son for life, and by his will devise the same estate to the heirs male of his (the son's) body, the son will only take an estate for life, and the heira male of his body take a remainder in tail by purchase. The rule is not confined to cases in which the word " heirs " is made use of, but is frequently applied in cases where the word " issue," " son," or " child " is used; if it can be gathered that such word is used as synonymous with " heir," as nomen collectivum, and not as designatio persona}. On this latter point the cases are somewhat ab- truse and difficult, and it will therefore be sufficient to call attention to the fact that the rule is not confined to cases where the ordinary strict word of limitation as " heirs " is made use of. It should also be mentioned that it does not necessarily follow in all cases where the words " heirs " or " heirs of the body " are used, that the rule will apply, for the context of the instrument may interpret and limit the ordinary signification of the words ; and if it can be clearly (a) 1 Co. 93 b. ; Tud. Lj. Cases, 589. OF TITLE BY PURCHASE. 277 gathered that they are not used as words of liinitation, but as words of purchase, thoy will be construed in the latter 3ense (a).' What we call purchase, perquisitio, the feudists called Purchaae conquest, conqiwistus, or conquisitio : both denoting any feudista^ means of acquiring an estate out of the common coui-se of ''°"'"* * inheritance. And this is still the proper phrase in the law of Scotland: as it was among the Norman jurists, who styled *the first purchaser (that is, he who brought the *s.243. estate into the family which at present owns it) the con- queror or conquereur. Which seems to be all that was meant by the appellation which was given to William the / Norman, when his manner of ascending the throne of Eng- land was, in his own and his successors' charters, and by the historians of the times, entitled conqucestus, &nd himself ;>-' conqiicestor or conqriisitor ; signifying that he was the first of his family who acquired the crown of England, and from whom therefore all future claims by descent must be derived : though now, from our disuse of the feodal sense of the word, together with the reflection on his forcible method of ac- quisition, we are apt to annex the idea of victoi^j to this name of conquest or conquisition : a title which, however just with regard to the crown, the conqueror. never pretended with regard to the reahi of England ; nor, in fact, ever had. The difference in effect, between the acquisition of an The difference estate by descent and by purchsise, consists principally in acqufaition" by these two points : 1. That by purchase the estate acquires a purchMe!* ' ^ new inheritable quality, and descends to the owner's blood in general without preference to the blood of a particular ancestor. For, when a man takes an estate by purchase, he takes it not ut feudum jmtemum or onaternum, which would descend ' by the common law,' only to the heirs by the father's or the mother's sida; but he takes it ut feudum iisr (a) Tud, Lg. CaseH, 589. tf» OF TITLE BY PURCHASE. antiquum, as a feud of indefinite antiquity ; whereby it be- comes inheritable to heira general. 2. An estate taken by purchase will not make the heir answerable for the acts of the ancestor, as an estate by descent will ; for, if the ancestor, by any deed, obligation, covenant, or the like, bindeth him- self and his heirs, and dieth ; this deed, obligation, or cove- nant, shall be binding upon the heir, so far forth as he has estate, sufficient to answer the "harge, ' from that ancestor,' which sufficient estate is in tl ; law called assets, from the French word assez, enough. Therefore if a man covenants, for himself and his heirs, to keep my house in repair, I can then (and then only) compel his heir to ' answer ' this cove- nant, when he has an estate sufficient for this purpose, or assets, by descent from the covenantor: for though the cove- nant descends to the heir, whether he inherits any estate or no, it cannot be enforced against him, until he has assets by descent. ' With us the liability of the heir is not altogether free from doubt. In a recent case (a) the cases decidfjd here on the subject are reviewed and comment^.d ou. The usual course here is to sue the pei'sonR' > rr-: iontjitives, and on execution against them the lands , . ' ^i- reached, as above explained.* How the 'The definition of the word purchase given by Littleton and effect of as above, and the foregoing observations as to the difference chaae^is varied in effect between taking by descent and by purchase are, ofvicto^,'^** as to the transmissible qualities of the estate on intestacy, subject to some modifications by reason of the present law regulating descents : thus, prior to the present law of descent, under any gift or devise from an ancestor, or from any one of the blood of such ancestor, the gmntee or devisee would formerly have taken as purchaser, and such a case would have been attended with the difference in efiect above (a) Bymall v. Athherry, 12 C. P. U. C. 339. OP TITLE BY PURCHASE. 279 alluded to as between taking by descent and by purchase, and the estate have gone to heirs general instead of to heirs of the blood only of the ancestor : but now, as hereafter explained (a), in such a case the estate will not have the former hereditary qualities of an estate by purchase, but partake more of the nature of an estate by descent ex parte paterna or materna as the case may be. Thus, if the maternal grandfather of A. should give or devise to him in fee, the half-blood on the paternal side will.be excluded from the inheritance (s. 35), and the paternal uncles postponed to maternal uncles (s. 33). From the former sense and effect of the word purchase, therefore, must now be excluded the case of a gift or devise from a parent, or from a relation of the blood of a parent, so far as regards at least the right to inherit.' This is the legal signification of the word perquisitio, or purchase ; and in this sense it includes the five following methods of acquiring a title to estates: 1. Escheat; 2. Escheat. Occupancy ; 3. Prescription ; 4. Forfeiture ; 5. Alienation. All of these in their order. 1. Escheat, we may remember, was one of the fruits and consequences of feodal tenure. The word itself is originally French or Norman, in which language it signifies chance or accident ; and with us it denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforeseen contingency : in which case the land natu- rally results back, by a kind of reversion, to the original grantor or lord of the fee, ' who in Canada is the Sovereign ; and in England may also be a private individual, if his an- cestor had granted the tenure prior to the statute quia emptores, to hold of him and his heirs, thus by a process of subinfeudation creating a manorial estate (6).' •Escheats, therefore, arising merely upon the deficiency of *s. 246. ;.?■ -3 (a) See R. S. 0. ch. 105, 8. 21, poit. {b) See 88. 91,92. 280 OF TITLE BY PURCHASE. the blood, whereby the descent is impeded, their doctrine will be better illustrated by considering the 'law as to deb cent and the several cases wherein hereditary blood may be deficient, than by any other method whatsoever.' •s. 245. *The law of escheat's is founded upon thia single principle, of the law of that the blood of the person last seised in fee-simple is, by some means or other, utterly extinct and gone : and, since none can inherit his estate but such as are of his blood and consanguinity, it follows as a regular consequence, that when such blood is extinct, the inheritance itself must fail ; the land must become what the feodal writers denominate feudum apertuTn, and must result back again to the lord of the fee, by whom, or by those whose estate he hath, it was given. Escheats are Escheats are frequently divided into those propter de- of two kinds— . . . , , , ,. . , the one, where fectum sanguinis, and those propter delictum tenentia : the without heirs ; One sort, if the tenant dies without heirs ; the other, if hia where his' blood be attainted ' in cases of treason.' But both these attainted. species ' might formerly ' well be *comprehended under the *S. 24C. gj.g^. denomination only ; for he that ' was * attainted ' for felony or treason ' suffered an extinction of his blood, as well as he that died without relations. The inheritable quality ' was ' expunged in one instance, and expired in the other. ' As presently explained, the common law rule of escheat on attainder is much mot^ified by modem statutes' (a). ' The student will bear in mind what is hereafter explained in treating of the law of descents, viz., that the statute of Victoria admits to the inheritance those not of the blood of the purchaser; and also the half-blood equally with the whole blood (unless in exceptional cases) ; and that when the estate cannot descend according to the cases named in the Act, the next of kin shall take, according to the rules governing succession to personal estate ; also that under the statute of William, the half-blood were admitted, though (a) S. 252. ir doctrine ' as to des >od may be e principle, nple is, by and, since blood and that when t fail ; the enoniinate ;he lord of ith, it was ropter de- intia : the her, if his )oth these under the in ted 'for blood, as iheritable red in the w rule of itutes'(a). explained statute of ! blood of with the lat when lamed in ihe rules nder the though OF TITLE BY PURCHASE. 281 postponed to the whole blood; and that lineal ancestors also were allowed to take. These alterations in the law of descents cause an alteration in the law of escheat for want of heira since the commentaries were written.' 4. A monster which hath not the shape of mankind, but in any part evidently bears the resemblance of the brute creation, hath no inheritable blood, and cannot be heir to any land, albeit it be brought forth in marriage ; but, al- though it hath deformity in any part of its body, yet if it hath human shape, it may be heir. This is a very ancient rule in the law of England, and its reason is too obvious and too shocking to bear a minute discussion. The Roman law agrees with our own in excluding such births from suc- cession ; yet accounts them, however, children in some re- spects, where the parents, or at least the father, could reap any advantage thereby (as the jus trlum liheroimm, and the like), esteeming them the misfortune, rather than the fault of that parent. By our law if there appears no other heir than such a prodigious birth, the land shall escheat to the lord. *5. Bastards are incapable of being heirs. Bastards, by *s. 247. our law, are such children as are not born either in lawful are incapable wedlock, or within a competent time after its determination. Such are held to be nullvus Jilii, the sons of nobody ; for the maxim of law is, qui ex damnato eoitu nascuntur, inter liberos non computantur. Being thus the sons of nobody, they have no blood in them, at least no inheritable blood ; consequently, none of the blood of the first purchaser ; and therefore, if there be no other claimant than such illegitimate children, the land shall escheat to the lord. The civil law differs from ours in this point, and allows a bastard to suc- ceed to an inheritance, if after its birth the mother was mar- ried to the father ; and also, if the father had no lawful wife or child, then, even if the concubine was never mar- ried to the father, yet she and her bastard son were admitted \Mf 282 OF TITLE BY PURCHASE. each to one-twelfth of the inheritance : and a bastard was * S. 248. likewise *capabie of succeeding to the whole of his mother's estate, although she was never married ; the mother being sufficiently certain, though the father is not. But our law in favour of man'iage, is much less indulgent to bastards. * s. 249. * As bastards cannot be heirs themselves, so neither can So, they can they have any heirs but those of their own bodies. For, as teral kindred, a^^ collateral kindred consist in being derived from the same common ancestor, and as a bastard has no legal ancestors, he can have no collateral kindred ; and, consequently, can have no legal heirs, but such as claim by a lineal descent from him- self. And therefore if a bastard purchases land, and dies seised thereof without issue, and intestate, the land shall escheat to the lord of the fee. 'By R. S. O. c. 105, s. 39, children and relatives who are illegitimate are excluded from inheriting, which is in affirm- ance of the prior law.' .(4 /ien« could 6. Aliens also ' were at common law' incar)able of taking not take by .... descent at com- by descent or inheriting: for they ' were not allowed 4e * S. 250. to have any inheritable blood in them ; rather indeed upon a principle of national or civil policy, than upon reasons strictly feodal. Though, if lands had been suffered to fall into their hands who owe no allegiance to the Crown of Eng- land, the design of introducing our feuds, the defence of the kingdom, would have been defeated. Wherefore, if a man ' left ' no other relations but aliens, his land escheated to the lord. As aliens 'could not' inherit, so far they 'were' on a level with bastards ; but as, ' excepting leaseholds for trading pur- poses,' they 'were' also disabled to hold by purchase, ' as against the crown, they were ' under still greater disabilities. And 'they could have no heirs' because they had not in them any inheritable blood. Who are An alien is described as one bom in a strange country, auons. OF TITLJ' BY PURCHASE. 283 under the obedience of a at; liiige prince or country, or out of the ligeance (a) of the king. In Calvin's Case (b), with reference to a natural bom sub- ject, it is said : " Unless in special cases, these three incidents " should be observed : 1st. His parents must be under the " actual obedience of the king ; 2ndly, the place of his birth " must be within the king's dominions : and 3rdly, the time " of his birth must be considered, for if he was born under " the ligeance of one king he could not the subject of an- " other king." A person whose parents on his birth were under actual obedience to the king, and who was born with- in his dominions, may be said to be a natural-bom subject. Various statutes have been passed to relieve persons born statutes for without the king's allegiance, from their disabilities as aliens born, and to give them the privileges of naoural bom sub- jects (c). 'The following is the provision of Rev. Stat. Ont. c. 97, as to the capacity of aliens in relation to realty (d). " On and from the twenty-third day of November, 1849, every alien shall be deemed to have had and shall thereafter have the same capacity to take by gift, conveyance, descent, devise or otherwise howsoever, and to hold, possess, enjoy, ilaim, recover, convey, devise, impart and transmit real es- tate in the Province as natural born subjects of Her Majesty. And the real estate, in the Province of Ontario, of any alien dying intestate shall descend and be transmitted in like relief of aliens. g » > ♦S.251. 80 corrupted as to be Escheat on attainder. manner, s. 2 * 7. By attainder, also, for treason or other felony, the blood of the person attainted * was rendered no longer inheritable, ' but as presently explained this effect is removed by modem statutes.' (a) Co. Litt. 129, a. (&)7Rep. 18. (c) Many of these statutes and the cases decided, especially those relating to Canada, are given in the first edition of this work, with remarks on them. (rf) See Bumrell v. Henderson, 22 U.C.C.P. p. 180, as to bearing of the Act. The old law is treated of in the first edition of this work. IP u 284 OP TITLE BY PURCHASE. Distinction between for- feiture to the king, and escheat tu tlie lord on iittaimler. •8.252. 1} : «-*»«. Esclieat upon attainder con- Bidered. •"» ' In Canada, where there are no mesne lords between the crown and the tenant, as in the case of manorial lands (a), the distinction hereafter pointed out between forfeiture and escheat is of little importjince, for in either case the crowu will take ; but in England, where the crown would be en- titled on a forfeiture, and the lord (who may not be the king),' on an escheat, care must be taken to distinguish between forfeiture of lands to the king, and this species of escheat to the lord ; which, by rea.son of their similitude in some circumstances, and because the crown is very fre- quently the innuediate lord of the fee, and therefore en- titled to both, have been often confounded together. For- feiture of lands, and whatever else the oft'ender possessed, was the doctrine of the old Saxon law as a part of punish- ment for the offence; *and does not at all relate to the feodal system, nor is the consequence of any seigniory or lordship paramount : but, being a prerogative vested in the crown, was neither superseded nor diminisiied by the intro- duction of the Norman tenures ; a fruit and consequence of which escheat must undoubtedly be reckoned. Escheat therefore operates in subordination to this more ancient and superior law of forfeiture. 'At common law, and before modification by statutes presently alluded to,' the doctrine of escheat, upon attainder, taken singly, ' was ' this : that the blood of the tenant, by the commission of any felony (under which denomination all treasons were formerly comprised), is corrupted and stained, and the original donation of the feud is thereby determined, it being always granted to the vassal on the implied condi- tion of dufn bene se gesserit. Upon the thorough demonstra- tion of which guilt, by legal attainder, the feodal covenant and mutual bond of fealty are held to be broken, the estate instantly falls back from the offender to the lord of the fee, and th*: inheritable quality of his blood is extinguished and (a) Ante, b. 91. rW-'', tm? OF TITLE BY PURCHA8F ^HH blotted out for over. In this situation the law of foodal escheat was brought into England at the conquest ; and in general superadded to the ancient law of forfeiture. In con- sequence of which conuption and extinction of hereditary blood, the land of all felons would immediately revest in the lord, but that the superior law of forfeiture intervenes, and intercepts it in its passage : in case of treason for ever (h) ; in case of other felony, for only a year and a day ; after which time it goes to the lord in a regular coui-se of escheat, as it would have done to the heir of the felon in case the feodal tenures had never been introduced. Hitherto we have only spoken of estates vested in the The diflferent oficnder at the time of liis offence or attainder. And here feiture and the law of foi'feiturc stops ; but the law of escheat ' at com- ^'^'^ nion law' pursued the matter still farther. For, the blood of the tenant being utterly corrupted and extinguished, it follows not only that all that he now has shall escheat from him, but also that he shall be incapable of inheriting any- thing for the future. This may faiihcr illustrate the dis- tinction between forfeiture and escheat. If therefore a father be seised in fee, and the son commits treason and is attainted, and then the father dies: here the lands shall escheat to the lord ; because the son, by the corruption of his blood, is incapable to be heir, and there can be no other heir during his life ; but nothing shall be forfeited to the king, for the son never had any interest in the lands to for- feit. In this case the escheat operates, and not the forfeit- ure ; but in the following instance the forfeiture works, and not the escheat. As where a new felony is created by Act of Parliament, and it is provided (as is frequently the case) that it shall not extend to corruption of blood ; here the lands of the felon shall not escheat to the lord, but yet the profits of them shall be forfeited to the king for a year and a day, and so long after as the offender lives. m (6) But see note to s. 256. 28G OF TITLE BY PURCHASE. Comiption of There is yet at common law a farther consequence of the hereditary . ., blood of a per- the corruption and extinction of hereditary blood, which is *S. •;: J. this : that the person *attainted shall not only be incapable himself of inheriting or transmitting his own property by heirship, but shall also obstruct the descent of lands or tene- ments to his posterity, in all cases where they are obliged to derive their title through him from any remoter ancestor. The channel which conveyed the hereditary blood from his ancestors to him is not only exhausted for the present, but totJiUy dammed up and rendered impervious for the future. But, by the law of England, a man's blood is oO universally corrupted by attainder, that his sons can neither inherit to him nor to any other ancestor, at least on the part of their attainted father. tVattamder^*' Upon the whole, it appears that a person attainted ' was ' neither allowed to retain his former estate, nor to inherit any future one, nor to transmit any inheritance to his issue, either immediately from himself, or mediately through him- self from any remoter ancestor; for his inheritable blood, which is necessary either to hold, to take, or to transmit any feodal property, ' was ' blotted out, corrupted and ex- tinguished forever : the consequence of which ' was,' that estates thus impeded in their descent, resulted back and escheated to the lord. *S.256. * This corruption of blood, thus arising from feodal prin- and qualified ciples, but perhaps extended farther than even those prin- 8tatute*.*° ciples will warrant, has been long looked upon as a peculiar hardship ; because the oppressive parts of the feodal tenures being in general abolished, it seemed unreasonable to reserve one of their most inequitable consequences ; namely, that the children should not only be reduced to present poverty (which, however severe, is sufficiently justified upon reasons of public policy), but also l)e laid under future difficulties of inheritance, on account of the guilt of their ancestors. By the statute 7 Anne, c 21 (the operation of which is OF TITLE BY PURCHASE. m postponed by the statute 17 Geo. II. c. 39), it is enacted, that, after the death of the late Pretender and his sons, no at- tainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person other than the offender him- self: which provisions have, indeed, carried the remedy farther than was required by the hardship above complained of ; which is only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted ancestor (a). ' By 32 and33 Vic. ch. 29, ss. 54 and 56 (D.), which re-enacts similar sections of the Con. Stat. Ca. c. IIG, "except in cases " of high treason, and of abetting, procuring, or counselling " the same, no attainder shall extend to the disinheriting " of any heir, or to the prejudice of the right or title of "any person, other than the right or title of the of- " fender during his natural life only ; and every person to " whom, after the death of any such offender, the right or " interest to kjh in any lands, tenements, or hereditaments, "should or would have appertained, if no such attainder had " taken place, may enter into the same ; " (h) and by 4 Wm. IV. c. 1, R. S. 0. c. 105, s. 8, the effect of corruption of blood, which as above mentioned (c) prevented tracing descent through an ancestor attainted, is abolished without excep- (a) These statutes have been repealed in England by 39 Geo. III., c. 93, which repealing Act being passed subsequent to the grant of a constitution to Canada, and the introduction of the English law by Provincial Act 32 Geo. III. c. 1 (see chapter on the constitution), is not in force atid has no repealing effect here (Dunn V. O'Seilly, 11 C. P. U. C. 404) ; unless, indeed, it is to be deemed of such general import as by its mere enactment to apply to all British Colonies though not expressly named (Brook v. Brook, 9 House of Lords Cases, 1861, pp. 214, 222, 240). Assuming the repealing Act does not apply, then. Cardinal Yorke, the last surs'ivor of fthe sons of the Pretender, having died in 1807, it would seem that in Canada, irrespective of provincial snactments, the Statute of Anne would have had the effect stated in the text, and as stated by Black. store, vol. 4. p. 384, in regard to it, hereditary punishment and forfeitures for high treason, except for life of the offender, are abolished. See also Curwood's Hawkins' Pleas of the Crown, vol. 2, pp. 637, 649, n. (b) Can the attainted felon devise ? the right of the heir being saved, but the capacity of the offender not restored. Bythwood Conv. vol IV. p. 71. (c) Sec. 254. 32 and 33 Vic c.29, abolishes forfeiture or attainder be- yond life of offender ex- cept in cases^ of treason. R. S. O. c. 105, s. 8, abolishes corru])tion of blood on at- tainder. 1 WW 5 :3 r In the case of a corporation, if it be dis- solved, the donor or his 28R OF TITLE BY PURCHASE. tion even in cases of treason. Therefore in the case of grandfather, father and son, and the father being attainted and dying before the grandfather, who dies seised, the son can claim through his attainted father. This latter statute would not apply to prevent an escheat where the lands on the committal of the offence were vested in the party at- tainted ; in such case the former statute applies, " for the benefit of the heirs at least," except in cases of treason.' Before I conclude this head of escheat I must mention one singular instance in which lands held in fee-simple are not liable to escheat to the lord, even when their owner is have the land "0 more, and hath left no heirs to inherit them. And this is t^e'lonUiy""'^ the case of a corporation ; for if that comes by any accident escheat. ^^ j^g dissolved, whilst holding the lands and before aliena- tion (a), the donor or his heirs shall have the land again in reversion, and not the lord by escheat ; which is perhaps the only instance where a reversion can be expected on a grant in fee-simple absolute (6). The law doth tacitly annex a condition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter ; for the * S. 257. cause of the gift or grant* faileth. This is, indeed, founded upon the self -same principle as the law of escheat ; the heirs of the donoi* being only substituted instead of the chief lord of the fee ; which was formerly very frequently the case in subinfeudations, or alienations of lands by a vassal to be holden as of himself, till that practice was restrained by the statute of quia emptores, 18 Edw. I., st. 1 , to which this very singular instance still, in some degree, remains an exception. (a) Preston Est., vol. 2. p. 50, See Lindsau Pclroleum Co. v. Pardee, 22 Grant, 18. {b) Such an interest is not perhaps in strictness a reversion in the nature of a vested estate, but rather a possibility of reverter : 1 Preston Est., p. 116 ; Smith Real Prop. 3 ed. 337. On a grant of the whole fee, especially since subinfeuda- tion was abolished by the stat. Quia emptores, there can be no portion of seisin or ownership left in the grantor in the nature of a vested estate. Such an in- terest is probably " a possibility coupled with an interest where the object is as- certained " within. R. S. 0. c. 98, s. 5. le case of g attainted id, the son ter statute 10 lands on e party at- », " for the reason.' lention one pie are not ' owner is A.nd this is y accident 3re aliena- .d again in lerhaps the on a grant y annex a iorporation r ; for the d, founded ; the heirs cliief lord ihe case in Eissal to be led by the 1 this very exception. V. Pardee, 22 le nature of » p. 115 ; Smith « subinfeuda- tion of seinin Such an in- e object is as- CHAPTER XVI. OF TITLE BY OCCUPANCY. * Occupancy is the taking possession of those things s. 258. which before belonged to nobody. This, as we have seen (a), Of title by o«- is the true ground and foundation of all property, or of hold- "P****^ • ing those things in severalty which, by the law of nature, unqualified by that of society, were comnxon to all mankind ; but, when once it was agreed that every thing capable of ownership should have an owner, natural reason suggested, that he could first declare his intention of appropriating any thing to his own use, and, in consequence of such intention, actually took it into possession, should thereby gain the ab- solute property of it ; according to the law of nations, recog- nised by the laws of Rome, quod nullius est, id ratione na- turcdi occupanti conceditur. The right of occupancy, so far as it concerns real property, Occurred only (for of personal chattels I am not in this place to speak) hath ^pur^^ur^Tie. been confined by the laws of England within a very narrow compass; and was extended only to a single instance : namely, where a man was tenant pur auter vie, or had an estate granted to himself only (without mentioning his: heirs) for the life of another man, and died during the life estate of cestuy que vie, or him by whose life it was holden in this case, he that could first enter on the land might lawfully retain the possession, so long as cestuy que vie lived, by right of occupancy. This seems to have been recurring to first principles, and calling in the law of nature to ascertain the property of the land, when left without a legal owner. For it did not re- i «•' » («) See pp. 3 and 8, 19 ■ t }-: ^90 OF TITLE BY OCCUPANCY, I1#l vert to the grantor, though it was formerly supposed so to thus distinguishing between the possession and the use, and receiving *the actual profits, while the seisin of the lands remained in the nominal feoffee ; who was held by the courts of equity (then under the direction of the clergy), to be bound in conscience to account to his cestuy que use for the rents and emoluments of the estate. And it it. to these inventions that our practisers are indebted for the introduc- tion of uses and trusts, the foundation of modem convey- ancing. But, unfortunately for the inventors themselves, they did not long enjoy the advantage of their new device ; Butthesta- for the statute 15 Rich. II. c. 5, enacts, that the lands which II. c. 5, made had been so purchased to uses should be amortised by li- the^statutea of cense from the Crown, or else be sold to private persons ; mortmain. ^^^^ ^j^g^^^ f^^ ^j^g future, uses shall be subject to the statute of mortmain, and forfeitable like the lands themselves. And whereas the statute had been eluded by purchasing large tracts of land, adjoining to churches, and consecrating them by the name of church-yards, such subtle imagination is also declared to be within the compass of the statute of mortmain. And civil or lay corporations, as well as ecclesi- OF TITLE BY FORFEITURE. 297 ive liberty their next his should 1 in mort- taining the as marked provided s should be itermediato ecclesias- nt of their rey&nce, by es directly, us houses! he use, and the lands eld by the i clergy), to 2ue use for J in to these le iutroduc- m convey- themselves, new device ; ands which ised by li- ;e persons; the statute themselves, purchasing )nsecrating imagination statute of [ as ecclesi- astical, are also declared to bo within the mischief, and of course within the remedy provided by those salutary laws. And lastly, as during the times of popery, lands were fre- quently given to superstitious iises, though not to any corporate bodies ; or were made liable in the hands of heirs or devisees to the charge of obits, chaunteries, and the like, which were equally pernicious in a well-governed state as actual alienations in mortmain ; therefore, at the dawn of the Reformation, the statute 23 Hen. VIII. c. 10, declares, that all future grants of lands for any of the purposes afore- said, if granted for any longer term than twenty years, shall be void. ' The definition adopted of a gift to superstitious uses is " one which has for its object the propagation of a religion not tolerated by law." Inasmuch as " by our law all bodies of Christians enjoy equal toleration," it has been held in On- tario, that a bequest of money for paying for masses for the repose of the testator's soul is not invalid as a supersti- tious use (a).' It was in the power of the crown, by granting a licence The Crown '■ > J 6 o may still feTant of mortmain, to remit the forfeiture, so far as relating to its licences to . , . aliene or take own rights ; and to enable any spiritual or other coiporation lands, &c., in to purchase and hold any lands or tenements in perpetuity ; which prerogative is declared and confirmed by the Statute 18 Edw. Ill , st. 3, c. 3. But, as doubts were conceived at the time of the Revolution how far such licence was valid, since the king had no * power to dispense with the statutes of Mortmain by a clause of non obstante ; and as, by the gradual declension of mesne seigniories through the long operation of the statute of quia emptores, the rights of intermediate lords were reduced to a very small compass ; it was there- fore provided by the statute 7 & 8 Wm. III., c. 37, that the crown for the future, at its own discretion, may gi'ant a) Elmaley v. Madden 18 (irant, 386. * S. 273. » / 298 OF TITLE BY FORFEITURE. Charitable • S. 274. licences to aliene to take in mortmain, of whomsoever the tenements may be holden. It hath idno been held, that the statute 23 Hen. VTTL, before mentioned, did not extend to anything but supenti- tious uses; and that therefore a man may give lands for the maintenance of a school, an hospital, or any other charitable u.ses. But as it was apprehended, from recent experience, that persons on their death-beds might make large and im- provident dispo.sitions even for these good purposes, and defeat the political ends of the statutes of mortmain ; it is therefore enacted by the statute 9 Geo. II., c. 36, that lo lands or tenements, or money to be laid out thereon, shall* be given for or charged with any charitable uses whatsoever, unless by deed indented, executed in the presence of two witnesses, twelve calendar months before the death of the donor, and enrolled in the Court of Chancerv within six month after its execution (except stock in the public funds, which may be transferred within six months previous to the donor's death), and unless such gift be made to take effect immediately, and be without power of revocation : and that all other gifts shall be void. ' There is an exception in favour of purchases and transfers " really bona fide for a full and " valuable consideration, actually paid at or before the mak- " ing such conveyance or transfer, without fraud or coUu- "sion"(a). ' It will be observed that by the terms of the Act 9 Geo. II. c. 36, which is not in strictness a statute of mortmain, though sometimes so called, a gift in contravention of it is void, and therefor the grantor can take advantage of it. So also it would seem that, as respects the objection of alienation in mortmain, the gi*antor can take advantage of the invalidity of a conveyance to a corporation, which, by its charter, is (a) Power in a charter to incorporate, "' to take, receive, purchase, acquire, hold, possess, and enjoy," lands will nit exclude the operation of this Act. Fer- gusaon v. Oihaon, 22 Grant, 36. nsoever the Hen. VTTL, ut supersti- ands for the r charitable experience, rge and im- irposes, and tmain ; it is hat .10 lands in, shall* be whatsoever, ence of two leath of the ^ within six public funds, vious to the o take effect >n : and that on in favour r a full and ore the lUak- ud or coUu- .ct 9 Geo. II. lain, though is void, and So also it ilienation in le invalidity pS charter, is Tchasc, acquire, if thia Act Fer- OF TITLE BY FORFEITURE. 29» precluded from acquiring lands : but in other cases whereon, hy forfeiture as the only penalty, the crown becomes enti- tled, then as to civil corporations it might be urged that the conveyance is good against the grantor, and the grantor would hold till the Crown should claim ' (a). ' This statute of Geo. 11. and the statutes of mortmain have been held to be in force here (6), subject to the exception created by the decision before referred to as to gifts to super- stitious uses. Registry in the county registry office (if, indeed that can be deemed requisite), has been considered equi- valent to the enrolment required by the statute. The effect, however, of the Statutes is much diminished by vari- ous Provincial Acts. By the R. S. O. c. 21 G, any religious Provincial acta body of Christians may take conveyances for site of a church, conveyancesto meeting-house, &/C.,or " other religious or congregational pur- gg -^"c! m ' pose," in the name of trustees. - Powers of mortgaging and leasing are granted, also power to any such body to take by gifts 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 to 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 continue unimpaired, but such body is to be entitled to all additional privileges conferred by the general Act. By 3 Vic. c. 74 (c), 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 Roman Catholic Church.' (a) See post, a. 291, and Shelford Mortmain, p. 8, but see Brown v. McNab, 20 Grant, 179. (b) Ante, chap. 2 ; Doe Anderson v. Todd, 2 U. C B. 82 ; Mercer v. Hewiton, 9 C. P. U. C. 349 ; HaUeck v. Wilson, 7 C. P. U. C. 28. (c) A will has been held to be a conveyance within the meaning of thia Act, Doe D. Baker v. Clark, 7 U. C. R. 44. ft*' 3 m 5 mmj »■ I ^ 300 OF TITLE BY FORFEITUUE. * By R. S. 0. c. 167, power is given to any five or more adults to incoi'porate themselves for any benevolent or pro- vident, 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 ceme- teries, companies for insurance, construction of public worb, manufacturing, mining, &c. The power to take lands by purchase is confined to what is required for 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. 0. c. 216, Under the R. S. 0. c. 150, any number of persons not less than five, may become incorporated " for any purposes or objects to which the legislative authority of the Legislature 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.' 3. Alienation 3. In cases of Conveyance by fine or recovery, when such tenants, grant- mode of Conveyance was in force, or by feofiinent when such larger than a conveyance had a tortious efiect, such alienations hy par- eir own. ficular tenants, when they were greater than the law en- titled them to make, and divested the remainder or rever- sion, were also forfeitures to him whose right was attacked thereby. As, if tenant for his own life aliened by feoffment or fine for the life of another, or in tail, or in fee ; these being estates, which either must or may last longer than his own, the creating them is not only beyond his power, and inconsistent with the nature of his interest, but was also a forfeiture of his own particular estate to him in remainder or reversion. For which there seem to be two reasons: First, because such alienation amounts to a renunciation of the feodal connexion and dependence ; it implies a refusal to • s. 275. perform the due renders and services to the lord of *the fee, of which fealty is constantly one ; and it tends in its con- five or more volent or pro- pt of trade or e various Acts slate to come- public works, «,ke lands by .ctual use and d that to take ) amount and same terms as R. S. 0. c. 21G, jrsons not less ly purposes or be Legislature ad working of ith power to ry, when such jnt when such ations by par- m the law en- nder or rever- was attacked I by feoffment in fee ; these onger than his is power, and >ut was also a in remainder two reasons: nunciation of es a refusal to rd of *the fee, ds in its con- OF TITLE BY FORFEITURE. 301 sequence to defeat and divest the remainder or reversion ex- pectant ; as therefore that is put in jeopardy by such act of the particular tenant, it is but just, that, upon discovery, the particular estate should be forfeited and taken from him, who has shewn so manifest an inclination to make an im- proper use of it. The other reason is, because the particular tenant, by granting a larger estate than his own, has by his own act determined and put an entire end to his own ori- ginal interest ; and on such determination the next taker is entitled to enter regularly, as in his remainder or re- version. ' It should be mentioned that forfeiture as above ex- No forfeiture plained would only take place on a conveyance by way of cause, as all p o} J. •j.i. T i? • • 1- i^ J conveyancea feoiiment with livery oi seism, or by nno or recovery, and are innocent not where it was by what is termed an innocent convey- <=°°^^y»"ce8. ance, as one operating under the Statute of Uses. Thus a conveyance by way of bargain and sale, or covenant to stand seized, would not work a disseisin or a forfeiture. And as fines and recoveries are now abolished, and a feoffment no longer has a tortious operation, and is thus placed on the same footing as an innocent conveyance, it would seem that the consequences on conveyance by feoffment would be no more than on any other innocent conveyance, and so no forfeiture.' The same law above laid down with regard to tenants for life held also with respect to all tenants of the mere freehold, or of chattel interests ; but if tenant in tail aliened in fee, this Avas '3 immediate forfeiture to the remainder-man, but a mere discontinuance (as it is called) of the estate tail, which the issue ' might' afterwards avoid by due coui-se of law : for he in remainder or reversion hath only a very re- mote and barely possible interest therein, until the issue in tail is extinct. But, in case of such forfeitures by particular tenants, all legal estates by them before created, as, if tenant for twenty years granted a lease for fifteen, and all charges 5 «•! J ^02 Disclaimer of (tenure a forfeiture. • S. 276 On tenancy from year to year, or at will, dispenses with necessity of notice to 4iuit. m -' OF TITLE BY FORFEITURE. by him lawfully made on the lands, shall be good and avail- able in law. For the law will not hurt an innocent lessee for the fault of his lessor ; nor permit the lessor, after he has granted a good and lawful estate, by his own act, to avoid it, and defeat the interest which he himself has created, Equivalent, both in its nature and its consequences, to an illegal alienation by the particular tenant, is the civil crime of clisclaiTner ; as, where a tenant who holds of any lord, neglects to render him the due services, and, upon an action brought to recover them, disclaims to hold of his lord Which disclaimer of tenure in any court of record is a forfei- ture of the lands to the lord, upon reasons most apparently feodal. And so likewise, if in any court of record the *particular tenant does any act which amounts to a virtual disclaimer ; if he claims any greater estate than was granted him at the first infeodation, or takes upon himself those rights which belong only to tenants of a superior class ; if he af- firms the reversion to be in a sti anger by attorning (a) as his tenant, collusive pleading, and the like, such behaviour amounts to a forfeiture of his particular estate. ' A mere verbal disclaimer, out of court, however, will not create a forfeiture where the tenant holds for a term certain (6) ; and though such a disclaimer by a tenant from year to year, or at will, whose estate may be determined by proper notice to quit, may subject him to be forthwith treated as a trespasser, and immediate proceedings in ^ectment may be taken by his landlord without any notice to quit, and before his tenancy would otherwise terminate ; this does not proceed so much on the ground that the necessity of any evidence of notice to quit is dispensed with ; for such notice could only be requisite in case of a tenancy, and the party disclaiming has by his disclaimer himself denied the existence of the tenancy, (a) But attornment has no longer a tortious effect by 11 Geo. II. c. 19, s. U. (6) Doe d. Graves v. Welh, 10 A. & E., supra ; Prince v. Moore, 14 C. P. V C, 349 ; Doe V. Stewart, 1 U. C. E. 512. OF TITLE BY FOIIFEITURE. 303 od and avail- nocent lessee issor, after he own act, to f has created, uences, to an le civil crime of any lord, )on an action of his lord >rd is a forfei- st apparently f record the 3 to a virtual : was granted If those rights ass ; if he af- ioming (a) as ch behaviour ever, will not , term certain from year to ed by proper 1 treated as a ment may be it, and before s not proceed Y evidence of could only be claiming has the tenancy, II. C. 19, 8. 11. we, 14 C. P. V and therefore cannot insist on it in an action by the land- lord (a). And a disclaimer to have such an effect must be such as to amount to a distinct repudiation of the relation of landlord and tenant, a mere refusal to pay rent till the tenant could ascertain whether some third person claiming it was not entitled, would not amount to a disclaimer (6).' 'Some difference has arisen in the courts here (c) as to Denial of land- , , , . , , , , . 'o'd's title in i^rhether or no, where a tenant, on ejectment brought by his ejectment, landlord, by his notice of defence under R. S. O. c. 51, s. 9, sets up title in himself and also denies his landlord's title, such notice, and the putting the landlord to proof of his title, amounts to a disclaimer for the purposes at least of precluding the defendant from insisting on what he might otherwise set up as a defence, as that his tenancy from year to year, or at will, under the plaintiff, has not been legally determined by notice to quit : whatever doubt there may be from the decision in the Queen's Bench, where the court were not unanimous, this much is clear, and it answers our purpose as an illustration of the principle of disclaimer, that (to use the language of the court in the case), " when the parties actually come to trial, the conduct of the defendant, if he be in truth tenant to the claimant, may, as it would have done if there had been no such provision in the statute, affect his right to defend, and if then he adopts a course amounting to a disclaimer, he must take the consequences," and, as stated in another case, "cannot first of all compel the plaintiff to prove his title and then set up a tenancy under him." ' III. Lapse is a species of forfeiture, whereby the right of preaentation to a church accrues to the ordinary by neglect (a) Doe V. Boilings, 4 C. B., 192, per Maule, J. Per Ijord Wensleydale, Arch- bold V. Scully, 9 H. L. Ca. 381, referring to Doe d. Graves v. Wells, 10 A. & E. 427 ; but see Doe v Hessel, 2 U. C. R. 194. (*) Hunt V. Allgood, C. B. N. S. 253 ; Jones v. Mills, C. B. N. S. 788. (c) Thompson v, Falconer, 13 C. P. U. C. 78 ;1 Cartwright v. McPherson, 20 U. C. R. 251 ; Houghton r. Thomson, 25 . U C. R. 561. WW- 5 mm* 5' 3 I 304 OF TITLE BY FORFEITURE. of the patron to present, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitaa For it being for the interest of religion, and the good of the public, that the church should be provided with an officiating minister, the law has therefore given this right of lapse, in order to quicken the patron ; who might otherwise, by suf- fering the church to remain vacant, avoid paying his eccle- siastical dues, and frustrate the pious indentions of his ancestors. *S. 281. *V. The next kind of forfeitures are those by breach or V. By breach non-performance of a condition annexed to the estate, either fomarice of exi)ressly by deed, at its original creation, or impliedly, by concitions. j^^^^^ from a principle of natural reason. Both which we considered at large in a former chapter (c). VI. By waste, which is either volnntary'or permiesive. As to what constitutes waste. Liability on destruction by fire, or the act of God. VI. I therefore now proceed to (what was formerly) ano- ther species of forfeiture, viz., by waste. Waste, vastum, is a spoil or destruction in houses, gardens, trees, or other cor- poreal hereditaments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail. Waste is either voluntarij, which is a crime of commission, as by pulling down a hou.^e ; or it is perTnissive, which is a matter of omission only, as by suffering it to fall for want of necessary reparations. Whatever does a lasting damage to the freehold or inheritance is waste. Therefore removing wainscot, floors, or other things once fixed to the freehold of a hou.se, is waste. If a hoivic be destroyed by tempest, lightning or the like, which is the act of Providence, it is no waste : but otherwise, if the house be burnt by the careless- ness or negligence of the lessee ; though now by the statute 6 Anne. c. 31, no action will lie against a tenant for an acci- dent of this kind. See also 12 Geo. III. c. 73, and 14 Geo. Ill, c. 78,ss. 84, 8G, the latter statute is substantially the same (a) See eh. 11. OF TITLE BY FORFEITURE. 305 y neglect of letropolitan. good of the n officiating of lapse, in ^ise, by suf- ig his eccle- Lions of his by breach or (State, either npliediy, by bi which we rmerly) ano- 5, vastum, is 3r other cor- hat hath the commission, !, which is a 1 for want of g damage to re removing 3 freehold of by tempest, 3nce, it is no the carclcss- -• the statutg t for an acci- and 14) Geo. illy the same as the statute of Anne. There is a great distinction between accidental fire and one arising from carelessness or negli- gence, and the absence of this distinction in the text, more especially in the first volume of the Commentaries, p. 431, is commented on in one case (a), wherein the distinction is pointed out between negligence and accident ; in the former case the tenant would be liable. If the tenant ha^ cove- nanted to repair, without exception in case of fire, he will be bound to rebuild ; so also though destruction happen by the act of God (6) ; and even though such exception be made in the covenant to repair, still if none be made in the cove- nant to pay rent, the rent must be paid, notwithstanding destruction of the thing demised. Timber is part of the inheritance, and to cut down such Wast?. or do any other act whereby the timber may decay is waste : * but the remarks of the learned Commentator must be taken subject to the observations hereafter made. Moreover in modern cases, as in Drake v. Wigle, waste is said to be of a flexible nature, and variable according to circumstances.' Underwood the tenant may cut down at any seasonable time * that he pleases ; and may take suffi- ♦ s. 282. cient estovers of common right, for house-bote and cart-bote ; unless restrained (which is usual), by particulai- covenants or exceptions. The conversion of land from one species to another is waste ; to convert wood, meadow, or pasture, into arable ; to turn arable, meadow, or pasture, into woodland ; or to turn arable or woodland into meadow or pasture, are all of them waste. For, as Sir Edward Coke observes, it not only changes the course of husbandry, but the evidence of the estate, when such a close, which is conveyed and des- cribed as pasture is found to be arable, and e converso. And the same rule was observed, for the same reason, with regard to converting one species of edifice into another, even (o) FUliUr V. Phippard, 11 Q. B. 347 ; see also Gaston v. Weld, 19 IT. C. B. ^. (6) 2 Wms. Saunders, 422 a. 20 306 OF TITLE BY FORFEITURE. fti(l# m m f Meliorating WlWtti. 1/learing wild land waste. though improved in its vahie. To open the land to search for mines of metal, coal, &c., is waste ; for that is a detri- ment to the inheritance ; but, if the pits or mines were open before, it is no waste for the tenant to continue dijjging them for his own use ; for it has now become the mere an- nual profit of the land. ' In the former edition of this book, some remarks were Made on the subject of waste. We may now add that what IS above stated as to convei-sion of the character of the land being waste in consequence of its changing the evidence of the estate, is of little or no weight in modern times, and especially not in Ontario, where a system of registry pre- vails (a). Then, again, wsiste may be meliorating in '^ character, and so such as a Court of Equity will not re- strain (b), and for which no jury would give damages ; and thus the mere cliange from one kind of edifice to another of greater value is not necessarily, ipso facto, waste.' ' The question as between tenant for life and remainder- man or reversioner to clear wild land, for the purpose of cultivation, was, as we have said, referred to in the last edi- tion of this work. Since then some cases (c) have been de- cided, but in neither does the question seem to have been presented in the simple form as to whether, admitting the reversioner would be damnified as to the value of the in- heritance by the clearing the land, and converting it into a farm in a proper state of cultivation, such conversion is waste. Whether damnification has resulted from the con- version, if it has taken place, or will result, if it should, is a question of fact. If determined in the aflirmative, the cases {a) See the observations of O'Hagan, Lord-Justice, in Doherty v. Allman, h. R. 3 H. L. 726. (6) Doherty v. Allman, supra. See also Simmons v. Norton, 7 Bing. 040, per Tindal, J., and 2 Roll. Ab. 814, p. 5. (f) Campbell v. Shields, 44 U. C. R. 449; Drake v. Wigle,' 2i V. P. U. C. 405. In GovUn v. Coldxeell, 13 Gr. 493, Vankoughnet, C, does not seem to have de- cided that a lessee for years of wild lands could not cut ; he says the tenant wanted the timber, without any obligation " to clear the land." OF TITLE BY FORFEITURE. 307 id to search b is a detri- es were open inue dijjging ;he mere an- jmarks were Id tliat what f of the land ; evidence of n times, and registry pre- ating in '^ will not re- amages ; and bo another of te.' d remainder- e purpose of the last edi- ave been de- io have been imitting the 10 of the in- ting it into a !onversion is ■om the con- t should, is a ive, the cases Iierty v. Allinan, 7 Bing. 040, per I V. P. U. C. 405. seem to have de- le Bftys the tenant do not seem to be conclusive, as the pleadings were either insufficient to bring up the question in the simple form above referred to, or they turned on covenants in reference to the injury complained of, and did not call for decision on the simple question.' ' The tenant for life may well urge that, as he is bound to pay the taxes, at least where under the same title he takes productive property (a), the wild land would be damnosa hoereditas, unless he were allowed to make it productive by cultivation, and that, even thoiigh the individual reversioner niight be more benefited hy the land coming to him as virgin soil, and with timber of great value, yet public policy requires that land should be made annually productive, rather than lie idle for perhaps many years. American cases recognise this view (6). In England, too, it seems, even in early times, to have been recognised: thus, in Bacon Ab. Waste ch. 1, is. this note : " Some say that ploughing must be prohibited by covenant to pay so much an acre, for that absolute restraint fi'om ploughing is void." ' ' In the case of a lease of wild land for a term of years re- Lessee of wild serving rent, there is, perhaps, an argument in favour of the right to bring under cultivation which does not apply when the land comes to a tenant for life, paying no rent ; for in the former case it can hardly be supposed the parties intended that rent should be paid during tlio term, and yet the land yield no income. To hold that a lessee, for a term or for life, paying rent, might cut timber in order to culti- vate would be but to conform to the old common law, before the existence of feuds, as Sir W. Blackstone states it to have been. He says : " Waste was not punishable by any tenant, save only in three persons : guardian in chiv- alry, tenant in dower, and by the curtesy, and not in tenant for life or years. And the reason for the diversity was this, (o) Grey v. Hatch, 18 Grant, 72 ; Biscoe v. VanBearle, 6 Grant, 438. (6) Washburn Rl. Prop. 2 ed. 108 ; 4 Kent Com. 76. .5 land. 3' J r 308 Proceeds of waste. •i* OF TITLE BY FORFEITURE. that the estates of the three former wei'c created by the act of the law itself, which, therefore, gave a remedy against them ; but tenant for life or for years, coming in by the lease of the owner of the fee, he might have provided against waste, and if he did not, it was his own fault." ' ' In England, when the cutting down of timber that might otherwise decay is clearly for the benefit of all interested in the property, the Court of Chancery has permitted the tenant for life to cut it ; the proceeds being invested for the benefit of those in remainder, but the annual interest given to the tenant for life. Further questions arise as to the dis- position of the timber, or its proceeds, which did not need cutting, in the case where the cutting would be waste, and where it would not be waste, and whether the English law on the subject would apply, and how, in the case of wild lands being cleared and brought under cultivation (a). It has been said that " where the waste is wholly unauthorized, the proceeds of the waste, or things wasted, belong to the owner of the first estate unimpeachable for waste, if there be one in existence at the time, and if there be none, it be- longs to the owner of the first estate of inheritance, and ought to be retained for his benefit, the annual interest in this case not being given to the tenant for life so improper!) committing waste " {b)! In favour of the owners of the inheritance, the statutes of Marlbridge, of Henry III., and of Gloucester, of Edv^ard I., provided that the writ of waste shall not only lie against tenants by the law of England (or curtesy), and those in dower, but against any farmer or other that holds in any (a) Bagot v. Bagot, 32 Bea. 509 ; Ocnt v. Harrison, John 517 ; notes to Botola Case, Tud. Lg. Ca. Rl. Prop. 107. {b) Broom's Commentaries, vol. 2, ' ■ *' J5, and note u, referring to Bagot v. Bagot, and Gent v. Han'iton, supra, s\,i)(.ing that in the latter case a doubt wu expressed as to the doctrine expressed in the text in respect of a tenant for life unimpeachable for waste taking the corpus to the exclusion of owner of tb« i iheritance. (a)' (6) (c). Ed. 6( by the act dy against in by the 5 provided fault." ' that might iterested in raitted the sted for the bereat given s to the dis- id not need waste, and English law !ase of wild ion (a). It lauthorized, ilong to the ste, if there none, it be- ritance, and ,1 interest in ) improperly the statutes , of Ed\^ard y lie against ind those in holds in any ; notes to Boida ring to Bagot v. case a doubt wm [ a tenant for life 1 of owner of th« OF TITLE BY FORFEITURE. 309 manner for life or years. So that, all tenants merely for life or for ' a term certain ' have been punishable or liable to be impeached for waste, both voluntary and permissive ; unless their leases be made, as sometimes they are, without im- peachment of waste absque impetitione vaMi ; that is, with a provision or protection that no man shall impetere, or sue him for waste committed. But tenant in tail after possi- bility of issue extinct is not impeachable for waste ; because his estate was at its creation an estate of inheritance, and so not within the statutes. ' The old writ of waste is now abolished by 4 William IV. Writ of Waste '' abolished by c. 1, R. S. O. c. 51, a. 75, and so no forfeiture of the place R. S. o. c. 51. wasted takes place as enacted by the statute of Gloucester. The present remedy is by action on the case at law, or if the Present reme- . . .... dies at law, waste be not mere permissive waste, by injunction to res- train the committing of waste in equity. It has been said that no action at law will lie for permissive waste against tenant from year to year or at will (a), but it seems it will lie against tenant for a term or for life (6). Courts of of equity not only interfere to prevent voluntary waste at and in equity, law, but also to restrain that species of waste for which waste, there is no remedy at law, and therefore called equitable waste : thus a tenant for life without impeachment of waste, is as above mentioned not liable at law for waste, but still he will be restrained at equity from committing malicious, extravagant, and humoursome waste, as pulling down a man- sion house, or farm houses, felling timber planted or left standing for shelter or ornament of a mansion house or grounds (c) : and so also will a tenant in fee whose estate is liable to be defeated by an executory gift over. (a) Tud. Lg. Cases, 92. (6) Yellowby v. Gower, 11 Ex. 293 ; Harnett v. MailUnd, 16 M. & W. 257. (c). As to relief in equity, see Garth v. Cotton, 1 White & Tud. Lg. Cases, 2 Ed. 604, and Tud. Lr. Ca. Rl. Prop. 107, Bowles' Can. 5 .? pp^ . I , l.' i OPtitle by alienation or conveyance. Alienation by the feodal law. CHAPTER XVIII. OF TITLE BY ALIENATION. 'S. 288. The most usual and universal method of acquiring a title to real estates is that of alienation, conveyance or purchase in its limited sense ; under which may be comprised any method wherein estates are voluntarily resigned by one man, and accepted by another ; whether that be effected by sale, gift, marriage, settlement, devise, or other transmission of property, by the mutual consent of the parties. This means of talcing estates by alienai'on, is not of equal antiquity in the law of England with that of taking them by descent. For we may remember that, by the feodal law (a), a pure and genuine feud could not be transferred from one feudatory to another without the consent of the lord ; lest thereby a feeble or suspicious tenant might have been substituted and imposed upon him to perform the feodal ser- vices, instead of one on whose abilities and fidelity he could depend. Neither could the feudatory then subject the land to his debts ; for if he might, ^he feodal restraint of aliena- tion would have been easily frustrated and evaded. And as he could not alien it in his life-time, so neither could he by will defeat the succession, by devising his feud to another family ; nor even alter the course of it, by imposing particu- lar limitations, or prescribing an unusual path of descent. Nor, in short, could he aliene the estate, even with the con- sent of the lord, unless he had also obtained the consent of his own apparent or presumptive heir. And therefore it was very usual in antient feoffments to express that *the aliena- tion was made by consent of the heir of the feoffor; or some- (o) See s. 57, p. 85. OF TITLE RY ALIENATION. 311 CO airing a title > or purchase raprised any by one man, icted by sale, iDsmission of not of equal taking them le feodal law sf erred from of the lord; it have been he feodal ser- ility he could ject the land int of aliena- ded. And as : could he by id to another sing particu- i of descent, rith the con- tie consent of sref ore it was , *the aliena- tor; or some- times for the heir-apparent himself to join with the feoffor in the grant. And, on the other hand, as the feodal obliga- tion was looked upon to be reciprocal, the lord could not aliene or transfer his seigniory without the consent of his vassal : for it was esteemed unreasonable to subject a feuda- tory to a new superior, with whom he might have a deadly enmit}', without his own approbation ; or even to transfer his fealty, without his being thoroughly apprised of it, that he might know with certainty to whom his renders and service.s were due, and be able to distinguish a lawful distress for rent from a hostile seizing of his cattle by the lord of a neighbouring clan. This consent of the vassal was expressed by what was called attorning, or professing to become the tenant of the new lord ; which doctrine of attornment was afterwards extended to all leases for life or years. Fc if one bought an estate with any lease for life or years stand- ing out thereon, and the lessee or tenant refused to attorn to the purchaser and to become his tenant, the grant or con- tract was in most cases void, or at least incomplete ; which was also an additional clog upon alienations. But by degrees this feodal severity is worn off ; and ex- perience hath shewn, that property best answers the purposes of civil life, especially in commercial countries, when its transfer and circulation are totally free and unrestrained. The restrictions were in general removed by the statute of 1 quia emptorea (a), whereby all persons, except the king's; tenants in capite, were left at liberty to aliene all or any part] of their lands at their own discretion (b). As to the power of charging lands with the debts of the owner, this was introduced so early as Stat. Westm. 2 (c) which subjected a moiety of the tenant's lands to executions, for debts recovered by law ; as the tuhole of them was likewise subjected to be pawned in a statute merchant by the statute ? 3 5 3 (a) 18 Edw. I. c. 1. (6) See S8. 72, 91. (c)13Edw. I. c. 18. ,:l 312 OF TITLE BY ALIENATION. de mercatorihus, made the same year, and in a statute staple l»y stjvtute 27 Edw. III. c. 9, and in other similar recognis- • s. 2(to. ances by statute* 23 Hen. VIII. c. 6. 'And now, in Ontario, the whole of them is sxibject to bo sold for the debts of the (p^- owner.' The restraint oL^devising lands by will, except in some places by particular custom, lasted longer ; that not being totally removed, till the abolition of the military tenures. The doctrine of attornments c 'xtinued still later than any of the rest, and became ext ^y troublesome, though many methods were invented to u ^de them ; till at last, they were made no longer necessary to complete the grant or conveyance, by statute 4 & 5 Anne, c. 16 ; but notice to the tenant by the assignee of reveisioner is requisite to secure payment of rent from the tenant, as payments made in ignorance of the agreement are \ alid. And if the rent be paid in advance and notice of the assignment given before the rent became payable the payment would be invalid to Thedoctrineof the assignee (a), and by statute 11 Geo. II. c. 19, the attorn- •ttornments. . ■, ^^ , n> . ■, • <• ment of any tenant shall not anect the possession ot any lands, unless made with consent of the landlord, or to a mort- gagee after the mortgage is forfeited, or by direction of a court of justice. In examining the nature of alienation, let us first inquire, briefly, who may aliene, and to whom ; and then, more largely, how a man may aliene, or the several modes of conveyance. 1. Who jnay aliene, and to whom. I. Who may aliene, and to whom : or, in other words, who is capable of conveying and who of purchasing. And herein we must consider rather the incapacity, than capacity, of the several parties ; for all persons in possession are prima facie capable of conveying, and all persons whatsoever of What im.y or purchasing, unless the law has laid them under any particu- aJ?Mied y,^ lar disabilities. But if a man had only in him the right assigne . ^£ gj^^j^gj. possession or property, he, whilst disseised, could not, (a) Doe d. Nickolt v. Saundert, L. R. 5, C P. 589. OF TITLE BY ALEENATION. batuto staple lar recognis- ', in Ontario, debts of the II, except in er ; that not he mihtary ed still later troublesome, ,hem ; till at omplete the i ; but notice I requisite to 'ments made f the rent be given before be invalid to ), the attorn- ission of any or to a mort- irection of a first inquire, more largely, conveyance. V words, who And herein capacity, of I are prima hatsoever of any particu- m the right 3d, could not, i9. ' l)efore the Act of 14 and 15 Vic. R. S. 0. c. 98,' convey it to any other, lest pretended titles might be granted to great men, whereby justice might be trodden down, and the weak oppressed (a). Yet reveraions and vested remainders might have been granted ; because the possession of the particular tenant is the possession of him in reversion or remainder ; but contingencies, and mere poasihilit'ii^, though they might be released 'as thereby tending to render entire and unim- paired vested estates, or devised by will, or might pass to the heir or executor, yet could not before that statute ' be assigned to a stranger, unless coupled with some present in- terest ; ' but this doctrine only held good at law, and not in equity.' Persons attainted of treason, felony, and prwmunire, are Pewons at- incapable of conveying, from the time of the offence com- son, &c., inca- mitted, provided attainder follows : for such conveyance by veying! them may tend to defeat the king of his forfeiture, or the * lord of his escheat (6). But they may purchase for the * S. 291. benefit of the crown, or the lord of the fee, though they are disabled to hold : the lands so purchased, if after attainder, being subject to immediate forfeiture ; if before, to escheat, as well as forfeiture, according to the nature of the crime. So also, corporations, religious or others, may purchase lands ; yet, unless they have a licence to hold in mortmain, or have authority by statute, they cannot retain such purchase ; but it shall be forfeited to the lord of the fee, ' being in Canada the Sovereign ; though, if the charter of the corporation forbids their acquisition of lands, or some statute declares conveyances to it shall be void, it seems the grantor will be entitled (c).' Idiots and persons of nonsane memory (d), infants (e), Conveyano«8 and purchases (o) Co. Litt. 214. (I) Ante, ss. 72, 244. (c) See ante, a. 274. (d) As to who are idiots, lunatics, &c., and the distinction between them, see Young ^. Young, 10 Grant, 265 ; re Mcaherry, 10 Grant. (e) MilU V. Davis, 9 C. P. U. C. filO ; GilchriH v. Ramtay, 27 U. C. R. 500 J Feather atme v. McDonell, 15 C. P. U. C. 162, in which case Grace v. White' 3 7 ■ m 314 OF TITLE BY ALIENATION. 'm i by idiots, in- and persons under duress, are not totally disabled either to sons insane, or convey or purchase, but sub modo only. For their convey- are voidaWe^ anccs and purchascs are voidable, but not actually void. Lunatics. ' A purchase by a lunatic on a fair and bona fide contract, when apparently of sound mind, from a. person ignorant of the lunacy, cannot it seems be vacated, nor the money paid recovered back (a). As to the defence of lunacy, and the right to avoid a contract or grant, the court in one case (6) thus alluded to them : " The old doctrine was, that a man could not set up his own lunacy, though such as that he did not know what he was about in contracting, and the same doctrine was applied to drunkenness. Modern cases have qualified it, and enabled a man or his representatives to shew he was so lunatic, or drunk, as not to know what he was about when he made a promise, or .sealed an instrument" But it would appear tliat if the contract were fair and honest, and the lunacy unknown to the other contracting party, it will be no defence to an action, at least if not merely executory, but executed in whole or in part, so that the parties cannot be restored altogether to their original position (o). But neither the right to enforce a contract wholly executory, nor the validity of a conveyance by deed from a lunatic, though under such circumstances as above, appears to be free from doubt (d) ; it would appear clear 3IM.I. head, 9 Grant, 791, is not followed. In that case, the court considered a mmi- gage from an infant ab.solutely void, though given to secure the purchase money of lands conveyed to him, and for which when he came of atfe he brought eject- ment, repudiating however the mortgage. So also in Addison on Contrarts, ed. 5, p. 9.'}(), it is said, " All debts, also, and covenants, feoffments, grants, re- leases , confirmations, cognovits or other writings \inder seal made by infant«, are as a general rule (subject to some few exceptions, presently noticed), void." The authorities there referred to however hardly warrant so broad an assertion as that a grant or release of an infant is void. As to lapse of time without avoid- ance after cessor of the disability being a circumstance from which with other affirmants may be inferred, see Feathentone v. McDonell, supra. (a) Bcavan v. McDmell, 9 Ex. 309 ; 10 Ex. 134. (6) MoUon v. Camhoux, A Ex. 18. (c) Ante n. h. Addison on Contracts, 91 ; see also Eccks v. Lowf, 32 U. C. R. G40, per WUson, J. (d) See observation.: of Spragge, V.C., Francis v. St. Oermain, 6 Grant, 641. led either to their convey- ally void. fide contract, ignorant of money paid acy, and the 1 one case (6) i, that a man s that he did md the same n cases have tives to shew tvhat he was instrument." ere fair and r contracting least if not part, so that iheir original :e a contract mce by deed ces as above, appear clear jusidered a mwl- ' purchase money he brought eject- in on Contrartg, nents, grants, re- made by infanta, y noticed), void." road an assertion ne without avoid- ifhich with other t. Iton V. Camhoux, ) Eccks V. Lowry, in, 6 Grant, 641. OF TITLE BY ALIENATION. 315 however, that where the question of the validity of the con- veyance does not arise between the immediate parties to it, but between the lunatic and some subsequent bona fide pur- chaser under it for value without notice, that it cannot be impeached, though obtained originally unfairly and with Icnowledge of the lunacy (a). An infant, not guilty of any fraud in representing himself Infantn. as of full age (6), may waive a purchase or conveyance, when he comes to full age (c) ; and, if he does not then actually agree to it, his heirs may waive it after him": but the agreement to it may bo inferred from lapse of time with- out waiver or disaffirmance after the infant has attained majority [d). Persons also, who purchase or convey under duress, mayaffirm or avoid a transaction, whenever the duress has ceased. So also those who execute a deed or who con- tract under pressure or by reason of undije influence may avoid the same ; and a consideration of the cases will shew that wherever there is a suspicion of such influence it is highly important for the party to be benefited by the trans- action, that the other parties should '^have the advice of, and • be represented by some solicitor, other than that of the party benefited ; and in many cases even that circumstance will not prevent the transaction from being declared void (e). To appreciate the change wrought by Kev. Stat. c. 125, a Rights of the 1 . /. , , , i- husband at brief sketch of the rights of the husband in the property of common law , , .. in lands of nis Wife at common law may be proper. his wife. As regards the freeholds of the wife, at common law, and His right dur- . , , , , ing their joint independently of any question of right as tenant by the cur- lives. tesy, " by the marriage the husband acquiied, and during (n) In Re McSherrii, 10 ""irant, 390, per Vankoughnet, C. (6) Rehhaver, 3 ch. Chan. 37!) ; see Bennett v. Holden, 21 Grant, 222; and Gallagher v. Gallagher, 30 U. C. R. 41-5. (c) As to avoiding during nonage, Gilchrist v. Ramsay, 27 U. 0. R. 400. (d) Featherstone v. McDonell, 15 C. P. U. C, 162, per Richards, J. («) Hwjucnin v. Basdey, 2 White & Td. Lg. Ca.,Ew a man may lal estate aa if she d be compelled to ? And if he can nee ? It may be ly applies to caset before the 2nd of lueutly, a convey- ie of interpreting btion, for no such gn&ge, but it will question directly Bsible to draw any by the curtesy in 1 his con currenc« ed in 1877, and it d it was said by before the Act of plaintiff, the mar- be where the pro- f of her husband. above referred to. ree in Chambers, g was distinguish- yy the plaintiff, a intestate in July, language between and held that the e, and stayed pro- State, p. 281, and OF TITLE BY AIJENATIOX. 321 use aliene or convey ; which will lead us to consider the several As to how a man may modes or conveyance. aliene or In consequence of the admission of property, or the giving ori^^nand a .separate right by the law of society to those things which " '=°"v^y*"<'«- by the law of nature were in common, there was necessarily .some means to be devised, whereby that separate right or exclusive property .should be originally acquired;* which, we * s. 294. have more than once observed, was that of occupancy or first possession. But this possession, when once gained, was also nece.s.sarily to be continued ; or else, upon one man's derelic- tion of the thing he had seized, it would again become com- mon, and all tho.se mischiefs and contentions would ensue, which property was introduced to prevent. For this pur- posBj therefore, of continuing the possession, the municipal law has established descents and alienations : the former to continue the possession in the heirs of the proprietor, after hi.s involuntary dereliction of it by his death ; the latter to continue it in those persons to whom the proprietor, by his own voluntary act, should choose to relinquish it in his life- time. A translation, or transfer, of property being thus ad- mitted by law, it became necessary that this transfer should be properly evidenced ; in order to prevent disputes, either about the fact, as whether there was any transfer at all ; or concerning the persons, by whom and to whom it was trans- ferred ; or with legard to the subject matter, as what the thing transferred consisted of ; or, lastly, with relation to the mode and quality of the transfer, as for what period of time (or, in other words for what estate and interest) the conveyance was made. The legal evidences of this transla- tion of i)roperty are called the comvion assurances of the kingdom; whereby every ^man's estate is assured to him, and all controversies, doubts, and difficulties are either pre- vented or removed. These common as.surances are, 1. By matter in pais, ot tleed ; which is an assurance transacted between two or more 21 .a 322 OF TITLE BY ALIENATION. private persons in pais, in the country ; that is (' by livery of seisin ' according to the old common law), upon the very spot to be transferred. 2. The second takes no effect till after death ; and that is by devise, contained in last will and testament. We shall treat of each in its order. i (' by livery on the very effect till ast will and CHAPTER XIX. OF ALIENATION BY DEED. *In treating of deeds we shall consider, first, their general * S. 295. nature; and, next, the several sorts or kinds of deeds, with ^^^^^'*- their respective incidents. And, in explaining the former, we shall examine, first, what a deed is ; secondly; its requi- sites ; and thirdly, how it may be avoided. 1. First, then, a deed is a writing sealed and delivered by the parties. It is sometimes called a charter, carta, from its materials ; but most usually, when applied to the transac- tions of private subjects, it is called a deed, in Latin factum, because it is the most solemn and authentic act that a man can possibly perform, with relation to the disposal of his property ; and therefore a man shall always be estopped by his own deed, or not permitted to aver or prove anything in contradiction to what he has once so solemnly and deliber- ately avowed. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are parties, and each should be cut or indented (formerly in acute angles instar dentiwrn, like the teeth of a saw, but at present in a waving line), on the top or side, to tally or cor- respond with the other ; which deed, so made, is called an indenture. Formerly, when deeds were more concise than indentures, at present, it was usual to write both parts on the same piece of parchment, with some words or letters of the alphabet written between them ; through which the parch- ment \vas cut, either in a straight or indented line, in such a manner as to leave half the word on * one part and half on the other. Deeds thus made were denominated syngrapha by the canonists ; and with us chirograplia, or hand- writ- ings; the word chirographum or cyvographwni being usually •S. 2%, »*,' ? 324 OF ALIENATION BY DEED. that which is divided in making tlie indenture : and this custom is still preserved in making out the indentures of a fine, whereof hereafter. But at length indenting only has come into use, without cutting through any letters at all ; and it seems at present to serve for little other purpo,se, than to give name to the .species of the deed, ' and at present it suffices to ?tyle the deed an indenture, in the body thereof.' Deedi-poll. A deed made by one i)arty only is not indented, but polled or shaved quite even ; and therefore called a deed-poll, or a, single deed. 2. We are in the next }»lace to consider the re^uiaites of a deed. The first of which is, that there be persons able to contract and be contracted with, for the purpo.ses intended by the deed : and also a thing, or subject-matter to be con- tracted for; all of which must be expressed by sufficient names. So as in every grant there must be a grantor, a grantee, and a tiling granted ; in every lease, a lessor, a les- see, and a thing demised. ConHiderationi Secondly, the deed must be founded upon good and suffi- cient consideration. Not upon an illegal contract; nor upon fraud or collusion, either to deceive purcha.sers bona fide (a), or just and lawful creditors (6) ; any of which bad considerations will vacate the deed, and subject such persons as put the same in use, io forfeitures, and often to imprison- Resiilting use ment. A deed also, or other grant, made without anj' con- on conveyance • i ,• • •• e iv l e -l ' l i^ without con- sideration, is, as it were, of no enect : tor it is construed to inure, or to be effectual, only to the use of the grantor him- self, 'and this is what is termed a resulting use; thus, if A., without consideration, should by .some conveyance not operating under the Statute of Uses (c), convey in fee simple to B. and his heirs, without any consideration expressed, it is said (d), inasmuch as there is no reason apparent why the conveyance should have been made for B.'s benefit, that sideration. (o) SUt 27Eliz.,c. 4 (r) Po»t, 8. 309. (6) Stat. 13EUz.,c. 5. (d) Tud, Lg. Cases, 3rd ed. :342 ; Poal s. .130. i e : and this entures of a ng only has tters at all; uvpo.se, than t present it )dy thereof.' [, but polled ed-]x>U, or a mtiaites of a ions able to 5es intended r to be con- )y sufficient I grantor, a lessor, a les- )d and sufh- •ntract; nor basers bona which bad uch persons io imprison- ut any con- ;onstrued to rantor him- ?<>; thus, if 'eyance not n fee simple xpressed, it nt why the enefit, that 'o«< s. 330. OF ALIENATION BY DEKD. therefore he will be considered as holding for the use and benefit of A. ; in which case, as we shall presently see, the land will by force of the Statute of Uses, be revested in A. But this doctrine of resulting use applies, it is said, only on conveyances in fee simple (a).' ^ ' The student at first sight, perhaps, will hardly reconcile the above doctrine with the possibility of one man giving lands to another (which however can well take place), or with what has been above said in respect of the execution of a deed, viz., that it is the most solemn and authentic act that a man can perform in regard to disposal of property, or with the fact that a deed being so solemn and authentic is always assumed to have been made on sufficient consideration. It flowed, however, from the causes which induced men, prici- to the Statute of Uses, as hereafter explained (6), to convey their estates, and from the decisions thereon prior to the statute. Moreover the use of the words in the habendam clause, " unto B. and his heirs, to the use of B. and his heirs ; " or, which has the same effect, " unto and to the use of B. and his heirs," avoids the difficulty, and makes a common law conveyance, even though without consideration, good, at least between the parties to it. So also it can be shewn by evidence that there was a consideration, for as it is only by im- plication that a use results in such case, the facts can be shewn to prevent it ; and this would be no contradiction of the deed, which is never allowed. So also a nominal con- sideration of five shillings will prevent such resulting use. It is, however, absolutely requisite to the peculiar operation of some conveyances (c), that there should be a considera- tion, and that of a ceitain character ; thus, that a convey- ance should operate by way of bargain and sale, a considera- tion of money or money's worth is requisite ; and to a (a) Smith Rl. and Pers. Trop. 4 ed. p. 258, referring to 2 Prei». T. Shepp. p. ol3, 522. (b) Post, a. 829. (<■) See pott, Bargain & Sale, Covenant to stand seiBed. 3*5 5 |!| 826 • H. 2<»7, In writing or print. ■' J •I' i 31 Mill Stat, of frauds. OF ALIKNATION BY DEED, covenant to stand seised, the considerationof hloo'J or marriage.' * The consideration may Ix; cither a good or a vtdiiAihh one. A good consideration is such as that of blood, or of natural love or affection, when a man grants an estate to a near relation ; being founded on motives of generosity, pru- dence, and natural duty. A valuable consideration is sucli as money, marriage, or the like, which the law esteems an equivalent given for the grant ; and is theroforn founded in motives of justice. Deeds, made upon goo ' consideration only, are considered as merely voluntary, and are freciuentlv set aside in favour of creditors, and bonaJiJe purchasers. Thirdly, the deed must be wntten or printed, for it may be in any character or any language ; but ' certificates, patents, charters, bonds, records, judgments, statutes, ami recognizances, are to be in the English language ' (a). Ii must be upon paper or parchment; for if it be written on stone, board, linen, leather or the like, it is no deed. Wood or stone may bo more durable, and Hn, ' •' , liable to era- sures ; but writing on paper r chment unites in itself, more perfectly than in an} way, both f' ose desirable qualities ; for there is noti ^ else so duruole, and at the .same time .so little liable to uJterf ion; nothing so secure fiom alteration, that is at the same lime so durable. For- merly many conveyances were made by parol, or wdi of mouth only, without writing; but this being a handle tea variety of frauds, the statute 20 Car. II. c. 3, enacts that ' "all lea.ses, estates, interests of freehold, or terms for M-ais, or any uncertain interest of, in, to or out of, any mess age, manors, lands, tenements, or hereditaments, made or created by livery and seiiiin only, or by parol, and not put in writ- ing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by (a) 4 Geo. II. c. 26. nof blod'J or if blood, or of an estate koa merosity, pru- iration is such w esteems an )re founded in consideration are frecpiently purcliasers. led, for it may i ' certificates, statutes, ami uage' (tt). It be written on I deed. Wood lialjle to era- mi tes in itself, ose desirable Ae, and at the ling so secure luraJile. For- •ol, or woi of a handle to a 3, enacts that Tins for ^■('al•s, my mess ,ifl[e, ade or created t put in writ- creating the uthorized by OF ALIENAT[ON BY DKKD. writing, shall have the fcjrco and effect of leases and estates at willonly,and shall not.either in lawor in e(juity,be deemed or taken to have any other or greater force or effect." By the 2nd section, leases for three years, whereupon the rent reserved amounts to two-thirds of the full improved value, are excepted. And by the Jlrd section it is enacted, "that no leases, estates, or interests, either of freehold or term for years, or any uncertain interest not being copyhold or customary interest of, in, to, or out of, any messuage, t&rc, shall be assigned, granted, or 'surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereunto lawfully authorized by writing, or by act or operation of law." And by the 4th section it is enacted, " that no action shall be brought, whereby to charge any person upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements, or heredita- ments, or any interest in or concerning them, or upon any any agreement that !s not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memoran- dum or note thereof, shall be in writing, and signed by the pai-ty to be charged therewith, or some other person there- unto lawfully authorized." ' ' The 1st section appears to relate to cases where an estate or interest isNcreated de novo, and actually passes to the grantee or lessee : the Sr ■i.l rt \ t K '' m M 328 OF ALIENATION BY DEED. writing, but not in cases within the -tth section (a) ; for the reason probably that under it no present estate or interest actually passes.' ' The section requiring assignments of leases to be in writ- ing is not confined to leases required by ss. 1 & 2 to be crea- ted by deed or writing, but extends to all leases however short (b). It \vS«H Operative words. ' No person can, by or under an indenture inter park> take an immediate interest or benefit, unless named a.s a party, at least if any other be named in the premises i< grantee. This rule however, does not extend to remainden; (d), nor, it is said, to uses (e) ; and under a grant of feoffment from A. to B. habendum to the use of C, the latter may take, though not named as a party : so also if the grant had been to B. for life, with remainder to C. in fee. A person name the case put vice versa, of a grant to A. and his heirs for ever, hnhndam to hiin and the heirs of his body, it would seem that if the words " for ever " were left out in the grant, then the hahendam would control the word " heirs " to an estate tail only ; because the /ia66?it?wm merely explains what heirs ire meant in the premises, viz., heirs of the body and not leirs general ; and that there should be no fee-simple ex- pectant'on the estate tail ' (c). But had it been in the pie- iiises "to him and his heirs," habendum " to him for life" {d), (a) 1 Preston Shep. T. 78, n. (68). (h) Co. Litt. 21 ; 2 Roll. 19 ; Cro. Jao. 47C. (c) Smith Rl. and Pers. Pr,ip. (!4't. [d) See Owtton v. WilUams, IG TT. C. K. 05. 3.34 OF ALIENATION BY DEED. Tciiendinn. *S290 the habendani would be utterly void ; foi' an estate of in- heritance is vested in him before the habendum comes, and shall not afterwards be taken away or divested by it ; ' and for this there is also the rule of the law that in the construc- tion of a deed, where one clause is inconsistent with another, the first shall prevail, being the reverse of the rule regarding wills. Where the premises are silent as to the quantity of interest conveyed ; as if the grant be simply to A., and the habendum expressly limit an estate different from that which by mere construction of law would be placed on the grant in the premises, the habendum will prevail ; as if in the pre- mises lands be granted to A., habendum to him for twenty- one years, the habendum will explain the premises and con- trol the life estate which would otherwise have been given by construction of the law («) but if the grant had been expressed to be for life, it would have been otherwise. So if a lease be made to two, habendum to one for life, remainder to the other for life, the habendum governs (b). A grant in the premises for life, habendum in fee, will convey the fee ; for it is a rule of law that a deed is, if capable of two inter- pretations, to be taken most strongly against the grantor, and therefore the grantee might take the larger estate.' The tenendam " and to hold," is now of very little use, and is only kept in by custom. It was sometimes formerly* used to signify the tenure by which the estate gi'anted was to be holden, viz., " tenendum per sei'vitium militare, in bur- (jagios, in libera socagio, <&c." But, all these being now re- duced to free and common socage, the tenure is never speci- fied. Before the Statute of quia emptores, 18 Edw. I., it was also sometimes used to denote the lord of whom the land should be holden : but that statute directing all future pur- chasers to hold, not of the immediate grantor, but of the chief lord of the fee, this use of the tenendum has been also (a) Co. Litt. 183 a. (6) Go. Litt. ISA b ; see, further, as to void hahtndutM, Owiton V. Williama, 16 U. C. R. 405 ; Doc dan. Myers v. Marsh, 9 U. C. B. 242. sstate of in- i comes, and by it ; ' and he construc- dth another, lie regarding quantity of ' A., and the 1 that which the grant in ' in the pre- fer twenty- ses and con- ; been given it had been wise. So if e, remainder A grant in vey the fee ; 3f two inter- the grantor, estate.' ry little use, es formerly* gi-anted was tare, in bur- )ing now re- never speci- iw. I., it was Dm the land future pur- but of the as been also raid habendum/, 9U. C. R. 242, OF ALIENATION BY DEED. 335 antiquated ; though for a long time after we find it men- tioned in ancient charters, that the tenements shall be holden de capitalibus dominis feodi ; but as this expressed nothing more than the statute had already provided for, it gradually frrew out of use (a). Next follow the terms of stipulation, if any, upon which Rniikwimn. the grant is made : the first of which is the reddendum or reservation, whereby the grantor doth create or reserve some new thing to himself out of what he had before granted, as "rendering therefor yearly the sum of ten shillings, or a pepper corn, or two days' ploughing, or the like." Under the pure feodal system, this render, reditus, return or rent, consisted in chivalry principally of military services, in vil- lenage of the most slavish offices ; and in socage, it usually consists of money, though it may still consist of services, or of any other certain profit (6). To make a reddendum good, if it be of anything newly created by the deed, the reserva- tion must be to the grantors, or some or one of them, and not to any stranger to the deed. 5 . Anothei of the terms upon which a grant may be made Condition. («) We do not feel warranted in saying that, in ordinary cases of con- veyances in fee the habendum as well iia the tenendum had better be omit- ted, for the general custom is to adopt it, and conveyances are sometimes objected to as invalid by reason of the absence of the habendum clause, not- withstanding a sufficient grant existed in the premises. We will give, however, the words of Mr. Smith. In his work on Real and Personal Property, p, 493, he says ; " When the estate or interest is pointed out in the premises, the haben- dum is not essential, and in the majority of deeds is useless, and in a surrender or release of right it is inappropriate." In 9 Jar. & By. Conv., by Sweet, p. 460, n. b., it is said, "' The habendum- is useless in the majority of deeds, and is not essential in any ; it is convenient where there are several conveying parties and subjects of conveyance, because it enables the draughtsman to give a clear resnm^ of the effect intended to be produced." Its insertion may cause serious difficulty, and increases chance of error; nor does it facilitate reference, for whatever the habendum might be, still the grant in the premises would have to be looked at. It is singular that though according to Sir W. Blackstone the ttnendum, clause had no longer been used in England, it should have continued in use in Ontario. (6) The habendum and tenendum clauses are both omitted in the forms given in the Acts respecting Short Forms of Conveyances and Mortgages. •I .5 m- I m \A r :i <•» m* % J^thW ■ «*X«n n> jM- 330 OF ALIENATION BY DEED. i« a condition ; which is a clause of contingency, on the liappening of which the estate granted may be defeated ; as, " Provided always, that if the mortgagor shall pay the mort- * S. 300. gagee* £500 upon such a day, the whole estate granted shall determine j " and the like (a). Warranty. G. Next may follow the clause of warranty ; 'to which we shall again allude (6).' This clause is entirely superseded Covenants. by covenants for title. Covenants, which are clauses of agreement contained in a deed, wherelty either party may stipulate for the truth of certain facts, or may bind himself to ])erform, or give, something to the otlier. Thus, thp grani^orl may covenant that he hath n right to convey ; or for the grantee's quiet enjoyment ; or the like : the grantee may covenant to pay his rent, or keep the premises in repair, fee. If the covenantor covenants foi- himself and his heirs, it is then a covenant real, and descends upon the lieirs, who are 'answerable for non-performance,' provided they have assets by descent, but not otherwise : if he covenants also for his executors and administrators, his personal assets, as well as his real, are likewise pledged for the performance of the cove- nants ; which makes such covenant a better security than any warranty. ' Executoi's and administrators, indeed, are liable, though not named in the covenant, unless the cove- nant be of such a nature as to be performed 2Krsonally by the covenantor; in which case they are not liable, unles a breach have hapjiened in the lifetime of the covenantoi' : and as regards heirs, it makes little difference if they he omitted, for the lands which are assets can be reached by process against the personal representatives.' The grantor usually covenants only for the acts of himself and his ances- tors, whereas a general xvarranty extends to all mankind. For which reasons the covenant has in modi^rn practice totally superseded the other [c). (a) Sec. 1.55. (h) Beginning of chapter 23 on EHtateB Tail. (c) At» i,() covenants in Isases 862 s. 327. OF ALIENATION BY DEED. 337 ncy, on the lefeated ; as, ay the mort- ^ranted shall to which Ave superseded e clauses of r party may id himself to thq grant a rovenantoi' : D if they be reached by The grantor id his ances- 11 mankind. )vn practice Htfttef) Tail. 8. Lastly comes the conclusion, which mentions the exe- Concluaion. cutipn and date of the deed, or the time of its being given ))»t9. or executed, either expressly or by reference to some day and year before mentioned. Not but a deed is good, although it mention no date : or hath a false date ; or even if it hath an impossible date, as the 30th of February, provided the real day of its being dated or given, tha t 'is delivered , can bo proved. I proceed now to the Jlfth requisite for making a good Reading. ^ccd ; tlie reading of it. This is necessary, whenever any of the parties desire it ; and, if it be not donp at his request, ' if illiterate ; ' the deed is void as to him (a). If he can, he should read it himself : if he be blind or illiterate, another must read it to him. If it be read falsely, it will be void, at least for so much as is misrei^ited. Sixthly, It is requisite that the party whose deed it is should Sealing. m'd, and, now in most cases, should sign ii also, ' at least if signing is made requisite by some statute, as for instance when in execution of a power which enjoins signature, as in case of a grant to A. and his heirs to such uses as he shall by some instrument to be by him signed and .sealed appoint : otherwise, it may be questionable whether signing is requi- site to the validity of a deed, as is presently explained.' The use of seals as a mark of authenticity, to letters and other instruments in writing, is extremely ancient. We read of it-amon(j the Jews and Persians in the earliest and most sacred records of history (b) ; and in the book of Jere- miah there is a very remarkable instance, not only of an at- testation by seal, but also of the other usual formalities at- tending a Jewish purchase (o). In the civil law also, seals ♦s. :}05. J s. (a) Ot<|n V. Thomas, C.P.U.C. 383. (h) 1 Kings, c. "21 ; Daniel, c. 6 ; Estherc. 8. (c) "And I bought the field of Hahameel, and weighed him the money. '' even (seventeen shekels of silver. And I subscribed the evidence, and sealed " it and took witnesses, and weighed him the money in the balances. And I " took th« evidence of the purchase, both that which was sealed according to " the law and custom, and also that which was open. " -Ch, 32. 22 »l 3dS i ♦s. 30«. ''1 «nK«M OF ALIENATION BY DEED. were the evidence of truth ; and were required, on the part of the witnesses at least, at the attestation of eveiy testa- ment. But in the times of our Saxon ancestors, they wert not much in use in England ; for though Sir Edward f 'oke relies on an instance of King Edwin's making use of a seal about a hundred years before the Conquest, yet it does not follow that this was the usage among the whole nation : and perhaps the charter he mentions may be of doubtful au- thority, from this very circumstance; of being sealed; since we are assured by all our ancient historians, that sealing was not then in common use. The method of the Saxons was for such as could write to subscribe their names, and, whether they could write or not, to affix the sign of the cross ; which custom our illiterate vulgar do, for the most part, to this day keep up, by signing a cross for their mark, when unable to write their names. And indeed this ina- bility to write, and therefore making a cross in its stead, is honestly avowed by Caedwalla, a Saxon king, at the end of one of his charters. In like manner, and for the same un- surmountable reason, the Normans, a brave but *illiterate nation, at their first settlement in France, used the practice of sealing only, without writing their names ; which custom continued, when learning made its way among them, thougii the reason for doing it had ceased ; and hence the charter of Edward the Confessor to Westminster Abbey, himself being brought up in Normandy, was witnessed only by his seal, anJ is thought to be the oldest sealed charter of any authenticity in England. At the Conquest the Norman lords brought over into this kingdom their own fashions, and introduced waxen sealsonly,insteadof theEnglish method of writing their names, and signing with the sign of the cross. And in the reign of Edward I. every freeman and even such of the moi'e substan- tial villeins as were fit to be put upon juries, had their distinct particular seals. The impressions of these seals were some- times a knight on horseback,'_ sometimes other devices ; but I, on the part ' every testa- rs, they wert Edward C'oke use of a seal yet it does whola nation : ' doubtful au- sealed; since that sealing •f the Saxons r names, and, sign of the for the most >r their mark, eed this ina- in its stead, is at the end of the same un- Jut *illiterate d the practice which custom them, thougli the charter of himself being y his seal, and Y authenticity 3 brought over sduced waxen ig their names, n the reign of moi*e substan- l their distinct Is were some- devices ; but OF ALIENATION BV DEED. coat.s of arms were not introduced into seals, nor indeed into any other use, till about the reign of Richard I., who brought them from the croisade in the holy land, where they were first invented and painted on the shields of the knights, to distinguish the variety of persons of every '"^Iristian nation who resorted thither, and who could not, whea clad in com- plete steel, be otherwise known or ascertained. This neglect of signing, and resting only on the authenti- city of seals, remained very long among us ; for it was held in all our books that sealing alone was sufficient to authen- ticate a deed : and so the ' former ' common form of attesting deeds, "sealed and delivered," continued notwithstanding that the statute 29 Car. II. c. 3, before mentioned, revived the Saxon custom, and expressly directed the signing, in all grants of land, and many other species of deeds ; in which, therefore, signing seems to be now as necessaiy as sealing, though it hath been sometimes held that the one includes the other, 'viz., that when sealing and delivery occur, sign- ing is not requisite, notwithstanding the Statute of Frauds.' 'It would seem that an impression on the document will Sealing, suffice for a seal (a). A deed executed by one of two partners iii the name ut' both, with the assent of tlie other, at his request, in his presence, was held to be the deed of both, but it was in a matter of partnership business (6).' ' At common law, before the Statute of Frauds, a deed was requisite (though it mi^nt have been without signature) to transfer incorporeal hereditaments, as of those liveiy could, not be made ; but where livery could be made nothing fur- ther was requisite (c); and though a deed of feoffment was usually drawn up and sealed and delivered, that was done 33» (a) Fostei- v. Geddet, 14 U. C. R. 239; Hamilton v. Geddcs, 12 Grant, 825; as to a wafer answering for the seal of a corporatiou,8ee Ontario Salt Co. v. Mtr^ chanti Salt Co., 18 Grant, .551. (6) Mom-e v. Boyd, 15 O. P. U. C. 513. (c) Post, Feoffment, s. 310 ; Grant, a, 317. i 8*0 OF ALIENATION HY DEED. for the purpose of preservation of the evidence of the land having been conveyed, and of the tenure on which it was to be held. The language of tlie deed, which our modern deedn still Monietimes unnecessarily follow, shews this; it witnm- eth that the feoffor hath (jioen, &c., making use of the past tense {a). It is true that to the validity of certain convey- I» signing re- anccs, a deed was requisite, as bargain and sale, covenant to qniBite? stand seised ; but that was in conseqiience of the peculiar character of those modes of conveyance ; but to tlie validity of certain other modes of conveyance, no instrument what- ever was requisite. To remedy this the Statute of Frauds was passed, and as remarked by Mr. Baron Kolfe (/>) : " The object of the statute was to ))revent matters of importance froni resting on the frail testimony of memory alone. The statute was not intended to touch those instruments which were already authenticated by a ceremony of a higher nature than a signature or mark." In another case as above reler- red to as against the necessity of signature (c), the point seems to have been given up without argument. As regards sections 1 and 3 of the statute, no violence is done to their language (c^)^in holding that signing is not retjuisite when the transaction is authenticated by deed : thus, a lease for years, or freehold created by deed, is not " made or created by livery of seisin only, or by parol " in the language of sec- tion 1 : ant as to the transfer of existing estates under sec- tion 3, the word " signed " may be refen-ed to the words ' note in writing " only (e). There are, however, decisions and statements of eminent writers that signature is requisite. Whatever doubt there may be as to the necessity of signa- ture, it will be seen in the treating of the various modes of Sealing r^uir- conveyances, that eealhif/ is for the most part requisite to c. 98.) * the validity of a conveyance of interests in lands, and that Mi (o) Ante, p. 331. (6) Cherry v. Htmivg, i Ex. 631 ; see also Tapper i. Foulkes, 9 C, B. N. S., 799, argumdo ; PrcHt. Shepp. Touchstone, 56. (c) Aveline v. Vrhisson, 4 M. & G. 801. (d) See antt, p. 326. («) Trutt and Loan Oo. v. Covert, 32 U. C. E. 222. OF ALIENATION UY DEED. 341 Mif the land ich it was to nodern deedn it wiinm- of the past tain convey- covenant to the peculiar the validity ument what- te of Frauds fe (6) : '« The f importance alone. The unentK which higher nature above reler- '), the point As regards done to their ^(i[ui.site when us, a lease for de or creatttl iguage of sec- ies under see- to the words ver, decisions e is requisite jity of signa- ous modes of ; requi.site to nds, and that se also Tapper t ;one, 66. p. 326. certain conveyances, formerly good if only signed as re- quired by the Statute of Frauds, must now by R, S. O. c. i)8, .ss. 3 & 4, be by deed (a).' A .seventh requisite to a good deed is, that it bo ddivereA 7. DeKvery. . by the party himself or his certain attorney, which, tfiere- fore, is *al30 expressed in the attestation ; "sealed and de- livered." A deed takes efllect only from this tradition or de- livery, ' notwithstanding a prior date : ' and if the date be false or impossible, the delivery ascertains the time of it. And, if another pei-son .seals the deed, yet, if the party de- livers it himself, he thereby a(h>[)ts the sealing, and by a parity of reason the signing also, and makes them both his own. So,also, the acts and conduct of a pei-son wliose name is to a sealed instrument are evidence of his sealing as well as siirning (h). And now under 11. S. 0. c. 02, s. 50, it is not Pioot of delir- •^ " ^ ^ . . . ery of a nakd " necessary to pi'ove by tlie attesting witness any instrument, instrument, to the validity of which an attesting witness is not necessary, and such instrument may be proved by admission or other- wise, as if there had been no attesting witness." A common n.ode of proving a deed is to give proof merely of the signa- ture by some one who knows it as being that of the person ' as to whom proof is required : where the instrument ends with the usual clause, " in witne.ss whereof the jmrties hereto have set their hands and .seals," or where, without that, the instrument speaks of itself as an indenture, which in law imports an instrument under seal, this is oompreheasible enough ; but otherwise it is not ea.sy to understand how mere proof of signature proves that at the time of delivery or signing a seal was attached.' A delivery may be either absolute, that is, to the party or grantee himself; or to a third person, to hold till some conditions be performed on the part of the grantee : in which last case it is not delivered as a deed, but as an escrow ; that is, as a scrowl or writing, Escrow. i 5 r (o) See Stat, in Appx. (6) Cherry v. Heming, 4 Ex. 631; see also Clark y- SUvenson, 23 U. C. R. 525 ; Pettigrew v Dople, 17 C. P. U. C. 34. 34-2 OF ALIENATION BY DEED. Attestation not necGHsary k»«a jl which is not to take efl'ect as a deed till the conditions U performed; and then it is a deed to all intents and pur- poses, 'and will relate back to the time of delivery.' ' It is tolera])ly clear, that there need be no attesting wit- ness to a deed, and the fact of sealing and delivery may be proved as any other matter of fact (a). In cases wliere at- testation is not necessary, even though there be an attesting witness, the instrument may, under R. S. O. c. 62, as above mentioned, be proved by admission, or otherwise than by such witness, contrary to the former general rule. Some instruments, however, require attestation ; as, if executed in exercise of a power of appointment which enjoins attesta- tion (b) ; in other cases, attestation is enjoined by statute, a.s in cases of wills, and conveyances to charitable uses under the Statutes of Mortmain (c).' We are next to consider how a deod may be avoided, or rendered of no effect. And from what has been laid down, it will follow, that if a deed wants any of the essential re- quisites before-mentioned; either, 1. Proper parties, and a proper subject matter ; 2. A good and sufficient considera- tion, * or rather, perhaps the absence of all illegal considera- tion ; since a deed merely wanting a consideration, or volun- tary, is still good between the parties to it ; though there may be sometimes a resulting use to' the grantor, as before pointed out (rf);' 3. Writing on paper or parchment ; 4. Suffi- cient and legal words ; 5. Reading ' to blind or illiterate per- sons,' if desired, before the execution ; 6. Sealing ; and, 'by the Statute of Frauds, possibly,' in most cases, signing also ; or, 7. Delivery ; it is a void deed ah initio. It may also be By alteration, avoided by matter ex post facto: as, 1. By rasure, interlin- ing, or other alteration in any material part. ' The effect of How a deed may be avoided. (a) Smith III. and Pers. Prop., 778 ; Cheney v. Heminy, supra. (h) As to attestation when a power is exercised whicli is required to be undw hand aiui seal and attested, see R. S. 0. c. 98, s. 10, and T^eith 111. Prop. Stats pp. 14-15. fc) See Taylor on Evidence, further instances, s. 1110. fdj AnU, 8. 296. OF ALIENATION BY DEED. 343 onditions bo ts and pur- ely.' fteating wit- very may be ;es wliere at- ari attesting 62, as above Mse tlian by rule. Some executed in oins attesta- )y .statute, as e uses under e avoided, or m laid down, essential re- arties, and a it considera- al considera- on, or volun- hougli there ;or, as before jnt ; 4. Suffi- Uiterate per- ig ; and, ' by dgning also ; may also be U'e, interlin- rhe effect of o. irer] to be under [11. Prop. Stftti 1110. rasure, &;c., as above stated, requires some little explanation, because the later cases go to show that an alteration, if nothing appears to the contrary, will be presumed to have been made at or before execution of the instrument ; for the law will not infer fraud or wrong (a). If the alteration be immaterial, though after execution, by whomsoever made it would seem, it M'ill not vitiate : and for this reason, it is better never to absolutely erase, but to strike through with a pen, leaving it to be seen what the original matter was, and interline the required alteration : ' 2. By breaking off or defacing the seal. 3. By delivering By cancelling JO o J ^ or destniction. it up to be cancelled. ' The abacnce of proper appreciation of the two latter in- stances of avoiding a deed has led to what may be sometimes a source of great difficulty (6), viz., the supposition that the destruction of a conveyance with the assent of the grantee Dentruction of will have the effect of a reconveyance to the grantor in .such will not revett convov^r. J, and revest in him the estate which had pa.s.sed by its execution and delivery ; this would be a .singular way of defeating the Statute of Frauds. What is meant by the two latter instancec* is, that the tearing off the seal, or can- celling the deed, will avoid the deed so far a.s regards exe- cutory contracts or obligations arising out of it: such a covenant in an indenture, or a bond, could not be enforced after destruction with intent by the covenantee, or obligee, to cancel the obligation ; but an estate once passed by the instrument will not revest, however destroyed. The ques- tion came up in a recent case (d) ; the plaintiff had by deed mm (a) Dot Tatum v. Catomore, 16 U. C. R. 745; as to alteration and presump- tions, Northwood V. Keating, 18 Grant. fb) Davidson v. Cooper, 13 M. & W. 343; Crookewit v. Fletcher, 1 H. & N. 893 ; M(utfr v. Miller, 1 Sm. Lg. Ca. 901, in notis. (<■) Hee an inHtance in Eraser v. Fro.Hck, 21 U. C. 343. ' rfj Lord Ward v. Lumley, 5 H. & N. 87 ; see also in Fratcr v. Fralick, 21 U. V. II. 346 ; Doe dem. Burr v. Denison, 8 U. ,C. R, 185, remarked on ; 8e« ■also Laur v. White, 18 C. P. N. G. 99. 3#« OF ALIENATION BY DEED. demised to defendant for a term not expired, rf'??orving ivnt, and he sued in debt on the demise (not < tut'cnani^iov the rent, averring tliat the defendant hau entered ; the plea was that after tlie making the deed and before sr/it, the deed was cancelled by mutual consent of both parties ; i .iit considered that the estate which had passed by the lease \7as not divested, that the plaintiff was still reversioner and the defendant still lessee, and consequently liable for the rent i-eserved by reason of the i^rivity of estai befcw-en the parties. It seems to have been conceded on argument that had the action been on the covenant as on a privity of con- tract it could not have been maintained ; Mr. Baron Watson in his judgment says ; " Where the contract arises from the deed itself, and the deed is destroyed, no action can be main- tained in respect of it. liut this case is very different, for upon the execution of the dt^ed there passed from the lessor to the lessee an estate which was not affected by the cancel- lation of the lease ; the lessee holds the estate subject to tlie rent, which is incident to the reversion in the lessor. Ac- cording to the argument for the defendant, l»e may hold the estate without payment of rent. But the authorities are clear that the cancelling a deed does not divest the estate of the lessee or deprive the lessor of his riglit of action umn the demise." ' ' The fact of cancellation, though not of itself sufficient to amount to .surrender, is still a strong faet from which, if coupled with othei"s, surrender may be implh'd in lai'J (a)- Disagreement. 4. By the disafjreemev.t of such, whose concurrence is neccssarj^ in order for the deed to stand : as an infant, or person under duress, when tho.so disal)ilities are removed ; and the like. 'Where a person is named as grantee, the grant being for his benefit, the law, till the conti'ary appears, assumes that he assents; an assumption of the law certainly (o) Doc dem. Burr v. Dtrtiton, 8 U. C. R. 185, see aB^to implied surrender', pott, 8- 326. OF ALIENATION BY DFED. 345. frvingrent, (\ ; the plea ^.it, thodeod -rt jy the lea.se irsionei- and ible for the t-fAven the fuiiumt that vity of (Utn,- ron Watson es from thi' m be luain- ifferent, for u the le.ssor the cai)cel- bject to the lessor. Ac- ay hold the horities are he estate of -ction yimw iUfliciiMlt U) m which, if I lav) (a)- lurrenc*^ is 1 infant, or removed ; rantee, the ry appears, V certainly not unreasonable. It is common, however, for those to whom property is conveyed as trustees, to renounce by de'^d of dis- claimer (a), if they intend to decline the trust. In such case they should not reconvey, as that would imply an acceptance of the estate with the trust ; which trust once assumed can- not always be renounced, at least without assent of the ces- fui que t rust ' 5. By the judgment or decree of a court of judicrituio. Decree in mi • '11 • p ^ t> 1 1 * 'hancerv. This was anciently the province or the court oi star-chamber, and new of the chanceiy : when it appears that the deed was (ibtaincd by fraud, force, or other foul practice ; or is proved to be an absolute forgery. ' Not but that si ch a deed may Ik; often shewn to be void at law, but ex'^ept in case of for- gery, the deed would be good in th'i hands of a purchaser under it for^g<)2tl consideration without notice (b). The v' j «<-' advantage, however, of resort to equity is, that the evidence to avoid the deed may die out, and then the deed be enforced, or before it be delivered up to be cancelled, a honajide pur- cliaser for value may act on it ; whereas a court of ecjuity will at once compel the delivery up of the deed to be can- celled, on a proper case made (c). What constitutes a proper case and in what case a court of equity will give relief, opens too wide a field for consideration here. Equity relieves also in very many instances in which a court of common lav/ cannot, interfere. Thus, tor instance, as a general rule, and f.Kcept under special circumstances, a purchase by an agent for sale from his principal, will be set aside at the instance of the latter, and a reconveyance decreed ; whilst at law the conveyance would stand good.' In any of these cases the deed may be avoided, either in part or totally, according as the cause of avoidance is more or less extensive. ^.-4-' 2i :r 5 (a) Ante, p. 331. (6) Per Wilson .)., Afattkcwmi v. Hendfrmn, 15 C, V. U. ('. Wt, referriiiii; to SchoficUl v. dcmplar, it Jur. N. H. 619; i I)e O. & J ; Stump t. Oabj^, 2 De. G. M. & G. f>M\ per Ld. St. Leonanrn, L. C (f) H'l'.-kin V. Ilabidon, 7 Grant, 243. •346 OF ALIENATION BY DEED. "S. 3ort. Transfer of equitable in- terests. lyominon law conveyance-^. Origiiml con- veyances are at common Javr, And, having thus explainod the general nature of deeds, we are next to consider their several species, together vnth their respective inci^Ients. And herein I shall only examire the particulars of those which, from long practice and expe- rience of their efficacy, are generally used in the alienation of real estate : for it would be tedious, nay infinite, to des- cant upon all the several instruments made use of in personal concerns, but which fall under our general definition of a deed ; that is, a writing, sealed and delivered. The former, being principally such as serve to convey the property of lands and tenements from man to man, and commonly deno- minated conveyances ; which are either conveyances at com- mon law, or such as receive their force and efficacy by virtue of tlie Statute of Uses. 'It may be premised that the transfer of equitable interests i.s not governed by the strict rules hereafter referred to ap- plicable to conveyances of legal estates, for strictly speaking when a man's equitable interest is ti-ansferred, it is not the case of conveyance of land, but of the trust in the land on which the trustee holds the same. Moreover, there never could have been livery of seisin, and the Statute of Uses can- nut apply : any instrument in writing within the Statute of Frauds and shewing the intention suffices' («). T. Of conveyances by the common law, ' not dependent for their eflfect on the Statute of Uses, or any other statute,' some may be called original or 'primary conveyances ; which are those by means whereof the benefit or estate is created or first arises : others are derivative, or secondary; whereby the Ijcnefit, or estate originally created, is enlarged, restrained, transferred, or extinguished. Original conveyances ' operating at common law without the aid of the Statute of Uses,' are the following: 1. Feoff- ment ; 2. Gift ; 3. Grant ; 4. Lease ; 5. Exchange ; 6. Parti- (a) Hayes' Convey., vol. 1, p. 96. Smith. Rl. and Pers. Prop. 282. OF ALIENATION BY DEED. U7 ire of deeds, •gether vnth nly examire !e and expe- le alienation nite, to des- in personal finition of a The former, property of nonly deno- tices at com- cy by virtue ble interests erred to ap- bly speaking it is not the the land on there never of Uses can- e Statute of pendent for atute,' some ; which are i created or irhereby the restrained, aw without f: 1. Feotf- 3 ; 6. Parti- rop. 282. tion: derivative are, 7. Release; 8. Confirmation; 9. Sur- render; 10. Assignment; 11. Defeazance. 1. A feofiment, feofamentum, is a substantive derived ' ^" "**" ' from verb, to enfeofi', feoffare or infeudare, to give one a feud ; and therefore feoffment is properly donatio feudi. It is the most ancient method of conveyance, the most solemn and public, and therefore the most easily remembered and pi'oved. And it may properly be defined, the gift of any corporal here- ditament to another. He that so gives, or enfeoffs, is called a feoffor, and the person enfeoffed is denominated the feoffee. ' A feoffment was formerly an assurance of greater power tliiin aiiy other (a). By it, contingent remainders depending on particular estates could be barred or destroyed. If made by tenant in tail in possession, for a fee simple absolute, it woi'ked a discontimuince, which tolled or took away the right of entry of the issue in tail, as also of the remainder- man or reversioner, and left them but a right of action, to be enforced by the peculiar writ of formedoti. When made by a lessestatT* person in actual possession, though wrongfully so, yet if not ^ffg by ""^^'^ a mere temporary trespasser, it had the effect of passing by ^"""nt'' vwng the estate of which feoffment was made ; thus, on a feoffment in fee by a disseisor oi- mere u'nant at will, the feoffee took a fee by ivrong, the true owner of the freehold was disseised, remainders and reversions, if any, were di- vested or displaced, so that each (strictly speaking) ceased to have any estate, which was turned to a mere right to be en- forced on proper occasions. The consequence of any such ^"rked'a powerful tortious conveyance (other than by tenant in tail) forfeitMre. was immediate forfeiture of the feoffor's estate. As by the R. .S. 0. c. 98, s. .S, a feoffment lias no longer a tortious ope- ration, .so now it will work no forfeiture ' (b). As the personal abilities of the feoffee were originally pre- sumed to be the immediate or [>rincipal inducements to the wj9 (a) See Smithy Bl. and Pers. Prop. 4th Ed. V- 1>24. n. k. (6) Shelford Stata. 7th Ed. irr. ii4ff OF ALIENATION BY DEED. The feoffee muBt have livery of neisiii The origin of inveiititureii. .* ♦ S. 312. leott'inent, the feoftee's estate was confined to his pei'son.and subsisted only for his life ; unless the feoffor, by express provision in tho creation and coastitution of the estate hath given it a longer continuance. These express provisions were generally made ; for this was for ages tho only conveyance, whereby our ancestors were wont to create an estate in fee- simple, by giving land to the feoffee, to hold to him and his heirs forever ; though Jt serves equally well to convey any other estate of freehold. But by the mere words of the deed the feoffment is by no means perfected ; there remains a very material ceremony to be performed, called livery of seisin ; without which the feoffee has out a mere estate at will. This livery of seisin is no other than the pure feodal investiture, or delivery of cor- poral possession of the land or tenement, which was held absolutely necessary to ccnnplete the donation. Investitures, in their original rise, were probably intended to demonstrate in conquered countries the actual possession of the lord, and that he did not grant a bare litigious right, which the soldier was ill (jualitied to prosecute, but a peace- able and firm possession. And at a time when writing was seldom practised, a mere oral gift, at a distance from the spot that was given, was not likely to be eitlier long or accurately retained in th(! memory of the by-standers, who were very little interested in the grant. Afterwards they were retained as a public and notorious act, that the country might take notice of and testify the transfei- of the estate, ami that sucli as claimed title by oth(M' means might know against whom to bring their actions. In all well-governed nations some notoriety of this kind has been ever held !-ec]uisitt% in order to acquire and ascer- tain *the property of lands. In the Roman law plenum do- miniuTn was not said to sul>:ist, unless where a man had both the 7'/gf//^ and the corjwral possession ; which possession could not be acquireil without both an actual intention to OF ALIENATION JIY J)EKI). 94f person, and by express estate liath visions were conveyance, state in fee- bim and his convey any ent is by no il cereuiuny it -vvhich the f of seisin is ivery of cor- ch was held jly intended -1 possession /igious right, but a peace- writing was rom the spot a- accurately lO were very ere retaineil might take 1*1 that such ;aiiist whom jf this kind e and ascer- pJenuvi do- a man had \\ possession intention to possess, and an actual seisin, or entry into the premises, or part of them in the name of the whole. Even in descents of lands by our law, which are cast on the heir by act of the law itself, the heir 'had not till 4 Wm. IV. c. 1,' 'plenum do- minium, or full and complete ownership, till he had made an actual corporal entry into the lands ; for if he died before entry made, his heir 'formerly was' not entitled to take pos- session, but the heir of the person who was last actually .seised. It ' was formerly' not therefore only a mere right to enter, but the actual entry that made a man complete owner. so as to transmit the inheritance to his own heirs : nonjiis, ml seisina, facit stipiteni. Yet, the corporal ti'adition of lands being sometimes incon- Syuiboli.-;vl veuient, a symbolical deliveiy of possession was in many cases anciently allowed ; by tr.iusferring something near at hand, in the presence of credible witnesses, which by agree- ment should serve to represent the very thing designed to Ije conveyed ; and an occupancy of this sign or symbol was *perinitted as equivalent to occupancy of the land itself. . s. :)vi Amono' the Jews we find the evidence of a i)urchase thus defined in the book of Ruth (a) : "ISow this was the manner " in former time in Israel, concerning redeeming and concern- "ing changing, for to confirm all things: a man plucked oft " his shoe, and gave it to his neighbour ; and this was a tes- '• tiraonv in Israel." Among the ancient (»<»ths and Swedes, c(mtraet.s for the sale of lands were made in the presence of witnesses who extended the cloak of the buyer, while the seller cast a clod of the land into it, in order to give posses- sion ; and a staflf or wand was also delivered from the vendor to the vendee, which passed through the hands of tb'^ wit- nesses. With our Saxon ancestors the delivery of a turf wa> a necessary solemnity, to establish the conveyance of lands, And to this day, the conveyance of our copyhold estates is i ■mM. 5 m' (o) Ch. iv V. 7. S50 OF ALIENATION BY DEED. intruductiuii of written conveyaiicefi. * S. 314. Livery of seiRin neces- sary on the grant of a freehold. usually made from the seller to the lord or his stewjird by delivery of a rod or verge, and then from the lord to the purchaser by re-delivery of the same, in the presence of a jury of tenants. Conveyances in writing were the Idst and most refined im- provement. The mere delivery of possession either actual or .symbolical, depending on the ocular testimony and re- membrance of the witnesses, was liable to be forgotten or misrepresented, and became frequently incapable of proof • Besides, the new occasions and necessities, introduced by the advancement of commerce, required means to be devised of charging and encumbering estates, and of making theoi liable to a multitude of conditions and minute designations for the purposes of raising money, without an absolute sale of the land; and sometimes the like proceedings were found useful in order to make a decent and competent provision for the numeroii^s branches of a family, and for other domes- tic views. None of which could be effected by a mere simple corporal transfer of the soil from one man to ano- ther, which was principally calculated for conveying an ab- Molute unlimited dominion. * Written deeds were therefore introduced, in order to .specify and perpetuate the peculiar purposes of the party who conveyed; yet still, for a very long series of years, they were never made use of but in company with the more ancient and notorious method of transfer by delivery of corporal possession. Lively of seisin, by the common law is necessaiy to be made upon every grant of an estate of freehold in heredita- ments corporeal, whether of inheritance or for life only. In hereditaments incorporeal "t is impossible to be made ; for they are not the object of the senses ; and in leases for years, or other chattel interests, it is not necessary. In leases for years, indeed, an actual entry is necessaiy to vest the right in the lessee : for the bare lease gives him only a right to enter, which is called his interest in the term, or interesse OF ALIENATION BY DEED, 351 stewurd by lord to the resenco of a t refined im- ;ither actual tny and re- forgotten or ble of proof. produced by be devised laking them designations ibsolute sale 1 were found nt provision )ther donfies- by a mere man to ano- ying an ab- re therefore the peculiar ' a very long in company transfer by 3ssary to be in heredita- ife only. In e made ; for es for years, In leases for :.st the right y a right to or interesne termini . and, when he enters in pursuance of that right, he is then and not before in possession of his term, and complete tenant for years. This entry by the tenant himself serves the purpose of notoriety, as well as livery of seisin from the grantor could have done ; which it would have been impro- per to have given in this ciise, because that solemnity is aj)- propriated to the conveyance of a freehold. And this is one reason why freeholds cannot be made to commence infuturo, because they cannot (at the common law) be made but by livery of seisin ; which liveiy, being an actual manual tra- dition of the land, must take effect in prceaenti, or not at all (a). Livery of seisin is either in deed, or in law. Livery in lAvcTyindeed. deed is thus performed. The feoffer, lessor, or his attorney, together with the feoffee, lessee, or his attorney (for this may as effectually be done by deputy or attorney, as by the prin- cipals them.selves in pei-son), come to the land, or to the house ; and there, in the presence of witnesses, declare the contents of the feoffment or lease, on which livery is to bo made. And then the feoffor, if it be of land, doth deliver to the feoffee, all other persons being out of the ground, a clod or turf, or a twig or bough there growing, with words to this effect ; " I deliver these to you in the name of seisin of all the lands and tenements contained in this deed." But, if it be of a house, the feoffor must take the ring or latoh of the door, the house being quite empty, and deliver it to the feoffee in the same form ; and then the feoffee must enter alone, and shut to the door, and then open it, and let in the others. If the conveyance or feoffment be of divers lands, lying scattered in one and the .same county, then in the feoffor's possession, livery of seisin of any parcel, in the name of the rest, sufHceth for all ; but, if they be in several counties, there must be as many liveries as there are coun- ties. For, if the title to these lands comes to be disputed, (a) Ante, s. 165. •Sill r** mm. iS52 •S.31C. Livery in fnw Coutiiiual e.8 ; the regular method by the com- mon law of transferring the propei'ty of i-ucorporeai heredit- aments, or such things whereof no livery can be had. For which reason all corporeal hereditaments, as lands and houses, are said to lie in livery; and in others, as advowsons, com- inons,rents,rever.sions, remainders,&c., to lie in grant. These, therefore, pass merely by the delivery of the deed. And in seigniories, or reversions of lands, such grant, together with the attornment of the tenant (while attornments were re- la) Ante, s. 175. (c) Davidson Concise Prec. 26. to Leith Rl Prop. Statutes. (6) Page 120, et teq. see also ch. 23. See also Bullenden Ker's letter, p. 24 of Appx. qui.site^ fore, eq diate p^ ment, e ' is grw 'By " hered " shall result c mode ( pass fee which 1 way of be shev 'The extensi case sh( release, assuran ing, it i really c lessee s by use the insl of those can so e is its pi pjead'ii. (a) See 21 U. C. ] W. 513 : . Rep. 77, a gain and 8 in the rele an extinctt that conti OF ALIENATION HY DEED. 353 ntics, and the riety of a fact ed. lo on the land, the feoffee, " I ion." Here, if )!*, it i.s a good enter, through ore 4 Win. IV, I, made yearly, lands, ' would' ht from being inot, however, by the parties )erly applied to 8 to that of an )r life or years, reyance in this ate-tail and ita arranty of title ng rent, lod by the com- 'poreal heredit- fl be had. For nds and houses, Ivowsons, com- n grant. These, deed. And in , together with nients were re- also ch. 2,3. :etter, p. 24 of Appx. quisite) were held to be of equal notoriety with, and, there- fore, equivalent to, a feoffment and livery of lands in imme- diate possession. It, therefore, differs but little from a feoff- ment, except in its subject matter; for the operative word ' is grant' ' By R. S. 0. c. 98, s. 2, " All corporeal tenements and " hereditaments as regards the immediate freehold thereof, • shall be deemed to lie in grant a« well as in livery." The result of this is that this mode of conveyance supei-sedes the mode of conveyance formerly most generally adopted to pass fee simple estates ; viz., by way of bargain and sale, which has disadvantages not attendant on a conveyance by way of grant : so also has that by lease and release, as will be shewn in treating of those modes of conveyance.' ' The word grant, as an operative word, had always a most extensive signification ; it might, as the circumstances of the case should 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 plead- ing, it is proper to determine v in what way the instrument really does operate, and to set it out accordingly ; thus, if a lessee should convey the residue of his term to his landlord by use of the words, " release, assign, bargain, sell, give, &c., the instrument should not be pleaded as operating in either of those modes of conveyance, but as a surrender ; for as it can so operate (without use of the word sun'ender), such as is its proper legal effect. And so in every case, in correct plead'ng, the instrument should be pleaded in the character R. S. O. c. 98, fl. 2, landH lie in (p-ant. Operation of the word grant. Conveyances should be pleaded ac- cording to their legal ef- fect. (a) See post as to Release, p. 362 ; Co. Lite, 301 b. ; Nicholson v, DiUahough, 21 U. C. E, 591 ; Watt v. Feader, 12 C. P. U. C. 254 ; Doe v. Davies, 2 M. & W. 513 : Acre v. Livingstone, 26 U. C. R. 282, In Cameron v. Ounn, 25 U. C. Rep. 77, a release for five shillings' consideration was held not to operate as a bai'- gain 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. 23 J ^1 s "J^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I I^IZB |2.5 1^ 1^ 1 2.2 1^ H^o 1.8 L25 III 1.4 11.6 i," PhotDgraphic Sciences Corporation 33 WIST MAIN STREET WEBSTER, N.Y. 14580 (716) B72-4503 !> ,1' 354 Implied cove- nant. How a grant under K. S. O. c. 98, o|)erate8 in regani to uaes declared. Where a con- veyance can operate ai4 a common law conveyance, OF ALIENATION BY DEED. in which it really operates in law, and not in the general words used in it. In some cases it must be so pleaded, fot though " where a deed may operate 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 " (a).' ' There was, however, an objection to the use of the 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 covenant for quiet enjoy- ment, unless the implication be destroyed by an express cove- 1 nant on the subject. R. S. 0. c. 98 declares that the word | shall neither imply a warranty nor covenant.' ' Conveyances of remainder 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 liv- ery could not be made, for the seisin of the freehold was in I the immediate freeholder. Such interests are not touched by the statute, and grants of them operate under the common | law.' ' A gi-ant of the immediate freehold will operate under the I statute &s at common law, that is, it will not require the aid of the Statute of Uses to give it effect. Thus, if A. tenant for life, or seised in fee, grant to B. for a consideration, the| conveyance will operate as a feoffment or a common law con- veyance (6). And if the conveyance had been to B. to the! use of C, the first and only use raised would be in B., which (as presently explained in spealcing of the Statute of Uses] I would be executed by the statute, and C. thus take the legal | estate.' ' In cases of informal conveyancing, a question of some dif- ficulty might arise as to whether the conveyance should op- (a) Roe V. Pranmar, 544 ; 1 Smith, Lg. Ca. ; Stephen on Pig. 311, 391; l| Saund., 235, c- n. 9, pqit. {b) The itudent had better postpone consideration of the following renuufa] until after perusal of the sections as to uses and trusts. i in the general J so pleaded, for ays he to whom ave it operate- ilection " (a),' ise of the word, mt or warrant) it did imply, as for quiet enjoy- an express cove- !8 that the word t; dependent on a •operly made by real, whereof liv- freehold was in are not touched ider the coramon )erate under the t require the &ii lus, if A. tenant msideration, the ommon law con een to B. to the I be in B., which Statute of Uses) us take the legal tion of some dif- ^ance should op- on Pig. 311, 391 ;1 le following renuufa OF ALIENATION BY DEED. eratc as a common law conveyance, or under the Statute of Uses. Thus if A. seised in fee should, using the words "grant, bargain and sell," for a pecuniary consideration expressed to be paid, convey to B. and his heirs to the u.se of C. and his heirs, and no intention be apparent as to the party in whom the legal estate is to be vested, or who paid the money, the conveyance would, it seems, operate as at common law (a), and the fee therefore vest in C. ; unless indeed an election were made that it should operate as a bargain, and sale, for it would seem that in such case an election might be made (6).' ' But if it were manifest on the face of the instrument that B. should take the legal estate, and G. the equitable estate only; then as it can operate as a bargain and sale, it would appear it will be so construed, to carry out the intention of the parties (c). The same questions might arise where the word " grant " or the words "bargain and sale" alone are used as the words of conveyance, which, as before mentioned, may operate respectively in various characters. In any case of drafting wherein a doubt might possibly arise, the convey- ancer might avoid it by declaring in the conveyance how it should operate, as for instance, by adding to the operative words, " by way of conveyance as at common law," or, as the case may require " by way of bargain and sale creating a use "((f). ' A singular mistake was made in the original Act of 9 Vic. as to short forms of conveyance, in that only the word grant was used as the operative word, whereas the immediate free- hold did not then, nor till some time afterwards, lie in grant, and thus many conveyances drawn under the Act are open to the difficult questions bofore alluded to as to the placing of the legal estate (e).' (a) Haiyh v. Jaggar, 16 M. ft W. 626; Smith's Real and Pen. Prop., 728. (&) HeywardCt eau, 2 Rep. 35 a ; Fox't cate, 8 Rep. 93 b. ; Staton v. Lunnefi, 27 Gnuit, 176 per Proudfoot, V.U. ; Hayes' Conveg., 6 ed- 162. See further Omu' ca«e, L. R. 8 C. P. 281. (r) Seaton v. Lunntg and oasea, $upra ; MUcheU v. Smellie, 20 C. P. U. C. 389. ((<) Hayes Gonvg. (e) Leith Real Prop. SUto. 101. 3.)5 or under the Stat, of Uses, in which way will it operate, and how will the legal estate be placed. According to intention or election. s :i 'Si ■> til mif] 11 356 OF ALIENATION BT D£ED. 4. L«Me. 4. A lease is properly a conveyance of any lands or tene- ments (usually in consideration of rent or other annual re. compence), made for life, for years, or at will, but always for a less time than the lessor hath in the premises ; for if it be for the whole interest, it is more properly an assignment than a lease. The usual words of operation in it are, " demise, •S. 318. grant, and to farm let."* Farm or feorme, is an old Saxon word, signifying provisions : and it came to be used instead of rent or render, because antiently, the greater part of rents were reserved in provisions ; in com, in poultr}',and the like; till the use of money became more frequent. So, that a hr- mer,Jirmanvs, was one who held his lands upon payment of a rent or feorme: though at present, by a gradual depaiiure from the original sense, the word farm is brought to signify the very estate or lands so held upon farm or rent. By this conveyance an estate for life, for years, or at will, may be created, either in corporeal or incorporeal hereditaments. ' Under R. S. 0. c. 40, s. 85, the Court of Chancery has the I same jurisdiction as regards leases and sales of settled estates as the Court of Chancery in England had on 18th March, | 1865.' ' Under R S. 0. c. 216, s. 3, trustees of lands for the use I of a religious society or congregation, may lease for a term not exceeding 21 years ; and by s. 4, in such lease may agree to renew at the expiry of any term of 21 yeara, for a further term of 21 years, or less, on such terms as may on such expiry be agreed on, or for payment to the lessee of the value of his improvements on the premises ; and the mode of ascertaining the amount of rent or value of such improvements may be specified in the original lease. Sec. 5 requires the consent of the congregation to be signified as I And Mies. pointed out ; and excepts land necessary for erecting a church, place of worship or other building, or for burial grounds. Lands so held may also be sold as pointed out by the Act. Section 17 extends to the Roman Catholic Church Power of Court of Chancery as to leues and sales of settled estate. R.S.O.C.216, as to leases by religious bodieH. r lands or tene- ther annual re* , but always for ses ; for if it be ssignment than b are, "demise, is an old Saxon be used instead ber part of rents y, and the like; So, that a far- pon payment of tdual depai-ture mght to signify r rent. By this it will, may be reditaments. hancery has the I settled estate^i )n 18th March, ids for the use ease for a term luch lease may )f 21 yeara, for h terms as may it to the lessee tnises; and the )r value of such &1 lease. Sec. 5 ) be signified as for erecting a :, or for burial pointed out by Catholic Church OF ALIENATION BY DEED. 357 all the rights conferred on any religious society or congi'e- gation of Christiaas in the first section of the Act men- tioned : and by 41 Vic. c. 25, the provisions of the Act are extended to the Church of England, subject to certain res- trictions as to selling, mortgaging, leasing, &c.' ' Leases, like other conveyances, were good at common law n by deed, by parol. By s. 4 of the Statute of Frauds (a), an agreement nature'npr for a lease, or for any interest in land.s, to be binding on the ^njj^te. party to be charged, must be signed by him or his agent. By s. 1, all leases and other interests in lands made and created by parol, and not put into writing by the parties making or creating the same, or their agents lawfully au- thorized in wnting, are void, and to have the effect of estates at will only ; except (by s. 2), leases not exceeding three years from the making, whereon is reserved as rent two- thirds of the full improved value. It will be observed, this exception to the operation of s. 1 does not apply to s. 4 ; so that there is this singularity ; that a lease not exceeding thre years at such a rent, if actually made, is good by parol, whilst a parol agreement for such a lease is void as against the party making it. This is the reverse of the policy of the legislature, which was to place the actual creation of an interest on a higher footing than an agreement for its crea- ation ; thus, in the latter case, it will be seen they required only verbal authority to the agent, but in the former a written one.' ' It has been explained before that the seal of a party to an Formalities instrument apparently superseded the necessity for a signa- u^der St. of ture, and placed the instrument without the statute (6) . *'"'"<^- also, that under certain circumstances, a mere sealing would suffice without an attesting or other witness (c).' ' If the lessee execute a lease with covenants on his part, and the lessor do not execute, so that the lessee does not I > thority to (except as above) and cei'tain other conveyances must noi be by deed, the authority to the agent, apparently, must also be by deed ; on the general principle that the authority to contract must be of no less a character and nature than the contract (c).' ' It has been before explained (d) that notwithstanding the S"^„f^;"* positive language of the Stat"*e of Frauds, a lease void fromy*ear*to^ under it may, nevertheless, oy payment of rent, become a tenancy from year to year. And a lease or other contract or conveyance void under the Statute of Frauds and R. S.O, c. 98, may yet be enforced in equity as an agreement (e). It may also be enforced where there has been a part 'per- formance, so that the parties, if the transaction intended be not carried out, cannot be restored to their original posiiion. Thus, if possession be given, and acts done (as by expending money on building or otherwise) in some manner inconsis- tent with any other idea than that of the contract intended, Under a void year, and on part performance, specific per- formance bo deci eed. (a) Swatman v. Ambler, 8 Ex, 72 ; Toler v. Slater, L. R. 3 Q. B. 42 ; see Bull & L. Prec. Pig. 631 ; but see Eecluiattical Commiuioner$ v. MerrtU, L R 4 Ex. 162, per KeUy, C. B. (b) Addison, Contracts, 4th ed. p. 46 ; see per Ha^^arty, J., Martin v. ^oi- nimg, 26 U. C. R. 83. (c) Harrison v. Jackton, 7 T. R. 208. (d) p. 169. (<) Parker v. Tcuwell, 2 De G. & J., 5.59; Eccletiaetical Oommiuionerti- Merral, L. R. 4 Ex. 162, per KeUy, C. B. OP ALIENATION BY DEED. 359 lated for, then, id by the lease md (a) : but if Y from year to jssee would be T as they could o be in writing It would seen of the first sec- uthority to the however, leases .nces must now parently, must t the authority nd nature than ithstanding the s, a lease \oid rent, become a other contract udsandR. S.O. agreement (e). en a part per- ion intended be riginal posiiion. s by expending BJiner inconsis- itract intended, specific performance thereof will be decreed in equity. But sach acts as the taking of surveys, preparation of convey- or ^38, or making valuations, will not suffice, for these are acts introductory or ancillary to the contract. The mere payment of the consideration is not a part performance within the rule ; as for this, adequate relief can be had at law, and it does not place the parties in a position from which they can only be extricated by completion of the contract.' ' The use of the word demise as an operative word will Word imply a general covenant for quiet enjoyment against all pUea a claiming by lawful title ; and a like covenant will be implied on a mere parol lease («) ; but the implication of the cove- nant will endure only during the continuance of the original estate of the lessor ; thus, where tenant for life demised for years and died, and before expiry of tlie lease, the tenant was evicted by the remainder-man, it was held that no action lay against the executoi*s of the life tenant on the implied covenant (6). It would seem also that the word demise raises an implied covenant to give possession (c) : and that on an agreement to let, the party so agreeing impliedly promises he has good title (c2). If, as is most usual, there be an express covenant on the subject, no covenant will arise UnlesB there by implication, even though the express covenant be limited ,,„ *" ^*^'^^*^ to the acts of the lessor and those claiming under him, and thus less extensive than the covenant the law would imply. In such cases the maxim " expre8»um fadt ceaaare tctcitum " applies (e). We have before spoken of rents, of their nature, and of r*" 5. »f -i'- , R.3 Q. B. 42;aee ert V. Mtrrat, L R J., Martin v.Hu- 98. ( their estates must be so related to each other, as to make but one and the same estate in law, ' as in the case.s put above. But if A. lease to B. for life, and B. sublet for years, here a release to the sublessee from A. would be void, as there is no privity between them.' 3. By way of passing a right, or mitter le droit : as if a man be disseised, and releaseth to his disseisor all his right ; hereby the disseisor acquires a new right, which changes the quality of his estate, and renders that lawful which be- fore was tortious or wrongful. 4. By way of extinguishment : as, if my tenant for life makes a lease to A. for \ii' of them, he shall be sole seised, and shall keep out his former companion : which is the same in effect as if the disseisee had entered, and thereby put an end to the disseisin, and afterwards had enfeoffed one of the disseisors in fee. s. A confirmation is of a nature nearly allied to a re- lease. Sir Edward Coke defines it to be a conveyance of an Confirmation estate or right in esse, whereby a voidable estate is made sure and unavoidable, or whereby a particular estate is increased : and the words of making it are these, " ratify, approve, Extinguish- ment. Entry and feoffment. (a) Jones on Uses, p. 106. •S. 326. mi OF ALIENATION BY DEED. Surrundcr. and confirm." An inNtanco of tho first branch of the de- finition is, if tenant for life leoscth for forty years, and dioth during that tcmi ; here the lease for yearn is voidable Ity him in reversion ; yet, if he bath confirmed the estate of the IcsHee for years, before the death of tenant for life, it is no longer voidable btit sure. The latter branch, or that which tends to the increase of a particular CRtate, is the same in all respects with that species of release, which operates by way of enlargement. 'A confirmation must be by deed, but under certain circumsttinceH a confirmation may bo implied by law (a).' 9, A surrender, or rendering up, is of a nature directly opposite to a release ; for, as that operates hy the greater estate's descending upon the less, a surrender is the falling of a less estate into a greater. It is defined, a yielding up of an estate for life or years to him that hath the immediate reversion or remainder wherein the particular estate may merge or drown, by mutual agreement between them. It Is done by these words, " surrenders, ard yields up." The surrenderor must be in possession ; and the sun-enderec must have a higher estate, in which the estate sun'endered may merge ; therefore, tenant for life cannot surrender to him in remainder for years. F*** d*r*" to"^ * ^^ common law a surrender was good by parol, but by u. 3 of the Statute of Frauds (h), all sun-endera must be by deed, or note in writing, signed by the parties surrendering, or his agent thereunto authorized in writing ; or by act or operation of law. There is, as to surrenders, no exception in favour of leases created for less than three years, with a two- thirds rent reserved, which by s. 2 are good by parol ; a surrender of a parol lease must therefore be in writingorbyact of law (c). The question as to whether a deed unsigned, but sealed and delivered would not satisfy the statute has (a) Sec. S22. (6) See the BUtute, h, 297, p. 326. d; but '^ the interest surrendered were such, as c«.>(ild not have been created without writing, as for instance for four years, then a surrender in writing must be by deed. The question as to the necessity of authority to the agent being by deed, and not merely in writing, when a deed is requisite for conveyance, has been before referred to (b).' ' A surrender by act of law is expressly excepted out of .Surrender in the Statute of Frauds, and is not within the operation of the ■urrender.'^ "^ Revised Statute, wh" 'h speaks only of surrenders in tvriting (c). A surrender in law, or implied surrender, as distin- guished from a surrender in fact, may take place by the acts of the parties : thus, when a lessee for years accepts a lease from his lessor for any term of which any part was included in the old lease, the latter shall be deemed surrendered, for instances of. otherwifte the new lease could not be valid ; moreover by accepting the new lease, the lessee admits the lessor had power to make it, which could not be unless the first lease ^ were surrendered. And even though under the Becond lease, the lessee will take for a less number of years than under the first, this principle will apply ; thus, if a lessee for thirty years accept a new lease for ten years, part of such thirty, the first lease is surrendered in law : so also, though such second lease is to commence three years after its execution, the first lease will ceaae instantly on the execution. A sur- render in law may arise out of the acts of the parties (a) See sec. 306, p. 838. (&) AnU, p. 358. (c) Lewii v. BtwAt, 8U. C. R. 576. r;i . S^ -< If; ;}fin OF ALIENATION BT DEED. merely ; thus, where there was a tenancy from year to year determinabh on a quarter's notice, and the lessor licensed the tenant to leave in the middle of a quarter, and he left ac- cordingly, and the lessor took possession, it was held this was a surrender in law ; and the landlord could not recover any part of the current quarter's rent. But where the land- lord by parol agreed that the tenant might leave, and the tenant left accordingly, but the landlord never took posses- sion or did anything equivalent to taking possession, it was held there was no surrender, and that the Statute of Frauds must govern, and the tenant pay rent accniing due subse- quent to his leaving. But if the tenant should leave on such agreement and the landlord relet to another, this has been held a taking of possession by the landlord and so equiva- lent to a surrender. The mere cancelling the lease is not sufficient, though a circumstance from which,if coupled with othei-s, a surrender maj be implied (a). If a lease con- taining a pergonal covenant for payment of rent be surrend- ered, the surrenderor still remains liable to pay the rent which fell due before the surrender, unless under special cir- cumstances or agreement (6).' Effect of ' The effect of a surrender is of course that the estate ""^i^eTa/to"' thereby surrendered is gone, but the rights of strangers are however preserved: thus, if lessee for years surrenders to the lessor, or acquire from him the reversion, having prior thereto granted a sublease, the rights of the sublessee are not prejudiced (c).' 10. An assignment is properly a transfer, or making over to another, of the right one has in any estate ; but it is usu- ally applied to an estate for life or years. And itdiffers from a lease only in this : that by a lease one grants an interest less *than his own, reserving to himself a reversion ; in as- signments he parts with the whole property, and the assignee rem eub-lease. ABaignment. * S. 327. (a) AnU p. 343. (6) Bradfield v. Hopkina, 16 C. P. U. C. 298. (c) ArUe, s. As tc leases surrendered tu be renewed, see 4 Geo. II. c. 28, s. 6. I year to year »r licensed the ad he left ac- w&a held this d not recover lere the land- eave, and the : took posses- ession, it was ute of Frauds ng due subse- leave on such this has been nd so equiva- e lease is not ' coupled with a lease con- it be surrend- pay the rent er special cir- at the estate strangers are surrenders to having prior (lessee are not making over but it is usu- it differs from ts an interest srsion ; in as- 1 the assignee I (c) Ante, 8. 42. OF ALIENATION BY DEED. 867 stands to all intents and purposes in the place of the assignor ; 'subject, however, to an exception as regards both the bur- Nonliability den of covenants entered into by the assignor, and the bene- not niiming * fit of covenants made to him, in case such covenants do not ^g*gned.'*"'^ run with the land. The frequent occurrence of the neces- sity for applying the law on this subject, induces us to con- sider it at some length.' ' There are, apart from express 'covenants by the parties, implied cov- Cffvenants by implication of law : thus, a covenant would be ^''*" "*' implied after entry, from the words "yielding and paying," on the part of the lessee and his assigns to pay rent to the reversioner. So the words " demise " or " lease," will, in the The word« absence of an express covenant, raise an implied covenant ^/a""^'^ against the landlord for quiet enjoyment by the lessee and his assigns against all having lawful title. But his liab'lity ceases when lie assigns his estate in reversion, which destroys the privity of estate between him and his lessee : so also it ceases with the determination of his estate in reversion, as where a tenant for life should demise for a term, and die be- fore its expiration, no action will lie against his executors on eviction of the tenant after the death (a).' ' As before remarked, (6) covenants implied by law are sub- controlled by sei"vient to, and controlled by express covenants between the ^''P''*"*''- parties on the same subject matter ; or perhaps it may be stated thus, that no covenant will arise by implication of law on any matter as to which the parties have thernselves ex- prassly provided. The maxim applies "expresaumfacit cea- mre taciturn." ' ' Implied covenants, or as they are sometimes termed cov- implied cov- enants in law, are binding between the parties by reason of by*'reaHon of' the privity of estate between tnem, and are binding only as privity"of long as that privity of estate exists : thus, on the implied *''***^' covenant to pay rent, to farm in a husband-like manner and Instances as to lesaee. {a) Penfold v. Abbott, 32 L. J. N. S. Q. B. 68, per Wightman, J., and casea there referred to. See also Ante p. 359. (b) Ante, p. 359. i 1 3G8 Run with the land, and bur- den and bene- fit of, ceases with estate. Exception. Necessity for express cove- nants. Privity of COD' tract on ex- OF ALIENATION BY DEED. use the premises in a tenant-like manner, which are coven- ants the law will imply, the lessee will continue liable only so long as his privity of estate continues, that is, so long as he is lessee ; for if he assign, the privity of estate between him and his landlord ceases, and he is no longer liable. The privity of estate after assignment exists between the land- lord and the assignee, and the assignee becomes liable in his turn, during its continuance, to the landlord on the implied covenants. On his assigning he ceases to be liable, and so on through all assignments: in other words, implied covenants always " run with the land " as the technical expression is ; and the party who takes the estate, takes, dur- ing the time he holds such estate, the burden and the benefit of the implied covenants, which go with the land. It must be here remarked that the original lessee cannot, by destroy- ing the privity of estate between him and his landlord, es- cape liability on his implied covenant to pay rent, without his lessor's assent, which assent may be expressed or implied : receipt of rent from the assignee of the lessee by the lessor implies assent to the assignment : but no assent of th* lessor is requisite to any assignment by any assignee, though such assignee should assign to a pauper. ' From what has been said as to the cesser of the liability of the lessee with his estate, on his assigning with the lessor's assent, it became important to the lessor to have express covenants under which the lessee should continue liable, notwithstanding and after assignment : and to these, as ad- ditional security, it is usual to add a clause of reentry in the lessor and his assigns on breach ; the benefit of which, being a condition subsequent, could not before the statute 32 Hen. VIII. c. 34, be taken advantage of by the assignee of the lessor (a).' ' Express covenants are sometimes termed covenants in {a) 8. 166, p. 182. ich are coven- ue liable only b is, so long as state between r liable. The reen the land- !S liable in his in the implied )e liable, and ords, implied the technical ite, takes, dur- ind the benefit and. It must )t, by destroy- 3 landlord, es- rent, without ed or implied : ! by the lessor t of th* lessor though such f the liability ith the lessor's have express ntinue liable, ) these, as ad- reentry in the which, being atute 32 Hen. mgTiee of the covenants in OF Alienation by deed. 369 deed, as distinguished from covenants in law or implied prch.. cove- covenants, and the liability on them arises out of privity of contract, as distinguished from the liability on implied cove- nants arising out of privity of estate. Any lawful contract may be the subject matter of express How far assig- covenant, but there is sometimes great difficulty in deter- burden or the raining how far, and in what particulars, an assignee of the estate of a covenantor is bound by, or entitled to the bene- fit of, a covenant ; and how far covenants run with the land and reversion. The subiect may be considered under the following heads : l- Though not . named; 2. 1. Where assigns are within the covenants, though not Only because named ; 2. Where they are so only because they are named ; Never/thowgh 3. Whei'e they are not so, though named. In considering the above, perhaps no better or more concise statement can be given than that of the Real Property Com- missioners in their third report. Their deduction from the authorities is thus : " 1st. That in order to make a covenant class i. ran strictly with the land so as to bind the assignee or give him the benefit without his being named, it must relate di- rectly to the land, or to a thing in existence, parcel of the demise. 2nd. That where it respects a thing not in exist- Class 2. ence at the time, but which when it comes into existence ^^^ll be annexed to the land, the covenant may be made to bind the assigns by naming them, but will not bind them unless named." It has, however, been doubted whether as- signees will not be bound though not named (a). " 3rd. Class 3. That when it respects a thing not annexed, nor to be an- nexed to the land, or a thing collateral or in its nature merely personal, the covenant will not run, that is, it will not bind the assignee nor pass to him, even though he is named (6)." ' ' It may be as well to illustrate the above by cases. Cove- lilustrationaof Class 1, H {a) Minsluxll v. Oake», 2 H. & N. 793. (() Third Report, p. 46. 24 See 1 Smith Lg. Ca. 82. v-f^pr^ If 5 Of clas8 2. 370 OF ALIENATION BY DEED. nants to pay rent, to keep existing buildings and fences in repair, to observe particular modes of culture on the lessee* part, and the covenant for quiet enjoyment on the lessor's part, are all instances under the first class, in which the covenants run with the land, and the assigns would be within the covenant, though not named ; so that the assigns of the lessor or lessee may be liable on and entitled to the benefit of the covenants. Thus, on the covenant to keep in repair the dwelling-house demised, the assignee of the lessee would be liable; and on the covenant for quiet enjoyment the assignee of the lessor would be liable, in case he evicted the tenant without sufficient cause.' ' Covenants to erect buildings or to plant trees on the pre- mises, are instances under the second class, in which assigns are bound if named, but not bound if not named ; but this must be taken subject to the doubt before expressed.' ' Covenants to repair or build a house of the premises de- raised are cases under the third class, in which the assigns will not be bound though named.' " Where the title of the covenantor and covenantee is equitable, the covenants from the one to the other are cove- nants in gross, which do not run with the land, or convey any right of action to the assignee " (a). ' As regards both the burden and benefit to assignees on these express covenants running with the land, they depend "?*e«lae«^and'^ respectively on the pHvity of estate existing between the parties ; and they continue only so long as such privity con- tinues; though, of course, if a breach have happened during^ the existence of the privity of estate, its subsequent destnie tion will not destroy the liability for the breach (b). As between lessor and lessee, there is privity both of con tract and of estate ; and therefore the lessee is liable in ddi on the demise, by reason of the latter ; and on the cavern to pay by reason of the former.' Of class 3. AsHignees bound and en- titled in re- only whilst it continues. ( 'ases of pri- vity of con- tract and of estate. (a) Per Spragge, C, Claxton v. Oilbert, 24 C. P. U. (J. 512. (6) Ante, p. 6'- OF ALIENATION BY DEED. 371 ' There is privity of contract only, where the lessee having Of contract covenanted has assigned all his term ; and in such case his ' liability on his covenants will continue, for the privity of contract is not destroyed with the privity of estate by the assignment. The privity of estate will thenceforth exist be- Privity of tween the lessor and the assignee, and each will be liable to the other on the covenants in the lease, according to the principles above explained : thus, as regards rent, the lessee will continue liable on his covenant, notwithstanding the lessor may have accepted the assignee as tenant (a) ; and the assignee will be liable for such rent as may fall due whilst (but only whilst) assignee, by reason of the privity of estate between him and the lessor (6). It is said that as regards covenants contained in the original lease, the privity Privity of con- of contract, or right of action thereon, by or against assig- ofactk»ntnui»- nees, is transferred with the privity of estate ; and that as estate.*^ * * regards the right of an assignee of the reversion to sue on the original covenants of the lessee (though relating to the land), or to take the benefit of any condition of reentry, that this did not exist at common law, but that the stat. 32 Hen. VIII., c. 34, s. 4, gave him the benefit of such right of reentry. I and transferred to him the privity of contract on such cove" nants of the lessee (c). Where privity of contract and right of action is thus transferred, it lasts only during the privity [of estate, or continuance of the assignees' interest, and again I passes with it as regards future breaches.' 'If the lessee 8ublet,th.en as the sub-lessee has not the whole Privity, nei- I estate which the lessee had, there will be no privity of estate tract nor of between the original lessor and sub-lessee, and as there is of actionu"^ * also no privity of contract, neither can sue the other. There I is, however, an exception to this, as far as regards the right Exception of action given b^R. S. 0. c. 13G, on merger of the reversion c^W,^' ^ of the sub-lessor, which was befere alluded to (cZ). By reason un- If ^9 512. (b) Ante,\>^'- (a) Mnntijomtry v. Spence, 23 U.C.tt. 39. (6) Magrath v. Todd, 26 U.C.B. 87. (<•) Sugden on Vendors, c. 15, s. 1, clauaes 16, 17. (d) Sec. 42, p. 68. 372 Condition of re-entry on breach of covenant gone for ever on license once given. I OF ALIENATION BY DEED. of the privity of estate between the parties, and aided some- times by the operation of the stat. 32 Hen. VIIL, c. 34, the assignee in deed or in law of assignees in infinitum of the lessor can sue and be sued by the assignee in deed oi ia law of assignees in infinitv/m, of the lessee, on any covenant ininning with the lands and reversion (a).' 'As regards conditions of re-entry by the reversioner on breach of covenants by the tenant ; much caution was at Common Law requisite in giving assent i > the non-obsen- ance of the covenants, for if once assent were given, the right of re entry was gone for ever, and no advantage could be taken of it on a subsequent breach. The principle was that eveiy condition of re-entry is entire and indivisible, and if once it has been waived it could not again be enforced (6). In the third report of the Real Poperty Commissioners it is said " it has not, so far as we are aware, been decided that this doctrine applies to any other covenant or condition than that against alienation (c), but it would seem to be equally applicable on principle to covenants and conditions restric- tive of carrying on particular trades, aid to all covenants and conditions by which the consent of the ^^'Jio: is made requisite for doing any particular act." Ti irnon law Soctrine is varied by R. S. O. c, 136, as. ^^ !. 11, under which the assent given to non-observance, or ♦nv ..i of brea«!i of covenants or conditions extends only to the assent actu- ally given, or the specific breach, and not to any proceeding for subsequent breach. Provision is also made that in the case of license to one of several co-owners to assign or unierlet his interest, or part thereof, the license shall not destroy re- (o) As to the law generally, see Spencer^s case, 1 Smith's Lg. Cases, 68. Sug- den on Vendors, supra : Addison on Contracts, 7 Ed.,f). 314 ; Thursby v. Plon^ 1 Wms. Sannd. 240. (6) Dumpor's case, 1 Smith's Lg. Cases 47. (c) See however the subject alluded to by Lord Eldon, in Ufaber v. Foundli»l HospUal, 1 V, & B, 191, ces, wl Statut Use.' similai ddei-ci (a) See por's cam i'j) An nd aided some- VIII;, c. 34, the ijinitum of the je in deed oi in n any covenant reversioner on caution was at ,he non-obsen- rere given, the .dvantage could le principle was indivisible, and be enforced (i). imissioners it is en decided that r condition than m to be equally iditions restric o all covenants 11 • is made OF ALIENATION BV DKED. 373 VIV G V i.raon It \l, under ...1 ot breacu the assent actu- any proceeding that in the case sign orunlerlet . not destroy re- B Lg. Cases, 68. i 14; Thiirtby V. Plam, a Mabcr v. Foundliit medies in case of future breach as to the remaining part, or as to other co-owners («).' ' Of the creation of rents and remedies for their recovery, and for forfeiture, and of other matt ts between landlord and tenant we have before treated (6).' A defeasance is a collateral deed, made at the same time Defeasance.'' with a feoffment or other conveyance, containing certain conditions, upon the perfonnance of which the estate then created may be defeated or totally undone. And in this manner mortgages were in former times usually made ; the mortgagor enfeoffing the mortgagee, and he at the same time executing a deed of defeasance, whereby the feoffment was rendered void on repayment of the money borrowed at a certain day. And this, when executed at the same time with the original feoffment, was considered as part of it by the ancient law, and therefore only indulged ; no subsequent secret revocation of a solemn conveyance, executed by .>., livery of seisin, being allowed in those days of simplicity and truth ; though, when uses were afterwards introduced, ii revocation of such uses was permitted by the courts of equity. But things that were merely executory, or to be completed by matter subsequent (as rents, of which no seisin could be had till the time of payment) ; and so also annuities, conditions, warranties, and the like were always liable to be recalled by defeasances to the time of their creation. 2. There yet remain to be spoken of some few conveyan- Conveyanoea , "1 ces, which have their force and operation by virtue of the by*the Statute v Statute of Use^. ^j^YXJ Uses and trusts are, in their originftj, of a nature very *'^*^- similar, or rather exactly the same ; answering more to the jidei-commissum than the ^^s^ts fructus pf the civil law: ^9 (a) See as to this Act and the covenants not to asaii^n or sublet, note to Duin- par's case, 1 Smith hg. Ca. and Leith Rl. Prop. Stats, pp. 1-9. (ij) Ante. s. 28 et «em that which assigned by d by last will i soil was not of seisin was i,ies was the loading principle in this species of property, any instrument ileclaring that intention was allowed to be binding in et(uity. .5. Furthermore uses were not liable to an3' of the feodal "'>»'•»}•'«' t<» •^ fetxlal l>ur- burthens ; and particularly did not escheat for felony or '*•«"" = other defect of blood ; for escheats, &c., are the consequence of tenure, and uses are held of nobody : but the land itself was liable to escheat, whenever the blood of the feoft'ee to uses was extinguished by crime or by defect ; and the lord (as was before observed) might hold it discharged of the use. 6. No wife could l>e endowed, or husband have his curtesy, ''**^«5 '"■ <"""• of a use; for no trust was declared for their benefit, at the original grant of the estate. And therefore it became customary, when most estates were put in use, to settle be- fore marriage some joint estate to the use of the husband and wife for their lives ; which was the originxj of modern jointures (c). 7. A use could not be extended by writ of »">' <■'«£"'» *^- elegit or other legal process, for the debts of cestui que iiae. For, being merely a creature of equity, the common law, which looked no farther than to the person actually seised of the land, could award no process against it. It is impracticable, upon our present plan, to pursue the doctrine of uses through all the refinements and niceties which the ingenuity of the times (abounding in subtile dis- quisitions) deduced from this child of the imagination, when once a departure was permitted from the plain, simple rules of property established by the anticnt law. These principal outlines will be fully sufficient to shew the ground of Lord Bacon's complaint, that this course of proceeding " was turned to deceive many of their just and reasonable rights. A man that had cause to sue for land, knew not against whom to * bring his action, or who was the owner of it. The wife * S. 332. - was defrauded of her thirds ; the hasband of his curtesy ; the lord of his wardshi}), relief, heriot, and escheat ; the cre- (o) Ante, p. 148. i- ly 4 378 OF ALIENATION IIY DEED. (litor of luH extent for debt ; and the poor tenant of his lease." To reuiedy'these inconveniences abundance of statutes were provided, which made the hinds liable to be extendcl by the creditors of ceHtuy qiie itac, allowed actions for thi freehold to bo brought against him, if in the actual peraancv or enjoyment of the profits ; made him liable to actions of waste ; established his conveyances and lejises made without the concurrence of his feoffees ; and gave the lord the ward- ship of his heir, with certain other foodal perquisites. 'I'ho Statute of These provisions all tended to consider ceHtuy que use as the real owner of the estate ; and at length that idea was car- ried into full effect by the Stat. 27 Hen. VIII. c.lO, which h usually called the Statute of Uses, or, in conveyances and pleadings, the statute /or transferring uses into poaaessm. The hint seems to have been derived from what was done at the accession of King Richard III.; who, having, when Duke of Gloucester, been frequently made a feoffee to uses, would upon the assumption of the crown (as the law was then un- derstood) have been entitled to hold the lands discharged of the use. But, to obviate so notorious an unjustice, an act of Parliament was immediately passed, which ordained, that where he had been so enfeoffed jointly, with other persons, the land should vest in the other feoffees, as if he had never been named ; and that, where he stood solely enfeoffed, the estate itself should vest in ceatuy que use in like manner as he had the u.se. And so the Statute of Henry VIII., after | reciting the various inconveniences before mentioned, and many others, enacts, that " when any person shall be seised of lands, &c., to the use, confidence, or trust, of any other •S. 333. person or body * politic, the person or corporation entitled •■ to the use in fee-simple, fee-tail, for life, or years, or other- wise, shall from thenceforth stand and be seised or possessed of the land, &c., of and in the like estates as they have in use, trust, or confidence ; and that the estate of the person so seised to u?o > shall be deemed to be in him or them that OF AIJENATION BY DEED. 370 have the tisc, in suili quality, manner, form, and condition as tlu'y had b«^f<)n' in the use." The statute tluis executes Kned of thf the use, as our lawyers tenn it ; that is, it conveys the pos- ' session to the use, and transfers the use into possession ; thereby making cenliiy que use complete owner of the lands and tenements, as well at law as in equity. The statute having thus not abolished the conveyance to uses, but only annihilated the intervening estate of the feof- fee, and turned the interest of cist ay que ii»e into a legal instead of an equitable ownership, the courts of couunon law began to take cognizance of uses, instead of sending the party to seek his relief in Chancery. And, considering them now as merely a mode of conveyance, veiy many of the rules before established in equity were adopted with improve- ments by the judges of the common law. The same persons only were held capable of being seised to a ijse, the same considerations were necessary for raising it, and it could only bo raised of the same hereditaments as formerly. But as the statute, the instant it was raised, converted it into an actual possession of the land, a great number of the incidents, that formerly attended it in its fiduciary state, were now at an end. The land could not escheat or be forfeited by the act or defect of the feoffee, nor bo aliened to any purchasor A discharged of the use, nor be liable to dower or curtesy, on account of the seisin of such feoffee ; because the legal estate never rests in him for a moment, but is instantaneously transferred to ceatiiy que use as soon as the use is declared. And, as the use and the land were now convertible terms, they became liable to dower, curtesy, and escheat, in conse- quence of the seisin of cestuy que use, who was now become the terre-tenant also , and they likewise were no longer de- visable by will. * The various necessities of mankind induced also the * S. 334. judges very soon to depart from the rigour and simplicity of not^alwayrbe the rules of the common law, and to allow a more minute «"«""♦««* t^« I' )1J i 380 OF ALIENATION BY DEED. Renminiiig use. . mi instant tlip and coini)lex construction upon conveyances to uses than conveyance is . t i i i , i made. upon otlipns. Hence it w'a^5 adjudged, that the use need not always be executed the instant the conveyan»je is made ; but, if it cannot take effect at that time, the oper- ation of the statute may wait till the use shall arise upon some future contingency, to happen with-^n a reasonable (a) period of time, ' namely within such a period as not to transgress the rule against perpetuities ; ' and in the mean- while the antient use shall remain in the original grantor: as, when lands are conveyed to the use of A. and B., after a marriage shall be had between them ; ' in which case, if the conveyance were a common law conveyance or statutory grant, it would be to a giantee to uses and his heirs to the use of A. and R after their marriage ; or, if it were a bargain and sale for money, it would be simply to A, and B. after their marriage. A further instance is afforded by the case of a bargain and sale or covenant to standt;-seised on, the bargainee or covenantee doing any future named act (fc). Springing use. These, which are called springinij uses, differ from an execu- tory devise in that there must be a person seised to such uses at the time when the contingency happens, else they can never be executed by the statute ; and therefore, if the es- tate of the grantee to such use be destroyed by alienation or otherwise, before the contingency arises, the use is destroyed (a) Jonea on Uses, p. 50. (b) Shifting, secondary and springing uses, are frequently confounded with each other, and with future or contingent uses. They may, perhaps, be thus classed : Ist. Shifting or secondary uses, which take effect in derogation of some other estate, and are either limited expressly by the deed, or are authorized to be created by some person named in the deed. 2ndly, Springing uses, confining this class to uses limited to arise on a future event, where no preceding use is limited, and which do not take effect in derogation of any other interest than that which results to the grantor, or remains in him, in the meantime. 3rdly, Fiittire or contingent vses, are properly uses to take effect as remainders ; for in- stance, a use to the unborn son of A., after a previous limitation to him for life, or for years, determinable on his life, is a future or contingent use ; but yet does not answer the notion of either a shifting or a springing use. Contingent tises naturally arose after the statute of 27 Hen. VIII., in imitation of contin- gent remainders. See Gilbert on Uses, by Ld. St. Leonards, c. 2, p. 152, note. OF ALIENATION BY DEED. 381 uses than e use need nveyan^e is e, the oper- arise upon reasonable )d as not to n the mean- grantor: as, d B., after a 1 case, if the yr statutory his heirs to if it were a to A, and B. )rded by the idy seised on, ained act (h), )m an execu- [ to such uses Ise they can >re, if the es- alienation or is destroyed 3on founded with perhaps, be thus rogation of some re authorized to ig uses, confining preceding use is her interest than eantitne. 3rdly, mainders ; for in- •n to him for life, ;ent use ; but yet use. Contingent itation of contin- :, 2, p. 152, note. or shifting uses. • S. 3;i5. for ever ; whereas, by an executory devise, the freehold it- self is transfened to the future devisee. ' Therefore, if, in the case first above put, the grantee to uses had taken a mere life estate and had died, or surrendered his estate to the grantor, the use in favour of A. and B. could not take effect." It was also held, that a use, though executed, may change secondai-j- fiom one to another by circumstances ex post facto ; as, if A. makes a feoffment *to the use of his intended wife and her eldest son, for their lives, upon the marriage the wife takes the whole use in severalty ; and, upon the birth of a son, the use is executed jointly in them both. This is sometimes called a shifting use. And by shifting use, as by executory devise, a fee may be limited to take effect after and annul a prior fee, so that it be to take effect within the rule against per- petuity.' And, whenever the use limited by the deed ex- Resulting pires, or cannot vest, it returns back to him who raised it, "^'-''' after such expiration, or during such impossibility, and is styled a resulting use. As, if a man makes a feoffment to the use of his intended v/ife for life, with remainder to the use of his first-born son in tail ; here, till he marries, the use results back to himself; after marriage, it Is executed in the wife for life : and, if she dies without issue, the whole re- sults back to him in fee. It was likewi.se held that the uses Revocation of originally declared may be revoked at any future time, and new uses be declared of the land, provided the grantor re- served to himself such a ])ower at the creation of the estate ; whereas the Utmost that the common law would allow, was a deed of defeazance coeval with the gi-ant itself, and there- fore esteemed a part of it, upon events specifically mention- ed. And, in case of such a revocation, the old uses were held instantly to cease, and the new ones to become executed in their stead. And this was permitted, partly to indulge the convenience, and partly the caprice, of mankind ; who, (as Lord Bacon ob£erve.s) have always affected to have the UHes. 382 OF ALIENATION BY DEED. If ■•'■ I ('* .'■*; 1^ i' ii i^^^^^B At law no use on a use recog- nized. S. .330. disposition of their property revocable in their own time, and irrevocable ever aften\'ards. By this equitable train of decisions in the courts of law, the power of the Court of Chancery over landed property was greatly curtailed and diminished. But one or two tech- nical scruples, which the judges found it hard to get over, restored it with tenfold increase. They held, in the first place, that " no use could be limited on a use," and that when a man bargains and sells his land for money, which raises a use by implication to a bargainee, the limitation of a further use to another person is repugnant, and therefore *void. And therefore, on a feoffment to A. and his heirs, to the use of B. and his heirs, in trust for C. and his heirs, they held that the statute executed only the first use, and that the second was a mere nullity : not adverting, that the instant the first use was executed in B., he t 'ccame seif.ed to the use of C, which second use the statute might as v/ell be permitted to execute as it did the first ; and so the legal estate might be instan- taneously transmitted down through a hundred uses upon uses, till finally executed in the last cestui que use. Again, as the statute mentions only such persons as were seised to the use of others, this was held not to extend to terms of years, or other chattel interests, whereof the termor is not seised, but only possessed ; and therefore, if a 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 lastly, (by more modern resolutions), where lands reciuisite the are given to one and his heirs ' in tinist, to receive and pay retain U^ie'le- ovev the profits to another, this use is not executed by the Ka esta e. statute : for the land must remain in the 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 de- vise to one and his heirs on trust to pei"mit another to re- Terms of years. Nor in case where it was ir own time, lurts of law, led property or two tech- to get over, in the first id that when h raises a use I further use *void. And the use of B, lield that the J second was the first use of C, which d to execute it be instan- ed uses upon e. Again, as seised to the 'ms of years, is not seised, )ne thousand t for) B., the s at common , where lands nve and pay cuted by the ee to enable the case, as a ;tive duty to But on a de- aother to re- OF ALIENATION BY DEED. 383 ceive the profits, it has been held that the latter took the legal estate.' (a)" Of the two more antient distinctions, the courts of equity quickly availed themselves. In the first case it was evident, that B. was never intended by the parties to have any bene- ficial interest ; and, in the second, the cestuy que use of the term was expressly driven into the Court of Chancery to seek his remedy : and therefore that court determined, that though these were not uses, which the statute could execute, yet still they were trusts in equity, which in conscience ought to be performed. To this the reason of mankind assented, and the doctrine of uses was revived, under the denomina- tion of trusts : and thus, by this strict construction of the Trusts, courts of law, a statute made upon great deliberation, and introduced in the most solemn manner, has had little other effect than to make a slight alteration in the formal words of conveyance. ' Thus, if a conveyance of lands be made, operating as a common law conveyance (b), or as a grant under R. S. 0. c. 98 (c), to A. and his heirs, to the use of B. and his heirs. The first use only 18 execu- the first use raised will be in A., and the statute will execute ted. it and give B. the legal estate. If the conveyance had gone on to declare a further use in favour of C. and his heirs , here would have been a use upon a use, which second use Tlie second . use is unexe- the statute cannot execute, being exhausted by the execu- cuted, thus a tion of the first ; and such second use would be a trust ; B. being trustee, and C. cestui que trust. If the conveyance had been worded thus ; to A. and his heirs, to the use of A. and his heirs, to the use of B. and his heirs, here A. would retain the legal estate, becoming however, by force of the sec- ond use declared, which is unexecuted, trustee for B. For it makes no difference that the firet use declared is in favour of the grantee himself instead of in favour of some other : for trust. il'; (o) See further, Tyn'elVs Case, Tud. Lg. Ca. Rl. Prop. 292, and cases referred to. (6) Ante, sec. 309, p. 346. (c) Ante, p. 354. 384 Though the iirttt is in fa- vour of gran • tee. Object of the St. to abolish trusts . is to take A. and his itamount to nd his heirs eyance thus was to pre- m the legal icity of the shing trusts )nfidence, or should have /he courts of r W. Black- ond use was ght as well st, then the Watkins sayB, to have lost bin n, 12 Jur. N. S. " a mistake, the ftnce, and to ex- erefore common 16 all absorbing [Hayes' Conveg. fact, that it \va» ite, the jurisdic- construction on hich Mr. Hayes itatute," " if in- station." TniHts rtunate perhaps ite, thereby con- [;ould a testator time secure him The only service, as was before observed, to which this statute is now consigned, is in giving efficacy to certain new and secret species of conveyances; introduced in order to render transactions of this sort &s private as possible, and to save the trouble of making livery of seisin, the only antient conveyance of corporeal freeholds ; the security and notoriety of which public investiture abundantly overpaid the labour of going to the land, or of sending an attorney in one's stead. ' The student will bear in mind that though the words ■use and trust usually convey quite distinct meanings as to the nature of the estates or interests, as may be seen from what is above stated ; still for the purposes of execution into possession by force of the statute there may be no difference between them : that is, the user of the word trust instead of the word use, will not prevent the person in whose favour such trust may be declared from taking the legal estate instead of a trust of equitable estate, by force of the statute, in a case where he would have taken it if the word use had been employed. Under a common law conveyance to A. and his heirs in trust for B. and his heirs, the statute will execute the declared tmst as it would a use, and B. will take the legal estate (a) ; its language is (6), " where " any person shall be seised of any lands, tfec, to the use, con- " fidence, or trust of any other," &c. : and vice versa, the em- ployment of the word use will not per se prevent the person in whose favour it is declared taking more than a trust estate ; as on a bargain and sale to A. and his heirs to the use of B. and his heirs (c).' ' The attention of the student should also be called to the difference between limitations to uses by conveyances oper- ating at common law (d) by transmutation of possession, or by way of grant under R. S. 0. c. 98 (e) (which operates in St. will apply though the word truit be used. Distiction be- tween limiting uses on a com- mon law con- veyance and one operating under the St. (a) Doe Synder v. Matters, 8 U. C. R. 5.5. (f) Post, p. 389. ( and the whole of those held in socage : which through the alteration of tenures ' into socage,' by the statute of Charles the Second (6), amounted to the whole of their landed pro- perty, except their copyhold tenements. Corporations were excepted in these ' enabling ' statutes, to prevent the extension ofmortmmn ; but by construction* 399 Uses were de- visable before the Statute of Uses, which by annexing tne possession to the use, ren- dered the.Mni no longer de- visable. c«o^ But the statute 32 Hen. VIII. c, 1, explained by the 34 and 35 Hen. VIII. c. 5, allowed persous seized in fee simple (with some ex- ceptions) to devise certain {)ortion8 of their lands. Devises to cor- porations to charitable (a) Ante, p. 2t6. (6) AnU, sec. 269, p. 293. uses. • S. 376. «^H Contingent intereBts. n -m 400 OF ALIENATION BY DEVISE. of the statute 43 Eliz, c. 4, it ' was * held, that a devise to a corporation for a charitable use ' was ' valid, as operating in the nature of an appointment, rather than of a bequest. ' ' ' has been explained (a) that so far as regards devises of ■ ..*h r-^d tenements, and bequests of money, to be laid out uiereon, the operation of the statute of Elizabeth is virtually vnr>ealed hy the statute of 9 Geo. II. c. 36 (6), and that under certai 1 ciio .instances by Provincial legislation devises of land for religious and other purposes may be made.' ' It has also been explained that contingent and executory interests and mere possibilities were not assignable at com- mon law, but that an assignment for value was upheld and enforced in equity ; and that contingent and executory in- terests were devisable by will under the Statute of Wills, as also possibilities, if coupled with an interest, or the person to be benefited were ascertained (c). It has also been men- tioned that rights of entry, on disseisin, and of action, were Rights of en; neither assignable nor devisable at common law. These in- able by K. S. terests and rights are also now transferrable at law and by o. c. 106. ^ g Q j^g ^^^^ ^^ devised.' With regard to devises in general, experience soon shewed how difiicult and hazardous a thing it is, even in matters of public utility to depart from the rules of the common law ; which are so nicely constructed and so artificially connected together, that the least breach in any one of them, disorders for a time the texture of the whole. Innumerable frauds and "ft^ perjuries were quickly intoduced by this parliamentary method of inheritance; for so loose was the construction made upon this Act by the courts of law, that bare notes in the hand- writing of another person were allowed to be good wills within statute. To remedy which the Statute of Frauds and Perjuries, 29 Car. II. c. 3, 'now repealed, as to (a) S. 274, p. 298. (t) As to the construction of this Act and conveyances in mortmain, see Corhyn v. French, Tud. Lg. Ca. Rl. Prop. 456, and notes and ante. (c) Ante, s. 175, p. 248 ; s. 290, p. 312. OF ALIENATION BY DEVISE. 401 a devise to a 3 operating in I bequest. rds devises of ;o be laid out th is virtually (id that under m devises of aade.' md executory nable at com- is upheld and executory in- to of Wills, as or the person Iso been men- f action, were sv. These in- it law and by ) soon shewed in matters of common law ; lly connected lem, disorders ble frauds and )arliamentary construction bare notes in ad to be good s Statute of jpealed, as to and conveyances )6, and notes and that portion of it relating to wills,' directed that all devises of lands and tenements should not only be in writing, but signed by the testator, or some other person in his presence, and by his express direction ; and be subscribed, in his pres- ence, by three or four credible witnesses. ' Where a will of lands situate here is executed out of this Province the lex loci rei aitce governs ; whilst, as to person- alty, the lex domicilii prevails.' • ' The Statute of Charles required that the witnesses should witneaaefl to be credible, and though as to this the statute of William was ^ <^«^'^^«' silent, yet it was held (a) that the requirements of the former statute continued. In one case, decided under the Statute of Charles, but afterwards over-ruled as to creditors as wrongly decided, tlu judges would not allow any legatee, nor by con- sequence,a creditor' where the legacies and debts were charged on the real estate, to be a competent witness to the devise, as being too deeply concerned in interest not to wish the es- tablishment of the will ; for, if it were established, he gained a security for his legacy or debt from the real estate, whereas otherwise he had no claim but on the personal assets. This determination, however, alarmed many purchasers and credi- tors, and threatened to shake most of the titles in the king- dom that depended on devises by will. For, if the will was at- tested by a servant to whom wages weredue,by theapothecary or attorney whose very attendance made them creditors, or by the minister of the parish who had any demand for tithes or ecclesiastical dues (and these are the persons most likely to be present in the testator's last illness), and if, in such case, the testator had charged his real estate with the payment of his debts, the whole will, and every disposition therein, so far as related to real property, were held to be utterly void. This occasioned the statute 25 Geo. II. c. 6, which restored 25 Geo II c both the competency and the credit of such legatees, by de- ^u *^fts to wU^ far I » n-R-es. (a) Eyan v. Devereux, 26 U. C. B, 100 ; see LitUe v. Aikman, 28 U. 337 ; the case of gift to an unnecesaary third witness being void. 2<3 C. R. ^■P 46i •S.37a nil 5 3 :*••' OF ALIENATION BY DEVISE. daring void all beneficial legacies, devises, estates, interests, gifts, or appointments of or afiecting any real or personal estate, given to witnesses, and thereby removing all possi- bility of their interest affecting their testimony. The same statute likewise established the competency of creditors, by directing the testimony of all such creditors to be admitted, but leaving their credit (^like that of all other witnesses) to be considered, on a view 'of all the circumstances, by the Court * and jury before whom such will shall be contested, ' As this Act did not extend to a devise or bequest to the hus- band or wife of an attesting witness, so as to avoid it, it was held that the witness was still not a credible witness as being interested indirectly in upholding the will and gift made by it. Thus, if the husband were a witness, and the will made proA^ision for his wife, he was not a competent witness. The B. S. 0, c. 106, s. 17, is much as the Act of Geofge, but it ex- tends expressly to vacate the provision for the husband or wife of the attesting witness; and declares by s. 18, that a cre- ditor attesting, or the husband or wife attesting of a creditor shall be a competent witness.' Another inconvenience was found to attend this new me thod of conveyance by devise ; in that creditors by bond and other specialties, which affected the heir, provided he had assets by descent, were now defrauded of their securities, not having the same remedy against the devisee of their debtor. To obviate which, the statute 3 &; 4 W. & M. c. 14, hath pro- vided, that all wills and testaments, limitations, dispositions, and appointments of real estates, by tenants in fee-simple, or having power to dispose by will, shall (as against such credi tors only), be deemed to be frau(^lent and void : and that such creditors may maintain th^ir actions jointly against both the heir and the devisee (a). ' The important subject of executory devi.' > . and the indul (a) See Vankouyhnet v. Ross, 7 U. C. B., 248, commented on in AihbertTf, 12 C. P. U. 0. 339. tates, interests, sal or personal )ving all possi- ny. The same oi creditors, by to be admitted, it witnesses) to jtances, by the II be contested, uest to the bus- avoid it, it was witness as being id gift made by i the will made t witness. The eof ge, but it ex- the husband or s. 18, that a ere- ing of a creditor, id this new me- ors by bond and rovided he had ir securities, not of their debtor. . c. 14, hath pro- Dns, dispositions, in fee-simple, or ainst such credi- void : and that jointly against f . and the indul- ited on in Bymd v. OF ALIENATION BY DEVISE. gence shewn them in allowing creation and existence of es- tates by modes which could not be effected by deed, was be- fore treated of (a) ; as also the restraint placed on perpetuities in wills (6). It may be here mentioned that the Imperial Statute 39 & 40 Geo. III., c. 98, sometimes known as the Thelluson Act, which prohibits the accumulation of the in- come of property beyond a prescribed period (c), is not in force here (d).' ' The subject of devises by will is one which, to be fully treated of, would require very much more space than can be devoted to it in a work of this nature, which treats of so many subjects on the law of real property. We shall there- fore treat as briefly of the present law under R. S. 0. c. 106, as we have of the old law, and confine our remarks to realty as distinct from personalty, bequests of which are often gov- erned by different rules from those which prevail as to realty.' ' The fii-st'three sections of R. S. 0. c. 106 (e), are taken from the Act of 4, William IV., and they refer to the period be- tween the coming in of that Act and of the Act of 36 Vic, which repealed the Act of William.' ' Section 3. — The important variance between this section and the law in force under the present Act must be borne in mind, and it will be seen that by reason of this variance, the cases on the later Act, hereafter treated of, do not apply here. Under it, every will speaks from the death of the testator, unless intention to the contrary appear. Under the Consolidated Act, c. 82, the burden of proof, so to speak, is the other way, and after acquired real estate did not pass unless such an intention appeared.' 'A will of lands under the Statute of Wills of Henry was considered not so much in the nature of a testament, as of a conveyance declaring the uses to which the land should be (a) Seos. 172, 173, p. 245. (6) Sec. 174, p. 246. (c) Stephen, Com., vol. 1, p. 555. (di Ante, ch. i. (e) See Statute in Appendix. 403 Varies from Imperial Act and Prov.Act. of .Victoria. By the former law a will could not ^ass after acquired freeholds. ■»■• f .1 'Sf .5| ,:5 3 ■MM " 404 Personal es- tate acquired after the will could pass. Bequest of "all my leaseholds " meant present leaseholds. Under general devise of •' all my real es- tate," after acquired pro- perty will not pass. Kesembles sec- tion 30. The former law. OF ALIENATION BY DEVISE. subject (a) ; and a testator could no more devise freehold real estate to be acquired after his will than he could or now cm, (except under R. S. 0. c. 98) convey at law by instrument inter vivos in anticipation of acquisition (6). The will as to freeholds spoke from its date, and was only valid as to then acquired freeholds, though it should expressly profess to deal with after acquired property.' ' Personal estate, including chattels real, was not governed by the same rules as freehold interests, and might pass though acquired after the will. There was, however, a dis- tinction as regards chattels real, and also as between a gene- ral and a specific bequest. Thus, a bequest of " all my lease- hold estates," jsrima fcvcie, and in the absence of anything from which the contrary could be inferred, spoke from the date of the will, and did not include after-acquired lea^u- holds, or a renewed lease, unless there was an intention ap- parent to that effect (c).' It has been held that under a general devise of " all my real and personal estate" the Consolidated Statute would not operate to carry after acquired freeholds {d). 'Section 4. — The language of section 30 is much as in this section. Under the old law a devise to A, simply, would pass no more than a life-estate, unless it appeared that the testator intended to devise a larger or other estate. By this section the burden of proof is shifted, and on such devise the fee or whole estate of the devisor will pass, unless intention to the contrary appears (e). It will be for those who con- (a) Doe d. Baker v. Clark, 7 U.C. R. 44. (h) That a deed may operate by way of estoppel, and the estoppel be fed on the acquisition of the estate does not preclude the above statement. (c) James v. Dean, 11 Ves. 390. (rf) Whateley v. Whateley, 14 Grant 430, Mowat, V. C, dus, ; Plumb v. McOannon, 32 U. C. R. 8. See also Oibion v. Gibson, 1 Drew. 62, per Kin- dersley, V. C. (e) Farrell v. Farrell, 26 U. C. R. 652, as to an indefinite devise'passing the fee, and the circumstances which favour such construction. OF ALIENATION BY DEVlSE. fee freehold real lid or now can, by instrument The will as to 'alid as to then profess to deal kS not governed id might pass lowever, a dis- »etween a gene- ' " all my lease- ce of anything spoke from the acquired lea^u- n intention ap- dse of " all my Statute would much as in this would pass no lat the testator By this section devise the fee !ss intention to lose who con- ' estoppel be fed on tement. '., dm. ; Plumb v. )rew. 62, per Kin- devise'passing the I tend for a restricted effect of the will to make out the intention. The Act only applies to estates and interests existing in the testator, and not those first created by the will. Thus, a devise to A of a rent charge held by the testator in fee will pass the fee ; but if the testator devise to A an annuity, and charge it on his land, A will take but a life-interest (a). The principles and rules of construction which govern un- der the old law in determining as to whether a fee or life- estate only passes, are yet important in ambiguous wills. Even before this Act an indefinite devise would be enlarged to a fee by the imposition of a charge, however small, on the person of the devisee, as on a devise to A " he paying my debts :" or in the quartum of the estate devised, as on a de- vise of lands to A, " my debts being paid thereout : " but not if the lands were first expressly charged, and the devise were merely subject to the charge (6). So also, if there were a a gift over on the devisee dying under a specified age (c) ; or under age and without issue (d).' ' As respects execution, the variance between the statutes of Charles and of William is this : that by the former, the will must have been attested andj subscribed in presence of the testator by three, or four credible witnesses, who need not have subscribed or attested in presence of each other, or at one and the same time : the latter statute is silent as to the credibility of the witnesses, and execution in the presence of and attested by two witnesses, is as valid as if in the presence of, and attested by three witnesses ; and it is suf- ficient if such witnesses sub-scribed in presence of each other, without subscribing (as required by the Statute of Charles) in the presence of ths testator. (a) NichcHU V. Hawka, 10 Hare 342 ; Jteoy v. MawliriMn, 7 Jur. N. S. 118. (i) Doe d. Stevens v. Snellinff, 6 East, 87. 98, per Le Blanc, J. ; Doe d. Sams v. Oarlick, 14 M. & W. 698, per Parke, B. ; Burton v. Powers, 3 K & J. 170 ; Ingalh v. Arnold, 14 U. C. R. 296, (c) Burk V. Annis, 11 Hare, 322 ; FroffmorUm v. Holyday, 3 Burr. 1618 ; Doe White T. Cundall, 9 East 406. {d) Toovey v. Bassett, 10 East 460. 405 The Act does not apply to eHtates created de novo by the will, as on de- vise of an an- nuity to A secured by way of rent charge. Instances wherein be- fore the Act indefinite de> vise would be enlarged to a fee. Variance be- tween stats, of Charles and of William. 406 OF ALIENATION BY DEVISE. i^ m 5' ;5 3 WitnesseB iDUHt.be cred- ible as under St. of Frauds. 8t. of Frauds not re|>ealed, and a will complying with either Act will ■ufBce, Can the two acts be amal- gamated, 80 that a 'Aoll valid under neither indi- vidually may yet be upheld by their joint effect •/ Mode of exe- cution. Attestation. Presumption of due execu- tion. Notwithstanding the Act of William was silent as to the credibility of the witnesses, that qualification still continued to be requisite as under the Act of Charles (a).' ' The statute of Charles Avas not impliedly repealed by that of William (/>). It seems clear therefore thai, '• will in- valid as not complying with the latter is valid if it complies with the former. In a late case (c) the court went further, and held in effect that tlie statutes were cumulative, and might be read together, and so that a will invalid U' either statute taken singly might be supported on their authority. Thus a will executed in the presence of two witnesses who subscribed in the presence of the testator, but not in the presence of each other has been held sufficient The authors do not presume to question the unanimous judgment of the court, but they deem it right in a matter of such importance to refer to the language of Draper, C. J. in a subsequent case ; alluding to the doctrine laid down in Crawford v. Curragh, he says " I advisably abstain from ex- pressing an opinion of concurrence in, or dissent from, that decision. I have not arrived at any positive conclusion upon it" (rf).' ' By section 12, every will of realty or personalty, except as named in s. 14, must be signed at the foot or end by the testator, or by some other in his presence and by his direc- tion, and such signature must be made or acknowledged by the testator, in presence of two or more witnesses present at the time, £ .1 such witnesses must attest and subscribe the will in the presence of the testator ; but no form of attesta- tion is requisite.' ' The attestation clause need not shew that the requisites of the statutes have been complied with, and whether shewn or not, proof of due execution must be given. Due execu- tion may however be presumed : and possession by the {a) Jiyan v. Deveivux, 26 U. C. R. 107. (6) Crawford v. Curragh, 16 C. P. U.C. 65. (c) Crawford v. Curragh, supra, (d) Syan v. Dtvtrtux, 26 U.C.R. IW. iloiit as to the still continued 0-' y repealed by thai, r- will in- d if it complies ' went further, umulative, and invalid ir 1 on their esence of two le testator, but held sufficient ihe unanimous ht in a matter F Draper, C. J. B laid down in jstain from ex- sent from, that onclusion upon sonalty, except or end by the d by his direc- :nowledged by sses present at I subscribe the rm of attests le requisites of 'hether shewn Due execu- jssion by the ^urragh, 15 C. P. pointment to irriage, make ced ; and yet le son by the second (a).' marriage of a ovided for by } to this case that a will Idren, was re- ft unprovided ling to show, le will should was that if a i^hole interest, 3uch interest, ere not to the seised in fee he revocation ve taken sub- reehold estate vious devise, ill, have been lainder to his 3t the fee, the iveyance had cific perform- ly, as regards rior devise of (vill go to the «7. executor or next of kin entitled to have the contract carried on contract of out for their benefit, but the legal estate will go to the de- visee (a). If however the contract have been abandoned the property will now pass under the will contrary to the former law (6).' ' S. 26. — Under this section on a general devise under the will speaks expression " all my real and personal estate," property ac- " quired after the making of the will will pass (c), though in strictness it cannot be said that such property is in the words of the act comprised in the will. As to personal estate, except chattels real (d), the general rule before the Act was that a will spoke from death of tes- tator. Though the will is to speak from the death of the testator will of minor still it would seem clear that a will made by a minor who majority dies after majority is not valid. This section does not apply to the objects of the testator's Act does not bounty, who are to take the real and personal estate given obJ^cL of tes- by the will, but only to the real and personal estate comprised tatoi^s bounty, in the will. A testator bequeathed the income arising from certain funds to A, a widow, for life or until her marriage, and after her death or marriage, which should first happen, he gave the principal amongst her children by two former husbands : A married again between the date of the will and the death of the testator, and he was aware of her marriage: it was held that A was not entitled to the income of the fuhds, but that the gift on her decease or marriage came into immediate operation (e). Under this section, questions arise on gifts under such expressions as " my stock " and " the stock which I have bought ;" the former would pass all o~ any stock held by (o) Farrar v. Earl of Winterton, 5 Bea. 1 ; 1 Jarra. Wills, 3 ed. 162 ; Sug. Stat. 2 ed. 360 ; Moore v. .^Ubeck, 12 ; Ford v. DePontes, 30 Bea. 72. (6) Sug. Vend. 14 ed. 191. (c) Oibton v. Oibion, 1 Drew. 62. (d) AnU, p. 403. (e) Bullock V. Bennett, 24 L. J. c. 397, 7 De. O. M. & 0. 283. i: 412 OF ALIENATION BY DEVISE. m^ -./■ f (.1 ^'", .,^- testator at his death, but it would seem that by the latter expression, the bequest would be confined to such stock as testator had bought and held at the time of his will ; and the same also on a bequest under the words, " the stock I now have.' " Lapse. ' S. 27. — If a devisee die in the lifetime of the testator, a lapse takes place, except in the cases named in sections 34 and 35. A lapse is not prevented by the devise being to the devisee and his heirs; for these latter words are mere words of limitation, shewing the estate to be taken. We shall again refer to the doctrine of lapse in considering sections 34 and 35. Residuary A residuary devise under the former law was regarded as ea^^property ^ Specific devise of such lands' as the testator then had which devisemay * ^® ^*^ ^^^ disposed of by his will, and such lands only would have lapsed, pg^g \jy ^j^g residuary devise. This was a consequence of regarding the will as a present conveyance (a). If therefore a testator seised of Blackacre and Whiteacre, devised the former to A and the residue of his lands to B, and A died in the lifetime of the testator, whereby the devise to him lapsed, B would .still not take Blackacre. The same doc- - trine applied on the devise to A failing by his disclaimer, or the illegality of the devise as contrary to the Statute of Mortmain, the rule against perpetuities, or otherwise. The Act now expressly provides that, unless intention to the con- trary appear, the subject matter of the devise which fails shall be included in the residuary devise. It may be ques- tionable whether this accords with the general intention of \ a testator who perhaps has disposed of the bulk of large pro- ^ perty to others than the residuary devisee, and shewn but slight intention of benefiting him.' 'S. 28. — In the absence of a bequest, leaseholds, being per- Leaaeholda, sonalty, pass to the personal representatives on death of the ^^ I'- y,^- .:V-" (a) 1 Jar. on Wills, 3rd Ed. 6ia OF ALIENATION BY DEVISE. ilS by the latter mch stock as lis will ; and "the stock I le testator, a n sections 34 being to the 3 mere words Te shall again jtions 34 and 3 regarded as m had which is only would Qsequence of If therefore , devised the I, and A died ievise to him 16 same doc- is disclaimer, le Statute of 3rwise. The >n to the con- e which fails aaay be ques- intention of of large pro- id shewn but is, being per- death of the lessee. Under theold law, if atestatordied, seised of an estate in fee simple, and possessed of leaseholds, and he simply devised all his lands and tenements, the leaseholds did not pass ; but if he had no lands but leaseholds, then they would pass, in order that some effect should be given to the will.' 'S. 29. — The old law has been thus stated by Lord St Powers to Leonards (a) : " It is already settled that a general devise or "^p***" bequest will not, independently of the late statute,' operate as an execution of*a power ; but it is also settled that where a testator disposes of real estate, not having any other than what is subject to the power, he is in such cases to be taken as dealing with that estate ; and that as to both realty and personalty, if the CDurt is satisfied by the manner in which the particular property is referred to, the testator intended to deal with that property, the disposition will be a valid execution of the power." Under the new law the burden of proof as to intention to exercise the power, is the reverse of the old law. This section is confined to general, and does not extend to special or lim- ited, powers. Thus a power to appoint to children is not within the Act (6) : only a power to appoint by will is within this section. By the joint effect of section 26 and this section* a will may operate as an execution of all general powers vested in the testator after making the will (c).' 'S. 30. — The language of the old Act of 4 Wm. IV, is much General de. as in this section, except that here the words " without words whoSTestate. of limitation" are introduced. Before that Act a devise to A, simply, would pass no more than a life-estate, unless it appeared that the testator in- tended to devise a larger or other estate. By this section the burden of proof is shifted, and on such devise the fee or whole estate of the devisor will pass, unless intention to the (a) LoKC V. Currie, 2 De G. M. & G., 547, (6) Cloves v. Audry, 12 Beav. 604. (c) Patch V. Shore, 2 Dr. &.Sm. 5S9. 414 OF ALIENATION BY DEVISE. Si ■r ■J contrary appeal's (a). It will be for those who contend for a restricted effect of the will to make out the intention. The Act does The Act only applies to estates and interests existing in «8tete8 created the testator, and not to those first created by the will. Thua, will, a8*on de- a devise to A of a rent charge held by the testator in fee will annuity to A, pass the fee ; but if the testator devise to A an annuity way'of rent ^^st created by the devise, and charge it on his land, A will charge. ^ij.g ^^^ ^ life-interest (by Inatances The principles and rules of construction which govern un- wherein before . . the Actindefi- der the old law in determining as to whether a fee or life- would be en- estate only passes, are yet important in ambiguous wills, arge o a ee. -g^gj^ before the Act of William an indefinite devise would be enlarged to a fee by the imposition of a charge, however small, on the person of the devisee, as on a devise to A " he paying my debts :" or on the quantum of the estate devised' as on a devise of lands to A, "uiy debts being paid thereout:" but not if the lands were first expressly charged, and the devise was merely subject to the charge (c). So also, if there were a gift over on the devisee dying under a specified age {d) ; or under age and without issue (e).' The words ' g. 31. — Before this section became law the words " die with- " die without issue" and the out issue," and the like, with certain exceptions, if there were nothing in the context to vary the construction, imported as to devise of realty, an indefinite failure of issue to re- motest descendants, and was not confined to failure of issue on the death of the person whose issue was referred to. Thus, a devise to A, or to A and his heirs, or to A for life, with a limitation over on death of A without issue, was by impli- cation construed as a gift to A and his descendants, with a (a) See Farrell v. Farrell, 26 U. C. R, 652, as to an indefinite devise passing tho fee, and the circumstances which favour such construction. (6) Nichol* V. Hawkeg, 10 Hare, 342 ; Beaff v. Bawlinton, 7 Jur. N. S. 118. (c) Doe d. Stevens v. Snellviff, 5 East, 87, 08, per Le Blanc, J. ; Doe d. Samt V. Oari ick, 14 M. & W. 698, per Parte B. ; Burton v. Powert, 3 K A J. 170 ; In- galls V. Arnold, 14 Q. B. U. C. 296. {d) Burke v. Annit, 11 Hare, 232 ; Frogmorton v. Holyday, 3 Burr. 1618 ; Doe W\gH v. Cundall, 9 East, 409. (e) Toovey v. Batwtt, 10 East, 460. OF ALIENATION BY DEVISE. 415 contend for a ention. » existing in lewill. Thus, tor in fee will i an annuity } land, A will ;h govern un- a fee or life- )iguous wills, devise would irge, however vise to A " he state devised' lid thereout:" •ged, and the > also, if there I specified age >rds"diewith- if there were on, imported f issue to re- iilure of issue rred to. Thus, or life, with a was by impli- lants, with a lite devise passing on. Jur. N. S. 118. J. ; Doe d. Samt 3K4 J.170;/n- y, 3 Burr. 1618; ) East, 460. remainder over on failure of descendants. This was held to be an estate tail, and was probably so held as otherwise the gift would be void for remoteness as tending to perpe- tuity ; an infringement of a rule we have already considered. By construing the gift as an estate tail, however, the objec- tion as to remoteness was removed, as the entail could be barred and converted into a fee simple, and so capable of alienation. If the failure of issue had been confined to the period of the death of A, then he would ha\e taken a fee simple,' with an executory gift over defeating such estate in case he had no issue living at his death. It is manifest that such an estate in A is less beneficial than an estate tail with a remainder over, as the latter estate can be barred and in- defeasibly conveyed, whereas the former cannot, and no certain title made to it. There were many and different exceptions to the rule founded on the context of the will ; it did not apply to personalty, as no estate tail can be given as to personalty, and so the failure of issue was confined to death. It is said («) to have been held, that as this section is ex- pressly confined to the word " issue," it makes no change in the meaning of the expression " die without heirs of the body" (6). Where a testator by a will, governed by this section, devised to his daughter " and her lawful heirs," " but in case she should not happen to have any child" then over, it was held she took a fee simple with an executory gift over (c). Nor will the Act apply if the words are combined with others, such as " dying under twenty -one." 'S. 32. — There were many instances in which trustees took Devise to trus- no greater estate than absolutely necessary for the perfor- *^® o'^*'*®^'^' mance of their trust ; thus, on devise to executors, until debts were paid, or until such time as a particular sum (a) Shelford Stats. 8 ed. 531. (6) Re Sallerij, 11 Ir. Ch. R. 298 ; Harris v. I>avu, 1 Coll. 416 ; Daioion v. Small, L. B. 9, Cha. App. 651. (c) Matthews V. Gardner, 17 Bea. 254. •f 416 OF ALIENATION BY DEVISE. Devise to trustee. 0- ^V-*"* . fvV' Iv' V ^' i should be raised out of annual rents and profits, the devisees took only an estate for so many years as might be necessary to perform the trust ; now they take in such cases the whole estate of testator (a).' ' S. 33. — It was a rule before this section, that where there was a devise to trustees, though with words of inheritance, ^^^^^j^'" ^iprima facie the trastees took by implication only so much f^ of the legal estate as the active purposes of the tiiist required. Thus, on a devise to A and his heirs on trust to pay an an- nuity out of the annual rents and profits only, to B, and subject thereto in trust for C in fee, A took the legal estate only during the life of B by implication ; under this section he takes the fee (6). The question under wills not governed by this section is of importance with reference to the rule in Shelley's case. Thus, on a devise to A and his heirs, in trust to receive and pay the rents and proBts to B for life, and after his death, in trust for the heirs of his body, the question anses whether the remainder to the heirs is a legal or equit- able remainder. If it be the latter, then, as it coalesces with the equitable estate for life, B takes an immediate equitable estate tail, which, as explained in treating of such estates, he can convert into an equitable fee simple, and by calling on the trustee to convey the legal estate, convey a legal fee simple. It is settled that under the rule first above named, A, takes only during life of B, that the remainder to the heirs is a legal remainder, and consequently cannot coalesce with the equitable life estate and operate under the rule in Shel- ley's case to give B either the legal or equitable fee, and that the heir takes as purchaser the legal estate in tail (c).' ' S. S. 34, 35. — The doctrine of lapse was before referred to (d). Under a devise to A and the heirs of his body, the word " heirs " was a mere word of limitation, shewing the estate A. was to take, and if A. died in the lifetime of testa- Estates tail and gifts to I'lsue not to lapse. (a) See Hawkins' Wills 241 ; Shelford Stats. 8 ed. 531. (b) Hawkins' Witla, 157. (c) Hawkins' WiUs, 143. {d) AnU, p. 412. OF ALIENATION BY DEVISE. 417 tor, a lapse took place notwithstanding his issue wereiiving and survived the testator. The Act does not apply unless in cases where before the Act there would have been a lapse ; therefore, on gifts tochildren as a class, the death of a child will cause no lapse as to its share, and it will go to the survivors (a). Nor does .section 35 extend to wills made in execution of special powers of appointment, as on a gift for life, with power to the donee to appoint by will among his children ; here section 35 will not prevent a lapse if a child to whom an appointment is made die in the lifetime of the appointor, (t)though he leavechildren alive on the death of theappointor. This section does not substitute for the predeceased donee, the issue whose existence is the event or condition which prevents the lapse, but renders the subject of the gift the absolute property of such donee, and, therefore, it may be disposed of by his will, notwithstanding his death in the lifetime of the testator (c). The provisions of the Act under which the issue of a child who died in the lifetime of testator take, render it necessary, if this be not intended, that the effect of the Act be negatived by gift over in case of death of the child in the testator's lifetime, or otherwise (d).' (a) Olney v. Bates, 3 Drew. 323. (c) Johnson v. Johnson, 3 Hare, 157. (6) Oriffitluv. Gak, 12 »im. 354. (rf) Re Move's trusts, 10 Hare, 178. »4^«iD 6) Hawkins' Wills. 27 CHAPTER XXI. TITLE BY PRESCRIPTION, AND BY NON-CLAIM UNDER REV. STAT. ONT. CH. 108. Discoatinu ance. *2 .5 'At comraon law, there were often different remedies in those eases wherein entry on lands or the ouster there- from, and continuance in possession thereof by the ten- ant was unlawful ah initio, and those other cases where- in the original entry was lawful, but the continuance in possession subsequently became unlawful. Thus there was a peculiar remedy in the case' of diacontlnuance, which happened when he who had an estate-tail made a larger estate of the land than by law entitled to do. As if tenant in tail made a feoffment in fee simple, or in tail, or for the life of the feoffee, all which were beyond his right to make, as that extended no further than to convey for his own life ; in such case the entry of the feoffee was lawful during the life of the feoffor, but if after his death possession was retained, it was an injury termed a discon- tinuance. * A feoffment, as before mentioned, formerly passed the estate professed to be granted, hy wrong, though the fe- offor had not in him the power to convey such estate.' ' At common law there was, as there now is, the extra-judi- cial and summary remedy of entry by the legal owner hav- ing right : which, as before explained (a), may now, so far as any civil action is concerned, be with as much force as necessary, but which may subject the owner to an indict- ment for breach of the peace, and to proceedings under the S. 175. statutes as to forcible entry. * Formerly,' if the claimant ' were * deterred from entering by menaces or bodily fear, he (a) As to right to enter with aa much force aa ueceasary, so far as regards a civil action. See p. 175. UNDER REV. ent remedies ouster there- by the ten- ' cases where- 3 continuance Thus there ^continuance, e-tail made a ed to do. As simple, or in re beyond his an to convey he feoffee was iter his death ■med a discon- rmerly passed though the fe- 1 estate.' the extra-judi- fal owner hav- lay now, so far much force as r to an indict- ings under the the claimant bodily fear, he BO far as regards a TITLE BY PRESCRIPTION AND BY NON-CLAIM. 419 ' might ' make claim, as near to the estate as he ' could,' with certain forms and solemnities : which claim was in force for only a year and a day. And this claim, if it ' were ' repeated Continual once in the space of every year and day (which ' was ' called ^ continual claim), had the same effect with, and in all re- spects amounted to, a legal entry. Such an entry ' gave ' a man seisin, or put into immediate possession him that had right of entry on the estate, and thereby made him complete owner, and capable of conveying it from himself by either descent or purchase, ' which otherwise, as regards convey- ance to a purchaser At least, was not allowed ; for a person who was considered as dispossessed and having but a right of entry could not transfer such right to another (a). There was a further advantage attendant on entry as above or continual claim, viz. : that it prevented the right of entry iron\ being tolled or taken away by a descent cast or dis- continuance, or, if an action were brought within a year from entiy, from being barred by the Statute of Limi- tations. The student will now understand the object of the Rev. Stat. Ont. c. 108, sees. 8 and 9, under the first of which no person is deemed in possession of any land within the meaning of the Act merely by reason of having made an entry thereon ; and under s. 9, no continual claim on or near any land shall preserve any right of entry, or distress, or of bringing an action.' *The right of entry ' might have been ' tolled, that is taken "S. 176. away, by descent. Descents, which 'took' away entries, might be toil^ ^were' when any one, seised by any means whatsoever, of"''* en away, inheritance of a corporeal hereditament, died, whereby the same descended to his heir, which was termed a descent cast ; (now abolished as to its effect by R. S. O. 100, s. 10). In such a case, however feeble the right of the ancestor might be, the entry of anyjother person who claimed title to the (a) Antt page 312. / ■XV i r 40 .5r •* •.' Of caseH not remediable by mere entry. * S 100. By poBBeBSory actionR, which decided nothing with respect to the right of pro- perty. TITLK BY PltESCRTPTlON ANl) BY NON-CLAIM. freehold ' was ' taken away ; and he ' rouhl not ' rocovt^r poM- soHsion against the lieir l>y this summary method, but 'was' driven to his action to gain a legal seisin of the estatt-. And this, ' among other reasons,' because the heir ' came ' to the estate by act of law, and not V»y his own act ; the law, thei'e- foro protected his title, and ' would ' not sutler his {KJSHcssion to be divested, till th(^ claimant had proved a better right (a). Thus far of remedies ' by entry,* where the tenant or oc- cupier of the land hath gained only a mere possession, and no apparent shadow of right. Next followed another class, which ' were ' in use where the tenant or occupier advanced one step nearer to perfection ; so that he ' had ' in him not onl}' a bare possession, which ' might ' be destroyed by a baio entiy, but also &n aj^tarent right of jiossession, which 'could not be removed by mere entry, but only ' by orderly coinse of law ; in the process of which it must have been shown that though he ' had ' possession and therefore* the presump- tive right, yet there 'was' a right of possession superior to his, residing in him who ' brought ' the action. These remedies ' were formerly ' either by n v ' entry, oi an assise ; which ' were ' actions merely p{ , >j ; serv- ing only to regain that possession, whereof i demaii'laiit (that is, he who sues for the land,) or his ancestor ' hac' been unjustly deprived by the tenant or possessor of the freehold, or those under whom he claims. They decided nothing with respect to the right of property ; only restoring the demand- ant to that state or situation, in which he was (or by law ought to have been) before the dispossession committed. But (a) The common law doctrine as to tha effect of a descent cast was some- what modified by Stat. 31 H. c. 33, enacting that " the dying seised of any dis- seisor of, or in any lunds, Ac, having no title therein, shall not be deemed a des- cent to take away the entry of a person or his heir, who had lawful title of en- try at the time of the descent, unless the diseeisor has had peaceable possession for five years next after the disseisin, without entry or continual claim by th& person entitled." CLAIM. TITLE HY PRESCRIl'TION AND HY N()N-CLALM. 421 recover pos- »od, but 'was' e estate. And caiiio ' to the lu) law, there- his posHcHHion a bettei- ri^fht tenant or oc- tosscssion, and another class, pier advanced <\ ' in him not oyed by a bare !, which 'could orderly course /e been shown * the presunip- on superior to w '^ entry, .y; sen-- (lemaii'lant tor ha(' lieen >f the freehold, d nothing with ig the demand- was (or by law ommitted. But cent cast was some- ng seised of any (Us- not be deemed a des- ,d lawful title of en- jenceable possession dtinual claim by the this without any prejudice to the right of ownership ; for, if the dispossessor 'had ' any legal claim, he ' nught ' after- wards exert it, notwithstanding a recovery against him in these possessory actions." 1. The first of these possessory remedies ' was * by writ o/ The writ of t'ntry. entry ; which disproved the title of the tenant or possessor, by shewing the unlawful means by which he entered or con- tinued possession. If more than two degrees (that is, two alienations or de- Mcnts) were past, there lay no writ of entry at the common law. For, as it was provided, for the *quietne8s of men's • s 182. inhci itances, that no one, even though he had the true right of possession, should enter upon him who had the apparent riglit by descent or otherwise, but he was driven to his writ of entry to gain possession ; so, after moi'e than two descents or two conveyances were passed, the demandant, even though he had the right both of possession and property, was not allowed this pofisemory action ; but was driven to his writ of riyht, a long and final remedy. ' The writ of entry was not apjlicablc on discontinuance by tenaiit in tail.' ' On looking at s. 75 Rev. Stat. Ont, ch. 51, the student will find a curious list of writs now abolished : they were writs which issued in real actions, sometimes droiturel, in which the right of property was tested, sometimes possessory, in which 'he right to possession alone was in question, and these writs afforded remedies according to the circumstances of each case, as the number of descents cast, alienations, deaths, &c. The legislature have, however, acted somewhat erroneou 'y in not continuing in the Revised Acts the pro- visions of 8. 79 of Con. Stat., c. 27, on the supposed ground that those provisions were effete. Their absence may un- justly deprive an owner of his property, as will be seen by the next note below.' *By these several possessory remedies the right of posses- • s. 190. sion ' might have been ' restored to him that ' was ' unjustly ^- 422 TITLE BY PRESCRIPTION AND BY NON-CLAIM. iS But the right of possession and of proper- ty may be dis- tinct. * S. 191. Sometimes a pKJSsessory ac- tion would not lie, but only writ of right, or real action drmturel. As, 1. on dis- continuance. Formedon. deprived thereof. But the right of possession (though it carried with it a strong presumption) ' was ' not always con- clusive evidence of the right of ^^roper^y, which 'might ' still subsist in another man. For, as one man ' might ' have the possession, and another the riffht of possession, which was recovered by these po3ses.sory G^^tions; .so* one man ' might' have the right of possession, and so not be liable to eviction by any possessory action, and another ' might ' have the right of property, which 'could not' be otherwise asserted than by the great and final remedy of a writ of right, or such correspondent writs as ' were ' in the nature of a writ of right ; ' and proceedings on them termed real actions droiturel, as distinguished from those possessory.' This happened principally in four cases : 1. First, upon an alienation ' in fee simple ' by tenant in tail, whereby the estate-tail ' was ' discontinued, and the re- mainder or reversion ' was ' by failure of che particular es- tate displaced, and turned into a mere right, the remedy ' was ' by action of formedon (sizcundum formam doni), iu the nature of a writ of right (a). (a) About six years a^o one of the authors was retained as coun8?l in a case in which, in his opinion, the only remedy was by the writ of formedon, which he drafted, and which was issued accordingly, to recover large property in the Town of Brockville, The facts were as follows : — A tenant in tail, then barely of age, had prior to the Act of 4 William IV., c. 1, abolishing real action.^ (R. S. O. c. 51, 8. 75), enfeoffed in fee simple with livtiy of seisin ; the feoffee made conveyances of various portions, and his grantees again conveyed to others : in the 19th year before the writ of formedon the tenant in tail died; the Buit was brought by the issue in tail. From what is stated in the text in this chap- ter, it will be seen that in such a case the right of entry of the issue, even on death of the tenant in tail, is taken away by the discontinuance worked by the feoffment, as also by the various alienations of the feoffee and those claimini^ under him ; consequently no action of ejectment could be brought, as th«t action can only lie where the plaintiff has a right of entry. When, therefore, the Act of William abolished all w»--8 and real actions to recover land, except in dower and ejectment, there was excepted from abolition those writs and re«l actions (Con. Stat, c. 27, s. 79, which exception ought to have been continued) applicable to those cases wherein " any person whose right of entry to any land had been taken away by any descent cast, disoontinuanje, or warranty " be- fore the abolition. During the lifetime of the tenant in tail, time did not run in favour of those in possession, for the reasons given in treating of ss. 26, 27. -CLAIM. ion (though it lOt always con- h ' might ' still light ' have the on, which was eman 'might' ible to eviction ght ' have the jrwise asserted rrit of right, or ature of a writ d real actions sessory.' This ' by tenant in led, and the re- i particular es- it, the remedy 'maTn doni), in as counsel in a case of formedon, which krge property in the , in tail, then barely ing real actions (R n ; the feoffee made iveyed to others : in ft tail died ; the suit he text in this ch»p- f the issue, even on lance worked by the 3 and those claiminif be brought, as th»t . When, therefore, recover land, except those writs and re«l ivo been continued) of entry to any land ■, or warranty " be- lil, time did not run lireatingof 88. 26,27. TITLE BY PRESCRIPTION AND BY NON-CLAIM. 42a * 2. If the owners of a particulaj- estate, as for life, in 2. where dower, by the curtesy, or in fee-tail, ' were ' barred of the ["^J^^g^J"" right of possession by a recovery had against them, through *P',"rtigj^' their default or non-appearance in a possessory action. «»*»*« ^y ^^• 3, 4. Thirdly ; in case the right of possession ' were ' barred 3, 4. Where by .1 recovery upon the merits in a possessory action ; or shall have . passed upon lastly, by the ' former Statutes of Limitations, a claimant the merits in a in fee-simple ' might ' have a mere lurit of right ; which tion, mere writ ' was ' in its nature the highest writ in the law, and ' lay ' concurrent ' only of an estate in fee-simple, and not for him who had a (-.c'tums where less estate. This writ ' lay ' concurrently with all other real l^ to be recov^ cictions, in which an estate of fee-simple ' might ' be re- neg'literthem covered ; and alsc after them, being as it were an appeal to the mere right, when judgment had been had as to the pos- session in an inferior possessory *action. But though a * ^' ^^^• writ of right ' might ' be brought, where the demandant ' was ' entitled to the possession, yet it rarely ' was ' advis- B»t rarely ad ^ •' '' VI sable in such able to be brought in such cases, as a more expeditious and i^ase. easy remedy ' was ' had, without meddling with the property, by proving the demandant's own, or his ancestor's, posses- sion, and their illegal ouster, in one of the possessory actions- Bat, in c.'ise the right of possession ' were ' lost by length of time, or by judgment acrainst the true owner in one of these Where no .... . , other remedy, infei lor suits, there ' was ' no other choice ; this ' was ' then the only remedy that ' could ' be had (a). The case was compromised by a money payment. There was a similar case to the above in England, under the same state of the law as in Ontario. Bern- ington v. Cannon, 12 C. B. 1-18. (a) In the progress of this action the demandant alleged some seisin of the lands in himself, or else in some t>erson under whom he claimed, and then de- rived the right from the person ho seised to himself ; to which the tenant 'might' answer by denying the demandant's right, and averring that he has more right to hold the lands than the demandant has to demand them : and this right of the tenant being shown, it then puts the demandant upon the proof of his title, in which if he failed, or if the tenant ' had ' shown a better, the de- mandant and his heirs were perpetually barred of their claim ; but if he 'could* make it appear that his ' was ' superior to the tenant's, he recovered the land against the tenant and his heirs forever. It will be observed how, having abolished thit fictitious proceedings in eject- ion 424 TITLE BY PRESCRIPTION AND BY NON-CLAIM. 41 ' It will thus have appeared, that according to various cir- cumstances, a person entitled had to assert his rights in va- rious ways ; either by entry, or by real action, mixed, pos- sessory, or droiturel, as the case might be, and though he failed in an inferior remedy, he might yet resort, as a gene- ral rule, to one superior ; as before mentioned, however, sta- tutes in early times imposed a limitation to the time within which rights should be asserted, and remedies applied, which time varied according to the circumstances of the case. Sixty years was the utmost period allowed even on the final remedy by writ of right, and this causes Blackstone to say, that " the possession of land in fee uninterruptedly for sixty " years is a sufficient title against all the world, and cannot Sixty or more "be impeached by any dormant claim whatever;" an obser- Bion may not vation now admitted to be incorrect, for as said, as to the old law, by Lord St. Leonards: (a) " It was possible that an estate might be enjoyed adversely for hundreds of years, and yet at last be recovered by a remainder-man ; for in- ■J ment in the names of John Doe and Richard Doe, we have reverted to a more sim- ple practice, bearing more analogy to the ancient proceedings on the writ of right ; the mode of trial, however, varies considerably ; for on the writ of rip-ht, wager of battel and trial by battel were allowed ; on which trial " the Judges of the " Court of Common Pleas attended in their scarlet robes, at sunrise, and a bar " was also prepared for the learned sergeants at law ; " the combat was had by champions for the litigants, and in the civil and criminal courts they were clafl in a species of armour and armed with batony and buckers, though in the courts military they fought with sword and lance ; and in those courts as also in ap- peals of felony, the parties fought in person.' The battel being begun, the com- batants were liound to fight till the stars appeared in the evening ; and, if the champion of the tenant could defend himself till the stars appeared, the tenant prevailed in his cause ; for it is stiificient for him to maintain his ground, and make it a drawn battel, he being already in possession ; but if victory declared for either party, for him was judgment finally o^ven. Wager of battel was abolished by Imp. St. 59 Geo. III. c. 46. The last ewe known in which it was allowed, on a writ of right, was in 1812, in a suit as to the Angell property, and in a case of appeal of felony in 1818, 1 B. & Aid. 406 — wagers of battel and trial by battel were only allowed in the courts martial- in appeals of felony, and on the writ of right in real actions. In other cMr.i, as if proceedings were taken against a debtor in a civil suit, it was never rem- petent for him on denying the plaintiff's claim, to tender to the plaintif: the mode of trial by battel. (a) Sugden Stats, p. 4. CLAIM. TITLE BY PRESCIIIPTION AND BY NON-CLAIM. 425 to various cir- i rights in va- n, mixed, pos- nd though he ort, as a gene- , however, sta- le time within applied, which of the case. 3n on the final ikstone to say, tedly for sixty Id, and cannot er;" an obser- said, as to the Dssible that an Ireds of years, -man ; for in- 3rted to a more sim- in the writ of right ; it of rijrht, wager of the Judges of the sunrise, and a har :ombat was had by iirts they were clad hough in the courts ourts as also in ap- ng begun, the com- 'ening ; and, if the )peared, the tenant tin his ground, and if victory declared , 46. The last caie 1812, in a suit as to 18, 1 B. & Aid. 406 the courts martial' M. In other cases, ;, it was never rem- to the plaintif: the 4. stance, suppose an estate to have been limited to one in tail, with remainder over to another in fee, and the tenant in tail to have been barred of his remedy by the Statuses of Limitation ; it is evident that as his estate subsisted, the re- iniainder-man'a right of entry could not take place till fail- ure of issue of tenant in tail, which might not happen for an immense number of years." Other instances might be put, in which sixty years' possession, pending the continu- ance of the life of the tenant in tail might not then, or now, confer a title even against the issue in tail, as hereafter men- tioned in treating of ss. 2G, 27, 28, if the possession has been under some conveyance of the tenant in tail, and so not strictly adverse (a)' ' Under the Stat. 4 Wm. IV., Rev. Stat. 0. c. 51, s. 75, all real and mixed actions are abolished, except the writ of dower> of dower uude nihil habet, and ejectment. A reference to this section will shew the extraordinary actions applicable to the various positions in which the demandant and tenant might stand in regard to the property. As real and mixed actions were thus abolished, with the exceptions of the ac- tions of dower and ejectment, and as ejectment could not be brought except where there exists a right of entry, the neces- sity arose for providing against the right being tolled or taken away by descent cast, discontinuance or warranty (h) \ it was therefore provided that no right of entry or action should be thereby tolled, K S. 0. c. 108, s. 10. Had the statute not thus provided when it left ejectment as the only remedy, the party entitled might have been wholly defeated by the com- mon law effect of a descent cast, discontinuance or warranty, as before explained. For instance, quiet possession by a dis- seisor and a descent cast would have conferred a title, for the disseised was thereby deprived of his right of entry (c), and without such right ejectment will not lie. So again, if (a) See also ante, s. 191 , p. 422, note a. (6) Ante, s. 176, p. 419. (c) Ante, p. 422, note a. A 2J' Real and U mixed actions 1- abolished ex- l» cept in dower 1 and ejectment byR. S. O.c. 51, c. 75. S. 10 prevents right of entiy being tolled by descent cast, discontinu- ance or war- ranty. II m * ,5r 426 TITLE BY PRESCRIPTION AND BY NON-CLAIM. tenants in tail in possession discontinued by feotfment in fee (the tortious effect of which was not abolished till Stat. U & 15 Vic. c. 7), this would also have taken away the right of entry, and would have been a virtual bar to those in re- mainder and reversion leaving them without a remedy (a).' ' A further object in the statute was to limit actions to 10 years from the right accruing, and extinguish the right itself afterwards, except in certain cases of disability, and wild lands ; and therefore not only were real actions abolished, underwhich,as before explained, under certain circumstances, only sixty years would bar the action, but it was enacted that no person should be deemed to be in possession, merely by reason of having made an entry, and that no continual or other claim should preserve any rights of making an entry, R. S. O. c. 108, or distress, or of bringing an action, R. S. 0. c. 108, ss. 8 k SB. 8 & 9. As to mere entry and continual claim. *•' Doctrine of non-adverse possesition. 9. The effect theretofore of such entry or claim was, among other things, to give a new right, and prevent tiic Statutes of Limitations from running (ante, s. 175).' 'Under the former Statutes of Limitations, the time limited, did not begin to run except irom adverse possession, and great difficulties occurred in determining whether the posses- sion of the party claiming under the statutes, was or wa^ not adverse to the party otherwise entitled. This doctrine of non-adverse possession is yet important in cases of written leases under four dollars excepted out of s. 5, el. 5; and more- over, the present statute cannot be understood without ad- verting to it. As a general rule it may be laid down, that possession was not adverse when the parties claimed under the same title ; when the possession of one was consistent with the title of the other ; or when the party claiming title had never in contemplation of law been out of possession : the mere fact of a tenant remaining in possession after the tenancy had expired was not deemed an adverse possession, (a) Ante, p. 422, Hayes' Con. 238. N-CLAIM. TITLE BY PRESCRIPTION AND BY NON-CLAIM. 427 feoffment in fee led till Stat. U away the right • to those in re- a remedy (a),' it actions to 10 the right itself )ility, and wild tions abolished, 1 circumstances, it was enacted ssession, merely no continual or laking an entry, , c. 108, ss. 8& aim was, among / the Statutes of the time limited, possession, and ;ther the posses- tes, was or wa-s This doctrine cases of written , el. 5 ; and more- 3od without ad- laid down, that s claimed under was consistent ty claiming title b of possession: session after the verse possession, neither was the possession of a person let in under a contract to purchase, though default were made : the possession of one joint tenant, parcener, or tenant in common was deemed the possession of the co-tenants or co-parceners, so that even the receipt by one of all the profits was not sufficient to cause the possession to be deemed adverse : a tortious actual ouster in deed, or what was tantamount thereto (a), was requisite to make the possession adverse, or such a state of facts as that an actual ouster would be presumed to have taken place ; thus, if the co-tenant not only received the whole rents, but on being asked for payment of his co-tenant's share, refused payment and denied the right, it was held to be evidence of an ouster : so also sole possession for forty years by one ten- ant in common being unexplained, was held sufficient for a jury to presume actual ouster. The possession of a relative of the heir was not always deemed adverse to the heir ; as when a man seised in fee died leaving two Svons, and the younger entered by abatement, the statute did not run against the heir at law ; for the law presumed the younger son en- tered, claiming to uphold and preserve the title of the ances- tor which was that by which the elder son claimed : but had the elder son entered, and then been disseised by the younger, the possession of the latter would have been adverse.' ' The object of the statute was to do away with the doctrine Object of th» of non-adverse possession, as above explained, and the diffi- away with culties attending it ; and the general purport of the Act is to non-adverse make the statute run from the time of the right first accruing, p°«««»*'""- whether the possession were or were not adverse according to the old laws. It provided, therefore (s. 4), that no person S. 4. Limits shall make an entry, or distress, or bring an action to recover years ft'om any land or rent, but within 10 years next after the iirstac- cruing. s*ii. cruing oi "uch person's own right, or if he claims through an- onTcTtenant other from the first accruing of the right of such other, (clauses i^on o'AS'* other, (a) 2 Smith Lg. oases, p. 561, note, 5th ed. , and p. 683. ISIM- 5,6 I 428 TITLE BY PRESCRIPTION AND BY NON-CLAIM. 5 18 I^ .-^i L. ':■ ..'I 2 & 3, s. 4) and it was declared that the possession or receipt of the profits by one co-parcener, joint tenant, or tenant in common, should not be deemed the possession or receipt of S. 12. Posses- the other (s. 11) : and that the possession of or receipt of the er brother, &c., profits by a younger brother or other relative of the heir at heir. law should not be deemed the posssssion of or receipt by such heir (s. 12).' S. 4. Different ' Sec. 4. — The word rent in this section does not refer to aensea to word rent, as rent rent reserved on a lease, but to rent payable by a charge on chftrcTG or sgF' vice. lands. Let us here at the outstart allude to that w^hich, un- less understood, is likely to lead to great confusion ; viz., the different senses in which the word rent is used in the statute : sometimes it is used as meaning rent reserved or rent service, sometimes as a rent charge. The nature of these rents and the distinction was before pointed out (a). In the interpre- tation clause, s. 2, it is used in both senses, and is expressly made to " extend to all annuities and periodical sums of money charged on or payable out of any land ; " so also in cl. 6, s. 5, where it is used to signify rent charge, except when therein lastly spoken of, when it means rent reserved. In s. 5, cl. 5, the word is used seven times, sometimes in one sens^, sometimes in another. Whenever not spoken of in that section as rent payable or reserved, it means rent in the nature of a rent charge.' ' That the word " rent " sometimes is used as in the sense of rent charged on land, and as an incorporeal hereditamenti Qyt> I wherein a distinct estate may exist, and not in the sense of rent reserved, or rent service (which is a mere incident to -^ the reversion, and wherein no estate can exist), may be well illustrated by reference to sec. 5 cl. 6. That clause enacts that " when any person shall be in possession or in receipt of the profits of any land, or in receipt of any rent, as tenant at will, &c.;" now, as remarked by Lord Denman (h), 'a (a) Sees. 41, 42, pp. 66, 67. (6) Doe dem. Angell v. Angell, 9 Q. B. 328, per Ld. Denman, C. J. ; Grant v. Mlit, 9 M. & W. 113 ; where there la a misprint of 2nd for 3rd section, see Sugden on Stat. 46. nt f -CLAIM. ssion or receipt it, or tenant in )n or receipt of >r receipt of the e of the heir at receipt by such )e8 not refer to by a charge on that which, un- fusion ; viz., the [ in the statute : I or rent service, these rents and In the iuterpre- md is expressly odical sums of nd ; " so also in ^e, except when t reserved. In metimes in one )t spoken of in cans rent in the L as in the sense il hereditament' , in the sense of lere incident to 3t), may be well t clause enacts on or in receipt y rent, as tenant Denman (6), 'a gell, 9 Q. B. 328, p«r re there is a misprint TITLE BY PRESCRIPTION AND BY NON-CLAIM. 429 tenant at will of land out of which rent is reserved, cannot by any possible construction of language be said to be in receipt of that rent which he pays ; he cannot be tenant at will of the land and of the rent also, indeed, no one can be said to be tenant of, or have any estate in, the rent reserved by a lease. The word rent, therefore, in the seventh section (Revd. Statute, clause 7) must mean rent charge ; and there is no absolute absurdity in supposing that a person seised in fee, or for life, of a rent charge, might for a gross sum of money demise it for years or at will at a smaller rent." By applying the above remarks to other sections (as for instance cl. 5, sec. 5) in which the word rent is used, little difficulty will be had in understanding in what sense it applies. And the reader should bear in mind that there may be both a seisin, and a disseisin, of a rent charge ; that in it there may be a distinct estate for life or in fee (6) ; and thus the statute frequently refers to land or rent (meaning rent charge) together, and makes each subject to the same rule under the same circumstances, since, for the purposes of the statute at least, there is no difference, inasmuch as an estate in fee in a rent charge is an incorporeal hereditament, whilst the same estate in the land is a corporeal one.' 'Rent reserved on a lease is governed by other sections, as Theposition of hereafter explained : (c) thus s. 17 prevents arreai's, six years tenant as to overdue, being a charge on the lands, but the personal oj^jnerenon- remedy by action is left. 11. S. 0. c. 78, prevents recovery in fa^psTof time, a personal action in debt on indenture of demise, or on the covenant, after twenty years from the time the particular in- stalments of rent claimed fall due. But where the relation- ship of landlord and tenant subsists, as in the case of an un- expired lease in writing, it has been decided that by the mere non-payment for ten years or more of the rent reserved, the landlord does not lose his right, even quoad the land, to (a) See remarks under s. 17 post. 480 TITLE BY PRESCRIPTION AND BY NON-CLAIM. On WTongful payment to the third penon. '^r recover arrears, when distrained for within six years after becoming due (a). The legal principle is, that the rent is incident to the reversion ; and on expiry of every day on which rent hecomes due under a deed constituting a tenancy/ whether payable yearly, half-yearly, or oftener, a right of distress accrues : neglect to enforce payment of the rent de- ])rives the lessor by the express terms of s. 17, of all arrears beyond six years as respects his remedy quoad the lands ; but as to all accruing payments, the right is constantly re- newed ; by -gone arrears are lost, but there can be no neglect in enforcing what is not due (h). The landlord may, how- ever, lose his estate in reversion, and the rent incident to it, in the case of a lease in writing at $4 or more annual rent, notwithstanding the lease may be unexpired, by lapse of ten years, from payment of rent to a third person wrongfully claiming the reversion (c) : and it would seem by such mode only in such a case : and that even wilful refusal to pay, or even attornment to a third person, not coupled with other acts, as payment to him, will not suffice to make the statute run against the landlord (d).' ' In one case the Master of the Rolls (e) thus expresses himself: "When is the right to recover lands subject to a lease, to be considered as having accrued ? Not from the time when any person dealing with the leases or dealing with those who are entitled to the leases, gets possession and claims to be entitled in fee ; but from the time when the party claiming under a lease 2)(iys rent to a party wrong- fully claiming in reversion immediately expectant on such lease : for then the adverse title of the person who receives the rent under such circumstances is first really brought into, (a) Nepean v. Doe. Smith Lg. Cases, p. 608, referring to Grant v. Ellis, 9 M. & W. 113 ; Archbold v. Sculli/, 9 H. L. Ca. 360. See note (h) Doe v. Bing- ham, doubted, (b) Archbold v. Scully, 9 Ho. Lds, Ca. per Lord Cranworth, 376, see also In re Turner, 11 Ir Chau. Rep. (j) See remarks post as to 8. 5 cl. 5. (d) Per Lord Wensleydale, Archbold v. Scully, supra. Doe dem, Man- nion V. Bingham, 3 Ir. L. R. 456 doubted, see Smith Lg. Cases, Vol. II., 744. (e) Chadwick v, Broadwood, 3 Beav. 316. CLAIM. nx years after lat the rent is every day on iing a tenancy) aer, a right of >f the rent de- , of all arrears )ad the lands ; constantly re- 1 be no neglect )rcl may, how- incident to it, •e annual rent, 3y lapse of ten on wrongfully seem by such ilful refusal to b coupled with ce to make the thus expresses ds subject to a Not from the bSes or dealing gets possession the time when a party wrong- sctant on such 1 who receives ly brought into, ;o Grant v. Ellis, 9 te (h) Doe v. Bing- ■ Lord Cranworth, larks post as to s. 5 a. Doe dem, Man- ases, Vol. II., 74i affected, TITLE BY PRESCRIPTION AND BY NON-CLAL^T. 431 operation against the party who claims on expiry of the lease." In reference to the foregoing remarks it must be borne in mind that in cases of tenancies at will, and of leases not in writing, the tenant himself may after the prescribed period acquire a title against the landlord.' ' It has been said that the effect of this statute is to do Abolition of doctrine of non away with the doctrine of adverse or non-adverse posses- adverse posses- flion, subject in sion [a) ; but this would seem to be subject to two excep- t\vo excep- tions, the one in cases of continuous tenancies at will, under cl. 7, s. 5, as subsequently explained under that section ; and the other in cases of leases in writing at less than four dollars' rent, not included in s. 5, cl. 5, auu which latter cases are apparently left as before the statute.' 'The Crown, not being expressly named, is not affected by Crown not this statute, except as regards prescription. Time also will not run whilst the fee is in the Crown, as against persons claiming as lessees or locatees of the Crown before patent issued, or as grantees after the grant (b). But in Watso7i V. Lindsay (c), where one D. C. being in possession as locatee of the Crown, mortgaged his intei'est in 18G0, and on his death in possession his widow Mary and heir-at- law Angus took possession, and afterwards, and after sale by the mortgagee under his power of sale and his mortgage, the patent issued to Mary and Angus in 1875, it was held that the purchaser under the power was bari-ed by the statute, the bill being filed in June, 1878 : this depended on the K. S. 0. c. 25, s. 26, declaring that any mortgage or lien by the nominee of the Crown on land unpatented shall have the same effect, and no other, as if letters patent had, before the mortgage or lien, been issued to him who created the mort- (o) Kepean v. Doe, 2 M. & VV. 910, 2 Smith Lg. Cases, 476. (6) Jameson v. Barka; 18 U. C. R. 5!>0 ; Dowsett v. Cox, 18 17. C. R. 594 ; Greenlaw v. Fraser, 24 U. C. C. P. (c) 27 Grant, 253. 9, V ^ i\ .5 •• *' :1 432 But by nullum ttmpun Act. S. 5. Defines when riK'lit be denied to liave accrued . C. 1. In cases iif disposses- sion or discon- tinuance uf possession. CI. 2. On abatement or deat)i. TITLE HY PRESCRIPTION AND BY NON-CLAIM. gage or lien. Tlie Crown may, however, be barred under the nidiiim fempus Act, 9 Geo. IIT. c. 16 (a). The word rent in this section means rent charge, as before explained (b).' 'Sec. 5. As under s. 4 the time begins to run from the liylit first accruing, this section defines when such right shall be deemed to have first accrued. There may, however, !)• cases coming under s. 4 which are not defined in s. 5 (c). The word rent when used means sometimes rent service, some- times rent charge, as before explained. Clause 1, it will be noticed, applies to cases of actual dis- possession or disseisin of the land or rent charge of the per- son in possession of the land, or entitled to the charge. The word discontinv/tnce is not used in the ordinary meaning of the term, and mere discontinuance or want of possession will not cause the statute to run, unless followed by actual possession of another (d). Reference to the case given will show what amounts to dispossession or discon- tinuance of possession. Under this clause, though a pei-son dispossessed of land has ten years from dispossession ; yet, as in case of rent charge, it may be a less period, and time runs from the last payment or receipt, and not from the time when the next payment thereafter would fall due and be unpaid ; thus, if the rent be payable annut lly, the time may be limited to nine years (e).' 'Clause 2 of s. 5 applies as the first, to estates in possession, though not to cases of dispossession; the case of a stranger taking possession before the heir or devisee of him who dies seised, will illustrate this clause. The heir-at-law, or devisee, (o) See Reoina v. McCormick, 18 U. C. R. 131, the rights of the Crown con- sidered in this country, (h) Ante p. 428. (c) See James v. Salter, 3 Biiig. N. C. 544 ; Grant v. Ellis, 9 M. & W. 124 ; McDonald v. Mcintosh, 8 U. C. R. 388, per Draper, J. (rf) Ketckum, v. Mvjhton, 14 U. C. R. 99 ; Doe Cuik- berston v McGillis, 2 C. P. U. C. 124, per Sullivan, J. ; Wallnce v. HewiU,'il> U. C. R. 87 ; Smith v. Lloyd, 9 Ex. 562 ; Keyse v, Powell, 2 E. & B. 132 ; Pringli V. Allan, 18 U. C. R. 575. (e) Per Parke, B., Owen v. DeBeauioir, 16 M.& W. 665. -CLAIM. barred under harge, as before I from the right 1 right shall be >wever, bi- cases s. 5 (c). The service, some- s of actual dis- ,rge of the per- to the charge, the ordinary nee or want of unless followed ace to the case sion or discon- bough a pei-son possession ; yet, jriod, and time 1 not from the il 1 fall due and lut lly, the time iS in 2^088688101} , ie of a stranger >f him who dies ■law, or devisee, ts of the Crown con- V. Salter, 3 Bing. Iclntosh, 8 U. C. R. '. R. 99; Doe Outh- VaUace v. Hewitt, 'JO E. & B. 132 ; Pringk OeBeauvoir, 16 M. 4 TITLE BY PUESCRIPTION AND BY NON-CLAIM. or j)ersonal representative in cases of chattels real, will under this clause be barred if they allow ten yeai*s to pass without action, or acknowledgment of title as provided fo;. by s. 13. If, however, the ancestor or devisor had died dispossessed, and the statute had begun to run against him, it would con- tinue to run from its first start, against the heir, devisee, or personal representative ; and this, by force of clause 1, which speaks of the 'person through whom he claims, having been dispossessed. Sec. 7 alters the old law as to administrators, and s. 12 as to heirs in certain cases, to which allusion will presently be made.' ' Clause 3 of s. 5 is much the same as the 2nd ; except that it applies to the case of a person becoming entitled by an instrument inter vivos, when the grantor was in possession and the grantee had not acquired it : thus if A. should con- vey to B. in fee, and continue in possession, the statute would run against B. from execution of the conveyance ; but if the conveyance had been to Z,, for life, remainder to B. in fee, and A. should have continued in possession, though the statute should have run against Z., from execution of the deed, it would not have^ run against B., till death of Z., and B.'s right would be governed by s. 11.' 'Clause 11, the first three clauses of s. 5 apply to cases of right to immediafe possession ; clause 11, to cases oi future estates. If A. be tenant for life with remainder to B. in fee, the mere fact of A. being dispossessed for more than 10 years will not bar B. ; against whom, in such case, the statute will only run from A.'s death, when his estate vests in possession. But if A. had been tenant for life, or for years, under a lease in writing, paying rent exceeding four dollars to B. as reversioner in fee, and C. claiming adversely to B. in respect of such reversion, should have received the rent, here this eleventh clause will not apply, and by clause 5 of s. 5, the statute would run against B., in favour of C, from time of his receipt. Under this eleventh clause, the mere non-pay- 28 433 S. 5, ol. 3. When the right accrued by instrument inter vivot. CI. 11. For- nier clauses apply to im- mediate, this to future right. Mere non-pay- ment of rent will bar. 9 i 434 f Cl. 5, when leiwe in writ- ing, rent over 94, and some one received the rent claiming as reversioner, time runs from receipt. If rent less than $4. TITLE BY PRESCRIPTION AND BY NON-CI.AIM. 7ne7it of rent for 10 years by a tenant under a subsisting lease in writing will not bar the reversioner, who will have a new right when his estate comes into possession, on the determination of the term (a). This was so under the for- mer law ; under which even the wrongful payment of rent by the tenant to a stranger wrongfully claiming as rever- sioner, did not as a general rule cause the statute to run against the landlord, or deprive him of his right to enter on the determination of the lease, however remote from the wrongful receipt by the other claimant (b). This latter doctrine, however, is considerably modified ; thus, by clause 5 of s. 5, relating to a lease in writing whereon n reserved $4 rent or upwards, unless as therein mentioned, 10 years will bar the landlord as against a person wrongfully claiming the reversion, and receiving the rent ; his riglit of entry against such person will be deemed to have accrued on such receipt of rent, and he will have no new right on determination of the lease. But the tenant under such a lease paying rent to such third person (unlike a tenant un- der an unwritten lease, or at will, clause C & 7) would by this section acquire no right : for the statute only begins to run against the landlord from the payment of rent by the tenant to the wi'ongful claimant ; and when the landlord is barred by 10 years, the right accrues, not t o the jenant, butjo the per son toj whom he hay oaid ; for as between the tenant and such person s. 14 applies,' 'It has before been explained (c) that the word rent in this clause 5 sometimes means rent charge, and that there may be a demise of a rent charge, and it is necessary to bear this in mind to understand the statute. If the lease were in writing, but at less than $4 rent, it would seem the case would be governed by the old law (d), (a) Doe dem. Davey v. Oxenham, 7 M. & W. 131 ; Grant v. Ellig, 9 M. & W. 113 ; Archhold v. Sculley, 9 H. L. Cases, 360 ; Lincy v. Bote, 17 C. P. U. C. 186. ({<) See ante, p. 426. (c) .^Infe, p. 428. (d) Ante,}?. 4^. N-CLAIM. tier a siibsistiri!' , who will have ►ssession, on the ) under tin.' for- ayrnent of rent iming as rever- statute to run ight to enter on emote from the 0- This latter Red ; thus, by ting whereon is rein mentioned, rson wrongfully snt ; his right of to have accrued 10 new right on nt under such a ike a tenant un- 3 & 7) would by e only begins to , of rent by the a the landlord is he jenant, but to ween the tenant he word rent in , and that there lecessary to bear than $4 rent, it the old law (i), t V. Ellis, 9 M. & W. Rose, 17 C. P. U. C. !, p. 426. TITLE BY PRESCRIPTION AND BY NON-CLAIM. 435 and the non-payment to the landloid, or even the wrongful payment to another claiming as against the landlord, will not bar him of his right to enter on the determination of the lease. The reason of the variance between this and clause 5 is, that the rent being nominal, no great diligence can be expected of the landlord as to insisting on it, and aa the lease is (under the clause) in writing, the terms under which the tenant entered are easily ascertained, at any rate more so than on a parol lease as under clause C 'Clause G, of s. 5. Under'inis, time will run against the land- d- o. Tenant • 1 \ ^ P • ^ under un- lord on an unwritten lease at the end of one year in the case w-ritten lease, of tenancy from year to year ; or the end of the first period of the tenancy in tenancies of a different nature ; unless rent be subsequently paid, when it will run from the last pay- ment. Under this clause, unlike cases under clause 5, the tenant can acquire a right against the landlord by non-pay- ment of rent, which is a great alteration on the old law as before explained. Rent in this clause sometimes means rent charge, some- times rent reserved (a).* ' Clause 7, as to tenancies at will. The reader will bear in c;i. 7. Tenan- mind that under certain circumstances, by payment of rent, a tenancy at will may be converted into a tenancy from year to year (b) ; in which case clause 6 applies. But where a tenancy strictly at will does exist, this section consider- ably varies the old law ; and now no question arises as to whether the possession is or is not adverse ; and if the land- lord neglect for 10 years from the time limited, to enforce payment of rent, or possession, he will be barred (c), unless indeed he can shew a continuous or a new tenancy, or per- haps a determination within the 10 years of the old tenancy, to which I will presently allude. A mortgagor, and cestui que trust, who under certain circumstances may be regarded it I 1(a) Ante, p. 428. 6A.&E. 722. (b) Ante, p. 167. (c) Doe dem Thompson v. Thompson, \ 436 TITLE BY PRESCRIPTION AND BY NON-CLAIM. a? Cases of ven- dor and ven- dee under cont^ftct of sale. Operation of cl. 7, defeated by showing continuous tenancy, or creation of a new tenancy at will. or determina- tion within 21 years by act of the parties. as tenants at will, are excluf^led from this section by dame 8, and their cases are governed bj'- other sections. The operation of this clause 7 may be of considerable im- portance in cases "where a persor. is let into possession under a contract of purchase (a) ; in which case (at least if there be no right of possession till default in payment), he be- comes tenant at will, and this section applies ; clause H does not exclude its application, the latter only applying to cases of express and declared trusts, as explained in treating of that clause. If there be a right of possession imtil default, on a certain named day, and default be made, the vendee can be treated as tenant at sufferance (b) ; and time will run from, and not before the default, as then the vendor's right of entry first accrues ; such a case would appear to be governed by clause 4. It is of importance to remember that the opera- tion of the statute may be avoided in both these instances, as also in most cases within clause 7 ; 1st, by shewing the crea- tion of a new tenancy ; which may be inferred from the acts and conduct of the parties, irrespective of express acknow- ledgment or payment of rent : 2nd, by shewing a determina- tion of the tenancy within 11 years from its commencement, by act of the parties, thereby causing the running of the statute to cease and start afresh, notwithstanding continu- ance in possession by the tenant after such determination, during which he is tenant at sufferance. It is admitted, however, there is doubt as to the second mode of preventing the strict application of this section, and whether, notwith- standing such a determination, if the tenant continued in Y)OsseHsion, as mere tenant at sufferance, 11 years from the commencement of the original tenancy at will would not be a bar (c). A third mode, viz., evidence only of mere continv.- (a) See the analogy between the mortgagor and mortgagee, post, s. 25. (h) Ante, p. 170. (c) Smith Lg. Cases, vol. 2, pp. 737 ; Randall v. Stcrem, 2 E. & B. 641 ; See Allen v. England, 3 V. & F. 49. ;laim. TITLE BY PRESCRIPTION AND BY NON-CLAIM. 437 on by clause IS. siderable im- session under least if there nent), he be- clause 8 does ing to cases of lating of that default, on a endee can be will run from, dor's right of be governed hat the opera- e instances, as wing the crea- 1 from the acts press acknow- g a determina- jinmencement, tinning of the id ing continu- deterinination, t is admitted, ! of preventing ther, notwith- 1 continued in years from the 1 would not be mere continu- e, post, 8. 25. Randall v. Stevens, ance of the tenancy has sometimes been relied on (a); and the case of the pos"ession having been that of a mere servant or caretaker (6).' 'The importance will be seen of preventing a bar by either of the modes above mentioned, because thereby the effects of the bar otherwise created by ss. 4 & 5, and by cl. 7, in the various cases to wiiich they apply may be considerably modi- fied, and a new and later right of entry spring up, from which alone time will run, in the same way as if an ac- knowledgment were given under s. 13. Lord St. Leonards (istinctionbe- feiture happened. And here the distinction must be borne entry accruing in mind between those forfeitures and breaches which may condition sub- be waived, as conditions in iUed, of which the common on^comlitlonal clause of re-entry in a lease is an instance, and those, where- li'^i''^'*'"'^- on the estate under the Statute of Uses, actually passes over by force of the limitation contained in the instrument creat- ing it, as a conditional limitation Qi). Thus, if by convey- ance, not afiected by the Statute of Uses, A. should release for life to B. then in possession, with remainder to C. in fee ; proviso that if B. does, or omits to do, a certain named act, the estate of B. should be forfeited and the land go to C. though B. should be living, it would seem that if B. remain- ed in possession ten years after forfeiture, lie would acquire no right under the statute, and C. might enter on the death of B. And this doctrine might apply to every mode or case of forfeiture of the life estate and reversion thereon (h). But pos8i1>ly it does not apply, if, by force of the Statute of Uses, the estate should actually pass and become vested in C. ; thus, if A. grant to Z. and his heirs, to the use of B. with a proviso that if B. do, or omit to do, a certain named act. Z. !!' :, 4 M. & G. aO. .2.53. (a) S. 15.5. p. 180. (6) Aslleij v. Earl of Essex, L. R. 18 Eq. 290; Hayes Con, vol 1, p. 252 ; Duke of Leeds v. Earl Avihcrat, 2 Phil. Cba. Ca, 124. 440 TITLE BY PRESCRIPTION AND BY NON-CLAIM. ' and his heirs shall thereon hold to the use of C. ; on the happening of the named event, by force of the grant the use will shift and be executed into ." i estate in possession, and a consequent right of entry, in C, will accrue.' ' Where a right of entry has accrued on forfeiture or breach, and the person next entitled in remainder or rever- sion desires to avail himself cf such right and forfeiture during the continuance of the particular estate forfeited, without waiting under clause 10 until his estate comes into possession, he must under this cl., 9 bring his action within ten years from the forfeiture.' Cl. 12. Eever- ' Clause 12. The object of clause 12 seems to be to prevent new right. " any doubt that might have arisen upon the question, whether a person being in possession of an estate, and then going out of possession to make room for somebody entitled to a sub-interest, could be barred of the remainder of his interest by that person's possession. For instance, suppose A. to be in possession of an estate, subject to a power of leasing vested in B. ; B. exercises the power, and leases for ten years. Now, in this case _ the 12th clause declares that the possession of the lessee for ten years shall not prevent A.'s regress at their termination, but that A.'s right shall be considered to have accrued anew at the end of the ten years, and the consequent determina- tion of the lessee's estate (a).' Sec. 5 c. .3. ' 1st Sec. cl. 3. It must, however, be remembered that the estate hfpoa° 12th clause applies only to cases where the owner of the rigMto future estate is disposessed by some one rightfully claiming a barred". "^"^ particular interest, as, in the instance above put, by one claiming under a power ; section 6, clause 3, expressly pro- viding that where a person having a particular estate is dispossessed by wrong, the lapse of ten years shall bar not only that estate, but abo any subsequent one existing in the same person ; unless indeed it be revested by the entry, (a) 2 Sth. Lg. Ca 722. :laim. TITLE BY PRESCRIPTION AND BY NON-CLAIM. 441 f C. ; on the he grant the in possession, rue.' forfeiture ci- der or rever- nd forfeiture ite forfeited, te comes into action within be to prevent '.he question, ate, and then body entitled ainder of his ince, suppose p to a power power, and se , the 12th !ssee for ten mination, but •ued anew at it determina- >ered that the iwner of the / claiming a put, by one xpressly pro- lar estate is ihall bar not i existing in by the entry, not of the person dispossessed or his representatives, but by some one entitled to an intermediate estate, which, being previous to the estate in reversion or remainder of the per- son dispossessed, could not vest without causing the other to revest. When, therefore, upon the death of another, a party became entitled to a term for lives and also to a reversion expectant upon its determination, under circum- stances such as to render it doubtful whether there was a a merger, but he did not take possession, and the property continued to be occupied by persons not entitled, and upon the last falling in he brought ejectment, it was held, that evon if there was no merger, yet reading clause 12 of section 5 and clause 3 of section 6 together, the statute ran from the time when the title to the term accrued, and not from the determination of the term ; the 12th clause applying only in cases where another than the termor or person entitled to an interest in possession is^ also the immediate reversioner (a).' 'Sec. G and cl. 12 of Sec. 5. A reversioner on succeeding- to an estate in a case where time has begun to run and is running has the residue of the period which would have barred his predecessor, or a fresh period of five years; whichever period is the longer, but no more ; whilst if any reversioner is barred, the bar extends to any subsequent reversioner who claims under any deed, will, or instrument executed or taking effect after the original dispossession commenced (&).' ' Sec. 7 varies the old law, for under it time would not S. 7. Adrnm- ... . , ,. istrator'a right run against the administrator, notwithstanding adverse from death o£ possession, till letters of administration (c). It was otlier- wise as to an executor, whose claim being under the will took from the testator's death ; and though the title of an (a) Doedem. Hall v. Mouledale, 10 M. & W. 689 ; 2 Sm. Lg. Cae. 72« ; Doe V. Liversed,'a- gee may enter or bring suit within 10 years from last l>ayment. If no payment or acknow- ledgment to mortgagee when his right will be deemed to have ac- crued. I (a) Sug. Stats, p. 118, Stiinaficid v. Hobson, 3 De. G. Mac., & G. 620. (6) Doe V. WaiiaiM, 5 A . & E. 297, per Patteson, J. 446 S. C. Six years arrears of dower. S. 17. Remedy for rent and interest con- fined to six years quoad the land. But the per- sonal liability may atill con- tinue for 20 years. TITLE BY PRESCRIPTION AND BY NON-CLAIM. payment, notwithstanding moro than ten years' possession by the tenant, which would have conferred on him a title against the mortgagor in case no mortgage had been made (a). Of coui-se, if, at the time of the mortgage, the statute had, by complete lapse of time, entirely extinguished, under sec. 10, the title of the mortgagor, the mortgagee would have no right. A purchaser of lands under mortgage paying off the mortgage and taking a conveyance of the respective in- terests of the mortgagor and mortgagee, though not " enti- tled to " a mortgage, may still be considered as " claiming under " a mortgage for the pui-poses of this section (/>). Unless a mortgagee obtains some payment under this sec- tion, or some acknowledgment under section 13, he will be barred under section 4, by ten years from his right of entry first accruing ; the time of the accruer of which right has already been considered (c).' 'Section IG limits recovery of arrears of dower, and da ua- ges, to six years.' ' Sections 17 and 23. S. 17 relates to rent and interest: principal moneys are governed by s. 23. It must bi- borne in mind that though these sections extend to relieve thf lands; the 'personal remedy, by action, is continued on specialty debts by R. S. O. c. 61, s. 1, for twenty years. Thus, in case of rent reserved under an indenture of demise with a covenant by the lessee to pay, rent over due more than six years cannot by s. 17 be '' distrained for, and the land is relieved ; but the lessee can be sued on his cove- nant (d), and twenty years alone would be a bar* to such suit ; and the right of action may be kept alive by uii ac- knowledgment as mentioned in the Act. There may 1* (a) Foi'd V. Agar, 2 New Rep. 360 ; 32 L. J. N. S. Ex. 269 ; Doe .(• Palmer V. Eyre, 17 Q. B. 306. (6) Doe cfc Biddeky v. Massey, 17, Q.B. 381 ; see fur- ther Shelford Statutes 216 ; Eyre v. Walsh, 10 Ir. C. L. Rep. 346. (c) See ante p. 444. (d) Allan v. McTavish, 2 App. Rep. O. 278 ; Bo^'^e v. O'Loaiu, 3 App. Rep. 0., 167 ; Hunter v. Nicholds, 1 Mac. & Gor., 640. -CLAIM. ars' possession on him a title lad been made je, the statute guished, under •en would have •age paying off respective in- igh not " enti- as " claiming Bction (/>). under this sec- 13, he will be right of entry lich right has tvcr, and da^ua- : and interest: must l)e borne to relieve the continued on twenty yeare, ture of demise )ver due more d for, and the . on his ciive- a bar to such ive by an ac- 'here may be !69 ; Doc <(.• Palmer Q.B. 381 ; see fur- 'ep. 346. (f) See ioice V. O'io«n(, 3 TITLE BY PRESCRIPTION AND BY NON-CLAIM. much difficulty in understanding this question, by reason of the wording of ss. 4 &; 5. Thus, it might be supposed those sections give ten years for rent reserved ; they do not, how- ever, relate to such a rent, which is a mere incident to a re- version, but to a rent wherein a distinct estate may be had, as a rent charge ; this was before explained in treating of those sections. Arrears of rent or interest due on a rent charge, or on an annuity charged on the lands, are instances under section 17. A further cause of difficulty mighj^. arise from a supposition, that because these sections bar a'i'ter six and ten years respectively, they do so for all purpoiies ; not merely for the pui-pose of relieving the land, but also the party liable, from his personal liability : and this, it is sup- posed, might have been the case, if it had been left to the operation of this statute only, but that the personal remedy against the party liable is restored by the R. S. O. c. 61. On the other hand, it has been said s, 17 deals only with the lands, and leaves the collateral liability on the covenant un- touched ; but whatever maybe the principle, it is certain the personal liability is not barred. The right to interest beyond six years arrears in suits to redeem, and on sales under power of sale in the mortgage has been before referred to {a)! ' Section 43. If A., the owner in fee, died in 1880, leaving his heir under disability, whereon some third person should enter by abatement, and such heir should di*; under such disal)ility at any time before 1885 ; here, as the party en- titled on death of t'le heir would have to bring his action within ten years from entry of the abator in 1880 (s. 5, cl. 2) ; or within five years from deatVi of the heir, he would be barred in 1891 : sec. 45 (c). The meaning of the words " ar five years as the case may be " is not clear.' 44T (a) Ante, p. 211. (6) Owen v. DeBeauvoir, 16 M. A W., 567, 568. (f) Farquar- mi \. Morrow, 12 C. P. U. C. Ml. IMAGE EVALUATION TEST TARGET (MT-S) ^ /] ^> 1.0 I.I 11.25 yio 1.4 Hi |M IZS |5o ■^~ !!■■ lii m II 2.2 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14SS0 (716)872-4503 $ \ iV ' I 448 TITLE BY PRESCRIPTION AND BY NON-CLAIM. bilities. • •; ' I a. 44. No ac « Section 44. It must not be supposed that evidence of within 20 twenty years' uninterrupted possession is by reason of this hicction evidence of a good title. If the student has understood the effect of s. 5, els. 11 and 12, he will see at once, that as to remainder-men, and reversioners, and future estates, twenty yeara and more may not confer a title (a). Take the simple case of A. being tenant for life with remainder or reversion to £. in fee ; assume that A. in 1820 took on him.self to con- vey in fee, and that his grantee or those claiming under such grantee have thence had uninterrupted possession, claiming as owners in fee till the present time ; that A. died in 1875; it is manifest £. and those claiming under him are not baired by the statute till 1885 (6).' S. 45. No fur- 'Section 45. If a succession of disabilities in the various case of uucces- heirs successively were to be allowed, as in cases of infancy, isa- lunacy, tfcc, the time might be prolonged indefinitely. Under this section the person entitled, though under disability, will have to bring his action within five years of the death of the person under disability, through whom he claims, to whom the right first accioied (which five years even are liable to be limited, or entirely taken away by the preceding section), or within ten years from such right first accruing (c). In regard to these various sections as to disabilities, it may be stated as a general rule, that, though disability when the right first accrues, will prevent the statute from begin- ning to run, so far at least as reji^ards the ordinary bar of ten years ; still when once it does begin to run it never stops (dy ' As regards the property of infants, the Court of Chancery will, in certain cases, prevent the statutory bar being set up to the prejudice of the infant : thus in one case (e) the Vice- (a) See ante, p. 433. (b) Cooper v. Emery, 1 Phill. C. C. 388. See cases under this Bection ; Doe v. Bramiton, 3 A A E. 63 ; Ketehum v. Mighton, 14 U. C, R. 99; Ateyen v. Greeley, 9 C. P. U. C. 297. (c) F&rquar$on\. Morrow, 12 C. P. U. C. 311- (d) JoMrt y. Cktdand, 16 U. C. R. 9. («) QuMon V. Frith, L. R 2 £q. 415. See Re Taylor, 8 Pr. Rep. 207. Property of infante. r-CLAIM. at evidence of reason of thia has understood once, that as to estates, twenty Take the simple ler or reversion himself to con- jing under such ission, claiming L. died in 1875; r him are not in the various ases of infancy, ifinitely. Under r disability, will ihe death of the laims, to whom en are liable to seeding section), ruing (c). » disabilities, it disability when ite from begin- )rdinary bar of run it never irt of Chancery •ar being set up se (e) the Vice- C. 388. See cases 'etehum v. MighUm, (c) FArguanon v. I!. R. 9. (e) Quititon TITLE BT PilESCRIPTION AND HT NON-CLAIM. 449 Chancellor, after considering the authorities, closes his judg- ment thus, " The conclusion that I draw from all these au- thorities is, that when any person enters upon the property of an infant, whether the infant has been actually in pos- session or not, such person will be fixed with a fiduciary position as to the infants ; 1st, whenever he is the natural guardian of the infant ; 2nd, when he is so connected by re- lationship or otherwise with the infant as to impose on him a duty to protect, or at least not prejudice his rights ; and, 3rd, when he takes possession with the express know- ledge of the infant's rights. Indeed, the last ground is but an instance of the application of the general principle that a person entering into possession of trust property, with notice of the trust, constitutes himself a trustee, in which case, un- less he enters as a purchaser for value, and continues in possession twenty (now ten) years, from his purchase, or unless the trust be merely constructive, the statute will ofifer no defence." See s. 30.' ' It will be observed that the allowance for disabilities is General result confined to the person to whom the right Jirat accrued, and m todiwbili- that from the moment at which such pei-son, being under *'**' any disability when his right accrued, shall be free from any disability, the five years allowed will begin to run, and having once commenced running, will run on, without re- gard to disability which he may afterwards contract : while, if he should continue to labour under some disability, whether original or supervening, without a free interval, till his death, the five years would begin to run from bis death, without regard to the condition of the next claimant, and although such claimant should, at the time when the right accrues to him, be actually under disability ; and the right will be absolutely barred, at the end of twenty years, although the person to whom it first accrued should continue under disability for the whole of that time, having never, therefore, been personally able to assert his 29 ? >( ' -•.' 450 TITLE BY PRESCRIPTION AND BY NON-CLAIM. right, or although five years should not have elapsed since he ceased to be under disability, or died.' Illurtrfttion n • To illustrate the matter, let us suppose A., donee in tail, to ca*M of diB 1 IT ' ability. be insane when his right accrues : if he should be restored to sanity, a term of five years from the time of his restoration, whether the term of ten years from the accruer of his right, shall have elapsed or not, is then allowed to him and the issue in tail (s. 43). If he should die without having been restored, the issue would then have five years from his death, whether the ten years shall have elapsed or not (s. 33) : but if he should continue insane for twenty years, the right would be absolutely barred (s. 44): or, if he should be re- stored, or, without having been restored, should die at tlie end of, say nineteen years, the issue, or lie and the issue, whether such issue be under disability at his death or not, would have, instead of five years, only one year from his re- storation or death. If A. should continue insane for twenty years : or, if he should be restored, or, without having been restored, should die at the end of, say nineteen years, and the issue, or he and the issue, should neglect to take any pro- ceeding within one year from such restoration or death, the persons in remainder or reversion, whether under disability or not, would be absolutely barred (s. 26). So, if A. should be restored at the end of, say eighteen years, and die vnthin two years from the period of his restoration : or, if he should continue insane for, say eighteen years, and then die, leaving issue in tail, which issue should fail within two years from his death ; in either case, the persons entitled in remainder or reversion, whether under disability or not, would be abso- lutely barred unless they prosecuted their claim before the expiration of the two years (s. 27). In the examples here given, it is assumed that no disability, as, for instance, of in- fancy, existing concurrently with A's insanity, when the right firat accrued, is of longer continuance ; otherwise, the determination of the concurrent disability, last removed, CLAIM. e elapsed since ionee in tail, to 1 be restored to lis restoration, er of his right, him and the it having been rom his death, at (s. 33) : but ars, the right should be re- )uld die at the and the issue, death or not, ar from his re- ine for twenty it having been een years, and 3 take any pro- 1 or death, the nder disability lO, if A. should and die tvithin or, if he should en die, leaving wo years from in remainder or rould be abao- lim before the examples here instance, of in- itv, when the otherwise, the last remove therefore, after patent issued (6). It will not apply in favour of a purchaser for taxes overdue (c).' Limiution of 'The nature of this work is such that allusion can be made *''" ^' but briefly to rights and remedies in equity, and the law as there administered, and only so far as it affects the subjects treated of by the learned commentator. Before the original Act of 4 Wm. IV. courts of equity, in accordance with the maxim, cequitas sequitur legem, nevertheless acted on the principle enjoined by section 29, though there was no posi- tive enactment compelling them so to do : now it is no longer discretionaiy, but imperative on them.' Tnu*8. ' Sees. 30 and 24, it will be noticed, apply only to express tiiists, as on a conveyance to the use of A. and his heirs in trust for B. and his heirs, and not to trusts arising by impli- cation of law, or from ciroumstances. In cases within this section time will not run against the cestui que trust in favour of 90 the trustee, or any one claiming under him un- less as purchaser for value ; but this section will not protect a cestui que trust as against a third person who has held possession adversely to him and the trustee. And where a person has been in possession under such circumstances that a court of equity would hold him a trustee, but the facts were such as to preclude the case of an express trust within (a) Doe McLean v. Fith, 6 U. C. B. 296. (b) Stewart v. Murphy, 16 U. C. R. . 224. See other cases on this section. Rob. k Jos. Digest, p. 2126. (c) Cuthing V. McDonald, 26 U. C. R. 605, CLAIM. TITLE BY PRESCBIPTION AND BY NON-CLAIM. 455 ortgagee from before twenty mortgagor of d on the pre- nd afterwards subsequently in his favour; wn," and his ?ion must be ply in favour a can be made ad the law as J the subjects e the original Dce with the acted on the was no posi- it is no longer ily to expi'ess i his heirs in ing by impli- i within this que trust in ider him un- 1 not protect ho has held ind where a stances that tut the facts trust within hif, 16 U. C. R. 16. (c) Cutking the meaning of this section, he can avail himself of his length of possession as a bar to the true owner.' 'The distinction must be borne in mind between what is a mere charge on the property, and a trust . There were cases to the effect that when a beneficial interest in property wits conveyed to a party charged with the payment of a legacy, then section 23 governed, it being then in reality a mere charge on the land ; but when property was conveyed to trustees on the express trust that out of it a legacy be paid, then sec. 30 removed the period of limitation created by sec. 23 (a). Sec. 24. now takes the cases of moneys charged and legacies &;c., though coupled with an express trust out of the operation of sec. 30 and the extended time which might be thereby given.' 'Sec. 33. As regards acquiescence, it does not follow that Acquiescence because the statutory period of bar has not elapsed, therefore the court cannot decline to interfere on the ground of acqui- escence or delay (6) ; thus, where the plaintiff who had sold a reversionary interest, sought after it became an estate in possession and before the time fixed as the statutory bar, to set aside the sale, requiring his vendee to shew that fair value was given, and did not account for the delay, the bill was dismissed with costs (c).' OF TITLE BY PRESCRIPTION TO EASEMENTS, &C. ' This is the only remaining subject under this statute that Title by pre- we have to consider ; and it is absolutely requisite, in order ^mon ui!w. to underatand the subject, that a knowledge should be had of prescription as it existed at common law. We give the text of Mr. Justice Blackstone, and subsequently the effect of the statute. We should firat, however, explain, that usage from ? (a) Per Vuikoughnet, C, Tiffany v. Thornton, 9 Grant, 251, referring to 1 Gift. 188 ; Knox v. Kdly, 6 Ir. Eq. R, 279 ; Young v. Lord WaUrpark, 13 Sim. 204. Burrowt v. Gort., 6 H. L. 907. (6) Tiffany v. Thornton, per Vankoughnet, C, 9 Grant, 252. (c) See p. 251 aa to sales of reversionary interests, and that deficiency of price of is no longer a ground for setting aside a sale. '■\-> : 456 Enjoyment from time ini' memwiai. Evidence of such enjoy- ment. Ilequisites. Modes of de- feating the claim at com. law and \mder the Act. TITLE BY PRESCRIPTION AND BY NON-CLAIM. time immemorial, which was at common law requisite to establish a claim by pregcription, must have been from a time anterior at least to the beginning of the reign of Richard I. : thus, if evidence were given cf uninterrupted user for over twenty years, or otherwise raising a presumption (as hereafter explained) in favour of the prescriptive right, ii might still have been destroyed (among other modes) bj shewing that the usage first existed subsequently to the accession of King Richard : and this explains the expression sometimes applied to prescriptive rights, that they must have existed /nwn time whereof the rfiemory of man runneth not to the contrary. Evidence to establish the claim was not, however, confined to living witnesses, but might be given in other modes, as by records, &c. From the almost impossibility of direct proof that such claim had its origin not later than the period referred to, the courts on evidence of its peaceable actual enjoyment for twenty years, or even for a less period if accompanied by other presumptive evi- dence, presumed the enjoyment to have been from time im- memorial, so as to sustain the claim by prescription. So also after twenty years of such enjoyment, they presumed a grant to have been made, on the right claimed being set up as under a grant. But there must have been actual usage during the required period ; not a mere claim of right to use or enjoy ; and it must have been as of right (a), and free from interruption, dispute, and denial, during the period relied on as establishing the presumption : it must not have been in the absence or ignorance of the parties interested in opposing the claim during the period it was exercised, nor under a grant or license from them during the relied on period : such parties also mu it have b >en capable of resisting the claim during the period it was exercised,therefore no right would accrue against a landlord, if during the period the (a) See post p. 4G5, a. 38 of Stat. iM&. ^CLAIM. TITLE BY PRESCRIPTION AND BY NJN-CLAIM. 467 iw requisite to re been from a eign of Richard rupted user for >resumption (as riptive right, it bher modes) by cjuently to the the expression hat they must f man runneth the claim was but might be rom the almost I had its origin rts on evidence ' years, or even •esumptive evi- L from time im- escription. So ley presumed a ed being set up sn actual usage of right to use it (a), and free •ing the period must not have 'ties interested was exercised, g the relied on ble of resisting erefore no right the period the enjoyment took place, the tenement were under lease : the exercise of the alleged right must not have been during unity of possession of the alleged servient tenement with the alleged dominant tenement, for then the alleged enjoy- ment of the right would not have been of it as a right, but the enjoyment would have been of the very soil itself of the alleged dominant tenement. When once the claim was suf- ficiently established by proof of constant apparent peaceable user as above at some time for a sufficient period, then a cesser, or wrongful interruption of such user at a subsequent period for a comparatively short time (say ten or even twenty years) would not defeat the right gained by such user (a). It is important to bear this in mind because it will be seen hereafter (6) that to support a pleading of a prescriptive right under the statute, it must be averred and proved that the enjoyment was without interruption, and so continued down to the time of the suit wherein the question of claim may arise (see sec. 37) : In absence of proof of this, therefore, the claimant wouli have to plead his prescriptive right as at common lav (c), or a non-existing grant of the right claimed, which latter will be presently explained ; here remarking that by the statute the common law is not sup- Three mode» erseded, unless perhaps in the case of light (d), and the claim- " ^ """"»"»• ant can and should carefully frame his plear' ig accord- ing to the way he can support his claim, namely by prescrip- tion at common law, under the statute, or by non-existing grant.' ' The prescription claimed and pleaded as a prescriptive right at comm,on law, founded on immemorial usage, being liable to be defeated among other modes by a contestant shewing the first existence of such right, and so, that the How defeated. (a) Co. Litt. 114 b. (b) Page 464, (c) See form of a plea justifying under a prescriptive right at common law, Bullen k Lea. Free. 3 ed. p. 711, 712, and cases and reaaons there given, {d) Gale on Easements, 5 ed. p. 165, s. 98. Shelford Stots. 8 ed. p. 67. 458 Non-eiisting grant. •«• ,1 i TITLE BY PRESCRIPTION AND BT NON-CLAIM. user of it is not immemorial, it should be advanced and pleaded (if the facts permit) either by right acquired under the statute, or under a non-erlsting grant: for instance, t hundred years uninterrupted peaceable enjoyment em of right, down to the time of commencement of a suit, wuuld be insuificient, if advanced as a prescriptive right at coniinoD law, on proof that the user or enjoyment first began at any time subsequent to the accession of King Richard; whilst 20 years might suffice under s. 35, if the enjoyment had been pleaded under the statute ; and the same period might alno suffice to sustain a right set up as at common law under a non-existing grant to which we will now refer.' 'This doctrine of, and claim under, an alleged non-existing grant is as follows : From the same facts (after 20 years' enjoyment), that a presumption arose of immemorial usage so as to support a claim by way of prescription, there would also in most cases arise a presumption of a grant of the right claimed ; and therefore, a claimant could advance his claim either m a prescriptive right, or by pleading a grant to him from a party entitled to make such grant. The latter mode was always adopted, when the claim if made aa a preacrlp- live right, could have been defeated by shewing when the enjoyment first was had ; whereas, by pleading the right as existing by a grant, if sufficient evidence, as by 20 yeare' open constant peaceable user, were given, establishing the presumption of a grant having been made of right of such user, then the non-user prior to the alleged grant, became manifestly immaterial.' ' In these cases, the grant never in fact existed. The party pleading it averred that it was lost, and relied on evidence of enjoyment as presumptive evidence of its having existed (a) ; this was well known by juries as well as by judges to be mere fiction, and was introduced and allowed to temper (a) See form of pie* BuUen & Leake, 3rd ed. p. 812, and cases and reasoiu there given. N-CLAIM. e advanced and acquired under for instance, a ijoyment as of f a suit, wuuld ight at coiiiinoo }t began at any hard; whilst 20 ynient had been riod might alfio on law under a er.' ed non-existing (after 20 years' memorial usage on, there would ant of the right ivance his claim [ a grant to him rhe latter mode e as a preacrlp- wing when the ing the right as as by 20 yeaii istablishing the of right of such 1 grant, became ted. The party ed on evidence having existed IS by judges to wed to temper I cases and reasont TITLE BY PRESCRIPTION AND BY NON-CLAIM. the rigorous rule which destroyed the claim if pleaded by way of prescription.' 'This form of pleading is yet of service, for it will apply, and a claim under a non-existing giant may be good, nut only where a claim of prescriptive right at common la^ • would fail, but also where a claim under the statute wuuld fail l)V reason ol abaonce of enjoyment ihivn to the time of van. Such ., »jcnce of enjoyment would prevent the application of the statute, as it refers to the period next before suit, but wouM not defeat a claim under a non-existing giant, nor under pro- scription at common law (a).' 'There are cases wherein the right may be claimed in any one of the three modes we have alluded to. One advantage of setting the right under the statiite is, that under it the right may be claimed after the prescribed period, as absolute and indefeasible, which, otherwise pleaded, is still an open question before the jury, and sustained after all by mere in- ference of the grant, or prescription alleged. " The legislature must be taken to have intended that where a defendant can shew a prescriptive right such as the statute requires, he should be entitled to succeed without the exercise of any dis- cretion on the part of the jury ; that the statute should sei*ve him as a kind of parliamentary conveyance of the easement" (h). In this point of view a right by prescription under the statute to incorporeal hereditaments would stand on the same footing as a right acquired to corporeal hereditaments (c). We are not aware that the question has ever been raised> whether a claim by prescription at common law, as distin- guished from a claim under a non-existing grant, or under the statute, could ever have been sustained in this country ; 450 (a) Ante, p.457. As to pleading a right to an easement by non-existing grant wii«re the right has been extinguished at some time by unity of seisin and of posMBsion ; see Chitty's Pr. Plead, by Pearson, 781, and cases ; see also Blewitt V. Tregonning, 3 A. & E. 554. (6) McKechnie v. McKeyet, 10 U. C. K. 56, per »r, (6) Ante. 443. '■ -'» I ill 460 Dominant and servient tene- ment. • S. 263. Of title by prescriptiun at common law. Distinction uetween cus- tom and prescription. TITLE BY PRESCRIPTION AND BY NON-CLAIM. here manifestly no right can rest on immemorial usage in the .strict legal sense put on those words (a).' ' On reference to the text books and the cases relating to prescription, the words servient and domiTiant tenement will be found to be frequently used. The tenement which confers the right to the easement, or in respect of which it is enjoyed, is called the dominant tenement, and the tenement, in or over which the easement is, enjoyed is called the servient tene- ment.' ' Prescription as governed by common law rules is spoken of by Mr. Justice Blackstone as follows : — ' * A third method of acquiring real property by purchase is that by prescription ; as when a man can shew no other title to what he claims, and that he, and those under whom he claims, have immemorially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites an(^ rules to be observed, in order to prove their existence and validity, we inquired at large in the preceding part of these commentaries (h). At present, therefore, I shall only, first, distingui-sh between custom, strictly taken, and prescription ; and then shew what sort of things may be prescribed for. And, first, the distinction between custom and prescription is this : that custom is properly a local usage, and not an- nexed to &ny person ; such as a custom in the manor of Dale that lands shall descend to the youngest son: prescription is merely a personal usage ; as, that Sempronius and his ances- tors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege (c). As, for ex- ample, if there be a usage in the parish of Dale, that all the inhabitants of that parish may dance on a certain close, at all times, for their recreation (which is held to be a lawful 'lis is strictly a custom, for it is applied to the pla^ usasre) (a) Burrows v. Cairns, 2 U. C. R. 288. (6) See vol. 1, p. 73, &c. (c) Co. Litt lia N-CLAIM. rial usage in the cases relating to nt tenement will nt which confers ich it is enjoyed ement, in or over e servient tene- yru^fts is spoken srty by purchase n shew no other osa under whom it. Concerning with the several r to prove their in the preceding therefore, I shall i-ictly taken, and things may be and prescription ige, and not an- te manor of Dale : prescription is IS and his ances- iised time out of J (c). As, for ex- >ale, that all the certain close, at to be a lawful lied to the plact ol. 1, p. 73, &c. TITLE BY PRESCRIPTION AND BY NON-CLAIM. 4«1 in general, and not to any particular persons : but if the •tenant who is seised of the manor of Dale in fee, alleges • s. 264. that he and his ancestors, or all those whose estate he hath in the said manor, have used time out of mind to have com- mon of pasture in such a close, this is properly called a pres- cription ; for this is a usage annexed to the person of the owner of this estate. All prescriptions must be either in a man and his ancestors, or in a man and those whose estate he hath: which last is called prescribing in a que estate. Secondly, as to the several species of things which may, or incorporeal may not, be prescribed for, we may, in the first place, observe, afone'can be " that nothing but incorporeal hereditaments can be claimed prescription, by prescription: as a right of way, a common, &c.; but that no prescription can give a title to lands, and other corporeal substances, of which more certain evidence may be had. For a man shall not be said to prescribe, that he and his ances- tors have immemorially used to hold the castle of Arundel : for this is clearly another sort of title ; a title by corporal seisin and inheritance, which is more permanent, and there- fore more capable of proof, than that of prescription. But as to a right of way, a common, or the like, a man may be allowed to prescribe ; for of these there is no corporal seisin, the enjoyment will be frequently by intervals, and therefore the right to enjoy them can depend on nothing else but im- memorial usage. 2. ' Subject to the change made by the Act in allowing in all pleadings allegation of enjoynient as of right by the occupiers of the tenement in respect whereof the claim is made,' a prescription must always be *laid in "s. 265. him that is tenant of the fee. A tenant for life, for yeai-s, at Prescription •' _ must always will, or a copyholder, cannot prc'^ribe, by reason of the im- be laid in the * — tenant of the beeility of their estates. For, as prescription ' at common fee. law ' is usage beyond time of memory; it is absurd that they should pretend to prescribe for anything, whose estates com- menced within the remembrance of man. And therefore the copyholder must prescribe undercover of his lord's estate ^ w ^ lJ v? ^^ Hit poBes the ex intence of a grant. 462 TITLE BY PRESCRIPTION AND BY NON-CLAIM. and the tenant for life under cover of the tenant in fe^ simple. As if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must pre- scribe under cover of the tenant in fee-simple ; and must plead that John Stiles and his ancestors had immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demised the said manor, ^itb It cannot be its appurtenances, to him the said tenant for life. 3. A pres- lyii^ in gTMit cription cannot be for a thing which cannot be raised by ontpresup- ; „j.^j^^ YoT the law allows prescription only in supply of the loss of a grant, and therefore every prescription presupposes a grant to have existed. Thus, the lord of a manor cannot prescribe to raise a tax or t^U upon strangers , for, as such claim could never have been good by any grant, it shall not That wb'.ch ^6 good by prescription. 4. A fourth rule is, that what is to tei^ recOTd* ^"^® ^Y naatter of record cannot be prescribed for, but must scribed fo/'* ^® claimed by grant, entered on record ; such as, for instance, but must be f^Q royal franchises of felons' goods, and the like. These, not grant. being forfeited till the matter on which they arise is found by the inquisition of a jury, and so made a matter of rvecord the forfeiture itself cannot be claimed by any inferior title. But the franchises of treasure-trove, waifs, estrays, and the like, may be claimed by prescription; for they arise from Aa to the man- private contingencies, and not from any matter of record. 5, Among things incorporeal, which may be claimed by pres- cription, a distinction must be made with regard to the man- ner of prescribing ; that is, whether a man shall prescribe in a que estate, or in himself and his ancestors. For, if a man prescribes in a que estate (that is, in himself and those whose estate he holds), nothing *is claimable by this prescription, but such things as are incident, appendant, or appurtenant to lands ; for it would be absurd to claim any thing as the con- sequence, or appendix of an estate, with which the thing claimed has no connexion ; but, if he prescribes in himself and his ancestors, he may prescribe for anything whatsoever ner of pres- cribing, •S. 266. )N-CLAIM. le tenant in fee- uld prescribe for ne, he must pre- nple; and must d immemorially nant to the said laid manor, with rlife. 3. Apres- ot be raised by in supply of the tion presupposes a manor cannot ers , for, as such rant, it shall not , that what is to ed for, but must as, for instance, like. These, not y arise is found natter of rvecord ny inferior title. ^strays, and the they arise from ter of record. 5, laimed by pres- ard to the man- lall prescribe in For, if a man nd those whose lis prescription, appurtenant to ling as the con- hich the thing ibes in himself ing whatsoever TITi.E BY PRESCRIPTION AND BY NON-CLAIM. 469 that lies in grant ; not only things that are appurtenant, but also such as may be in gross. Therefore a man may prescribe, that he, and those whose estate he hath in the manor of Dale, have used to hold the advowson of Dale, as appertdant to that manor ; but, if the advowson be a distinct inheritance, and not appendant, then he can only prescribe in his ances- tora. So also a man may prescribe in a qite estate for a com- mon appurtenant to a manor ; but if he would prescribe for a common in gross, he must prescribe in himself and his ancestors. 6. Lastly, we may observe, that estates gained by The mode of prescription, are not, of course, descendible to the heirs esute by general, like other purchased estates, but are an exception to p''*'**'"^ °^ the rule. For properly speaking, the prescription is rather to be considered as an evidence of a former acquisition than as an acquisition de novo : and therefore, if a man prescribes for a right of way in himself and his ancestors, it will descend only to the blood of that line of ancestors in whom he so prescribes; the prescription in this case being indeed a species of descent. ' It is presumed, however, that estates gained by prescription in a man and his ancestors, as distinct from a que estate, will now be governed by the present Act of Descent, by force of the comprehensive terms of the interpreta 'ion clause: and the fact of their being of ancestral descent be material only, so far as this law makes the fact material of other estates being ancestral, as sometimes it does' (a). If one prescribes in a que estate, it will follow the nature of that estate in which the prescription is laid, and be inherit- able in the same manner, whether that were acquired by descent or purchase; for every accessory foUow^eth the nature of its principal. ' The statute provides for three cases, viz., profits d prendre Thesutute * * provides by ». by 8, 34, easements by s. 35, and light by s. 36. The distinc- ■i* for proAtt a , 1 /^ N 1 • 1 • 1 prendre; Dy a. tion between easements and profits a prendre is this, that 36 for ease- ments : by 8. 36 for Ugfat. (a) See chapter 22, 464 TITLE BY PRESCRIPTION AND BY NON-CLAIM. Object of the statute. the right to eaaements gives no right to any profit of the soil charged with them : but the right to take " something out of the soil" is a profit d prendre (a).' ' A main object in the statute was to prevent a prima facie right acquired by enjoyment as named in ss. 34«, 35, from being defeated by shewing it had not existed prior to the respective periods named (6) ; to leave it open to be defeated in any other way as theretofore, but to render it absolute and indefeasible aft<;r a more lengthened period of enjoyment, unless such enjoyment were had by consent or agreement; to place access and use of light on a more favourable footing than the other prescriptive rights: to state and define the time and the circumstances which would give a right by force of the statute in the cases it refers to : to prevent any presump- tion arising in favour of a claim on proof of enjoyment for a less time than the prescribed period': and to vary the mode of pleading.-j^^ ' Sec. 34 l«a*es a prima facie right acquired after uninter- rupted taking or enjoyment for thirty years by a person Sre after 30^*" claiming right thereto, open to be defeated as before the statute, in any other way than by proof it did not exist prior to sucn thirty years, and declares it absolute and inde- feasible after sixty years, unless the taking or enjoyment claimed was had by some consent or agreement expressly made or giveu for that purpose, by deed or writing. What shall not be deemed an interruption, and how the time shall be calculated is mentioned in section 37, which will presently be alluded to, as also what is meant hy claiming right, which is again referred to in section 40.' ' ' Sec. 37 provides for the calculation of the periods which are to create the right, and they are to be taken next before the suit or action, and time cannot be reckoned with refer- ence to the wrongful act complained of : " the Act is so S. 34 gives prima facie right as to profits A p dre after 30 years. S. 37. As to calculation of the time. (a) Manning v. Wcudald, 3 A. & E. 764. defeating claims. (b) Ante, p. 458, as to mode of * N-CLAIM. profit of the soil omething out of it a prima facu as. 34, 35, from ted prior to the n to be defeated it absolute and d of enjoyment, it or agreement; vourable footing d define the time ■ight by force of at any presurap. ' enjoyment for o vary the mode ed after uninter- lars by a person jd as before the t did not exist isoluteand inde- 2f or enjoyment sment expressly wrriting. )n, and bow the idion 37, which mithyclaimiiig ).' e periods which ken next before •ned with refer- " the Act is so ). 458, as to mode of TITLE BY PRESCRIPTION AND BY NON-CLAIM. 469 worded that though there have been 50 years' enjoyment, up to the time of the act done, that is no defence, unless it con- tinues up to the time of the commencement of the suit (a)." Thus to an action, of trespass quare clausum fregit , the de- fendant in his plea justified, setting up a prescriptive right under the statute by user and enjoyment of a right of way for twenty years before the commencement of the suit; at the trial he proved an uninterrupted user of the road for 48 years, but he failed to give any proof of user during a period of fourteen months next before the commencement of the suit ; the court held the plea was not sustained by the proof. Parke, B., remarked, "it is quite impossible that acts of user should continue to the very moment of action brought, or that they should be continued to within a week or month of that time ; but I think that, according to the true construction of the statute, some act of that description must take place in each year (6)." It is not perhaps so clear that an act of user must be shewn in each year, if it be shewn during the first and last, with general evidence of user during the intermediate times (c). In such a case as the last, the defendant should, as before explained {d), have pleaded either a prescriptive right at common laiv, or a non- existing grant.' ' Sec. 37 provides, also, as to what shall not be deemed an intemiptio interruption. An interruption will not operate to prevent the creation of a bar, unless acquiesced in for a year : an inter ruption in the last year of the 20 years, for example, is the same as, and has no greater effect than one of the same duration in the middle of the 20 years ; therefore an enjoyment of 19 years and any portion of another year, will establish a right, provided the action be brought for the obstruction, &c., be- (a) Per Parke B., Ward v. Rohini, 15 M. & W. 241 : Gale on easement!, 150. (6) Lowe v. Carpenter. 6 Ex. 832; Haley y. EnnU, 10 U. C. R. 404. (cj Carr v. Foster, 3 Q. B. 581. (d) Ante, p. 457. 30 466 TITLE BY PRESCRIPTION AND BY NON-CLAIM. 1 1 '. ,; ; ; ■; m ■*», ilif fore the interruption has continued for the full period of a year (a).' Enjoyment as 'As regards the meaning of the words, enjoyment as of "^ ' right, in s. 38, and of the words, enjoyed by any person claiming right thereto, in ss. 34 & 36, they mean, " an en- joyment had, not secretly, or by stealth, or by tacit suffer- ance, or by permission asked from time to time on each occasion, or even on many occasions of usir j it ; but an en- joyment had openly, notoriously, without particular leave at the time, by a person claiming to use it without danger of being treated as a trespasser, as a matter of right, whether strictly legal by prescription and adverse user, or by deed conferring the right, or though not strictly legal, yet lawful to the extent of excusing a trespass, as by a consent or agree- ment in writing, not under seal, in case of a plea for forty years, or by sil^h writing, or parol consent or agreement contract or license, in case of a plea of twenty years" (6). But permission for user does not in every case prevent the acquisition of an easement ; for the enjoyment as of right is not to be confined to an adverse right, and enjoy ru-r-t is as of right if had by permission. Whether pd ■: . ' • at can be gained after user enjoyed by permission, d * ^e; is on the time when permission was granted. On this p' it ha* S. 38 varieR former mode of pleading. been laid down that if the permission is given before the commencement, and if it extends over the whole period of the prescriptive right claimed, the user is as of right, and without interruption, within the meaning of the Act ; but that it is otherwise, if permission is given from time to time during the continuance of the user (c).' ' Sec. 38 also varies the former mode of pleading, and in (a) Flight v. Thomat, Ex. Ch. , 14 A. & E. 688 ; affirmed in House of Lords 8 CI. & F. 230 ; see also per Ld. Campbell , Eaton v. SwanaeiCWater Works Co,, 17 Q. B. 272. (6) Per Cur. Tickle v. Brown, 4 Ad. & E. 882. (c) Kinloch v. Jfeville, 6 M. & W. 795 ; Clay v. TiMckerah, 9 C. & P. 47. N-CLAIM. full period of a 'Mjoyment as of by any person ' mean, " an en- by tacit suffer- time on each : it ; but an en- rticular leave at thout danger of right, whether iser, or by deed legal, yet lawful ionsent or ajrree- a plea for forty or agreement enty years" (6). !ase prevent the nt as of t^ght is enjoyr^v-^r.t is as d' ■itit can Is on the nis p' '-J it ha* fiven before the whole period of .8 of right, and )f the Act; but om time to time )leading, and in in House of Lordi 'm" Water Works Co., «2. (c) Kinloch v. TITLE BY PRESCRIPTION AND BY NON-CLAIM. cases within the Act^ renders it unnecessary to prescribe in the name of the owner of the fee (a).' ' Sec. 35 differs only as to time from s. 34 as regards the different claims to which it relates; and the principles of the decisions under one of these sections will in almost every case apply to questions under the other.' ' Sec. 36. This section is repealed by 43 Vic. c. 14, s. 1 (6), except as to rights acquired by 20 years' use before the Act. Claims under this section were placed on a more favourable footing than those under the two prior sections 1st, they are not liable to be defeated at common law, or in any other way than on evidence of enjoyment by consent or agreement, as therein named ; 2nd, though the enjoyment must have been without interruption, it is not required that it should have been by a pei-son claiming right thereto • and absolute uninterrupted enjoyment for twenty years creates an absolute indefeasible right, unless had by such consent or agreement. There is here no mere primna facie right liable to be defeated as under sections 34 and 35, but the right when once it exists is indefeasible, and stands on the same footing as rights under the prior sections after the longest periods therein named.' ' Sec. 39 prevents any presumption in favour of any claim by the claimant of exercise or enjoyment for a less time than such periods ; which again is contrary to the common law rule, whereby a presumption might frequently be created by user for a less period than named in the Act (c).' ' Sees. 40, 41, & 42, provide for cases of disability, and create exceptions.* The Crown is included in the bar created by sees. 34 & 35, unless in cases of unsurveyed lands, as named in s. 42 (d) ; (a) See ante, p. 461. (6) The difference in the views taken by the Im- perittl and the Provincial Legislatures is singular ; the latter have abolished all prescriptive right to light, the fonuer place it on a more favourable footing than the prescriptive rights. (c) Ante, p. 456. {d) Bowlby v. Woodley, 8 U. C. R., 318. 467 S 35, as to easements, varies only as to time from s. 34. S. 36 as to light, varies from other sections in two respects. S. 39. No pre- sumption within less than the prescribed period. Ss. 40, 41, 42, Disabilities, exceptions. Crown barred by prescrip- tion unlets in cases of un- surveyed territory. ^S" 468 TITLE BY PRESCRIPTION AND BY NON-CLAIM. Necessity for knowledge of thn law as before the statute. Policy of the statute. ami whilst, therefore, as to corporeal hereditaments, time will not, under this statute, run against the Crown (a), it will, as to rights of an incorporeal nature, and the grantee of the Crown will take subject to the time run.' ' This terminates our view of the title by non-claim, and by prescription, which has, it is feared, occupied more space than in a work of this general character should have been devoted to it. We have treated of the law before the stat- ute as briefly as the nature of the subject would permit, and in so doing have the sanction of Lord St. Leonards, who says : " it is seldom possible to understand a law which re- peals p former one, and substitutes new provisions, unless we have a competent knowledge of the law repealed." Mr. Hayes also states that " the law of limitation is a subject which peculiarly involves an inquiry into first principles." The student will have observed how from the early stat- utes of Henry IIL and Edward L to the present day, there has been a constant and growing tendency in the legislature to shorten the period which confers title, and decrease the number of disabilities which prevent the operation of a bar. It is obviously proper that some limit .should be assigiied within which rights should be asserted ; and the so doing may be upheld among other grounds, on that of public policy. Mr. Williams on this, remarks : " to deprive a man of tliat which he has long enjoyed and still expects to enjoy, will be generally doing more harm than can arise from forbid- ding the person rightfully entitled, but who has long been ignorant or negligent as to his rights, to agitate claims which have long lain dormant (6)." ' (a) Ante, p. 453. (h) El. Prop. p. 484. -CLAIM. itaments, time Crown (a), it id the grantee n.' i-claim, and by ed more space uld have been lefore the stat- ild permit, and Leonards, wlio law which re- )visions, unless epealed." Mr. on is a subject / principles." the early stat- 3ent day, there the legislature id decrease the ration of a bar. iJd be assigned id the so doing f public policy. a man of that 1 to enjoy, will jc from forbid- has long been agitate claims CHAPTER XXII. - THE PRESENT LAW OF DESCENT (a). The Statute of Victoria, which governs descent since the first day of January, 1852^ is entirely subversive of the for- mer system, and is based on the rules of the civil law. In many respects, it bears a close resemblance to the mode of succession to personalty under the Statute of Dis- tributions, which according to Mr. Justice Blackstone (6), is but a restoration with some amendments of the law which prevailed before the Norman Conquest. Many of the decisions on that statute, especially as to the ad- vancement and hotchpot clauses, may be applicable to our present law of descent ; out in applying the cases the dif- ference 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 New 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. It is to be observed that section 22, expressly includes estates pur autre vie, and does not include estates-tail : the descent of the latter are governed therefore, as presently explained, performam doni. Moreover if the legal estate is vested in a trustee, then, by section 40, this Act does not apply to effect the descent of 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.) Descent is no longer as under the Statute of William to Conforms to civil law and Statute of Dia- tributions. Taken from New York Act. Statute in- eludes estates in fee simple, vnr autre vie, but not estates tail or in trust- fa) llie authors have not thought it advisable to treat of the .ormer law as by the lapse of time since 1851, and the effect of the present Statute of Limitations a knowledge of that lav is of little service. (6) Vol. 2, p. 516. Xo longer trace from purchaser. 470 THE PRESENT LAW OF DESCENT. ^g;. Do we re vert to com. law rule of tracing from person last ■eiaed? According as descent is traced from person last seised or per son last enti- tled will the person who is to take as heir be varied — instances. be traced from the purchaser, or person last entitled ; but the language of this section is, that the real estate of any person who shall die intestate, seised in fee-simple, or for the life of another, shall descend, ifcc. The first question which sug- gests itself on the language of this section is, whether we are again referred to the rigorous common lav, rule, which was, that the descent should be traced from the person last actually seised, 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 William, in such case 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 removed here, but a remedy was applied in England by 22 & 23 Vic. ch. 35. sec. 19t. In such a case, under the Statute of Victoria, the question would be whether the mother could take under the latter part of section 27, as heir to B. ; or 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 to the next of kin to A. under the Statute of Distributions. Again, suppose A., the purchaser, to grant a life estate and die seised of the reversion in fee, leaving his son B., his father C, and wife D., him surviving : here the reversion (a) Doe, Blackburn v. Blackburn, I Moo. & R. 647, per Parke, B. THE PRESENT LAW OF DESCLVT. 471 titled ; but the I of any person r for the life of on which sug- s, whether we av,- rule, which thfc person last did not suffice in deed, or its D of A., an ille- 'ife and wife's lim surviving; ntestate: here, from A. as last and the estate er or her coUa- sr son. Under ist always have d, on its being e purchaser (a). loved here, but 23 Vic. eh. 35. >f Victoria, the take under the whether, as B. be traced from prehended that der section 36, ier the Statute t a life estate his son B., his the reversion would descend to the son B. ; but if he B died, pending the life estate, (in which case he would not at common law, for the purposes of descent, have acquired actual seisin), the question would be, under the Statute of Victoria, whether when the estate in reversion became one in possession on the death of the life tenant, the parties claiming, must take A. or B. as the stirps of descent. If A. be taken, then the estate will go to A.'s father, under the first part of section 26 ; if B. be taken, it will go to the mother of B. under section 27, and not to his grandfather. A consideration of the above,and other cases put before, will New York Statute much show the importance of the question. Section 22, as regards aa this. this point, appears to be worded in much the same way as the statute of the State of Ne w York, of 1786. Mr. Chancellor Kent, in reference to that statute, says (a), " the rule of the com- Decision on. mon law existed in New York under the Statute of Des- cents of 1786, and the heir was to deduce his title from the person dying seised. It had been repeatedly held, that during the existence of a life estate, the heir on whom the reversion or remainder was cast, subject to the life estate, was not so seised as to constitute him the possessio fratris or the stirps of descent if he die pending the life estate, and the person claiming as heir, must claim from a previous an- C3stor last actually seised. If the estate in fee had been ac- quired by descent, it was necessary that there should have been an entry to gain a seisin in deed to enable the owner to transmit it to his heir ; and therefore, if the heir on whom the inheritance had been cast by descent died before entry, his ancestor and not himself became the person last seised, and from whom the title as heir was to be deduced ; but the New York Revised Statutes have wisely altered the pre- existing law on this subject." The wording of the New York Revised Statute is : " The ^M r Parke, B. (a) Vol. 4, ed. 11, p. 38a lit 47S THE PRESENT LAT7 OF DESCENT. real estate of every person who shall die without devising | the same shall descend," &c. And by the interpretation clause, the term " real estate " includes every estate, interest, or right : our statute has adopted this interpretation clause (section 19), by which the term " real estate is to includt every estate, interest, and right, legal and equitable, held ^yerwise than in trust, in fee simple, or for the life of an- other. We have however, still retained the word aeiaed in section 22, which is struck out in the Revised Statute of New York. The word There can be little doi.'bt that by virtue of the comprehen- yrith tntuitd'^ sivc meaning given to the words "real estate," actual seisin of dMcentT""* ^^ ^^^ requisite, and that the word seised in section 22 will be construed as entitled to (a) ; for the word seisin, in its strict sense, is inappropriate to many rights, interests and estates, which are to descend, and would therefore receive a wider signification appropriate to such right s : moreover by section 9, proof of entry by the heir is dispensed with : still there are no decisions in our courts ; our statute differs as explained above, from the American ; and that is sometimes taken as law in the courts of the various States which would not be so taken here. Mr. Washburn (6), after stating the rule at common law as to descent of an estate in remainder or reversion dependent on a freehold estate to be as before expressed, says in reference to such an estate, " the law is changed in several if not all the United States, and the heirs of a reversioner or remainderman take as absolutely as if their ancestors were actually seised of a freehold in pos- session, the word seised being equivalent to owning when applied to such an interest ; a remainderman or reversioner, therefore, becomes, a proper stock of desc ent, &c." ; and he refers to cases in support of this, decided under the Statute of 1786 above-narked. If seisin in law, or mere right of (o) Washburn FJ, i'rop. Vol. 3, 3rd ed. p. 14. Vol. 3,3rd ed., p. 14. (6) Washburn Rl. Prop. T. ithout (luvising interpretation estate, interest, )retation clause e is to include equitable, held r the life of an- word seised in Revised Statute the coujprehcn- 3," actual seisin section 22 will d seisin, in its s, interests and refore receive a i : moreover by ised with : still atute differs as at is sometimes es which would :ter stating the e in remainder to be as before e, " the law is tates, and the B as absolutely freehold in pos- owning when or reversioner, 1, &c." ; and he er the Statute mere right of Washburn Rl. Prop. THE PRESENT LAW OF DESCENT. 47S ownership, suffices under the Statute of Victoria to consti- tute a good stii'ps of descent, as would seem to bo the case, then it is similar in its effect to the Statute of William, by which descent is to be traced from the person last entitled ; the only difference being that under the Statute of Victoria, you cannot shift the trace of descent from the person last entitled hy shewing that he inherited, as you can under the Statute of William. The wording of the 22nd section requires explanation, as Descent per it is somewhat calculated to mislead. It enacts that the tin capita, not per •i)e» pre- estate shall descend to the lineal descendants of the person ,^,*g tlie"civil last seised, and those claiming under them, per stirpes. ' Now, this expression at the outset, would lead to the infer- ence that the common law rule of succession per stirpes was to be the prevailing feature in the statute, whereas it is just the reverse ; and it is the civil law rule of succession per mpita that prevails, and descent per stirpes only takes place as an exceptional case, as will be seen in the sequel. Section 23 (a) expressly introduces descent per capita to s. 2.$ intro- the exclusion of the former .system of descent per stirpes, per capita Thus A. dies seised, having had two daughters, both dead, JJf consa^in- in A.'s lifetime ; one of which daughters left one son, and '*^ '^^^ ' the other eleven sons: here instead of the one gi'andson taking one half, as would be the case tracing descent per stiipes as formerly, he will oniy 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 (b) if in the above case, the but if some mother of the one son had been alive on the death of A., and emml and the mother of the eleven sons dead ; here, as the descendants ^ua? degreeB. of A. are in unequal degrees of consanguinity, the mother 25 descenr *' living will take one half, and the eleven sons of the mother ^^j^g^^rHy dead the other half between them all : the descent is parti- p'^ capita. (a) See aection post in appendix. (6) See post in appendix. 474 THE PRESENT LAW OF DESCENT, sm ■a. 24. ally per stirpes and partially per capita ; it is jper stirpa as between the daughter living and the eleven sons of the dauguter 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 stirpes is admitted when representation becomes 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 equal degree, as gi*and- children, rei)resentation becomes unnecessary, and would occasion an unequal distribution, and all take jjer capita (a). Illustration of Take the following case in further illustration of this 24th 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 per stirpes quoad their ancestor, viz., one-third, which they will divide per capita between them- selves, and each take half a tinrd or sixth : and the four grandchildren, issue of D., will take in the same way, per stirpes, their 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 shares 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," (a) Aa to descent per stirpet and per capita, and the grounds on which they severally rest, see Vinnius on the Institutes, lib, 3, tit. 1, n. 6. THE PRESENT LAW OF DESCENT. 475 is per atirpeg m sons of the such eleven )r per capita, al or unequal ot confined to Act. Inlieri- atlon becomes in a remoter I, and children gree, as gi-and- y, and would jjer capita (a). )n of this 24th 3., C, and D. ; . leaving two L. dies seised ill take one- 3ended to him bate who have grandchildren, ancestor, viz., between thera- and the four a me way, per ich they will take a fourth e descendants lead, shall in- parent would plies only " if ite be living," ids on which they 6. and not where none are living, but have left descendants in unequal degrees : tb« latter case is reached by the 25th (a) 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, it in the case put, B,, C, and D., had been grand-children, instead of children of A. (their parents being dead), section 24 would not have ap- plied to meco 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 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 succession to personal propei-ty prescribed by the Statute of Distributicns 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 reserves the widow's right tc dower, which would be one-third for life, whilst the Statute of Dis- tributions gives her one-third absolutely. Section 21 is now considered, inasmuch as the 26th, 31st, 33rd, 34th and 35th sections cannot be understood without appreciation of it. These sections speak of the estate "coming to the intestate on the part of his father, or " mother." as the case may be, and send the descent towards the paternal or maternal line accordingly, preserving a relict of the preference given by the prior law to the blood of the purchaser. Section 21 defines what is meant by the expres- sion in the prior sections of the " estate coming to the intes- (a) See the section in appendix. The half-blood and hotch- potch. Analogy in the above to right under St. of Distri- butions. Sec. 21 Inter- pretation as to Hections 22 to 48. 476 Alters and ex- tends former mode and sense of taking by purchase. Instance of change as to taking bp pur- chate effected by Stat. Vic. THE PRESENT LAW OF DESCENT. tate on the part of his father, or mother," as including " de- vise, gift, or descent from the parents referred to, or from any relative of the blood of such parents." It will be ob- served this section considerably alters and enlarges the mode, by which, under the Statute of William, a person was con- sidered as taking an estate ex parte materna, or paterna, as the case might be : he was before considered as so taking, in those cases only where he took by descent, tracing from the paternal or maternal ancestor as the purchaser ; but if (at least after the Statute of William) he took by gift or de- vise from such ancestor, then the estate was not considered as descending to him at all, but he took as purchaser, and parties claiming on his death had to make themselves heirs to him as the purchaser, and to no one else, and if they could not, the estate would escheat. The change effected by the Statute of Vi etoria is very great, as will be seen by considering one simple and common case : suppose that the estate had been either devised or given to John Stiles, by his mother, or any relative of hers ; here under the Statute of William, John Stiles would have been considered not as taking ex parte materna at all, but as a purchaser ; and the result was that all the paternal ancestors and their descend- ants, however remote, must have failed before any maternal ancestor, or any one claiming through such could have taken. Now, however in such a case, the estate is to be considered as having descended ex parte materna, and the paternal line are excluded : except only that if the mother be dead, and there be any brothers or sisters of the intestate, or any of their descendants, the father will take a life estate ; or if the mother be dead, and there be no brothers or sisters of the intestate, or their descendants, then the estate will go to the father ; and paternal are postponed to maternal ancles and aunts. Questions may arise as to the construction of section 21 in those cases where the intestate has taken from some per- r. including " de- •ed to, or from It will be ob- irges the mode, erson was Con- or paterna, as i as so taking, b, tracing from chaser; but if by gift or de- not considered purchaser, and emselves heirs e, and if they ige effected by ill be seen by ppose that the ohn Stiles, by er the Statute sidered not as laser ; and the their descend- any maternal Id have taken, be considered 5 paternal line be dead, and ite, or any of 3 estate ; or if 3 or sisters of jstate will go iternal uncles of section 21 om some per- THE PRESENT LAW OF DESCENT. 477 son on the paternal or maternal side, who in turn has taken from the other side, and the tiuestion would be which side would have preference in distribution of the inheritance. Thus, assume the intestate has acquired the estate by devise, Case of the in- , , , testate having gift or descent, from his mother, who acquired it in either of taken from a -If iiiii/*! f ^ • paternal rela- those modes from her husband, the father of the intestate ; tive, who has the only relatives are brothers and sisters of the mother, maternal rela- and brothers and sisters of the father : under s?. 31 and 33, either side will take to the exclusion of the other, according to whether the inheritance is to be considered as having come to the intestate on tho part of his father, or of his mother. Again, if in the case above supposed there were brothers of the half-blood of the intestate on his father's side, would the half-blood be excluded under section 36 ? in which section however the words " ancestors " is made use of. Many other instances might be put under the various sections, (a) but the above will serve to elucidate the question. It is appre- hended, on the language and construction of the Act and the American decisions (h), that in such cases the person from whom the intestate immediately takes is the propositus who alone will be regarded, and that you cannot cliange this by showing how the estate was acquired, as you can in cases of inheritance under section 4 of the Statute of William. (R. S. 0. c. 105, s. 13). Thus where an intestate had inheri- ted from his brother, who had inherited from his father, and the intestate left no descendants, ancestors, or brothers or sisters, it was held on the Kcw York Act and the sections therein corresponding to ss. 21, 34 and 31, that relatives on the side of the mother of the intestate were not excluded in favour of those on the side of the father (c). A further question is, whether, where the intestate has ac- quired an ancestral estate by gift, devise or descent coming un- (n) See remarks under b. 36. (b) Curren v. Taylor, 19 Ohio, 36 ; Gardner v CoUins, 2 Peters, 58 ; Supreme Court, Uyaht v. Pugtky, 33 Barb. 373 ; Pricket V. Parker, 3 Ohio St. 391. (c) Hpatt v. Pugaley, tupra. 478 S. 26 if no d'^Bcendants, the father takes, unless inheritance came on the part of the mother, &c. Meanini; of expression " if the inher THE PRESENT LAW OF DESCENT. der section 21, alienation andreacquisition by him, which under the old law would have Aiade him a new stock of descent, and also a purchaser, and deprived the estate of its former heredi- taryqualities on the paternal or maternal side, will equally operate under this Act to cause all consideration of the estate being ancestral to be rejected (a). This question may arise in various shapes : thus, if the intestate had sold the estate, there can be no doubt that the proceeds, though earmarked, would go as personal estate under the Statute of Distribu- tions. If the proceeds were laid out in other real estate, this would have no ancestral quality in it, and under no circumstances would there be r. preference to ancestral pater- nal or maternal side. It would seem to follow, especially on applying the former law (b), that the result.would be tlie same if the intestate had conveyed to some one, and forth- with, or at any time afterwards, obtained a re-conveyance : and consequently, that there would be the same result if the estate revested through the medium of the Statute of Uses, as on conveyance by the intestate to a grantee to uses to his own use. If, however, the intestate should not have made disposition of his entire interest, but merely of a portion, leaving a reversion to come by act of law to himself and his heirs, it is apprehended that this reversion would be imbued with the former qualities of the estate. The meaning of blood relationship and of the words " of the blood of," is considered in treating of sec. 35. 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 be living ; what shall be the descent in the latter event, if the mother be living, is provided for not by this section, but by section 27. First, however, should be explained what is meant by the (o) On this head see American cases, Champlin v. Baldwin, 1 Paige, 561. (b) See last note. cen im, which under : of descent, and s former heredi- le, will equally ion of the estate stion may arise sold the estate, ugh earmarked, te of Distribu- ler real estate, and under no ancestral pater- How, especially ilt.would be the one, and fortb- re-conveyance ; me result if the >tatute of Uses, ie to uses to his not have made y of a portion, himself and his 3uld be imbued the words "of 35. the intestate lall go to the o the intestate ng ; what shall her be living, tion 27. meant by the loin, 1 Paige, 561. THE PRESENT LAW OF DESCENT. 479^ expression in this section as to the inheritance coming to itance come to 7 7 1 intestate on the intestate on the part of his mother, aiwt the mother thoy&Ttothw being living. Taking the word inheritance in the sense in the mother be- which in reference to descents it is frequently used (as in """"' 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, it is difficult to understand how an inheritance as such can c^ .3 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 inheri- tance is not used in the sense in which it is used in the 7th canon, but in the sense in which the word lands is there made use of; for the 19th section declares that the word inlwritance shall be understood to mean in the prior twenty-seven sections, " real estate ;" and the 21st section 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 th intestate by devise, gift, or de- scent, from the parent referred to, or any relation of the blood of the parent" (a). This section may pei'haps be best explained by illustrating instance of it. Thus, assume John Stiles (b) to be actually a purchaser ^f^ for money ; (formoney is mentioned, because the 21st section as above explained, has altered themcaningand implication of the word purchaser, as formerly understood, by excluding from it the case of a man taking by gift or devise from some relative on the father's or mother's side) ; in such case, on John's death without issue, the father, if living, would take (a) See as to blood relationship under American Acts, and that a father is, within the meaning of the act, of the blood of a child, Cole v. Batfey, 2 Curtis, C. C. 562. See also remarks under sec. 33 and sec 21. (6) See Table of Des- cents under the Statute of William, in the Ist edition of this work, at p- 150. -£!; f 480 THE PRESENT LAW OF DESCENT. ■ill '.ul S. 2G last clause, if es- tate came ex parte materna, and mother, brothers and sisters and descendants dead, the father takes. Varies from St. of Distri- butions. under the first clause. The case of the inheritance coming px parte inaterna, and the mother bviing living, is provided for in the 27th section, and that therefore is passed for the present, and the next clause proceeded to, viz., the like case of inheritance ex parte materna, and the mother being dead, and the father Geoffrey, living, and also the brothers and sisters of intestate of the whole blood, Francis, Oliver, Bridget, and Alice : here the l^xther would take a life estate, and the reversion would go equally among the brothers and sisters. If also at the time of death of John, his half- brothers and sisters ex parte iniatcrna had been alive, and also his half-brothers and sisters ex parte paterna, then, under the 35th section, the half-blood ex parte materna would have been entitled equally per capita with the brothers and sisters of the whole blood. The half-blood ex parte paterna would not have taken, if the estate came from, a maternal ancestor. Descendants of any brothers or sisters deceased would have taken per capita and i^er stirpes, as the case might be, as explained in the 29th sec- tion. Under the last clause of the 2Gth section, if the estates came on the part of the mother (a), and she, and the brothers and sisters of John, the intestate, , and the descendants of such brothers and sisters" were dtad, then the estate would go to the lather, Geoffrey. This latter again varies from the Stat. 4 Wm. IV., undier which, in case the estate really did descend ex parte materna, that is, by descent to John from Lucy his mother, it would not go in fee to the father, but to Andrew Baker, the father of Lucy, John's mother, subject to the tenancy by the curtesy of John's father, Geoffrey. This 26th section varies from the Statutes of Distribu- tions in this; that failing lineal descendants, personalty (a) Sees. 21 THE PRESENT LAW OF DESCENT. 481 itance coming is provided )assed for the , the like case er being dead, brothers and -ancis, Oliver, e a life estate, brothers and hn, his half- sen alive, and >aterna, then, arte materna ita with the half-blood ex e estate came ly brothers or pita and i^er the 29th sec- if the estates i the brothers escendants of estate would varies from ! estate really cent to John to the father, )hn's mother, ohn's father, of Distribu- i, personalty goes one-half absolutely to the widow, and the other half to the father ; whereas under this sitatute, the father takes all absolutely, subject^ to the widow's right to one-third for life, iis dowress. If there be no widow, the father as beiner in the first degree, takes all personal estate absolutely, without regard to how the intestate acquired it ; such regard is had, however in the case of realty, for if it came to the intestate on the maternal side, the father only takes a life-estate. Section 27 is somewhat explained by what has been said S. 27— if n» in reference to section 26. It provides for the case of the and no father father being dead, who otherwise would be entitled to take butVmother' the inheritance ; and also for the case of his being alive, and giater^'^ ^^^ yet not entitled to take under sec. 26 by reason of the estate coming ex i^avte materna, and the mother or collateral rela- tives being alive. Thus, assume that on John's death his father Geoffrey was either dead, or not entitled to take JUS above mentioned, and the mother of John, and his brothers and sisters, Francis, Oliver, Bridget, and Alice, were alive ; the mother would take for life, and the brothers and sisters per capita, and descendants of deceased brothers and sisters would take as provided for in the 29th section. If the brothers and sisters, and their descendants, were dead, then the estate would go to the mother. It should be men- tioned that all the brothers and sisters of the half-blood would take equally with those of the whole blood under the 35 th section ; that is, if John were purchaser for money, all the half-blood ex parte paterna and materna, would take equally with the brothers and sisters of the whole blood : liut if John got the estate ex parte paterna or materna, then the half-blood only on that side would take. Under the Stat. 1 James II., c. 17, s. 7, the personalty of The right t» an intestate who leaves no father, wife or children, will go like case, in equal shares between his mother and brothers and sisters. The above section is on much the same principle, except that the mother takes only a life-estate in all. 31 4S2 THE PRESENT LAW OF DESCENT. Sh. 28, 29, 30 in eases wliere no issue or parents living. Collaterals take. I 0m 5 Husband and wife may each share. Instance of descent umler these sees. These sections 28, 2J> and 30 (a), assume there are no lineal descendants, father, or mother, and provide for cases of descent to collateral relatives, as brothers, sisteis, ami their descendants, as next entitled, and the mode in which they shall take. The mode of taking hereby presented as regards taking per stirpes or per capita is somewhat similar to that presented under sections 23, 24 and 25, in reference to children of intestate and their descendants. Section 28, if unrestrained by subsequent sections, would admit equally all collateral relatives of equal degrees of con- sanguinity to the intestate, and to allow therefore uncles and aunts to share with nephews and nieces, if those classes were the only relatives on death of the intestate. Subse- quent sections control and explain this section however. The principle upon which they proceed is, that collateral kindred claiming through the nearest ancestor, are to be pre- ferred to collateral kindred claiming through a common ancestor more remote. The claim of the nephew is through the father of the intestate, that of the uncle through the grandfather. The unity in law of husband and wife will not, it is ap- prehended, prevent each taking the several portions tliey would respectively have been entitled to if unmarried. Thus, if a nephew of the intestate, son of his deceased brother, should intermarry with his cousin, daughter of another deceased brother, niece of the intestate, and there should be other nephews and nieces, the husband and wife will each take a share (b). The same principle applies under section 34 as to uncles and aunts. An illustration of the mode of descent under these sections may be made thus : assume John to have died, leaving him surviving only his brother Fi'ancis ; and A. and B., two sons of his brother Oliver ; and C. and E., two grandsons of ( () See sections po«t in Appendix. (b) Knappy. Wiivlsor, G Gush. 156. there aie no vide for. cases !, sisters, ;iml lode in which presentud as lewhat similar », in reference ections, would egrees of con- jrefore uncles f those classes state. 8ubse- tion however, that collateral are to be pre- jh a coimaon ew is throu^'h e through the 1 not, it is ap- portions thoy if unmarried. ■ his deceased , daughter of ate, and thm-e >and and wife applies under these sections I, leaving him d B., two sons grandsons of w, 6 Cush. 156. THE PRKSENT LAW OF DESfENT. 483 Oliver by a deceased son of his, C Here all the claimants are collateral relatives of unequal degrees of consanguinity to the intestate, being one brother, two nephews, and two grand- nephews ; and a mixed descent, jier stirpes and per capita takes place ; per stirpes in dividing between the unequal degrees, per capita between the equal degrees. Thus A. and B. Ix'tween themselves shall take equally, so also shall I), and E. ; but taking A. and B. together as of one cldt(iii witli Statute of Distribu- tion.s. THE PRESENT LAW OF DESCENT. ISa s, and assumes such case, un- have gone to on law would iz., the brotli- iirc. The pri- y given to tin- so in the same not go by pri- cond clause of very distinctly thers or sisters th the surviv- k^ever, that by ! or 2^er capita the same man- or brothers of y in principle te of Distribu- imother would ig in the third e. The Statute lestors beyond an take under her or grand- descendant of of personalty, I, but may be eke (a), " that be portions of )osed to have ing condition le very nature of the provisions among ehililren, as every child may bo said to have .sy>es accrescendi. " The case before Lord Hard- wicke was, it is true, a case wherein the contest was between a iriandfather and a brother of the intestate, both of whom l)y the civil law mode of computation are in equal degree to the intestate, and therefore in strictness entitled to equal shares ; still the reasoning applies to uphold the ecjuity of this section, and there can be little object and much incon- venience in giving the estate, for a probably brief period, to an infirm and aged grandsire whose wants and capacity to enjoy may be small, and on whose death the estate might shortly have to be sultmitted to another descent. Section 32 provides for cases not before provided for, viz.. the case of no lineal descendants, father, mother, brother, sister, or uncles or aunts, ex parte pafermt, or their descend- ants, and the estate coming ex parte patevna ; in such case the estate is to go to the uncles and aunts ex parte patevna. Thus the issue of the maternal grandfather and gandmother would take. This is a great infringement on the prior law, foi" under it those claiming f.^r parte materna could never take till the whole paternal line were exhausted. Section 33 provides for failure of lineal descendants, of father and mother, of brothers and sisters and their descend- ants, where the estate comes ex parte materna. This is the sfinie as provided for under the 31st and 32nd sections, except that under those the estate is assumed to come ex parte paterna. The descent under this section, is governed by the .same principle as under the 31st and 32nd, but as the estate comes ex parte materna, it goes first to uncles and aunts on the maternal side and their descendants, and if none, then to uncles and aunts on the paternal side and their descendants, per stirpes or per capita, on the principles be- fore mentioned, according as the heirs are or are not in equal degrees of consanguinity. Under the 34th section if the estate came neither ex parte mil uncles and aunts and tlieir descend- ants, the inn- ternnl take in cases of .ances- tral paterna/ estate. .S. 33. Estate coining ex parte mater- ia, maternal uncles, &c., take before paterndl. S 34. If estate came neither ex "II «*f .5 <3 11 ISU y«n7«,' /mid III or uiiiiiriiii, tllt'll 111) I ire fercncf itivcii t" ciillatfralH on eitlii'i' nidi'. lliK^it nnili'f Stat, of l>iH- trilnitioiiH. Double in- fringement of the old law. but accords wth Stat, of Distributions', THE PRESENT LAW OF DESCENT. patcrna or viatermi, as if the iiitcstatc; were r. purcliasor for iiu)tiey, or Vjy fjif t from no relative, then no prefcsrenco is ji'ivcn on cither side, but the uncles and aunts and their di;- scrndants on both sides take toj^'ctlier : tl»e descendants tak- ing,' per stirpes or per vapita, as the case may bo : a further infiin^'cinent on the prior law which would liave postiioiiod the maternal relatives. Hel'ore leaving the ri;rht of inheritance of uncles and aunts, it may bo remarked that they are placed by this sta- tute, in one respect, in a more favourable position than un- der the Statute of Distributions ; for under the latter they uie, as in the third dej^ree, postponed to {grandfathers and graiulmothers who are in the .second degree. On the other hand, the Statute of Victoria postpones them to brothers and sisters of the intestate and their descendants, whilst as to personalty they take ecjually with nephews and nieces, as being in the same degree. In reference to section ifjo, it will be observed that if tlu; intestate were the purchaser (in the strict sense of the word), relatives of the half-blood, both on the paternal and mater- nal side would take equally with relatives of the whole blood in the same degree. This was a double infringement on the prior law, since under it where the intestate wa-s purchaser, the relatives of the half-blood on the mother's side were postponed until failure of all the male paternal and female paternal ancestors and their descendants ; and those of the half-blood on the paternal side were admitted only after failure of those of the same degree of the whole blood and their descendants : but under section 35, if the intestate were purchaser, and had brethren of the half-blood on the father's and mother's side, and a brother of the whole-blood, the latter would only share equally with all the others. This accords with the Statute of Distributions, under which also no distinction is made as to how the intestate acquired the property. THE PUKSENT \.\\V OF DESCENT. 4H7 i .1 purc'hasor ) prcfc^rcnoo is and tlit'ir dt... iceiulHiits tak- lie: a fuitlat ive pOHtporitnl )f" uncles and ] hy this sta- tion than un- it' latter they rulfathers and On the other tn to brothers 171 ts, wliilst as vs and nieces, 'ed tliat if the e of the word), ml and niater- of the wliole infringeinont intestate \va.s I the mother's e paternal and bs ; and those admitted on!y ! whole blood " the intestate >blood on the whole-blood, II the others. , under which itate acquired If, however, the estate came to the intestate l»v dctsicnt '*"**' «"**»" cHini) from an (Ii'vise, or gift, fiwii some one of his anevi^torH, then those "'«T;i<..»-,thf who are not of tlu' blood of sucli ancestor, are to be ex'-IudiMl mi that mMk til im the inheritance ; which latter rule would seem to be suniewhat liarsh in a case, for instance, where the next heirs would bo very remote. And here also it may be remarked ()„iy nfeis t.) tliat this section is not worded as the other sections are frn'iVttu'"'"^- when JvUuding to estates ej: parte paterim or vuttenia, as ''/,'//,//emr"'"«. tlic ease may be, " when the estate shall have come to the ("'' '*^ '"T *' •' ' tor, UN (itllt-T intestate on the part of the father," &c., which would include, -^^'i ti""-* ili>. hy force of the 21st section, a^iy oifi or (.lev Ue from any re- lative of the blood of the father or the mother, but the sec- tion refers only to the estate coming from an ancestor, and is not touched by section 21. In the United States, however, it has been held that the Sense of woni word " ancestor " is not to be construed in its strict sense and that a younger brother nmy be the ancestor of his elder brother. Thus, E. P. purchased certain lands, and died in- testate, leaving I. P. and J. P. his sons and heirs, and R., his widow, married again. Before birth of issue of the second marriage, I. P. died intestate, and without issue ; J, P. in- lieiited to him, and afterwards died intestate without issue. At the time of his death there was issue of the second mar- riage. It was held that I. P. was the ancestor of J. P., and that on the death of J. P. his half-brother took the yi,(, i,a,if moiety descended from I. P. {a). It must be observed, how- '''""'*• ever, that this decision was not on such sections as the 3oth and 21st, which ha\a in them the- difference of language above pointed out, but on a clause regulating descent in general terms, as in section 22, and the language was, " when any person shall die intestate having title, &c., which title shall have come to the intestate by descent, devise, or gift, from any ancestor, such estate shall descend, &;c." (a) Prickett v. Parker, 3 Ohio, 394. 488 THE PRESENT LAW OF DESCENT. There is, perhaps, in the latter part of this section a inis- The American Mistake in re- ferring to an- cestors in the take in referring to ancestors in the plural, Statutes refer only to the ancestor from whom the estate has come, and whose blood is requisite in the half-blood seeking to inherit,. It is manifest that the following observations of a learned American judge (whose able judgment on a sta- tute very similar to this is worthy of great consideration) apply with additional force where ancestors generally are referred to, instead of (as in the case before him) the parti- cular ancestor from whom the estate has come. He says (a) : " soaring on the wings of fancy, remembering only that all mankind are descended from the same common parents, with the aid of genealogical tables sufficiently extensive, and of a herald who is master of his art^ the blood of the first purchaser would have indeed no bounds but the voins of all mankind " (6). The question before the court was whether, where the intestate had inherited from her mother, who had inherited from the intestate's gi-andfather, the half -brethren of the intestate, being children of her father As to blood on his first man'iage with the intestate's sister, could inherit r a c . M>. jj^ preference to uncles of the intestate, brothers of her mo- I (a) Doe, (/. , Delnplaine v. Jones, 3 Halstead, 340. See also as to half-bloud, and that " the blood " of the ancestor includes his relations of the half -blooil ; i Pet. .'58 ; 5 Whart. 477 ; 2 Hals. MO ; 14 N. Y. Rep. 23.5. (b) Considering the statistics as to illegitimacy, it is to be feared that even the Royal College of Heralds, and Garter, I^yon, and Ulster Kings-atarms, thoui,'h aided by genealogical tables extending to the first geological period, would tie baffled by uiany a bar sinister, and the stern common law rule, qui ex damnato coitii nascuntur inter liberos n,ni computentur. Blackstone states, as such " have no legal ancestors, they can have no collateral kindred," indeed, he says, " they have no blood in themj" which remark is considerably opposed to the unlimited amount above ascribed to a first purchaser by the learned American Judge ; a purchasing bastard, miUiite filius, being necessarily a first purchaser. The con- sequence is, so many purchasing bastards there have been, so many persons are there, who according to the common law, as regards descent and blood relation- ship, occupy the position of our first parents ; they " have no legal ancestors, they can have no collateral kindred," On an escheat, also, at common law, in the case of an attainted felon, "the channel which conveyed the hereditary blood from his ancestor to him, is not only exhausted for the present, but to- tally dammed, and rendered impervious for the future."— 2 Blackstone, 2.')4. T. THE PRESENT LAW OF DESCENT. 489 section a mis- The American n the estate has f-blood seekinc ig observations gment on a sta- ; consideration) rs generally are him) the parti- come. He says )ering only that ommon parents, ntly extensive, 16 blood of the Is but the voins the court was om her mother, [-andfather, the n of her fatlier jr, could inherit hers of her mo- fvlso as to half-bloud, of thehalf-bloixl; 2 feared that even tlw iiiKS-atarms, though :al ptriod, would ))e rule, qui ex damnato tates, asBHch " have leed, he says, " they sed to the unlimited American Judge ; .^ urchaser. The con- so many persons are b and blood relation- I no legal ancestors, at common law, in syed the hereditary the present, but to- Blackstone, 2.'>4. ther. The Court held that the blood relationship of the half-blood to the intestate's mother could be made out by tracing back to her father, the common ancestor. In the same case also one learned Judge said : " if it be answered that the half-blood must not look back so far as Adam or Noah, it is all I want, for then some restriction is admitted to be implied, and the only dispute will be what that restriction Is. I contend for the restriction of proxi- mity as established by the Legislature in the Act concerning descents ; such is a legal restriction, and will make the pro- viso (excluding the half-blood not of the blood of the ances- tor. — Eds.) yield us a sensible and a practicable rule." Under a statute dii'ecting that the " estate shall go to the kin next to the intestate, of the blood of the person from wliom such estate came or descended " to the intestate, it was hekl that a father is of the blood of his daughter within the Act, and the maternal grandfather of the intestate would take an estate descended to the intestate from her mother, to the exclusion of brothers and sisters of the mother (a). By section 30, on failure of heirs under the preceding- rules, the inheritance is to descend to the next of kin under the Statute of Distributions {h). Section 37, in providing that an estate shall descend to more than one as tenants in common, virtually abolishes descent in co-parcenary. Section 40 expressly excepts estates vested in trustees. The whole inconvenience of partible inheritances in making a title, would result without any benefit, if the Act had not excepted these estates. The interests of the cestuis qui irufit, however, under section 19, will descend under the Act. The provisions of sections 41, 42, 43, 44 .shew the neces- S. 3C, on fail- ure of heirs the rules un» der Stat, of Distribution govern. S. 37 annuls descent in co- parcenary. S. 40, estates vested in trustees ex- cepted from the Act. Ss. 41, i2, 4S, 44, precautioa (a) Cole V. Eattey, 2 Curtis, C. C. 5C2 ; see also as to blood relationship, Oard- iier V. Colling, 2 Peters, 58 ; Chaplin v. Baldtvin, 1 Paige, atite, p. 47C ; and as to ancestral estates, see remarks under s, 21. (h) Post, p. 495. 490 THE PRESENT LAW OF DESCENT. requisite on purchase from co-heir. New York Act. American de- cisions. Do these sec- tions apply except in ctuse of total intes- tacy ? Dci they ex- tend to grand- children ? sity of precaution and enquiry as to advancement on pur- chase from one claiming as co-heir. Tliese sections are those of the New York Revised Act (a), with this exception, that the latter does not require any writing as evidence of the advancement. The Statute of Distributions has somewhat similar provisions, as will l)e hereafter explained. Under the Statutes of Descent and of Distribution of Per- sonalty (b) in New York, the rule re(;[uired by eiiuity, and that intended by the statutes, is, that advancement made liy real estate should go first against real estate descended, and be charged on the shares of heirs, and against those who represent those shares ; while on the other hand advance- ments made in pei-sonal estate, or money, should be ac- counted for in the distribution of the personalty, and be charged on the next of kin as such, and on the shares whicli they represent (c). It would seem that these sections will not apply unless there be a total intestacy. The Act s[)eaks of the child of an intestate, and in strictness a person cannot be said to die intestate if there be a will, though part of his property be undisposed of. The decisions under the Statute of Distri- butions (d) and under the New York Act (e) go to shew that short of total intestacy these sections do not apply. The Act speaks of the child of an intestate being advanced, and Mr. Chancellor Kent does not consider it as (j[uite clear that this would extend to a grandchild, or rather as regards tlie American Acts he says that " it would have been better if the statutes had been more explicit, and not have imposed on the courts the necessity of extending by construction and equity the meaning of the word ' child,' so as to exclude a (o) See ante, p. 4f>9; as to this Act. (h) 2 Rev. Stat. N. Y., p. 97 ; see ed. by Denio and Tracey, at Osgoode Hall, vol. 2, p. 283. (c) Supreme Court, Petrii V. Dayton, 31 Barb. 519; Abbott's Digest, vol. 6, p. 6. (rf) SeeWm's. Exrs., 7th ed. , vol. 2, p. 1499, po»t p. 491. (e) 5 Paige, 450 ; Thompton v. CarmichacI, 3 Sandf. Ch. 120 ; 4 Kent Com. 11th ed. 463 ; Abbott's Digest, vol. 1, p. 35. . icement on pur- )rk Revised Act not require any The Statute of sions, as will be ributiou of Per- by ecpiity, and 3ement made Ijy descended, and ainst those wlio hand advance- /, should be ac- ^onalty, and be he shares whicli ot apply unless of the child of t be said to die lis property be atute of Distri- go to shew that apply. being advanced, fc as (juite clear ther as regards ive been better t have imposed )nstruction and s to exclude a mP- 97 ; seeed. by )reme Court, Peirii ) See Win's. Exm , a»on V. Cartnichacf, reHt, vol. 1, p. ^z. THE PRESENT LAW OF DESCENT. grr.ndchild who should come unrciisonably to claim his dis- tributive share when he had already been sufficiently set- tled by advancement " (a). It may be gathered, however, that the impression of the learned Chancellor was that the word " child " would extend to remoter lineal descendants, and he refers to authorities as in favour of that view (6) : if he did not express a positive opinion on the subject, it was probably only by reason of the language of other American Acts on the same subjcct.some of which expressly extend to descendants, some to grandchildren, and some to issue. On questions of advancement the decisions under the Sta- tute of Distributions hereafter referred to may be of service, as also those of the State of New York (o) ; but in a]'>plying them the distinction between this Act and those must be borne in mind. Thus, for instance, the Statute of Distribu- tions does not require there should be any expression by the intestate or the child in writing, and only applies to intes- tate fathers, nor is it as express in its provisions as section 44 ; the Act of New York also does not require writing as evidence of the advancement. The following remarks as to advanceiitient under the Sta- tute of Distributions, treated of in Williams on Executors {d), may be of service : — " The fifth section provides that no child of the intestate, except his heir-at-law, who shall have any estate in land by the settlement of the intestate, or who shall be advanced by the intestate in his lifetime by pecuniary portion, equal to the distributive shares of the other children, shall partici- pate with them in the surplus ; but if the estate so given to 491 DiflFerence as to advance- ment under Stat, of Dis- tributions, New York Act, and this Advancement, Stat, of DiH- tributions. (tt) 4 Kent Com.. 11th ed. 463. (6) Wj/th v. Blackma.i, 1 Ves. Sr. 196 ; Roijk V. Hamilton, 4 Ves. 4;J7 ; Dickinson v. Lee, 4 Watts, 82. But see tlie con- Htruction in wills, Raddiffe v. Buckley, 10 Ves. 195 ; Pi'ide v. Fookg, 3 De (Jr. k J. 252 ; Lord Orford v. ChnrchiU, 3 V. & B. 69 ; and see also R. S. O. c. KHi, 8. 6, and c. 125, s. 25. (t) Abbott's Digest, vol. 1, p. 35 ; Kent Com., vol. 4, ti'X ud., !<. -.S^^ff^'yim. Exrs.j'Tth ed. vol, 2, p. 141)8. tm> s «•' 2A 492 THE PRESENT LAW OF DESCENT. such child by way of advancement be not equivalent to their shares, then that such part of the surplus as will make it so shall be allotted to him or her. This just and equitable provision has been also said to be derived from the collatio bonoruvi of the Imperial law ; which it certainly resembles in some points, though it dif- fers widely in others : but it may not be amiss to observe that with regard to goods and chattels, this is part of the ancient custom of London, of the Province of York, and of the sister Kingdom of Scotland ; and with regard to the lands descending in co-parcenary, that it has always been, and still is, the common law of England, under the name of hotch-pot (a)." "The statute takes nothing away that has been given to any children, however unequal they may have been : how much soever it may exceed the remainder of the personal estate left by the intestate at his death, the child may, if he pleases, keep it all ; if he be not contented, but would have more, then he must bring into hotch-pot what he has before T'eceived. This manifestly seems to be the intention of the Act, grounded upon the most just rule of equity, equality. The provision in the statute applies only to the case of actual intestacy ; and where there is an executor, and conse- quently a complete will, though the executor may be de- clared a trustee for the next of kin, thev take as if the residue had been actually given to them : therefore, a child advanced by his father in his life, or provided for in the will, cannot be called on to bring his share into hotch-pot. If a child, who has received any advancement from his father, shall die in his father's lifetime, leaving childien, such children shall not be admitted to their father's distri- butive share, unless they bring in his advancement ; since, as his representatives, they can have no better claim than he would have had, if living. (a) Ante p. 264. THE PRESENT LAW OF DESCENT. 493 valent to their ivill make it so en also said to Imperial law; though it (lif- niss to observe is part of the York, and of regard to the always been, or the name of been given to ve been: how f the personal lild may, if he ut would have b he has before itention of tlie ity, equality, to the case of toi*, and consc- >r may be de- s if the residue 3hild advanced 16 will, cannot inent from his .^ing children, father's distri- ;ement; .since, claim than ho A child advanced in part shall bring in his advancement only among the other children ; for no benefit shall accrue from it to his widow." The right of pre-emption given by sections 45, 46, 47 and 48 to those who successively would have taken as heirs under the former law, links this statute with that of William and with the common law. A knowledge of the old law Avill continue necessary to a certain extent for this cause alone, independently of the fact that the estate of trustees will descend as before this Act (sec. 40), and that estates-tail are not within its operation (sec. 22). The Act of New York has no such provisions as in these sections, but similar provisions exist, or existed, in some States of the Union, as Vermont, Pennsylvania, Connecticut, and Maryland (a). By R. S. 0. 107 an innovation is made on the former law in enacting that where any corporeal or incorporeal heredita- ment is vested in fee simple as a bare 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 ceased to have an^- duty to perform, or as to whom there is no necessity that the legal estate should re- main 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 on trust for A. in fee, here on the death of the hus- band the trustee becomes a bare trustee. It may now be well to give a sunvnuiry of what has been Summary of explained as to the present law of descent. Assume the intes- stat. of Vic- tate to be the lyurclMser, or that the estate came on neither ""*' the paternal nor the maternal side ; the estate will descend, first, to the lineal descendants of the intestate, and those claiming under them j)e7' stirpes or per capita according to (a) See Kent'd Com. vol. 4, 11th Ed. p. 423, n. 494 THE PRESENT LAW OF DESCENT. whether the claimants are in equal or unequal degrees ot consanguinity, as before explained ; and subject to the law of hotch-pot, dower, and curtesy. Failing descendants, it "nil go to the father. If there be no father, but a mother, n .'^ brothers or sisters, or descendants of brothers or sisters; it goes to the mother for life, and the remainder to the bro- thers and sisters (including the half-blood) and descendants o; sucL ; may be dead, per stirpes or per capita according to the do^'ree. If there be no father, or brother, or sister, or descendant of such, it goes to the mother. If no father or mother ; it will go to brothers and sisters, and descendants of such, per stirpes or per capita (including the half blood). Failing descendants, 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 gift, from the father, or some relative of the blood of the father (sections 31, 21), it will still go as above, Init the maternal uncles and aunts will be 'postponed to the paternal uncles and aunts, and their descendants : should the estate have come, however, from some paternal ancestor of the intestate, it would seem that in such case and in such case only, the half-blood on the maternal side would lie entii-ely excluded (s. 35). If the estate came to the intestate on the part of the Tnother, 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 lineal descendants, if father, mother, brothers and sisters (including half-blood), or descendants of brothers or 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 THE PUESENT LAW OF DESCENT. 49» ual degrees ot ject to the law lescendants, it but a mother, lers or sisters ; ier to the bro- id descendants inta according er, or sister, or f no father or d descendants he half blood). nd sisters, and 3 and aunts on ir descendants Failing the iscendants, the ut by descent, e of the blood as above, l)ut ■poned to the lants : should ernal ancestor le and in such iide would be e part of the her, or from 3re variance : ither, mother, ' descendants take for life, !rs (including ; but if the mother were dead, the father would take in her place for life, the remainder going over as before ; and it would be only in the event of there being no mother, brothers, or sis- ters, or descendants, that the father would take absolutely- If there were a mother and father, and no brothers and sisters, or descendants, then the mother would take in pre- ference to the father. Failing father, mother, brothers, sis- ters, and descendants of brothers and sisters ; the maternal uncles and aunts and their descendants will take in prefer- ence to those on the paternal side, who only take on all others entitled as above, being exhausted ; and failing these the Statute of Distributions again governs. The above presupposes that the estate came from some relative of the blood ot the mother, and not from the mother or other maternal ancestor; for in the latter case apparently the half-blood on the paternal side would be excluded (s. 25). In any event the right of dower attaches, according as permissible before the statute, which gives the descent sub- ject to such claim. Tenancy by the curtesy also was al- lowed. The right of succession to personal estate under the Stat- Right of sue- Of ssion t( > DPI*— ute of Distributions is governed by 22 & 23 Car. II. c. 10 sonalty under explained by 29 Car. IT. c. 30, by which it is enacted that tribution?. the surplusage of intestates' estates (except femes covert, which were left as at common law) (a), 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 widow of the intestate, and the residue in equal proportions to his children, or if dead, to their representatives, that is, their lineal descendants, per stirpes 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 ■) Sea poit, p. 497, as to succeaaion to a married woman. *•; I 496 THE PRESENT LAW OF DESCENT. there are no children or legal representatives subsisting, then a moiety to the widow, and a moiety to the next of kindred 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 ahiong collaterals, far- ther than the children of the intestate's brothers and sistoix Brothers and sisters, and children of deceased brothers and sisters will take per stirpes or per capita according to tlie degrees, as they would inherit real estate as before men- tioned under section 29. The right to take by re[)resenta- tion among collaterals being confined to children of brothers and sisters, a son of a deceased uncle will not be entitled to share with an uncle living, nor a child of a deceased nephew with a living nephew, nor a grandchild of a deceased bro- ther of the intestate with a child of a deceased brother of the intestate. The 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 him- self 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 well 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 Jac. II. c. 17, if the father be dead, and any of the children die in- testate without wife or issue, in the lifetime of the mother, she and each of the remaining children and their represen- tatives, divide his effects in equal proport. >iis 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 THE PRESENT LAW OF DESCENT, 497 ^es subsisting, to the next of atives. If no If neither ibuted among presentatives ; collaterals, far- ters and sisters. d brothers and cording to the ,s before men- by representa- ren of brothers ; be entitled to ceased nephew deceased bro- wsed brother of nvestigated by i, according to the canonists, lesc2nt of real intestate him- 5 are numbered, the rule of the .1 as the father, r children who ixclusion of the so the law still tatute 1 Jac. II. children die in- of the mother, their represen- to each. When 1 of the mother, ants 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 degree. 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- <,Tandmothers share with uncles and aunts, all being in equal degree. A grandfather on the father's side and grand- mother on the mother's side share equally, dignity of blood not being material. Aunts and nieces, uncles and nephews, k'ing all in the third degree, are etjually entitled. Rela- tionship by marriage gives no title, except in case of the wife of the intestate. Relations by the half-blood take equally with those of the whole blood in the same degree. The above is now subject to an exception as regards the separate personal property of a mnrried woman, under Rev. Stat. ch. 125, by s. 25 of which, such property, on death of the man-ied woman intestate, leaving a husband and chil- dren, will go as to one-third to the husband, and the i-esidue 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 administration. It w'U have been seen, as pointed out, in considering the various sections of the Statute of Victoria, that the whole course of descent does not differ widely from the rules of .succession to personalty under the Statute of Distributions ; 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 realty. Thus, father, mother, and children of an intestate are in the same degree of consanguinity to him, viz., the first degree; but an exceptio.i to the rule that all in equal degrees share equally, exists both as to personalty 32 R. S.O.c. 125, as to separate property of inarrieu women. Comi)ari8onof descent of realty and of succession to personalty. i-J V 498 THE PRESENT LAW OF DESCENT. and realty in favour of the children, who take piiority 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 remaining person in the first 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 for life, and the remain- der to brothers and sisters, and their descendants. As to those in the second degree, viz., grandfathers, grandmothers, brothers and sisters, the same rule and the same exception to 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 personaltj' or realty will one or more brothers or si.ster.s, 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^er stirpes and some- times 2)<'r capita, pervades both sy.stenis, and applies in like case.s : there is also the same law of hotch-pot with but trilling variation. The rights as to realty of the widow or luLsband of an intestate cause no great variance, at least in principle : they take interests in the realty under the same circumstances that they would in personalty, though the value of the interest may differ. Thus, the widow by ex- press reservation of her right in the statute of Victoria, takes her doAver or one-third for life in realty ; and in per- sonalty she takes the same proportion afesoZu^e^^ if there are lineal descendants, and if none, then one-half absolutely THK PRESENT LAW OF DESCENT. 490 take priority aless in case of or, section 35); Bike per atirpe» all in equal or ,0 the common ts, the mother, degree, would !S (there being ihsolutely with their children: same principle, nd the remain- ndants. As to , grandmothers, same exception n equal degrees, ity. So again, r more brothers e children of a consanguinity: 3r blood (unless, ■al estate) : and tirpes and some- 1 applies in like h-pot with but )f the widow or ance, at least in under the same ,lty, though the le widow by ex- ute of Victoria, Ity ; and in per- utely if there are -half absolutely So the husband might take under similar reservation as ten- ant 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 absolutely, 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, when the inheritance is derived by the intestate from a relative, gives preference in certain instances to the blood of such relative, as may be exemplified by its excluding the half-blood (if the estate have been derived from an ancettor), and postponing the uncles and aunts (if derived from a relative), on the side on which the inherit- ance 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 : 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 under s. 26 ; whilst as to personalty, they are only postponed to those in the same degi'ee, 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 de- Hcendants of collaterals, as of 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 gives a life estate in the whole and remainder over, whilst the Statute of Distributions in like circumstances give only a proportion or share of the whole, but absolutely : the prin- ciple still is the same : the same parties take, and are per- haps equally benefited, though in a different mode, for the Variance, sometimeB a /i/e-estate iu the whole giv- en as to realty, when in simi- lar circum- stances as to personalty, a share is given absolutely. 500 ERtaLCH tail. THE PRESENT LAW OF DKSCKNT. aliHoluto riglit to a propoition may bo worth neither iiioiv nor leas than a life estate in the whole. The Statute of Distribution, dealing much with personalty qui ipso nsn conaumitur, could give no life-estate, such a doalint conditionalihus, and as descent has to be traced to the first purchaser, or donee in tail, the common law maxim se'mna fiicit stipitem does not apply (c), noi- consequently is there any exclusion of the half-blood, for the issue in tail are al- ways of the whole blood of the donee (d). Other common law rules still govern, and therefore primogeniture, and the preference of males to females still prevail in the case of an (a) See Wms. Pers. Prop, as to the rights and remedies in equity of one entitled in remainder after a life interest given in chattels which ipso 'Uit non eongumuntur. (b) 2 Black. Com. 516. (c) 3 Rep. 41. (d) 8 T. B. 21.3. to ;t. THK PRESENT LAW OF DES('ENT. 501 th neither iiioiv Tlu) Statuk' of y qui ipso iisn a (k'alin;H- with re, and thi' laws ficulties present ty : and such n hare abso^'itdy, re entii Thi' •s ; it g. , uie tatute of Jarnos •eing no widow) moiety ^oin;,' to of the present n.s, it remains to realty reverted md regulations, ,iled as an estali- l King Canutfv" e as to the 8 tat- by the Statutes ar character, for statute de donk •aced to tlie first r maxim semno, quently is there ue in tail are al- Other common eniture, and the n the case of an Jies in equity of one ftttelB which ipso im id) 8 T. F. 213. e>tate tail j,'eneral, as to a man and the heirs of tliehody. When, however, the limitation is to n nian ami the Jieii-H • male or heirs female of liis body, the descent can otdy bo traced to and through heirs male in the Hrst case, and heirs tiiiiale in the other ; so that on a gift in tail male, if tlie ildiiee die leaving two sons, and tlie elder enter and die having a daughter, the second son, or the heirs male of his htidy, will next take. The i)rincii)les of tlie feudal system governed the com- f "iiiparimni *! nn'U law rules of descent. It was from the person last ouh Knules of actually seised, and so ready and present at the call of his hjrd to render the feudal services, and not from the per- Feudal Sys- •son last entitled merely, as under the Act of William, that *"'"'■ (lesfrnt was to be traced. Again, the lineal ancestor never tOdk ; a nde founded probably on the feudal principles that the ancestor would be unfit for the military service, on the condition of which the estate was granted ; it was only by a fiction of law tliat collateral ancestors were allowed to take. So also the strict feudal rule, which re(piired the collateral iieii' to be of whole blood of the purchasei-, excluded entirely the collateral kinsman of tlie half-blood as heir to the per- .son last .seised. Again, attainder so far corrupted the blood, that descent could not be traced from or through the person attainted : nor was this, perhaps, mmecessarily harsh, in the troubled times of the middle ages, when fealty and allegi- ance were all-important. In course of time, however, the necessity of many of the . ulc^; founded on the feudal sys- tem had ceased to exist ; and such rules were not only un- necessarily harsh and unjust, but unsuited to modem times ; hence the changes effected by the Statute of William. The implied condition, dum bene se geaserit, on grant to the vas- Changes by «al, had no longer the importance it had in feudal times ; liam in feudal and so the 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 502 Changes by Act of Victo- ria. THE PRESENT LAW OF DESCENT, just rule was introduced, of not excluding as the stock of descent, the person last entitled, merely because he did not acquire actual seisin ; and the mere fact of his being the person last entitled, was sufficient to enable descent. to be traced from him as stirpn, unless indeed he inheritctl. Mili- tary service had ceased to exist as the condition of tenure of an estate, and with it consequently wais abolished the rule excluding the lineal ancestor. So again, on principles of na- tural justice and equity, the half-blood were not excluded, and the land not escheated rather than the half-blood should take, as not being of the blood of the purchaser, but such half-blood were favourably admitted'/to the inheritance. While changes, however, were effected by the Statute of William, it will be seen that they were by no means so radi- cal 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 represen- tation by lineal descendants ad ivfinitum of their ancestor, or descent 2'>er stirpes ; and the preference, to a certain extent, given to the blood of the first purchaser, since, for instance, if the person last entitled inherited, though from his mother (the purchaser), the heir would be soughi for on 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 Vic- toria, from the 1st Januaiy, 1852, an entiiely different sys- tem 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 ; primogen- iture is abolished ; females take equally with males in the same degree ; descent per ca^^ifa prevails in the place of do- NT. as the stock of cause he did not cf his being the lie descent, to be inherited. Mili- ition of tenure of bolished the rule principles of na- re not excluded, lalf-blood should rchaser, but such inheritance. >y the Statute of no means so radi- >ria : in fact most Thus, the law of e pi'eference also y ; the represen- of their ancestor, a certain extent, nee, for instance, 1 from his mother for on failure of preference to the i Statute of Vic- ily different sys- >ed on the civil, the latter ceases iference given to i half-blood, and heir descent, are ittels ; primogen- vith males in the n the place of de- THE PRESENT LAW OF DESCENT. scent per stirpes ; the half-blood are admitted equally with the whole blood in the same degree (unless in case of an an- cestral estate, and the half-blood not being of the blood of the ancestor) ; and, as though the more fully to sweep away the former law, the Statute of Distributions is to govern in cases not sjjecifically provided for. The existence of each particular system during the three epochs into which the subject has been divided, may be referred to the require- ments of the country and of the age in which such system existed or exists, though perhaps in that respect both the Statutes of William and Victoria might have been passed at earlier periods. .503 .g, 5 ed. p. 131. (b) 1 CHAPTER XXIIL CONVEl'ANCES BY TENANTS IN TAIL, UNDER REVISED STATUTES OF ONTARIO, C. 100. •••; Necessity for ' CONVEYANCES by tenants in tail, whereby the estate tail, K)"mermode^ and all estates to take effect after, or in defeasance of the of bar or re- game, are barred, are governed now solely by R. S. O. c. 100. covery, nne, or ' > » j j warranty. Before considering this statute, however, it will be advisable to give the student an insight into the former mode of bar by levying a fine, or the suffering a recovery, or by warranty ; not so much because these modes ever prevailed to any ex- tent in this Province (in fact thei'e arc but one or two records of fines at Osgoode Hall), as for the reasons that the former modes elucidate the present mode of bar, and the re- ports and text books constantly allude to warranties, fines and recoveries, as methods of conveying not only estates tail, but also many other estates and interests, of the nature and effect of which, thei'efore, the student should not allow himself to be ignorant. As a warrant for this course, more- over, there is the sanction of a very learned writer, who, possessing a knowledge of the law of real property equalled by few in his time, is as pre-eminent as Sir W. Blackstonc himself for the elegance of style, and the originality of ex- pression, with which he has contrived to impart that know- ledge, and " place a polish on the rugged science of law." In reference to the English disentailing Act he says: "This statute consults the old law, and it is not possible to appre- ciate or expound its provisions without some knowledge of the law of settlement, and an acquaintance, more intimate, with those assurance uiales tuiVc statute has superseded ; with their vario- .cent per cajnta pre operation, their learn- i:R REVISED the estate tail, 'easance of the R. S. O. c. 100. ill be advisable er mode of bar i" by warranty ; led to any ex- it one or two easons that the )ar, and the re- i^arranties, fines )t only estates !, of the nature ould not allow s course, more- l writer, who, perty equalled W. Blackstone finality of ex- irt that know- ce of law." In says: "This sible to appre- knowledge of nore intimate, s superseded ; n, their learn- CONVEYANCES BT TENANTS IN TAIL ing, and their language (a)." We have, however, veiy much abridged the text of the learned commentator, as also the remarks made in the first edition of this work.' ' The principles of the law relating to warranties were never clear (6); and as by 9 Vic. c. 11, and E. S. O. c. 100, s. 2, all warranties by tenants in tail are abolished, and the statute 4 Wm. IV. c. 1 (R S, 0. s. Gl) deprived a warranty of the power to defeat a right of entry or action, and by s. 78 deprived also the party wishing to avail himself of the benefit of the wan'anty, of the writs requisite so to do, we shall enter but shortly into this matter.' By the feodal constitution, if the vassal's title to enjoy the feud was disputed, he might vouch or call the lord or donor to warrant or insure his gift, which if he failed to do, and the vassal was evicted, the lord was bound to give him another feud of equal value in recompense. And so, by our ancient law, if, before the statute of quia emptores, a man entoffed another in fee, by the feodal verb dedi, to hold of himself and his heirs by certain services, the law annexed a warranty to this grant, which bound the feoffor and his heirs, to whom the services (which were the consideration and equivalent for the gift) were originally stipulated to be rendered. ' It was on these principles that the word " grant" in a conveyance in fee was supposed to imply a covenant for title ; but all doubt on that point is removed by R. S. O. c. 98, s. 6, which enacts that neither the word " grant " nor "exchange" shall create any warranty, or right of re-entry, or covenant by implication, unless where so enacted by statute. The Provincial Act leaves to the word " give" its former effect ; whilst the Imperial statute 8 &; 9 Vic. c. 106, to much the same effect as the Provincial statute extends to such word as well as to " grant" and " exchange.^ ' And so even at this daj^ on a gift in tail or lease for life rendering 505 Warranties, how abolished. Implied war- ranty at com- mon law. By R. S. O. c. 98, a grant or exchange creates no war- ranty or right of re-entry. (o) Hayes on Conveyancing, 5 ed. p. 131. (b) 1 Wils. 73 per Willes, C. J. ExprcHS warranties. Fines. 506 CONVEY"AN'CES BY TENANTS IN TAIL. rent, the donor or lessor (to whom the rent is payable), are Word fie Wise bound to Warrant the title (a). 'The word "demise" in a implien a cov'e- . • ^• -i • nant for quiet lease implies a covenant during continuance of the lessor s title for quiet enjoyment against all the world, unless such covenant by implication be taken away by an express cove- nant as to the enjoyment (b). ' As stated by Blackstone, (c) a tenant in tail in possession might ' without the forms of a fine or recovery, in some cases make a good conveyance in fee simple by superadding a wanunty to his grant, which barred his own issue, and such of his heirs as were in remainder or reversion. A Jine was one of those methods of transferring estates of freehold by the common law, in which livery of seisin 'was' not necessary to bo actually given ; the supposition and acknowledgment thereof in a court of record, however fic- titious, inducing an equal notoriety. But, more particularly, a fine may be described to ' have been' an amicable compo- sition or agreement of a suit, either actual or fictitious, by leave of the king or his justices ; whereby the lands in ques- tion became, or 'were' acknowledged to be, the right of one of the parties. In its original, it was founded on an actual suit, commenced at law for recovery of the possession of land or other hereditaments ; and the possession thus gained by such composition was found to be so sure and effectual, that fictitious actions were every day commenced, for the sake of obtaining the same security. A fine is so called because it puts an end, not only to the suit thus commenced, but also to all other suits and contro- versies concerning the same matter. (o) Davidson Concise Prec. 26. (ft) Ante, p. 367. (c) Vol. 2, pp. 302, 303, and as published in the first edition p. 327 of this work. See further as to warranties, 372 A. by Butler, n. 2 by Hovenden. ( ) Express warranties in a deed were, to the effect that the conveying party would, for himself, and his heirs forever, warrant the lands to the grantee and his heirs ; such forms were used occasionally in old deeds of convey(.nce in thiH Province. IL. r)ayable), are ' demise" in a of the lessor's d, unless such express cove- 1 in possession in some cases niperadding a ssue, and such ring estates of of seisin 'was' pposition and 1, however fic- e particularly, ticable compo- f fictitious, by lands in ques- le right of one i on an actual session of land hus gained by effectual, that or the sake of 3t only to the is and contro- ion p. 327 of this y Hovenden. } conveying party o the grantee and onveyi.nce in thi« CONVEYANCES BY TENANTS IN TAIL. 507 The mode of levying a fine was as follows : 1. The party Mode of levy- to whom the land was to be conveyed commenced an action at law against the other, generally by a writ of covenant real, the foundation of which was a supposed agreement or covenant that the one shoidd convey the lands to the other on breach of which agi*eement the action was brought. ' This is one of the writs expressly named and abolished by 4 \Vm. IV., c. 1,R. S. O., c. 51, together with other real and mixed actions.' 2. Then follows the leave to agree the suit, " licentia con- cordandi," for the defendant knowing himself to be wrong was supposed to ma.ke overtures to the plaintifi^", who accepts them. 3. Next comes the concord, or agreement itself; which 'was' usually an acknowledgment from the deforciants (or those who keep the other out of possession,) that the lands in question 'were' the right of the complainant. And from this acknowledgment, or recognition of right, the party levy- ing the fine is called the cognizor, and he to whom it is levied the cognizee. This acknowledgment must 'have been' made either openly in Court, or before certain judges or commissioners bound by statute to take care that the eognizors be of full age, sound memory, and out of prison. If there 'were' any feme-covert among the eognizors, she 'was' privately examined whether she 'did' it willingly and freely, or by compulsion of her husband. ' Our statutes authorizing conveyances by married women enjoined till lately similar examination, not now required.' By several statutes still more solemnities 'were' super- Prociamati«». added, in order to render the fine more universally public, and less liable to bf^evied by fraud or covin ; ' among other things all proceedings were directed to be enrolled of record, and read, and proclamation thereof made in open court during the four succeeding terms.' We are next to consider the force and efect of a fine. The Force and eiTect of a fine.^ i:1i 508 CONVEYANCES BY TENANTS IN TAIL. common law is very forcibly declared by the Statute 18 Edw. I. in these words. " Andthe reason, why such solem- nity is required in the passirg of a fine, is this : because the fine is so high a bar, and of so great force, and of a nature so powerful in itself, that it precludes not only those which are parties and privies to the fine, and their heirs, but all other persons in the world, ' termed in law strangers ' whu are of full age, out of prison, of sound memory, and within the four seas, the day of the fine levied ; unless they put in their claim." ' The claims had to be made and prosecuted within certain specified periods with allowances for dis- abilities, and as to those in remainder or reversion within five years from their becoming entitled to possession.' The parties But in order to make a fine of any avail at all, it 'was' finJmust have necessary that the parties should have some interest or es- tate o*f")vcf- ^^te of ' freehold (a) by right or by wrong ' in the lands to be attected by it ; else it were possible that two strangers, by a mere confederacy, might, without any risk, defraud the owners by levying fines of their lands ; for if the attempt 'were' disco vei*ed they 'could' be no sufferers, but only remain in statu quo : whereas, if a tenant for life levied a fine, it was ' an absol ute forfeiture of his estate to the remainder- man or reversioner, if claimed in proper time. And thus much for the conveyance or assurance by fine ; which not only ' bound ' the grantor himself, and his heirs ; but also all mankind, whether concerned in the transfer or no, if they failed to put in their claims within the time allotted by law. ■Common recoveries. Their nature. IV. ' Another * species of assurance by matter of record ' was ' a common recovery. I am now to consider, first, the nature of a common recovery, and, secondly, its force and effect. 1. And, first, the nature of it. A common rec very is so (a) Davits v. Lmmdes, 5 B. N. C. 172. IL. He Statute 18 y such soleni- : because the ud of a nature y those which i- heirs, but all travelers ' wliu y, and within ss they put in md prosecuted ances for dis- v^ersion within isession.' at all, it ' was ' interest or es- in the lands to '^o strangers, by k, defraud the if the attempt )ut only remain levied a fine, it the remainder- le. And thus ne ; which not rs ; but also all sfer or no, if 3 time allotted itter of record sider, first, the , its force and rec very is so ■^(Mt i^' Z<^^^t- *f-1 7 CONVEYANCES BY TENANTS IN TAIL. 60^ far like a fine, that it ' was ' a suit or action, either actual or fictitious and amicable; and in it the lands ' were ' recovered against the tenant of the freehold ; which recovery, being a supposed adjudication of the right, ' bound ' all persons, and ' vested ' a free and absolute fee-simple in the recovcror, A recovery, therefore ' was ' in the nature of an action at law, not immediately compromised like a fine, but carried on through every regular stage of proceeding. Let us, in the first place, suppose Edwards to be tenant in tail in possession, and desirous to suffer a common recovery, in order to bar all entails, remainders, and reversions, and to convey the same in fee-simple to Golding. To effect this, Gelding is to bring an action against him for the lands ; and he accordingly sues out a writ, called eLprcGcipe quod reddaL In this writ the demandant Golding alleges he has title, and that the defendant Edwards (here called the tenant to the pnecipe) has no title : whereupon the tenant appears, and calls upon one Morland, who is supposed, at the original purchase, to have warranted the title to the tenant ; and thereupon he prays that Morland may be called in to defend the title which he so warranted. This is called the voucher, vocdtio, or calling of Morland to warranty ; and Morland is called a vouchee. Upon this, Morland, the vouchee, appears, is impleaded, and defends the title, ' and afterwards aban- dons the defence.' Whereupon judgment is given for the .^ ^..^ ^<^^<:v A' demandant, Golding, now called the recoveror, to recover the ^^ / „ .' vr/-*' > lands in question against the tenant, Edwards, who is now the recoveree : and Edwards has judgment to recover of Morland lands of equal value, ' to descend to the issue in tail on the former title,' in recompense for the lands so warranted by him, and now lost by his default ; which is agreeable to the doctrine of warranty mentioned before. This is called the I'ecompense, or recovery in value. But Morland having no lands of his own, being usually the cryer of the court (who, from being frequently thus vouched, is called the com- I , ■ f^i^u,^^ i^-yi-^-t-^-^. , a .| /^ i .v^ ^ M^^ 510 it'"' CONVEYANCES BY TENANTS IN TAIL. ,l-*' ^■^^'^''"''"'%i-'"^*C* Wk))^ witc^ee), it is plain that Edwards has only a nominal «. tt*^' "\ X"**^ recompense for the lands so recovered against him by Gold- .^ «\ >" ->*' ^♦. ' ing; which lands are now absolutely vested in the said re- *^^'* vV ^\^ coveror by judgment of law, and seisin thereof is delivered ^\J^\^ I- \r*^ Ji/M^ by the sheriff of the county. So that this collusive recovery ^ »-'*■' .v^^^!x^>^|', operates merely in the nature of a conveyance in fee-simple, f^'^ ^' i^^ Double voucher. ~^.«>r (/: .v*^ f'., .rll \ Qjy- y ' from Edwards, the tenant in tail, to Golding, the purchaser. The recovery here described is with a single voucher only ; but sometimes it is with double, treble, or farther vouchers, >'^ ' A V- y rt *^ ^^® exigency of the case may rei^uire. And indeed it Q^V^. .. j^^. «/ j jt ' was ' usual always to have a recovery with double voucher * .^AT ^j^ 'i t at the least: ' the tenant in tail first ' conveying an estate of freehold to any indifferent person, against whom the praecipe was brought, ' who was a mere friendly nominee of the tenant in tail, and was ' termed tenant to the prceclpe, or, to the writ of entry (See Rev. Stat. 100, ss. 17, IS, 19) ; and then he vouched the tenant in tail, who vouched over the common vouchee. For if the recovery be had against the tenant in talF, it bars only such estate in the premises of which he is then actually seised; whereas if the re- covery be had against another person, and the tenant in tail be vouched, it bara every latent right and interest which he may have in the lands recovered. If Doe, there- fore, be made tenant of the freehold in possession, and Ed- wardsbe tenant in tail in remainder, here Doe doth firstvouch Edwards and then Edwards vouches Morland, the common vouchee, who is always the last person vouched, and always makes default : whereby the demandant Golditig, recovers the land against the tenant Doe, and Doe recovers a recom- pense of equal value against Edwards, the first vouchee, who recovers the like against Morland the common vouchee, against whom such ideal recovery in value is always ulti- mately awarded. ' If a tenancy for life, not being at a rent, or other freehold estate in possession preceded the estate tail, then, as the action had always to be brought against IL. CONVEYANCES BY TENANTS IN TAIL. 511 mly a nominal him by Gold- in the said re- of is delivered usive recovery 3 in fee-simple, the purchaser, vouclier only ; ther vouchers, And indeed it double voucher jying an estate ist whom the ily nominee of tlie 'prceclpe, or, 7, IS, 19) ; and ached over the |ad against the the premises •eas if the re- the tenant in ; and interest If Doe, there- ission. and Ed- loth firstvouch d, the common 3d, and always Iding, recovers avers a rocom- t vouchee, who mon vouchee, is always ulti- eing at a rent, led the estate ought against the first actual tenant of the freeliold, the tenant in tail could not without his aid and assent, and his lending him- self to the fictitious proceedings suffer a recovery. Often this aid was refused. The tenant of the first estate of free- hold thus was protector of the ultimate reversion and re- mainders, if any. The protectorship of a settlement under Protectorship the Statute is on the analogy of the protectorship as above. *° '*^"'«™*'**- If, however, the first actual tenant of the freehold was a kssee for life at a rent, then by 14 Geo. II c. 20, those en- titled to the next freehold estate in remainder or reversion might make a good tenant to the pnccipe or writ of entry as defendant. And this again is recognised by section 14 of the disentailing Act, under which lessees for life are ex- cluded from protectorship of the settlement, and by s. 16, the person next entitled to be protector becomes protector.' The supposed recompense in value is a reason why the Supposed re- issue in tail is held to be barred by a common recovery ; for, issue in tail, if the recoveree should obtain a recompense in lands from the common vouchee (which there is a possibility in con- templation of law, though a very improbable one, of his doing), these lands would supply the place of those so re- covered from him by collusion, and would descend to the issue in tail, ' and would be assets ; on which principle a warranty was a bar.' This reason will also hold with equal tVirce, as to most remainder men and reversioners ; to whom the possibility will remain and revert, as a full recompense from the reality, which they were otherwise entitled to: but it will not alwaijH hold ; and therefore, as Pigott says, the Judges have been even astutl in inventing other reasons to maintain the authority of recoveries. 2. The force and effect of common recoveries may appear. Force ami ef- from what has been said, to be an absolute bar not only to covery. all estates tail, but of remainders and reversions expectant on the determination of such estates. So that a tenant in tail ' might ' by this method of assurance, convey the lands 512 «•! Deeds to lead or declare the u»e8. Change eflfect- ed l)y Vie. c. 11 : between the time of passing where- of, and of 4 Wm. IV. c.l, there was no power to bar any entail. CONVEYANCES BY TENANTS IN TAIL. held in tail to the recoveror, absohitely free and dischaigcj of all conditions and limitations m tail, and of all remain- ders and reversions. But by statute 34 and 35 Hen. V'llI c. 20, no recovery had against tenant in tail, £ii the khi<,''s gift, whereof the remainder or reversion is in the king, sliall bar such estate tail, or the remainder or reversion of the Crown. And by the statute 11 Hen. VII. c. 20, no wuiaan after her husband's death, shall suffer a recovery of lands settled on her by her husband, or settled on her husband and her by any of his ancestors : ' provisions still recognised by sections 4, 5 and G, of our disentailing Act.' Ami by a statute of Elizabeth, no tenant for life, of any sort, can suffer a recovery, so as to bind them in remainder or rever- sion, (a). ' Deeds often declared the uses or parties to be benefited by the fine or recovery as the circumstances might require in case the cognizee or recoveror desired limitations other than simply to himself to his own use. If made previously to the fine or recovery, they were called deeds to lead the uses ; if subsequently, deeds to declare them ; as for in- .stance to the use of the recoveror for life, then to A in fee.' ' Notwithstanding that Blackstone and others lamented the state of the law, it was not till the statute 3 & 4 Wm. IV. c. 74, that a change was effected in England, nor here till the statute 9 Vic. c. 11. In fact it would seem that there wati a time in this Province during which, so far as regards the absence of all power to unfetter an estate-tail, and bar the reversioner or remaindermen, we had retrograded to the period between the passing of the statute de donia and the decision in Taltavtim's case (b). Doubts have been expressed (o) 14 Eliz. c. 8. (h) That this was as above stated, appears from this, that as explained (p 504) the virtue of a warranty was taken away by 4 William IV., ch. 1, Rev. Stat. c. 103, 8. 10, and c. 51, s. 75, and the power to levy a fine or suffer a re- covery, which could only be in a real action, was taken nway by 4 Wm. IV. c. 1, Rev. Stat. c. 51, s. 75, abolishing all real and mixed actions excepting dower VI L, and dischaiged of all remain- 35 Hen. VIII 1, £ii the km it's the king, sliall version of the 20, no woman iovery of lands n her luisbaml still recognised .ct.' And by a any sort, can binder or rever- to be benefited might requiio initations other lade previously eds to lead the sm ; as for iii- en to A in fee.' rs lamented the & 4 Wm. IV. c. or here till the that there was as regards the il, and bar the 'graded to the donis and the been expressed aa explained (p •')04) ch. 1, Rev. Stat, c, ne or suffer a re- ky by 4 Wm. IV. c. )nB excepting dower CONVEYANCES BY TENANTS IN TAIL. 518 as to whether fines, recoveries, or warranties, ever were in FinoHandre- CDVt'nt'H ever force in this Province ; it is thouglit, however, the writs and >« force here? proceedings requisite to their validity were so introduced with the English law, with other writs, as for instance the writs in dower; in fact certain of them were expressly named and abolished by the Provincial Statute 4 Wm. IV. c. 1 ; and the statute 9 Vic. c. 11, Rev. Stat. c. 100, consti- tutes as protector in certain cases " the person who before the 4th Wm. IV. would have been the proper person to have made the tenant to the writ of entry or other writ for suf- fering a recovery." Warranty clauses were not uncommon in Canada in old deeds and lately the record of a fine was found at Osgoode Hall, in a case in which the title actuallv depended on the sufficiency of the fine. If these proceedings were never more general here, it was, it is imagined, because and ejectment. Thus the proceedings requisite to adopt, according to the circum- stances {post p. 520) to transfer an indefeasible estate in fee simple were taken away, and it was not till the Stat. 9 Vic. c. 11, that the power so to transfer again existed. This was by reason of the Provincial following the Imperial Legislature partially only, and without sufficient consideration ; the Imperial Legislature by 3 & 4 William IV. c. 27, s. 36 abolished real actions, and by s. 39 warranties, but, considering the effect of so doing, in the same session they passed the Disentailing Act ; our Legislature by 4 William IV, c. 1, adopted the Imperial Act 3 & 4 Wm. IV, but not considering its full effect, omitted to pass a Disentailing Act. A further instance was given of a ditFiculty that may arise from a similar cause in regard to Con. Stat. c. 91. There can be little doubt that fines and recoveries were thus abolished by the Stat, of Wm. ; they could only be had in actual suits, for the Stat, of Fines 18 Ed. I, s. 4 provides ex- pressly as to a fine that it shall not be had without an original \vrit issued, and if a recovery were suffered without an original writ it was voidable (Cruise Dig. vol. 5, ed. 4, p. 273). These actions were real actions ; the writ which issued in the suit wherein a recovery was had was usually the writ of entry in the nature of an aisise aur dmeisin in tfie post. Booth R. 1, Actions, 176 (Cruise Digest mpra), and as before mentioned (ante p. 507) that whereon a fine was usually levied was the writ of covenant real, both which writs are expressly named in the Act, and abolished with all other real and mixed actions except dower and ejectment. The Legislature on passing the Disentailing Act would appear to have considered that fines and recoveries were thus abolished, see Rev. Stat. 8.8. 17, 18, 19 ; they did not abolish them by that Act, though they did refer to the effect of a warranty by tenant in tail andfdeclared it void, s. 2 ; in fact if these actions wersnot virtually abolished by the Stat, of Wm., it is difBcnilt to say how they are abolished at all. See also Hayes Con. p. 138, as to th^ effect of abolishing real actions. %3 a* .5 514 S. 1 : Interpie tation. S. 3 giTM )K>wiir to bar entail. CONVEVi^wCES 3Y TENANTS IN TAIL. there was little acoessity for their application ; for so far tm regards estates-tail, there wore but few created ; and as re- gards conveyances by married wouien of the lands of which they wore teised, and their contingent right to dower, which in England were affected by fine, our legislature in early times provided different modes of assurance : still it should be remarked that the 43rd Geo. III. c. 5, enabling married women to convey their real estate, recites that no express provision was then made for levying tines in this Province' ' The statute 9 Vic. c. 11, R. S. 0. c. 100, which is taken from the Imp. Stat. 8 & 4 Wm. IV. c. 74, is now to bo con- sidered (a). Sec. 1 interprets the various words and expressions used in the Act. Sec. 3, it will bfc observed, gives to actual tenants in tail (ir» which term is included by s. 1, tenants whose estates arc divested and turned to a right) greater power than they theretofore possessed ; for a tenant in tail in contingency, or one whose estate by some previous act, as by feoffment of his ancestor or discontinuance (fc), was dives^^ed, lougi. barred, could not have suffered a recov is not oiil^' the issue in tail who can be barrod, anc estates to ta effect after the determination of the estui inclu 'nglhus, remainders and reversions, but also all estates to -ike effect in defeazance of the estate tail ; and therefore an executory or shifting limitation over, after an estate tail, to take effect in defeazance thereof, and not await its regular determina- tion by failure of issue, can be barred : thus, if land be lira* ited by way of use, or of devise, to A. in tail, but if B. should return from Rome to B. in fee, the conveyance of A. under the statute will defeat the executory interest or estate ; and this was so before the statute on a recovery suffered by A. (c). The saving clause, and subsequent excepting clauses, (a) See the Statute in the Appendix. 193 ; Hayes' Convg. 135. (6) Ante, p. 418. (c) Sug. Stat. AIL. n ; for so far tm ted ; and as re- lands of which :o dower, which slature in oarly still it should cabling married that no express 1 this Province' which is taken I now to bo con- jxpressions used kl tenants in tail v^hose estates are ower than they I contingency, or by feoffment of ^♦■ed, loagii . J.S not oiii^" estates to ta , inchi' nglhus, tes to ike effect are an executory ail, to take efl'ect gular determina- s, if land be lira- , but if B. should ance of A. under st or estate ; and y suffered by A, xcepting clauses, .8. (c) Sug. SUt. CONVEYANCES BY TENANTS IN TAIL. 515 will be presently considered. The bar to the issue in tail and those in remainder or roveniion.by the Statute of Limita- tions, has been considered in treating of that statute. The mode of conveyance re(iuires careful attention, for, as presently shown, defects are incurable l)y the aid at least of a court of equity.' ' Sec. 29 requires that every di.sposition shall Ixj by ite, i>. n06 (c) Hayes' Convg. 135, 18(1, AIL. ion, express or .ate created and there be merely without a term ame, then, such ;ase, or estate in isfying the pur- ilting beneficial (ay who had by fine mainder-man or e coukl not do id had thereby stained, and the >f defeating the be vouched in a ) enlargement of erior estates {c) ; , his consent will id the remainder lot merge, but be ictrine of mercjer p. 250) : we will that doctrine as B same person in greater, and the I hold thereafter liarges or incuni- nerger, and can- merged and has cumbrances. Ir. t of the statute, 8'Convg. 135, 18(1. CONVEYANCES BY TENANTS IN TAIL. let US first take a case before the statute. Suppose A. to have been tenant in tail with reversion in fee to B., and that B. should have incumbered his reversion to more than the value perhaps, of the fee-simple in possession of the pro- perty, and that afterwards A. should acquire such reversion so incumbered from B.; this acquisition would not prejudice A.'s estate in tail or his issue ; for, as presently explained, no merger of that estate occurs under the ordinary rule, by reason of an exception thereto applicable in the case of an estate tail being owned by the same person who should own the remainder or reversion in fee ; and consequently A. or his issue might enjoy the entail as long as issue continued, free from the incumbrances. But, if at any time A., or any of his issue, tenants in tail, instead of suffering a recovery, which would have been the proper course as conveying a new fee-siinple, created a base fee by fine to his own use in fee^ then, in case the party so creating such base fee was then entitled to such incumbered reversion, a merger would take place ; the former tenant in tail would hold only under the reversion in fee, and as such subject to the incum- brances ; for the exception preventing a merger of an estate tail did not extend to prevent a merger of a base fee. An estate tail did not merge in the reversion in fee in conse- quence of the statute de donis; as, if otherwise, it would have been in the power of the tent^nt by acquiring the fee to merge the estate tail, and thus bar the issue ; but the same reasons did not apply to prevent a base fee from merging, there being no issue in tail to be protected, the base fee going to heirs general. One object of this section was to prevent the disastrous consequences of a merger under the above and other circumstances ; another object, was to prt- vent like consequences in cases where after the statute a base fee only should be created by some disposition to be made under it, and the person entitled to the base fee should 519 520 -CONVEYANCES BY TENANTS IN TAIL. be entitled to or subsequently acquire the remainder or re- version in fee (a).' Estate in strict ' Before considering the office of the protector, it is necos- aettlement, n • how formerly sary to Call attention to the nature of an estate in strld serred and Settlement, as also to the modes in which it was formerly and is now preserved and defeated. Limitations on a strict .set- tlement were before explained {h) ; we will therefore here merely state that the great object to be attained has always been to preserve the property inalienable for as long a period as possible in the hands of the particular family or class of persons in whose favour the limitations are made ; in short, to revert, as far as possiolc, to the state of the law imme- diately after the passing the statute de donis. The mode adopted has long been thus : assuming A., unmarried, to be the person in whose family the property is to be preserved, it will be limited to him for life, with remainders to his first and other sons unborn successively in tail, with, remainder over in fee, and trustees are interposed to preserve the con- tingent remainders to the sons. The limitations of course will vary according to the circumstances of each case, as whether A had at the time of the settlement sons living, for if so, they will not be made to t.ake in tail, but for life, with remainder to their issue in tail. The above simple case, however, will serve our purpose ; and it will be seen, with reference to what has been before mentioned as to the mode of bar by warranty, fine, or recovery, that, prior to the sta- tute, till one of the issue next entitled in tail should have attained the age of twenty-one, no complete bar could have taken place ; for the tenant for life could not by war- ranty, or tine, or recovery, bar those in remainder or reversion ; at least a fine was no absolute bar, excej)t by non-claim ; the tenant in tail, in possession, or in re- mainder, could not by warranty bar his issue or the rever- (a) Hayes Conveyancing, 187. (b) Ante p. 244, «. 171. AIL. einainder or re- ofor, it is necos- estate in drid as formerly and on a strict set- tlierefore here ncd has always as long a period nily or class of nade ; in short, the law imnie- lis. The mode nmarried, to be ;o be preservcnl, ders to his first kvitb. remainder eserve the con- itions of coui'sc f each case, as sons living, for ut for life, witli re simple case, 1 be seen, with as to the mode trior to the sta- lil should have bar could have not by war- remainder or e bar, excej)t sion, or in re- le or the rever- CONVEYANCES BY TENANTS IN TAIL. 521 sioner, nor, if in remainder, before his estate came into pos- session bar remaindermen ; the fine of tenant in tail in possession, though it would bar his own issue, did not necessarily bar the subsequent remainders except in case of non claim, and the fine of tenant in tail in remainder did not bar them even by non claim (a). In short, the only mode by which an indefeasible fee-simple could be created was by a recovery ; and to effect this it was requisite that the tenant for life and tenant in tail of full age next in re- mainder should concur. For the recovery suffered by tenant for life alone was void (p. 512), and no recovery could be suffered by tenant in tail alone, as the tenant for life was tlie party seised of the freehold, and it was against him tlierefore only that the necessary proceedings could be had, and he again was required to vouch the remainderman in tail on a supposed warranty : the tenant for life, there- fore, protected the entail, and by withholding his con- currence prevented its alienation. A protectorship is still The office <>f preserved by the statute in analogy to the above. It will be the analogy of observed, also, that on the death of the tenant for life, when the prsecipe the remainder in tail became an estate tail in possession, the ""^^.f' **' " tenant in tail could make a tenant to the praecipe, and, by being vouched in a recovery, convey a fee-simple. To obviate this power of destroying the entail, the usual mode was for the father (the tenant for life), when his eldest son arrived at full age, to join him in a recovery and re-settle the property, giving the father an estate for life with remainders for life to the eldest son, and in tail to the issue of such eldest son a further remainder to the second son for life, remainder in tail to his issue, and so on with each son in esse and his issue. By these means the power of defeating the entail was postponed for one generation beyond the former settle- ment ; for under that, the eldest son, whilst tenant in re- ). 244, 1. 171. (o) Hayes' Convg. 139. 622 CONVEYANCES BY TENANTS IN TAIL. mainder, could have by fine bound his own issue, and when his remainder eame into possession, by a recovery have barred his issue and all remainders ; but under the re-set- tlement he and all his brothers in ease take as tenants for life, and the first who take as tenants in tail are grandchil- dren. This is the mode still adopted ; the re-settlement taking place by means of a conveyance under the statute in- stead of by a recovery.' The ^protector ' ^^^- ^^- ^^^ protector of the settlement, as a general rule, ment.^ *^**'* subject to exception in particular cases, is the person to whom is given by the same settlement creating the entail, the prior beneficial estate, or the first of several prior bene- ficial estates, such estate being still subsisting, and not less than one for years determinable on a life or lives, or a greater estate, not being for years. It is to be observed that the prior estate must be subsisting and under the same settle- ment ; for, if created by some other conveyance than the settlement, the owner will not be protector, and the tenant in tail is not restrained from conveying a fee simple, or exercising the other powers given to him by the Act. The office of protector subject to the exceptions'under ss. 17 & 18 is a personal one, and continues notwithstanding the pro- tector should cease by alienation or otherwise to be owner of such prior estate ; s. 15 also expressly excludes assigns under like exceptions. Thus, if the limitations be to A. for life, remainder to B. for life, remainder over in tail ; although A. should convey his life estate voluntarily, or be deprived of it by his bankruptcy or otherwise, he would still con- tinue to be protector for his life, provided the life estate formerly his continued to subsist ; but if that estate should merge or be surrendered, and thus cease to subsist, A. would cease to be protector. Thus, if the life estates of A. and B., being both legal estates, were to be conveyed to the same person, the life estate of A. would be extinct, and he would cease to be protector. If therefore A. should have disposed AIL. ssue, and when recovery have uler the re-set- as tenants for are grandchil- 1 re-settlement r the statute in- a general rule, the person to iting the entail, eral prior bene- ng, and not less ives, or a greater served that the the same settle- iyance than the tector, and the ing a fee simple, by the Act. The inder ss. 17 & 18 anding the pro- dse to be owner excludes assigns ions be to A. for in tail ; although , or be deprived would still con- 1 the life estate lat estate should nihsist, A. would tes of A. and B., yed to the same ct, and he would Id have disposed CONVEYANCES BY TENANTS IN TAIL. 52S of his life estate, it would not be enough to procure his consent without ascertaining that such estate is actually subsisting ; and it would be in the power of the legal owner for the time being of such estate, by his act in merg- ing or surrendering the estate to deprive A. of the protec- torship, and promote B. to the office. The ownership of a mere equitable or heTieJicial estate will qualify for the pro- tectorship ; it is not requisite the estate should be a legal one; indeed bare trustees by s. 15 are as to settlements made after Ist July, 1846, expressly excluded, and moreover the word " estate " in this section and throiighout the Act, is by s. 1. made to extend to an estate in equity as well as at law. Thus,if on any settlement subsequent to 1st July, 1846, (a) lands be limited to the use of A. and his heirs for the life of B. in trust for B. for life, with remainder to C in tail, remainder to D. in fee, the protector would be B. the owner of the equit- able estate, and not A. in whoni the legal estate is vested (6). This is a variation from the old law, under which the trustee as the party to be tenant to the praecipe was protector. One of the grounds for excluding a dowress as protector, whilst a tenant by the curtesy is admitted, is that the for- mer is only interested partially, viz., to the extent of one third, whilst the other takes all, for life (c).' 'Sec. 11. When several are owners of the estate constitut- sec. ii. Joint ing the office, each is protector as to his share.' ' Sec. 14 may be thus exemplified : lands are settled on A. for life, with power to appoint and lease for lives, or for years determinable on lives, with remainder in tail, and remainder over ; A. appoints and leases under the power to B. for life, or for 99 years determinable on a life, reserving rent ; here, according to the principles on which appoint- ments operate (d), the estate of B. inserts itself in the settle- owners. (a) See remarks as to this date under ss. 15 & 19. (b) Sugden Statutes, 2 ed. 215, 216. Hayes con. 5 ed. 174. (c) 1st Rep. of Real Prop. Commissioners,^ pp. 32, 33. ((/) Hayes con. 5 ed. vol. 2. n. to Prec. 15, and ante p. 509. 524 CONVEYANCES BY TENANTS IN TAIL. ment prior to the estate of A. ; but the protectorship is by this section denied to B. and remains in A. A case of this kind in which the estate of B. is created by virtue of the power of appointment must not be confounded with tin case of A. conveyintr or assigning his estate, in which latter event B. as assignee would still be excluded, not under tlib section, but under section 15, and A. by force of s. 10, ami not by force of this section, still continues protector a^ further explained under section 16.' ' Sees. 15, 17, 18, 19. Certain persons arc excluded from being protectors, as lessees at a rent (see ante p. 511), bare trustees, heirs, executors and alienees save those excepted (a).' Mistakes in ss. 15 & lit. (a) It may be proper here to point out a mistake which occurs in section- 15 tead of the time of the passing the Act, -and possibly therefore in the Luperlal Act the time, 28th August, 1833, may be (a) Sugden Statutest 2 ed. 219. (b) Chitty Statutes, toI. 2, p. 92, n. 5. (c) Hayes con. 5 ed. 519. (d) Shelford Statutes, 7 ed. p. 355, n. h. M TAIL. otectorship is bv A case of this y virtue of the inded with the in which latter , not under tlli^ rce of s. 10, ami les protector a« i excluded from nte p. 511), bare 3.se excepted ((t).' ch occurs in section,- Hections of the Im- , tlie useless labour of Imperial Act excepts tlement made on or nto force, whilst see- provides for the ca.«e Au<,'U8t, 1833. That ugden (a) and Chitty :tion with section 27 )rd (d) adopting th* e Provincial Act, ex- time of coming into Ist January, 1834, ling fines and recover- sgislature when they not to interfere with bors, trustees who ai. 1 under settlements erefore they excludeil by section 22 (section tably entitled to the n section 27 (exclud- operation of the Act, >r8 under settlements nued, and necessary' a. 31 should have re- the passing the Act, Lugust, 1833, may be , vol. 2, p. 92, n. 5. . 355, n. h. CONVEYANCES BY TENANTS IN TAIL. o2;> ' Sec. Id. Where the owner of the prior estate is disquali- >''«<' ic When ' ' there IS disqua- fied as protector, the owner of the next prior estate is the Hfieation. protector, not being disqualified. A question suggests itself under this section taken in connection with s. 15, whether where the protector has assigned his estate, the protector- ship will not pass over to the owner of the next qualifying estate, instead of remaining in the assignor under the pro- visions of section 10. Thus, if under the settlement A. be tenant for life, remainder to B. for life, remainder to C. in tail, remainder to D. in fee, and A. should aliene his life estate to Z. ; the question would be whether s. 16 would apply to transfer the protectorship to B.,by reason of Z. the owner of the prior estate being excluded by section 15 from the pro- tectorship as being an assignee. It would seem the word "assign " has been somewhat unnecessarily inserted in s. 15, for the practical effect of s. 10 alone is to exclude an assig- nee; section 10 will, it would seem, be left to operate in the above instance, and not be overridden by ss. 15 & 16, con- sequently A. would continue protector (a).' read 3l8t December, 1833. It does not seem, however, that the same reasons exist here for doing this violence to language, for the groimd'i fail on which it may be supported in England. Section 15 of the Provincial Act excluding trustees txcept those under settlements made before tlie Ist July 1840 (when the original Act came into force), whilst section 19 continues trustees as protec- tors under settlements made, not up to the time of the passing of that Act (18th Jlay, 1H4I'.' as in the Imperial Act, but to a period long anterior, namely, the 1st -Tuly, 1834. It seems to us the Provincial Legislature had a sufficient ob- ject in fixing this date, and that it can well be supported ; for as before ex- jilained, subsequently to July, 1834, when the statute 4 Wm. IV. c. 1 came into force, an estate tail could not be barred, at least the ulterior remainders or reversion could not be defeated by the tenant in tail, even though there should he no protector ; and this being so, there was no necessity after 1st July 1834, to appoint a protector, for there was nothing to protect against. The result fould be that in settlements made here subsequent to Ist July, 1834, the set- tlors must be supposed to have acted quite independently of any idea of a pro- tector, and there can be no necessity for the statute being read as continuing trustees as protectore down to Ist July 1840, when the settlors themselves never intended them to be so ; in fact it might be a positive hardshi]) and im- ust to give to such persons such an important office, and certainly there woulil 'e no such hardship as above alluded to under the Imperial Act. (a) Hayes con. 173. 5 ed. ; Sug. Statutes. 2 ed. 217. «•/ 526 ae«. 22. When Court of Chan- cery shall be protector. Sec, 20. Pow- er to lettler to appoint protec- tor. Sec 21. Deeds as to protec- tors to be re- gistered. Se«. 31. Con- sent of protec- tor. Sec. 3i Deemed tin- <]ualified un- less, &c. Sec. 33. Irre- vocable. Sec. 35. Re- quires regis- toy. Sec. 37. Sec. 26. Pro- tector to be free from con- trol as to kis consent. CONVEYANCES BY TENANTS IN TAIL. ' Sec. 22. In certain cases of incapacity of the protector, ai lunacy, infancy, conviction for treason or felony, or if it be uncertain whether living or dead, or if the settlor declare that the person who otherwise would be protector shall not be, and appoint none others ; or there be a prior estate con- ferring the office, but from any cause no protector, then the Court of Chancery is protector. Sec. 20. The settlor may, on the settlement creating the ent9.il, appoint any person or persons, not exceeding three, and not being aliens, to act as protectors in lieu of the per- son otheiwise protector, with power of substitution. Sec. 21. The deed by which a protector is appointed under such power, or relinquishes office, is to be registered, and such person, otherwise protector, may be one of the persons to be appointed by the settlor as above. Sec. 31. The consent of the protector may be contained in the same deed by which the tenant disposes, or be by distinct deed, executed on or at any time before the day d the exe- cution of such deed of the tenant, otherwise the consent is void. ' See. 32. And the consent to disposition by the tenant is to be deemed absolute and unqualified, unless the protector refers to the deed of disposition by the tenant, and confines the consent to such disposition. Sec. 33. The consent once given is irrevocable. Sec. 35, Consent given by deed distinct from the deed of disposition is void, unless registered at or before the time of registry of the latter. Sec. 37. Consent is given according to this section when the Court of Chancery is protector. Sec. 25. The discretion of the protector in giving or with- drawing consent is absolute, and a court of equity cannot in- terfere with it ; but the remaindermen and reversioner are precluded from entering into any agreement on any con- sideration with the protector to induce him to withhold his 'AIL. the protector, a« ilony, or if it be settlor declare >tector shall not )rior estate oon- )tector, then the snt creating the exceeding three, lieu of the per- Jtution, appointed under 1 registered, and le of the persons be contained in , or be by distinct i day of the exe- e the consent is by the tenant is ess the protector ant, and confines sable. from the deed of efore the time of his section when I giving or with- squity cannot in- i reversioner are mt on any con- to withhold his CONVEYANCES BY TENANTS IN TAIL. consent fron barring their estates. It would appear, how- ever, that with the tenant in tail the protector may make any bargain he pleases for his own benefit : for, although as a general rule, a person having a power, a.s, for instance, of appointing an estate among such one of several as he may think proper, or of doing or not doing a certain act for a.: ther's benefit, can make no bargain for his own benefit with the person in whose favour he exercises such power as a condition for so doing, it is by see. 26 declared that no such rule shall apply as between the protector and the tenant.' ' Sec. 36. As to the mode in which dispositions are made and consents given, and proper registry, great caution is re- quisite ; for as against the issue in tail and the protector all jurisdiction of a court of equity is taken away as to specific performance of a contract, or supplying defects in any dis- position by the tenant or consent by the protector, neither of which are to be valid in equity unless also valid at law ; and sec. 29 is much to the same effect. In reference to this clause Mr. Hayes (a) remarks, " there was ground to appre- hend that after the Legislature should have abolished the ancient solemnities and conferred upon tenants in tail the power of conveying as if seized in fee-simple, without any other ceremonies than sealing, delivery, and registry, equity might be induced to enforce the mere contract of a tenant in tail, founded on valuable or meritorious consideration, just as, in the case of a settlement to such uses as A. shall by deed enrolled in chanceiy within six months after the exe- cution appoint, and in default of appointment to uses in strict settlement, equity would certainly supply in favour of a purchaser, wife, child, or creditor, the non-observance of the prescribed formalities." Parties are left to the result of their own want of care rather than that litigation with its attendant uncertainty and expense should result ; nothing r,27 Sec. 26. Bar- gain between tenant and protector aa to iiM conitent. Sec. 36. Courts of Equity ex- eluded from giving effect to defective digpositioDK, &c. (a) Conveyancing, p. 163. 528 if f 9W 5 «•/ S«c. 27 relieves as to etfi'ct of ■ec. 30. Sec. 1. Act ap plieH to e(|uit- »hle cHtiites. Sec. 39.Actap- plies to money, _. CONVKYANCES BY TENANTS IN TAIL. can be supplied, if for instance the instrument be not a (IoimI, nor registered in proper time, equity cannot set it up. Not- withstanding the stringent provisions of the Act, a vendor may be compelled to specifically perform and to make a new valid conveyance (though not the issue or the protector) (a), for his contracts, as indeed also his conveyances, according to the old law, retain whatever efficacy they had there- under. The operation of this section is somewhat relieved against by sec. 27.' ' Sec. 27 would somewhat protect against the excluiiion of equitable relief by section 3G in cases of void disposi- tions or consents ; for, under it voidable estates created by tenant in tail under a settlement in favour of a purchaser, are confirmed by his subsequent disposition under the Act, (other than by lease not requiring registry), unless the same be to a purchaser for value without express notice. This is to a certain extent in analogy to the former law, under which, if tenant in tail created an estate or charge defeasible by the issue, and then levied a fine, or suffered a recovery, its effect was to confirm such estate or charge as against those claiming under the fine or recovery (b). Whether this section, 27, will relate to voidable estates created after the passing of the Act is perhaps not quite clear (c). The operation of the Registry law here probably caused the exclusion of section '4 of the Imperial Act, giving priority to the deed first duly enrolled., ' Sec. 1. The Act applies to equitaMe as well as legal entails. Sec. 39 applies the Act to money, or land which is to be (a) Sugden Statutes, 226 ; Peare v. Buncombe, 7 Hare, 24; Graham v, Gra- ham, G Grant, 372. (6) Shelford Statutes, 328 n. g. 5th ed. (c) The Imperial Act has in it after the word.'? " /ioa created," the words " or shall hereafter create ;" so also had the original Provincial Act of 9 Vic. : the Con. Stat, had in it the word " al- ready," before " created." TheTInterpretation Act, Rev. Stat. c. 1, a. 8, pro- vides as to the Statutes that " the law shall be considered as always speaking, and whenever any matter or thing is expressed in the present tenge, the same is to be applied to the circumstances ae they arise," &c, AIL. t be not a dood, iet it up. Not- e Act, a verulnr to make a new e j)rotector) (a), mces, according hey had there- lewhat relieved t the exclusion )f void disposi- ites created by of a purchaser, under the Act, unless the same notice. This is ner law, under large defeasible sred a recovery, irge as against (6). Whether 3S created after jlear (c). )robably cause* I ial Act, giving as legal entails. [ which is to be 4; Graham v. Gra- I Act haa in it after ireate ;"' so also had in it the word " al- Stat. c. 1, B. 8, pro- as always speakint', it ten«e| the same is CONVEYANCES MV TENANTS IN TAIL. 529 converted into entailed estate : this happens when trustees ""■ *'* lanJ to \ '■ bo converted are directed to invest money in land, which, when purchased, into entailed eHtates. is to be settled in tail for the benefit of a certain party ; or to sell land, and invest the produce in like nuinner. With respect to trusts of this description, the Act provides that all the elau.ses it contains shall be aj)plicable, so far as circum- stances will admit, to the moneys or lands so to be invested, in the same manner as they would apply to the lands to be purchased, supposing the same to be actually purchased and settled conformably to the trust : but when the trust fund consists of leasehold estate, or of money, it is to be considered as to the person in whose favour, or for whose benefit the disposition is to be made, asperson;iI estate : and any dispo- sition of such estate by the intended tenant in tail must be made by mere deed of assignment, registered in the county where the lands lie within six months after execution.' 'Lastly, let us mention the exceptions in the Statute. Exceptions Sec. 8 excepts from the powers given by the Act, the issue Sec. 8. issue inlientable to an entail in expectancy ; thus, A being tenant pectancy ; no in tail, his eldv^st son cannot convey under the Act. In this under the Act respect the Act does not go to the extent of the old law, by which at law even an expectant heir in tail could bar his issue: and, although by Stat. 14 k, 15 Vic, R. S. 0. c. 98, Norunder * -^ . ' . R. S. O. c. 98 contingent and future interests, and possibilities coupled with an interest may be conveyed, yet the Act provides that it shall not extend to defeat or enlarge an estate-tail (a). Sec. 4 excepts women, tenants in tail, within the Stat. 11 Sec.4.Women, , , , , tenants m tail, H. VII., unless disposition by them be with the assent re- « provisione viri, quired by that Act. It was the practice at one time, on marriage, to settle an estate jointly on the husband and wife in tail, or to the husband for life, remainder to the wife for life, remainder to the issue in tail ; and the Statute was passed to prevent her barring the entail after her husband's 34 (a) Ante, p. 248. 580 CONVEYANCES BY TENANTS IN TAIL. 5 death, when the property was originally of the purchase or inheritance of tlie husbaii'l, or the gift in tail of his ances- tors. It also extended to di.^.continuances, Avarranties, or re- coveries of such property by women, tenants in dower, or for life. The Revised Statute only extend to tenants in tail, under settlements prior to the Stat. 9 Vic, after which the Hen. VII. ceased to apply by sec. 5. Sec. 6. Entails Sec. 6 excepts tenants in tail after possibility of issue the Crown.' cxtinct, and those within the Stat. 34 &; 35 Hen. VIII., which applied in cases where the entail was the gift of the Crown («).' ' This closes our view of conveyances by tenants in tail under jbhe Act of Victoria. The Stat. 32 Hen. VIII., c. 28 under which tenants in tail can grant certain leases binding on the issue, but not on those in remainder or reversion, is probably superseded by the modern Act, except, perhaps, in the case of a lease for years, or for life, or not exceedi)ig three lives, being granted, which, if for some defect it could not take effect under the Statute of Victoria, might yet be upheld, if conformable to the Statute of Henry.' (a) Ante, i>. 512. he purchase or 1 of his ances- irranties, or re- in dower, or for tenants in tail, ifter which the ibility of issue 35 Hen. YIIl, the gift of the tenants in tail en. YIIL, c. 2S n leases bin(Ung or reversion, is cept, perhaps, in r not exceeding e defect it could la, might yet be nry.' J"X-/ APPENDIX. CAP. C. An Act respect beg the Assurance of Estates Tail. HER MAJFISTY, by and with the advice and consent of tlie Legis- liitive Assembly of the Province of Ontario, enacts as follows : — 1. Wherever the words and expressions following occur in this Act, they shall be construed in the manner hereinafter mentioned : — " Lands " shall extend to advowsons, rectories, messuages, lands, tenements, rents and hereditaments of any tenure and whether corpo- real or incorporeal, and any undivided share thereof ; " Estate " shall extend to an estate in Equity as well as at Law, and shall also extend to any interest, charge, lien or incumbrance in, upon or affecting lands either at Law or in Equity, and shall also extend to any interest, charge, lien or incumbrance in, upon or affecting money subject to be invested in the purchase of lands ; " Base fee " shall mean exclusively that estate in fee simple into which an estate tail is converted where the issue in tail are barred, but persons claiming estates by way of remainder or otherwise are not barred ; " Estate tail, " in addition to its usual meaning, shall mean a base fee into which an estate tail has been converted ; " Actual tenant in tail " shall niean exclusively the tenant of an es- tate tail which has not been barred, and such tenant shall be doomed an actual tenant in tail, although the estate tail may have been di- vested or turned to a right. " Tenant in tail " shall mean, not only an actual tenant in tail, but also a person who, where an estate tail has been barred and converted into a base fee, would have been tenant of such estate tail if the same had not been barvod ; " Tenant in tail entitled to a base fee " shall mean a person entitled to a base fee, or to tlie ultimate beneficial interest in a base fee, and who, if the base fee had not been created, would have been actual ten- ant in tail ; and " Money subject to be invested in the purchase of lands " shall in- clude money, whether raised or to be raised, and whether the amount thei'eof be or be not ascertained, and shall extend to stocks and funds, and real and other securities, the produce of which is directed to be invested in the purchase of lands, and the lands to be purchased with such money or produce shall extend to lands of any tenure out of On- tario, where such lands or any of them are within the scope or mean- ing of the trust or power directing or authorizing the jjurchase. 2. Every assurance already made or hereafter to be made, whether by deed, will, Private Act of Parliament or Act of the Legislature, or otherwise, by which lands heretofore have been or may hereafter be Interpretation ot words. " Land*." " Estate." " Base fee." "EsUtetail." " Actual tenant in tail.", "Tenant in tail." " Tenant in tail entitled to a bMe fee. " " Money subject to \>ti invested in tlio piircliaseof lands." Settlement. APPENDIX. mm 5 *•/ / I ProTiiio. Estates tail and estates exiwictaiit thereon, no longer barrable by warranty. Power to dispose of lands in fee simple or for a less ebtate, Sic. entailed, or agreed or directed to be entailed, shall bo deemed a settlement. Appfjintment in 3. Every appointment made in exercise of any power contai .. exercise of a ^,^y settlement, or of any other power arising out of the power cou- settlement. ttained in any settlement, shall be considered as a part of such settle- ment, and the estate created by such appointment shall be considered as having been created by such settlement. Settlement by 4. Where any such settlement is made by will, the time of the will to (late from death of the testi^tor shall be considered the time when such settleiuunt testators death. , was made. 5. But those words and expressions occurring in this section, to which more than one meaning is to be attached, shall not have tlie difierent meanings given to them by this clause in those cases in which there is anything in the subject or context repugnant to such construo- tion. C. S. U. C. c. 83, s. 1. 2. All wiirranties of lands made or entered into by any tenant in tail thereof, shall be absolutely void against the issue in tail, and all persons whose estates are to take effect after the detei-mination or in defeasance of the estate tail. C . S. U . C. c. 83, s. 3. 3 Every actual tenant in tail, whether in possession, remainder, contingency or otherwise, may dispose of, for an estate in fee simple absolute, or for any less estate, the lands entailed, as against all per- sons claiming the lands entailed by force of any estate tail vested in or which might be claimed by, or which, but for some previous Act, would have been vested in, or might have been claimed by, the person making the disposition, at the time of his making the same, and also as against all persons, including Her Majesty, Her Heirs and Succes- sors, whose estates are to take effect after the determination, or in defeasance of any such estate tail ; saving ahvnj's the rights of all ,'ei- sons in respect of estates prior to the estate tail in respect of wluoli such disposition is made, and the rights of all other persons except those against whom such disposition is by this Act authorized to be made. C. S. U. C. c. 83, s. 4. 4. Where, iinder any settlement made before the eighteenth of May, one thousand eight hundred and forty-six, any woman is tenant in tail of lands within the provisions of the Act p€a8.sed in the eleventii year of the reign cf His Majesty King Henry the Seventh, entitled " Certaid alii nations made bii ihe iciff, iif tlw laui/s af htr dvceasid I !(■■<- band, 'hall be ivid," the power of disposition hereinbefore contained as to such lands shall not be exercised b)' her, except with such assent as, if this Act had not been passed, would, under the provisions of the said Act ttf King Henry the Seventh, have rendered valid a fine 'ir common recovery levied or suffered by her of such lands. C. S. U. C. c. 83, s. 5. 5. Except as to lands comprised in any settlement made before the eighteenth day of May, one thousand eight hundred and forty-six, the said Act of the eleventh year of the Keign of His Majesty KingHonry the Seventh shall be of no force in Ontario. C. S. U. C. c. 83, s. 0. 6. The power of disposition hereinbefore contained shall not extend to tenants of estates tail, who, by the Act pasr.ed in the thirty-fourth and thirty-tifth years of the reign tif His M.ijesty King Henry the Eigiith, entitled "An Act to vmhar feUfncd riron-ri/ ofbnuls u-lteinin tin- King is in reversion," or by any other Act are restrained from barring Power of disposi- tion not to be exercised by women tenants in tail, ex pro- vinioue niri, &c. 11 Hen. VII. C.20. Except, &o., 11 H. VII. c. 20, repealed. Power of disposition not extend to certain tenants in tail. 34-,5 Hen. Vlll. c. 20. I t i i all bo deemed a wer coiif:i f the pown cou- rt of such sett'e- lall be consideiu'd the time of the n such settleuifiit this section, to lall not have tlie ose cases in wliich to such construo- J by any tenant in ,ie in tail, and all termination or iii ssion, remainder, itate in fee simple as against all per- e tail vested in or me previous Act, ed by, the person le same, and also 3eirs and Succes- rerniination, or in ) rights of all fer- 1 respect of which ler i^ersons except authorized to be ;ighteent!i of May, in is tenant in tail the eleventh year Seventh, entitled f htr ihceusi'd I n.t- efore contained as ith such assent as, provisions of tlie ad valid a fine 'jr uids. C. S. U. C. t made before the and forty-six, the ijesty King Henry L^. C. c. 83, 8. 0. d sliall not extend I the thirty-fourth y King Henry the / lands iclivn'i)i llie ined from burring APPENDIX, 533 their estates tail, or to tenants in tail after possibility of issue extinct. C, S. U. C. c. 83, s. 7. 7. In every case in which an estate tail in any lands has been barred Power to eniargo and converted into a base foe, the person who, if sucii estate tail had thrriMUs^o/'"*' nut been barred, would have been actual tenant in tail of the same certain ircrsoni. lands, may dispose of such lands as against all persons, including Her M "p*v, Her Heirs an. 'J. If a tenant in tail of lands makes a disposition of the same, under this Act, by way of mortgage, or for any other limited purpose, then such disposition shall, to the extent of the estate there'^y created, be an iibsolute bar in Ecjiiity, as well as at Law, to all persons as against whom such dispositi(jn is by this Act authorized to be made, notwith- standing any intention to the contrary expressed or implied in the deed by which the disposition is effected ; but if the estate created by such disposition is only an estate pur onh-i'. rie, or for years, absolute or de- terminable, or if, by a disposition under this Act by a tenant in tail of lands, Jin interest, charge, lien or incumbrance is created without a term of years absolute or determinable, or any greater estate for secur- ing or raising the same, then such disposition shall, in Equity, be a bar only so far as may be necessary to give full effect to the mortgage, or to such other limited purpf)se, or to such interests, lien, charge or incumbrance, notwithstanding any intention to the contrary expressed or implied in the deed by which the disposition is effected. C. S. U. C. c. 83, s. 10. 10. If at the time there: is a tenant in tail of lands under a settle- ment, and there is subsisting in the same lands, or any of them, under the same settlement, any estate for years, tleterminable on the drop- ping of a life or lives, oi any greater estate (not being an estate for years) prior to tiie estate tail, then the person who is the owner of the Issue iiihuritablu not to bar expectancies. Extent of estate created by a tenant in tail bj way of luortKage or for any otlicr limited purpose. The owner of the firrft existing estate under set- tlement jirior to an estate tail under the same . , , , . 1 . . . , , , , settlement to be prior estate, or the hrst of such prior estates, if more than one, then the protector of subsisting under the same SLttlement, or who would have been so if no the settlement, absolute disposition thereof had been made (the first of such prior es- tates, if more than one, being, for all the ])ni'po3es of this Act, deemed the prior estate,) shall be the protector of the settlement, so far as re- gards the lands in which such prior estate is subsisting, and shall, for all the purposes of tliis Act, bo deemed the owner of such prior estate, although the same may have been charged or inciimbered, either by the owner thereof or by the settlor, or otherwise howsoever, and al- though the whole of the rents and profits are exhausted, or are required for the payment of the charges and incumbrances on such prior estate, and although such prior estate may have been absolutely disposed of by the owner thereof, or by or in consequence of the bankruptcy or insolvency of such ovfiior, or by any other act or default of auch 'ySit . f APPENDIX. owner ; and an estate by the curtesy in respect of the estate tail, cr of any prior estate created by the same settlement, shall be deemed a inior estate under the same settlement, within the meaning of this clause ; and an estate by way of resulting use or trust to or for the settlor, shall bo deemed an estate under the same settlement, within the moan- ing of this clause ; and ati eatate by way of resulting use or trust to or for the setthjr, shall be deemed an estate under the same settlenunt, within the meaning of this clause. C. S. U. C. c. 83, s. 11. 11. Where two or more persons are owners, under a settlement within the meaning of this Act, of a prior estate, the solo owner of which estate, if there had been only one, would in respect thereof have prieior au to \\\* been the protector of such settlement, each of such persons, in respect '^''' of such undivided share as he could dispose of, shall, for all the pur- poses of this Act, be deemed the owner of a prior estate, and shall in exclusion f if the other or others of them, be the sole protector of such settlement, to the extent of such undivided share. C. iS. U. C. c. 83, s. 12. Kach of two or more owners of a prior estate to be the sole (tro 12. Where a married woman would, if single, be the protector of a settlement in respect of a prior estate, which is not thereby settled or agreed, or directed to be settled tti her sep.arate use, she and her hus- band together shall, in respect of such estate, be the protector of such settlement, and shall be deemed one owner: but if such prior estiitt' has by such settlement been settled or agreed, or directed to be settled to her separate use, then she alone shall, in respect of such estate, be Hie protector of such settlement. G. S. U. C. c. 83, s. 13. 13. Except in the case of a lease hereinafter provided for, where an estate is limited by a settlement, by way of contirmation, or where the settlement merely has the eftect of restoring an estate, in either of those cases, such estates sh.all, for the purposes of this Act, so far as regards the protector of the settlement, be deemed an estate subsisting under such settlement, C. S. U. C. c. 83, s. 14. 14. Where a lease at a rent is created or confirmed by a settlement, the person in whose favour such lease is created or confirmed, sliall not, in respect thereof, be the protector of such settlement. C. 8. T. C. c. 83, s. 15. 15. No woman in respect of her dower, and (except in the case, hereinafter provided for, of a bare trustee under a settlement made on or before the first day of July, one thousand eight hundred and forty- six) no bare trustee, heir, executor, administrator or assign, in respect of any estate taken by him as such bare trustee, heir, executor, admin- istrator or assign, shall be the protector of a settlement. C. 8. U. C. c. 83, s. IG, 10. Where under any settlement there is more than one estate prior to an estate tail, and the person who is the owner within the meaning of this Act, f>f any such prior estate, in respect of which, but for the two last preceding clauses, or one of them, he would have been the protector of the settlement, is by virtue of such clauses, or either of them, excluded frrmi being the protector — then the person (if any) who, if such estate did not exist, would be the protector of the settlement, shall be such protector. C. S. U. C. c. 83, s. 17. Where in the ]7. Where, on or before the first day of July, one thousand eight r.ositi''m of i>n~ hundred and forty-six, an estate under a settlement had been disposo(' estat« before the of, either absolutely or otherwise, and either for valuable consideration When a married woman alone shall be the pro- tector, anil where she and her husband together shall he protector. As to estates confirmed or restored by letllemcnt. As to leases at rent created by settlement. Except in the case of a bare trustee (s. li)), no hare trustee, tenant in dower, etc., to be pro- tector. Who shall be the protector where the owner of the prior estate is, by the last two ciaiises, ex- cluded. le estate tail, er of 1 be deemed a luior ing of this clause ; or for the settlor, t, within thenioan- y use or trust to or e same settleimnt, 5, s. 11. nder a settlement the sole owner of espect thereof have persons, in respect ill, for all the pur- state, and shall in protector of such C. S. U. C. c. 83, the protector i the lands entailed, which sliall be good again.st all ]>ersons who, by force of any estate tail vested in or wliich mi. :it be claimed by, or which but for some previous act or default would have been vested in or might have been claimed by, the ]«rson making the disposition at the time of his making the same, may claim the lands entailed. C. S. U. C. c. «;], s. 24. 24, Where an estate tail has been converted into a base fee, in sucli ca.se, so long as there is a protttrtor of the settlement by whicli the es- tate tail was created, the consieoit of such protector shall be requisite nds referred to lie, i the person who, le protector of the ed protector under otherwise directed 3r,-(ons constituting inqnislinient of the ited in thuir pliioe. unatic, idiot, or of li by itK^uisition or ictor of such settle- iot, or of unsound of a settlement, person not being fut, is protector f it is uncertain or ilead — then the ich settlement, in e person who is an as aforesaid ; or, if lent by which the r of a prior estate ector of the settle- ;)oint any person to liancery shall, as to be the protector of [itate ; or, if in any n estate prior to an r estate is sufficient he settlement, and letllunient as to the [ C(jurt of Chancery or estate is subsist- unds. C. S. U. 0. ant in tail of lands der (ir reversion in f his estate tail, ia the lands entailed, iiisent of such pro- t in tail to disjiose lie is hereinbefore fenant in tail may, s Act if the lands us who, by force 3 claimed by, or ive been vested in the disposition at Is entailed. C.S. I base fee, in such t by whicli the es- shall be requisite APPEx'IDIX. 537 I to enable the person who wr.uld have been tenant of the estate tail if trcisinsr "' a the same had not been barred, to exercise, as to the lands in respect of [■y*'"^"' "''''°''" which there is such protector, the power of disposition hereinbefore contained. C. S. U. C. c. 83, s. 25. 25. Any device, shift, or contrivance by which it is attempted to The protector to control the protector of a settlement in giving his consent, or to ju'e- ','" *l''I'fT'Mie"" vent him in any way from using his absolute discretion in regard to exercise of his' his consent, and also any agreement entered into by the protector of a power of oon- settlement to withhold his consent, shall be void ; and the protector of ^''''''''K- a settlement shall not be deemed to be a trustee in respect of his power of consent ; and a Court of Equity shall not ctmtrol or interfere to re- strain the exercise of his power of consent, nor treat his giving consent as a breach of trust. C. S. U. C c. 83, s. 2G. 20. The rules of Equity in relation to dealings and transactions be- Certain rules of tween ther donee of a power and any object of the power in whose a',',piv\etween favour the same may be exercised, shall not be held to apply to deal- the protector ami in;j:s and transactions between the protector of a settlement and a tenant =i teimnt in tall, in tail under the same settlement, upon the occasion of the protector giving his consent to a disposition by a tenant in tail under this Act. C. S. U. C. c. 83, 8. 27. 27. Where a tenant in tail of lands under a settlement has created A voidable es- 11J c .i -111 ii'r c fate bv a tenant m such lands, or any of them, a voidable estate in favour oi a pur- j^ taii'in favour chaser for valuable consideration, shall afterwardt, by any assuriince of a purchaser other than a lease not requiring enrolment, makes a disposition, under subl'equ'i'lit^jia- tliis Act, of the lands in which such voidable estate has been created, position of such or any of them, such disjiosition, whatever its object maybe, and "^"j»"'' '" **•' whatever may be the extent of the estate intended to be thereby created, i,",'t not against shall, if made by the tenant in tail with the consent of the protector a purciiaser for (if any) of the settlement, or by the tenant in tail alone, if there be no not^^g"'*""' such protector, have the ett'ect of continuing such voidable estate in the lands thereby disposed of to its full extent as against all persona except those whose rights are saved by this Act ; but if, at the time of making the disposition, there is a jirotector of the settlement, and such protector does not consent to the disposition, and the tenant in tail ia not without such consent capable under this Act of confirming the voidable estate to its full extent, then such disjiosition shall have the effect of conhrming such voidable est;ite so far as such tenant in t":l would then be capable under this Act of continuing the same without such consent ; but if f^ucli disposition is made to a iim.V (1UL'<1 hut iiDt liy will (ir cDiitiiut, and if a iiiurricd wdniaii, inidur The Married Womaii's Kful Eittate Act. Hcv. Stat. c. 127. Every assurance by a tenant in tail, except a lease not exeeed- in;,' 21 years or not cxeoedinj; 12 niontlisata racl<- rent, or five sixths of a raeV:- rent, tu he ino- jierative unless ret,'i.-iterod within six months. (^i)nscnt of pro- tector to be by the same or a distinct deed. If by osition thereby Act has given his not revoke snch jointly with her Act, in the same to the disposition )f a tenant in t.iil by which the dis- leed is registered istration Division ■e the time of the 0. by tenants in tail of settlements to tail thereof, the rexclnded, either torions considera- contracts and the supplying of defects in the execution either of the powers of disposition ('iveti V)y this Act to tenants in tail, or of the powers of consent given by this Act to protectors of settlements, and the 8upi)lying under any cironnstances of the want oi execution of such powers of disposition and consent resi)ectively, and in regard to giving etl'ect in any other maimer to any act or deed by a tenant in tail or protector of a settle- ment, which, in a Corirt of Law, would not, but for tho provisions conferring e(iuitable jurisdiction on Courts of Law enacted by " 'The Adhdiiintratian af Jitntlcv Act o/ J87o,'' and re-enact«»d in these Ke- vised Statutes, be an (iHectual disposition or consent within the mean- ing of this Act ; and no dispositi(jn of land under this Act l>y a tenant in tail thereof in Eipiity, and no consent by a protector of a settle- ment to a disposition of land under this Act by a tenant in tail thereof in E(init}', sliall be of any force, unless such disposition or consent would, in case of an estate tail at Law, be an eU'ectiial disposition or consent within the meaning of this Act in a Coiirt of Law, but for the provisions aforesaid. (J. S. U. C. c. Sli, a. ;}7. '67. In every case in which the Court of Chancery is the protector of a settlement, snch Court, while protector of such settlement, shall, on motion or petition in a summaiy way by a tenant in tail under such settlement, have full power to consent to a disposition, under this Act, by such tenant in tail ; and the disposition to be made by such tenant iu tail ; and the disposition to be made by such tenant in tail upon snch motion or potion as aforesaid, shall be such as may bo approved of l>y the said Court, and the said Court may make such orders in tho matter as may be thought necessarj' ; and if such Court, in lieu of any such person as aforesaid, is the protector of a settlement, and there is any other person protector of the same settlement jointly with such person as aforesaid, then and in every snch case tho disposition by the tenant in tail, though approved of as aforesaitl, shall n(jt be valid, unless such other person, being protector as aforesaid, consents thereto in the manner in which the consent of the protector is by this Act re- (piired to be given. C. 8. U. C. c. 83, s. 38. 38. In every case in which the Court of Chancery is the protector of a settlement, no document or instrument, as evidence of tho con- sent of such protoct(jr to the disposition of a tenant in tail under such settlement, shall be requisitt beyond tho order in obedience to which the disposition has been mad). C. S. U. C. c. 83, s. 3'J. 39. Lands to be sold, whether freehold or leasehold, or of any other tenure, where the money arising from the sale thereof is subject to be invested in the purchase of land tc be settled, so that any person, if the lands were purchased, would have an estate tail therein, and also money subject to be invested in the inirchaso of lands to be settled, so that any person, if the lands were i^urcliased, would have an estate tail therein, shall, for all the purp(jses of this Act, bo treated as the lands to be purchased, and bo considered subject to tho same estates as the lands to be purchased would, if purchased, have been actiuvlly subject to ; and all the previous clauses in this Act, so far as circumstances will admit, shall, in the case of lands to be sold as aforesaid, being either freehold or leasehold, or of any other teniu'e, apply to such lands in the same manner as if the lands had to be purchased with the money to ai'ise from the sale thereof were directed to be freehold, and were actually purcharsed and settled ; and shall, in the case of money subject to be invested in the purchase of lands to be so settled as afore- said, apply to such money in tho same manner as if such money were directed to be laid out in the purchase of freehold lands, and such 30 V. I'. 8. When the Court (if CliiuictT.N limy I'dhsont to u lUspositioii bv a teimiit ill tail, and malxo siicli (irilers a.i are thr)llj,'ht necessary. Order of the Court of Clian- (.ery to be evidence of consent. Mode of disposi- tion of money suliject U> Ije invested in landt; to be entailed. ^40 ««,* APPENDIX. lands were ncttmlly purclmsod nnd Hettlod ; except that in every case, whore under this chvnse a disposition is to be made of leasehold lundj for years absohito or detorininablo, so circmnstancod as aforesaid, or of money so circnmstaiiceil as aforesaid, such leasehold lands or money shall, as to the person in whoso favour or for whose beneht the diaiio. flition is made, be treated as personal estate, and the assurance by which the disposition of such leaseliold lands or money is oH'ccted shall 1)0 an assiginaent by deed, which shall liu'o no operation under thia Act unless registered in the Registry Oftice of tho County or other llegistration Division in which tho lands therein referred to lie, within six months after the execution thereof. C. S. U. C. c, 83, s. 40. H Short title. Descents since the 1st Jauuury, 1352. Interpretation as to sections 22 to 48. "•Keal estate." "Inheritance." Ititerprctat'oii .-vs to sections 22 to ib. Interpretation as to sections 22 to 48. CAP. CV. An Act respecting the Besceut of Real Property. ER MAJESTY, by and with tho advice and consent of tho Legis- lative Assembly of the Province of Ontario, enacts as follows :— 1. This Act may be cited as " The Real Eatate Succcmim Act."' ♦ * ♦ « « DESCENT.S ON AND AFTER IST OF JANUARY, 1852. 18. The twenty-seven sections numbered from twenty-two ^o forty- eight, both inchided, shall apply retrospectively to the first day of January, one thousand eight hundred and fifty-two, inclusive, and also prospectively, as the case may bo, and shall be construed as if the same had been passed on the said first day of January, one thousand eight hundred and fifty-two. C. S. U. C. c. 82, s. 22. 19. In the said twenty-seven sections of this Act numbered from twenty-two to forty-eight, both inclusive — 1. " Real Estate " shall be constrned to include every estate, inter- est and right, legal and equitable, held in fee simple or for the life of another (except as in tho fortieth section is excepted) in lands, tene- ments and hereditaments in Ontario, but not such as are determined or extinguished by the death of the intestate seised or possessed there- of, or so otherwise entitled thereto, nor to leases f* years ; and 2. " Inheritance," as therein nsed, shall be understood to mean real estate as herein defined, descended or succeeded to, according to tlie prn visions of the said twenty-seven sections. C. S. U. C. c. 82, s. 50. 20. Whenever in the said sections, numbered from twenty-two to forty-eight, both included, any person is described as living, it shall be understood that he was living at the time of the death of the intestate from whom the descent or succession came, and whenever any person is described as having died, it shall be understood that he died before such intestate. C. S. I^. C. c. 82, s. 51. 21. Wherever in any of the said sections the expressions " where the estate came to the intestate on the part of the father " (or " mo- ther '), as the case may be, are used, the same siiall be construed to include every case where the inheritance came to the intestate by de- vise, gift or descent from the parent referred to, or from any relative of the blood of such parent. 0. S. U. C. c. 82, s. 62. hat in overy case, of leasohold limdj as aforesaid, or of d lands or money bonotit the dis|)ii. the assurance by oy is oli'ootcd slmi! oration nndor this County or other irrod to lie, witiiin c. 83, 8. 40. Property, sent, of the Legis- auts as follows :— cccsslnn Act." * IV, 1852. Duty-two ;o forty- tiie first day of vo, inclusive, and jonstniod as if the iiry, Olio thousand }2. ct numbered from very estate, inter- 3 or for the life of Photographic Sciences Corporation 23 WEST MAIN STRUT WEBSTER, N.Y. M5S0 (716) 872-4503 ,y 542 And If there is neither father nor mother. Succesgion ot, brothers and sisters and their ({uul degrees. If there be mi heir under the preceding geu- tion.s. Further provi- ision. Further provi- «ion it the estate came on the mother's side. If it came neither on fa- ther's nor mother's side. APPENDIX. 28. If there is no father or mother capable of inheriting; the estate, it shall descend in the cases hereinafter specified to the collateral rula- tives of the intestate ; and if there are several of such relatives all of equal du(;ree of consanguinity to the intestate, the inheritance shall descend to them in equal parts, however remote from the intestate the common degree of consanguinity may be. C. S. U. C. c. 82, s. 21). 20. If all the brothers and sisters of the intestate are living, the in- heritance shall descend to such brothers and sisters ; and if any one or more of them are living and any one or more are dead, then to the brothers and sisters and every of them who are living, and to the iles- cendants of such brothers and sisters iis have died, so that each brother or sister who is living shall inherit such share as would have descended to him or her, if all tiie brothers or sisters of the intestate who have died leaving issue had been living, and so that such descendants shuil inherit in equal shares the share which their parent, if living, would have received. 0. S. U. C. c. 82, s. yO. 30. The same law of inheritance prescribed in the last section shall prevail as to the other direct lineal descendants of every brother and sister of the intestate, to the remotest degree, wlierever such descen- dants are of unequal degrees. C. S. U. C. c. 82, s. iU. 31. If there is no heir entitled to take under any of the preceding thirteen sections, the inheritance if the same came to the intestate on the part of his father, snail descend : Firsthj. — To the brothers and sisters of the father of the intestate in equal shares, if all are living ; Secondly. — if one or more are living, and one or more have died leaving issue, then to stich brothers and sisters as are living, and to the descendants of such of the said brothers and sisters as have died— in equal share!* ; Thirdly. — If all such brothers and sisters have died, then to their descendants ; and in all such cases the inheritance shall descend in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate. C. S. U. G. c. 82, s. 32. 32. If there be no brothers or sisters, or any of them, of the father of the intestate, and no descendants of such brothers or sisters, then the inheritance shall descend to the brothers and sisters of the mother of the intestate, and to the descendants of such of the said brothers and sisters as have died, or if all have died, then to their descendants, in the same manner as if all such brothers and sisters had been the brothers and sisters of the father. C. S. U. C. c. 82, s. 33. 33. In all cases not provided for by the htteen next preceding sec- tions, where the inheritance came to the intestate on the part of hia mother, the same, instead of descending to the brothers and sisters of the intestate's father, and their descendants, as prescribed in the thirty-lirst section, shall descend to the brothers and sisters of the in- testate's mother, and to their descendants as directed in the last pre- ceding section ; and if there are no such brothers and sisters or des- cendants of them, then the inheritance shall descend to the brothers and sisters, and their descendants, of the intestate's father, as before prescribed. C. S. U. C. c. 82, s. 34. 34. In cases where the inheritance did not come to the intestate on the part of either the father or the mother, the inheritance shall descend to the brothers and sisters both of the father and mother uf heritin^; the estate, ) the collateral rola- such relatives all of le inheritance shall om the intestate the J. C. c. 82, s. 2y. te are living, the in- irs ; and if any une re dead, then to the ing, and to the iles- so that each brother ould have descended intestate who have ch descendants shall ant, if living, would ^he last section shall >f every brother and lerevor such descun- s. ;u. .ny of the preceding e to the intestate ou er of the intestate in or more have died s are living, and to isters as have died— e died, then to their 3 shall descend in the ul been the brothers 32. them, of the father hers or sisters, then sisters of the mother of the said brothers .o their descendants, sisters had been the 82, 8. 33. next preceding sec- e on the part of his others and sisters uf 1 prescribed in the iud sisters of the in- cted in the last pre- 8 and sisters or des- send to the brothers be's father, as before ne to the intestate :;he inheritance shall ather and mother uf APPENDIX, the intestate in equal shares, and to their descendants, in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate. C. S. U. G. c. 82, s. 35. 35. Relatives of the half blood shall inherit equally with those of the whole blood in the same degree, and the descendants of such rela- tives shall inherit in the same manner as the descendants of the whole blood, unless the inheritance came to the intestate by descent, devise or gift from some one of his ancestors ; in which case all those who arc not of the blood of such ancestor shall be excluded from such in- heritance. C. S. U. C. c. 82, 8. 30. :M». On failure of heirs under the preceding rules, the inheritance shall descend to the remaining next of kin of the intestate, according to the rules in the English Statute of Distribution of Personal Estate. G. S. U. C. c. 82, s. 37. 37. >VTierever there is but cme person entitled to inherit according to the provisions of the eighteenth and following sections of this Act, he shall take and hold the inheritance solely ; and wherever an in- heritance, or a share of an inheritance, descends to several i)ersons under such provisions, they shall take as tenants in common, in pro- portion to their respective rights. C. S. U. C. c. 82, s. 38. ;'>H. Descendants and relatives of the intestate begotten before his death, but born thereafter, shall in all cases inherit in the same man- ner as if they had been born in the lifetime of the intestate and had survived him. C. S. U. C. c. 82, s. 3!). 3!). Children and relatives who are illegitimate shall not be entitled to inherit under any of the provisions of this Act. C. S. U. C. c. 82, s. 40. 40. The estate of the husband as tenant by the curtesy, or by a wi- dow as tenant in dower, shall not be afiected by any of the provisions of the last preceding twenty-two sections of this Act, nor shall the same affect any limitation of any estate by deed or will, or any estate which, although held in fee simule or for the life of another, is so held in trust for any other persoti, but all such estates shall remain, pass and descend, as if the last twenty-two secti(ms of this Act numbered from eigiiteen to thirty-nine, both included, had not been passed. C. S. U. C. c. 82, s. 41. 41. If any child of an intestate has been advanced by the intestate by settlement, or portion of real or persersonal estate of the deceased, as above reckoned, then such child and his descendants shall be excluded from any share in the real and personal estate of the in- testate. C. S. U. C. c. 82, s. 42. 42. If such advancement is not equal to such share, such child and his descendants shall be entitled to receive so much only of the personal estate, and to inherit so much only of the real estate, as is sutticient to make all the shares of the children in such real and 543 Half blood to Hucccecl wttli whole blood. In coxcH not jirovidcd for, 22-3 Car. II., c. 10, and m Car. II. c. 3, to apply. Co-lieini to tuko as teiiaiilN in vomiiioii. Deficciidaiits Sic:, born aftcT duatli of intuatutu, to Inhurit. IlleKiliiiiatc |iur- HOtlH III it to inherit. Curtesy, dower and e!*lateH by deed or will, excepted. Cosoa of chililrcM who liave been advanced by itettleiucnt, etc If Buch advance- ment bo not equal. uf 544 Value of pro- ficrty Mlvkiiced, luw oHtimattd. Education, etc., nut aUvanue- nient. Ar to the pur- vhaiw by any of the parties inter- CHteil u( real eHtate subject to partltiun. Particulars i)f offer to imrt'hasc t<> be certiticU to the Court. Any Court authorized to make iwrtitiim may direct a Bale, irivjnir prefer- ence to the huir- at-iaw. Tern)B on which preference to be given. APPENDIX. personal estate and advancement to be equal, as nearly as can be esti- mated. C. S. (J. C. c. 82, s. 43. 43. The value of any real or perso'ial estate so advanced shall be deemed to be that, if any, which has been acknowledged by the child by any instrument in writing, otherwise such value shall be estimated according to the value of the property when given. C. S. U. C. c. 82, s. 44. 44. The maintaining or educating, or the giving of money to a child, without a view to a portion or settlement in life, shall not be deemed an advancement within the meaning of this Act. C. S. U. C. c. 82, s. 46. 45. The parties anthorized to make partition of any such estate according to law shall receive from any of the persons entitled to a share of such real estate, an offer or proposition to purchase the share or shares of the other parties interested therein , giving the preference to the person who would have been heir-at-law thereto, had the eighteenth and following sections of this Act not been passed ; and next after such heir-at-law, giving such preference to the several persons successively who would have been such heir-at-law, had the said last mentioned sections of this Act not been passed, and had those persons preceding them respectively in the series of such preference been dead at the time of the death of the intestate. C. S. U. C. c. 82, s. 4G. 4G. The parties so authorized to make such partition shall certify particularly to the Court in which proceedings for a partition are commenced or pending, the particulars of such offer or proposition to purchase, the nature, (juantity and value of the estate or share pro- posed to be purchased, and whether they advise such offer or pro!)osi- tion to be accepted or rejected, and their reasons thereior. G. o. U. C. c. 82, s. 47. 47. Any Court authorized to make partition of real estate may direct a sale of the same if it thinks it right so to do, upon the application of any of the parties beneficially interested therein, giving however the preference at all times to the person who would have been the heir-at-law to such real estate had the eighteenth and follow- ing sections of this Act not been passed, and after such heir-at-law, then giving such preference to the several persons successively who would have been such heir-at-law, had the said last mentioned sections of this Act not been passed, and had those persons preceding them respectively in the series of such preference been dead at the tiir.e of the death of the intestate. C. S. V. C. c. 82, s. 48. 48. Every such preference shall be upon and subject to such terms, security and conditions as the Court thinks it right to direct. C. 8. U. C. c. 82, s. 49. H Short title. CAP. CVL An Act respecting Wilis. ER MA.JESTY, by and with the advice and consent of the Legisla- tive Assembly of the Province of Ontario, enacts as follows : — ]. This Act shall be cited as " The With Act of Ontario." early as can be esti> advanced shall be edged by the child shall be estimated iren. C. S. U. C. c. of money to a child, hall not be deemed ct. C. S. U. C. c. of any such estate rsons entitled to a purchase the share ving the preference thereto, had the been passed ; and tnce to the several eir-at-law, had the iiBsod, and had those of such preference ate. C. S. U. C. c. rtition shall certify for a partition are fer or proposition to estate or share pro- ich offer or prooosi- thereior. C. o. U. of real estate may so to do, upon the sted therein, giving a who would have hteenth and follow- r such heir-at-law, s successively who aid last mentioned e persons preceding ce been dead at the 82, 8. 48. bject to such terms, it to direct. C. 8. isent of the Legisla- icts as follows : — '' Ontano." APPENDIX. WILLS DRFOUE 1.ST .lANrARV, 1874. 545 2. In the three next succeeding sections of this Act numbered three •• Land." to five inclusive, the word " land " shall extend to messuages, and all other hereditaments, whether corporeal or incorporeal, and to money to be laid out iti the purchase of land, and to chattels and other per- sonal property transmissible to heirs, and also to any share of the same hereditaments and properties, or any of them, and to any estate of inheritance, or estate for any life or lives, or other estate transmis- sible to heir^. and to any possibility, right or title of entry or action, and any other interest capable of being inherited, and whether the same estates, jiossibilities, rights, titles and interusts, or any of them, are in possession, reversion, remainder or contingency. C. S. U. U. c. 82, s. 14. 3. Wliere a will made before and not re-executed, republished or ErtateH acquired revived after the first day of January, one thousand eight hundred and '^tier tho makinir seventy-four, by any person dying after the sixth day of March, one by'the wUUhere thousand eight hundred and thirty-four, contains a devise in any form such inteniioy \» of words of all such real estate as the testator dies seised or possessed ci'^fsged. of, or of any part or portion thereof, such will sliall be valid and effec- tual to pass any land acquired by the devi!>or after the making of such will, in the same manner as if the title tliureto had been acquired be- fore the making thereof. C. S. U. C. c. 8J, s. 11 ; see 30 V. c. 20, ss. 2&4(i. 4. VVherever land is devised \n any such will as aforesaid, it shall be considered that the devisor intck^ded to devise all such estate as ho was seised of in the same land, whether in fee simple or otherwise, unless it appears upon the face of such will that he intended to devise only an estate for life, or other estate less than he was seised of at the time of making the will containing such devise. C. S. U. C. c. 82, s. 12 ; «ee30 V. c. '20, ss. 2 & 40. 5. Any will affecting land executed after the sixth day of Mar^n, 1834, and before the first day of .Tannary, 1874, in the presence of and attested by two or more witnesses, shall have the same validity and effect as if executed in the presence of and attested by three witnesses ; and it shall be sufficient if such witnesses subscribed their names in presence of each other, although their names were not subscribed in presence of the testator. C. S. V. C. c. 82, s. 13; nee 30 V. c. 20, ss. 2 & 40. 0. After the fotirth day of May, 1850, and before the first day of win by married January, 1874, every married woman mi;?ht, by devise or bequest exe- *ti',"Miiy,''i860*" cuted in the presence of two or moie witnesses, neither of whom was and l at January, her husband, make any devise or bequest of her separate property, real ^^'^*- or personal, or of any rights therein, whether such property was accjuired before or after marriage, to or among her child or children issue of any :uarriage, and failing there be any issue, then to her hus- band, or as she may see fit, in the same manner as if she were sole and urmarried. C. S. U. 0. c. 73, s. 10. WILLS AFTKR IsT JANUAUY, 1874. 7. Unless herein otherwise expressly provided, the subsequent sec- Conimencemo.it ti(ms of this Act shall not extend to any will made before the first day ?i"5k'^*^'°" °' uf January, one thousand eight hundred and seventy-four ; but every '35 A lievlse of land Himll be taken tu carry att larve an mtatu Htt the tev- tator hod in the land, unleRH a ccintrarv Inten- tion in expresaed. Witnesses need not fiub)K:ril)e in the pruHcnce of the tviitatur. 546 Imp. Act 1 V. c. 96, 1. 34. Api>llcation of Bectlung 20-2-i, 26 and 20. Interpretation clause. Imp. Act 1 V. c. 2(1, R. 1. •' Will." —■¥> ^ ---fi APPENDIX. will re-executed or re-pnbliBhed, or revived by any codicil, shall, for the purposes of the said sections, be deeined to have been made at the time at which the same was so re-executed, re-published or revived. 36 V. c. 20, s. 2. 8. The twentieth, twenty-first, twenty-second, twenty-fifth, and twenty-sixth sections of this Act shall not apply to the will of any per- son who WHS dead before the first day of January, one thousand eight hundred and sixty-nine, but shall apply to the will of every person who has died since the thirty-first day of December, 1808, or who dies after the passing of this Act. 32 V. /: 8, s. 6. 9. In the construction of the sections numbered ten to thirty-eight inclusive in this Act. (1.^ " Will " shall extend to a testament, and to a codicil, and to an appointment by will, or by writing in the nature of a will in exercise of a power, and also to a disposition by will and testament, or devise, of the custody and tuition of any child, by virtue of the Act passed in the twelfth year of the reign of King Charles the Second, entitled "An 12 Car. II. c. 24. Act for takii^g away the Court of l^ards, and lireriea and tenures in capite, aitd by knight's service and piii'veyance, ami for settling a revenue upon His Majesty in lieu thereof," and to other testamentary dispusi- tion ; " Real estate." (2.) " Real estate " shall extend to messuages, lands, rents, and hereditaments, whether freehold or of any otlier tenure, and whether corporeal, incorporeal or personal, and to any undivided share there- of, and to any estate, right, or interest (other than a chattel interest) therein ; (3.) " Personal estate" shall extend to leasehold estates and other chattels real, and also iioneys, shares of government and other funds, securities for money (not being real estates), debts, choses in action, rights, credits, goods, and all other property whatsoever which by law devolves upon the executor or administrator, and to any share or in- terest therein ; (4.) Person " and " Testator," shall include a married woman ; (6.) " Mortgage" shall include any lien for unpaid purchase money, and any charge, incumbrance, or obligation of any nature whatever upon any lands or tenements of a testator or intestate. 30 V. c. 20, s. 4 ; 35 V. c. 15, s. 2. 10. Every person may devise, bequeath, or dispose of by will, exe- cuted in manner hereinafter mentioned, all real estate and personal estate which he may be entitled to, either at Law or in Equity, at the time of his death, and which, if not so devised, bequeathed, or dis- posed of, wouid devolve tipon his heirs at law, or upon his executor or administrator; and the power herel>y given shall extend to estates ^im' autre vie, whether there be or be not any special occupant thereof, and whether the same be a corporeal or incorporeal heruditament ; and also to all contingent, executory, or other future interests in any real or persimal estate, whether the testator be or be not ascertiuaed as the person or one of the persons in whom the same may respectively be- come vested, and whether he be entitled thereto under the instrument by which tlie same were respectively created, or under any disposition thereof' by deed or will, and also to all rights of entry for conditions broken and other rights of entry, and also to such of the same estates, " Personal estate." " Person." "Testator." " Mortjfage." Imp. Act 30-31 V. c. 68, 8. 2. Power to dis- pose of all property. Imp. Act 1 V. c. 20, s. 3. Pur autre rir. Contingent Interests. Rl)(ht« uf entry. ly codicil, shall, for re been made at the blished or rnvived. twenty-fifth, and the will of any per- one thousand eight of every person who >8, or who dies after I ten to thirty-eight ) n codicil, and to an of a will in exercise estament, or devise, of the Act passed in jocond, entitled "An eriea aiid tenures in for atttling a retrnw ^stamentary dispusi- lands, rents, and tenure, and whether divided share there- in a chattel interest) >ld estates and other nent and other funds, l)ts, choses in action, bsoever which by liiw 1 to any share or in- narried woman ; )aid purchase money, any nature whatever state. 30 V. c. 20, s. ipose of by will, exe- estate and personal ' or in Equity, at the bequeathed, or dis- upon his executor or extend to estates pnr jccupant thereof, and jreditament ; and also erests in any real or at ascertidfied as the may respectively be- imder the instrutnent under any disposition ■ entry for conditions h of the same estates. APPENDIX. f 547 interests and rights respectively, and other real and personal estate, as Propertr the testator may be entitled to at the time of his death, notwithstand- JJj^'jJiu ***"' ing that he may become entitled to the same subsecpiently to the exe- cution of his will. 30 V. c. 20, s. 5. 11. No will made by any person under the ago of twenty-one years wiii« by infanta shall be valid. 36 V. c. 20, s. G. invalid. Imp. Act 1 V. 12. No will shall be valid unless it is in writing, and executed in "■*"• ■• ^" manner hereinafter mentioned ; that is to say, it shall be sii;ned at the f """^ij,""; y foot or end thereof by the testator, or by some other person in his pro- "%, ■. V sence. and by his direction ; and such signature shall bo made or &c- knowiedged 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 ; but no form of attes- Attestation, tation shall be necessary. 2. Every will, so far only as regards the position of the signature of ?''^"*V'.7'i5_i« the testator, or of the person signing for him as aforesaid, shall be v"e!24%. i. deemed to be ^nHd, within the meaning of this Act, if the signature is 80 placed, at, ir after, or following, or under, or beside, or opposite to the end of the will, that it is apparent on the face of the will that the testator intended to give effect by such signature to the writing signed as hi^^ will ; and no such will shall be affected by the circum- stance that the signature does not follow or is not immediately after the foot or end of the will, or by circumstance that a blank space intervenes between the concluding words of tho will and the signa- ture, or by the circumstance that the siyrnature is placed among the words of the lestimonium clause, or of the clause of attestation, or follows, or is after, or under the clause of attestation, either with or without a blank space intervening, or follows, or is after, or under, or beside the names of one of the names of the subscribing witnesses, or by the circumstances that the signature is on a side, or page, or other portion of the paper or papers containing the will, wheieon no clause or paragraph or disposing part of the will is written above the signature, or by the circtimstance that there apjiears to be sutticient 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 circumstan- ces shall not restrict the generality of the above enactment ; but no signature under this Act shall be operative to give effect to any dispo- sition or direction witich 's underneath, or which follows it, nor shall it give effect to any disposition or direction inserted after the signa- t»ire was made. 30 V^. c. 20, s. 7. 13. No appointment made by will, in exercise of any power, shall be valid, unless the same is executed in manner hereinbefore required ; and every will executed in manner hereinbefore reqiiired shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it has been ex- pressly required that a will made in exercise of such power shall be executed with some additional or other f(jrm of execution or solemnity. 36 V. c. 20, s. 8. 14. Any soldier being in actual military service, or any mariner or willg of penon- seaman being at sea, may dispose of his personal estate as he might a't.y of soldleni have done before the passing of this Act. 36 V. c. 20, s. 9. imp. AcTiv. c. 20, a. 11. Appnlntmonts liy will how to hu exeruimid. Imp. Act 1 V. c. 20, 8. 19. 548 Publlcatinn uiineceaMry. Imp. Act 1 V c. 86, *. 13. Will not Inv&lia it wltneHS Interwted. Imp. Act 1 V. u. 'X, B. 14. GltU, etc., to wltnesH invalid. Imp. Act 1 V. c. 20, 8. l.'l. Creditors coni- )ietent witnew^ep. imp. Act 1 V. c. 2«, 8. 10. Executor com- petent witness. imp. Act 1 V. c. 28, ». 17. Revocation hy marriage Imp. Act 1 V. C. 2(!, ». lb. No revocation by cliani;e in circumstances. Imp. Act 1 V. c. 26, s. 19. How only will can be revoked. Imp. Act 1 V. c. 26, 8. 20. Obliterations, interlinea- tions, etc. Imp. Act 1 V. c. 26, s. 21. APPENDIX. 16. Every will executed in manner hereinbefore required shall be ▼alid without any other publication thereof. 36 V. c. 20, ■■ 10. IG. If any jjerson who attests the execution of a will is, at the time of the execution thereof, or becomes at any time afterwards, incompe- tent to be admitted a witness to prove the execution thereof, such will shall not on that account be invalid. 36 V. c. 20, s. 11. 17. If any person attests the execution of any will, to whom or u whose wife or husband, any beneticial devise, legacy, estate, interent, gift or appointment of or affecting any real or personal estate (other than and except charges and other directions for the payment of any debt or debts) is thereby given or made, such devise, legacy, estate, interest, gift, or appointment shall, so far only as concerns such person attesting the execution of such will, or the wife or husband of such person, or any person claiming under such person or wife or husband, be utterly null and void, and such person so attesting shall be admit- ted as a witness to prove the executi(m of such will, or to prove the validity or invalidity thereof, notwithstanding such devise, legacy, estate, intcrent, gift or appointment mentioned in such will. 3() V. c. 20, s. 12. 18. In case by any will any real or personal estate is charged with any debt or debts, and any creditor, or the wife or husband of any creditor whose debt is so charged attests the execution of such will, such creditor, notwithstanding such charge, shall be admitted a wit- ness to prove the execution of such will, or to prove the validity or invalidity thereof. 36 V. c. 20, s. 13. 19. No person shall, on account of his being an executor of a will, be incompetent to be admitted a witness to prove the execution of suce will, or a witness to prove the validity or invalidity thereof. 30 V. c. 20, s. 14. 20. Eveiy will shall be revoked by the marriage of the testator, except a will made in the exercise of a power of appointment where the real or personal estate thereby appointed would not, in dofault of Euch appointment, pass to the testator's heir, executor or adminisTra- tor, or the person entitled as the testator's next of kin under the Stat- ute of Distributions. 32 V. c. 8, s. 3 ; 35 V. c. 15, s. 3 ; 36 V. c. 20. s. 15. (ked other- wise than as aforesaid, or by another will or codicil executed in luaii- ner hereinbefore required, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is hereinbefore required to be executed, or by the burning, tearin^c. or otherwise destroying the same, by the testator, or by some person in his presence and by his direction, with the intention of revokinj; tlte same. 32 V. c. 8, s. 5 ; 36 V. c. 20, s. 17. {See section eujht of thii Act.) 23. No obliteration, interlineation or other alteration made in any will after the execution thereof, shall be valid or have any etfect, ex- cept so far as the words or effect of the will before such alteration are not apparent, unless such alteration is executed in like manner us here- :^l APPENDIX 549 inbefore is required for the executidti uf tlie will ; hut tlie will, with auch alteration as part thereof, shall he douinud to ho duly executed, if the signature of the testator and the subsuriptiou of the witnexaes are made in the margin or in souie other part of the will opposite or near to such alteration, or at the foot or end of, or opposite to, a me- morandum referring to such alteration, and written at the end or in some other part of the will. 36 V. c. 20, s. 18. 24. No will or codicil, or any part thereof, which has been in any itovivul. manner revoked, shall bo revived otherwise than by the re-execution '"'.!'• ^*^' j ^ thereof, or by a codicil executed in manner hereinbefore recpiired, and *" ' * ' showing an intention to revive the same ; and where any will or codi- cil which has been partly revokeil, and afterwards wholly revoked, is revived, such revival shall not extend to so much thereof as was re- voked before the revocation of the whole thereof, unless an intention to the contrary is shown. 30 V. c. 20, s. li>. 2o. No conveyance or other act made or done subsequently to the No act a* to pro- execution of a will, of or relating to any real or personal estate therein iwrty iiameii in comprised, except an act by which such will is revokod as aforesaid, xcnt^i)|>oration shall prevent the operation of the will with respect to such estate, or of the will on to interest in such real or personal estate, as the testator had power to *,','tcstaior"*^im'i' dispose of by will at the time of his death. 32 V. c. 8, s. 2 ; 30 V. c. Act i V. c. •m, >. 20, s. 20. {S^•.e sfctiou eight of this Act.) 23. 26. Every will shall be construed, with reference to the real and per- win to H)>oak gonal estate comprised in it, to speak and take effect as if it had been ''^"'J' l*,^'|'v executed immediately before the death of the testjitor, unless a con- o. 20, g. 24. trary intention appears by the will. 32 V. c. 8, a. 1 ; 30 V. c. 20, s. 21. {Sec section eiijht of this Act.) '27. Unless a contrary intention appears by the will, such real estate Lapsed devise to or interest therein as is comprised or intended to bo comprised in any '''"^^l[,'a«.Jevl»o devise, in such will contained, which fails or becomes void by reason of iJi^Jp. Act iv. c. the death of the devisee in the lifetime of the testator, or by reason of 2«, b. 25. such devise being contrary to law, or otherwise incapable of taking ef- fect, shall be included in the residuary devise (if any^ contained in such will. 36 V. c. 20, 8. 22. 28. A devise of the land of the testator, or of the land of the testa- Leaseholdn, tor in any place or in the occupation of any person mentioned in his JJ'n,?"r'a ?*enerel will, or otherwise described in a general manner and any other general devise, imp. devise which would describe a leasehold estate, if the testator had no Act i v. c. 2fl, freehold estate which could be described by it, shall bo construed to " " ' include his leasehold estates, or any of them to which such description will extend (as the case may be), as well as freehold estates, unless a contrary intention appears by the will. 30 V. c. 20, s. 23. 29. A general devise of the real estate of the testator, or of the real Oencral rUI to estate of the testator in any place or in the occupation of any person and%*r»imalty mentioned in his will, or otherwise described in a general manner, shall over which be construed to include in any real estate, or any real estate to which ^"^e^t'i, a'JL,i„t such description will extend (as the case may be), which he may have jmp. Act 1 V. c. power to appoint any manner he may think proper, and shall oper- 20, s. 27. ate as an execution of such power, unless a contrary intention appears by the will ; and in like manner a bequest of the personal estate of the testator, or any bequest of personal estate described in a general man- ner, shall be construed to include any personal estate, or any personal estate to which such description will extend (as the case may be), which 560 Gciionl deviae t4i pan whole Mtate in the land devlRcd. Imp. Act 1 V. c. 20, n. 2t). Import of wnrda " die without iiwue," or to that effect. Imp. Act 1 V. c. 26, a. 29. Proviso. When devise to trustee or executor shall INUS whole estate of testator. Imp. Act I V. c. 26, 8. 30. When devise to a truKtee shall pa.s8 Uie whole estate beyond what Is reiiuisite for the trust. Imp. Act 1 V. c. 20, 8.31. When devises of estates tail shall not lapse. Imp. Act 1 V. c. 26, 8. 32. Gifts to isttie who leave issue on testator's death, shall not lapse. Imp. Act I V. c. 26, 1, S3. APPENDIX. he may have power to appoint in any manner he may think proper, and shall operate as an execution of such power, unless a contrary in- tention appears by the will. 30 V. o. 20, s. 24. 30. Where any real estate is devised to any person without any wordi of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power tu dis- Eose of by will, in such real estate, unless a contrary intention appears y the will. 36 V. c. 20, s. 25. 31. In any devise or bequest of real or personal estate, the words " die without issue," or " die without leaving issue," or "have no issue," or any other words which import either a want or faili^e of issue of any other person in his lifetime, or at the time of his death, or an indeKnite faifure of his issue, shall be construed to mean a want or failure of issue in the lifetime or at the time of the death of such pir- son, and not an iudetinito failure of his issue, unless a contrary inten- tion appears by the will, by reason of such person having a prior estate tail, or of a preceding gift being, without any implication arising from such words, a limitatior. of an estate tail to such person or issue, or otherwise : but this Act shall not extend to cases where such words ns aforesaid import if no issue described in a preceding gift be born, or if there be no issue who live to attain the ai^e, or otherwise answer the description required for obtaining a vested estate by a preceding gift ta such issue. 2ti V. c. 20, s, 20. 32. Where any real estate is devised to a trustee or executor, such devise shall be construed to pass the fee simple, or other the whole es- tate or interest which the testator had power to dispose of by will in such real estate, unless a detinite term of years absolute or determin- able, or an estate of freehold, is thereby given to him expressly or by implication. 30 V. c. 20, s. 27. 33. Where any real estate is devised to a trustee without any express limitation of the estate to be taken by such trustee, and the beneticiul interest in such real estate, or in the surplus rents and profits thereof, is not given to any person for life, or such beneficial interest is given to any person for life, but the purposes of the trust may continue bo yond the life of such person, such devise shall be construed to vest in such trustee the fee simple or other the whole legal estate which tlio testator had power to dispose of by will in such real estate, and not an estate determinable when the purposes of the trust are satisfied. '36 V. c. 20, s. 28. 34. Where any person to whom any real estate is devised for an es- tate tail or an estate in quasi entail, dies in the lifetime of the testator, leaving issue who would be inheritable under such entail, and any such issue are living at the time of the death of the testator, such devise shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the testator, unless a contrary intention appears by the will. 36 V. c. 20, s. 29. 35. Where any person, being a child or other issue of the testator, to whom any real < t personal estate is devised or bequeathed for any estate or interest not determinable at or before the death of such per- son, dies in the lifetime of the testator, leaving issue, and any of the issue of such person are living at the time pi the death of the testator, such devise or bequest shall not lapse, but shall take effect as if the death of such person had happened immediately after the death of the jjlri may think proper, inlesB a contrary in- n without any words Bs the fee simple, ur or had power to dig. ry intention appears al estate, the words sue," or "have no int or fuili^e of issue 9 of his death, or an to mean a want or e death of such pir- Bss a contrary inteii- having a prior estate lication arising from I person or issue, or where such words as nggift be born, or if therwise answer the >y a preceding gift to :ee or executor, such r other the whole es- dispose of by will in bsolute or deterinin- him expressly or by 5 without any express ie, and the beneticial I and profits thereof, icial interest is given st may continue bo construed to vest in gal estate which tlio al estate, and not an ust are satisfied. 36 is devised for an es- etime of the testator, entail, and any such estator, such devise 1 of such person hud kor, unless a contrary ssue of the testator, ■ bequeathed for any e death of such per- isue, and any of the eath of the testator, take effect as if the fter the death of the APPENDIX. testator, unless a contrary intention appears by 'Jie will. 'M V. c. 20, 1. 3U. 30. Where any person has died since the 31st day of December, 18(!5, or hereafter dies seised of or entitled to any estate or interest in any real estate, which, at the time of his death, was or is charged with the payment of any sum or sums of money by way of mortgage, ami such person has not, by his will or deed or other document, signified any contrary or other intenti(m, the heir or devisee to whom such real estate descends or is devised shall not 'oe entitled to have the mortgage debt discharged or satisfied out of the personal estate, or any other real estate of such person ; but ^he real estate so charged shall, be- tween the different persons claiming through or under the deceased person, be primarily liable to the payment of all mortgage debts with wliich the same is charged, every part thereof according to its value bearing a proportionate part of the mortgage debts charged on the whole therei f. 29 V. c. 28, s. 33 ; 30 V. c. 20, s. 31. (2). Nothing herein contained shall affect or diminish any right of the mortgagee on such real estate to obtain full payment or satisfac- tion of his mortgage debt, either out of the personal estate of the per- son so dying as aforesaid, or otherwise ; and nothing lerein contained shall affect the rights of any person claiming under or by virtue of any will, deed, or document made before the first day of January, one thousand eight hundred and seventy-four. 20 V. c. 28, s. 33 ; 30 V. c. 20, s. 31. 37. In the construction of any will or deed or other document to which the next preceding section of this Act relates, a genevd direc- tion that the debts or that all the debts of the testator shall be paid out of his personal estate shall not bo deemed to bo a declaration of an intention contrary to or other than the rule in the said section con- tained, unless such contrary or otlier intention is 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. 35 V. c. 15, s. 1 ; 30 V. c. 20, s. 32. 38. The Acts of the Imperial Parliament described in the Schedule to this Act (except as far as the same relate to any wills to which the seventh and following sections of this Act do not extend) are, and shall continue to be, repealed to the ex'e t in the third column of the said Schedule mentioned ; but such rep j \\ shall not revive any Act or provision of law repealed by them, nor s.iall the said repeal prevent the application of any of the said Acts, or of any Act or provision of law formerly in force, to any transaction, matter or thing anterior to the time of the repeal of the said Acts, and to which they would other- wise apply. 30 V. c. 20, s. 40. ;5i MortROffc tlehta to lie prliiiurlly oliarKeallie oti tho lanilit. Imp. Aut 17-ltl V. c. 113. PrDvUo. ConsCquenco of ilircctlun that tcstator'H Uebts bu paid uiit of iwrnuiialty. Imp. Aut 30-31 V c. 69, s. 1. Acts repuUeil. 1 4! I; 552 APPENDIX. SCHEDULE. AlTH RCPEALEI). 32 Hen. M, ckp. 1. TiTLB or AcTM nF.rKAi.Ri). I Extent or Rkpeau The AcU of Willn Wimln and llie whole Act. Prinu Geo. 2, cap. 6. I An Act for the amendment of the law and the better ad- vancunient of juHtico. Ah Act to amend the law con- cernin^f Common Kecovcries, and to explain and amend an Act marevention of FraiidM and PerjuriuH." An Act for avoiding and jnitting an end to certain doiibts and qiieNtiona relating to the at- teHtation of WIUh and Codi ■ cils concerning real cHtateg in that part of Great Britain called England, and in His Majenty'H colonies and plan- tationn in America. Section 14. Section 9. The whole Act. i; f ;■ Short title. Interpretation. ■ Land." CAP. CVIII. An Act respecting the Limitation of Suits relating to Real Property, and the time uf prescription in certain cases. HER MAJESTY, by and with the advice and consent of the Legisla- tive Assembly of the Province of Ontario, enacts as follows : — 1. This Act may be cited as " The Real Property Limitation Act." 2. The words and expressions hereinafter mentioned, which, in their ordinary signification have a nioro contined or a different meaning, shall in this Act, except where the nature of the provision or the context of the Act excludes such construction, be interpreted as follows, that is to say : (1.) " Land " shall extend to messuages and all other hereditaments, whether corporeal or incorporeal, and to money to be laid out in the KXTKNT OK RkI'EAI,. riie whole Act. The whole Act. APPENDIX. 553 ioc^tinnx .5, fi, 12, 11« 'JO, il ft TL 'iuction 14. ■Section 9. The whole Act. Uert/ rroperty, and ones. nsent of the Legisla- ncts as follows : — y Limitation Act." oned, which, in their ferent meaning, shall ion or the context of 1 as follows, that is to ather hereditaments, to be laid out in the purchase of land (and to chattels and other personal property transmis- lihlo to heirs), and also to any share <-f the same hereditaments and properties or any of them, and to any estate of inherituncu, or estate fur any life or lives, or other estate transiniHsilile to heirs, and to any piijtHihility, right or title of entry or action, and any other interest cap- hI)1u of lieing inherited, and whother the same (.itattH, possibilities, rights, titles and interests, or any of them, are iii poisession. reversion, remainder or ciintini,'ency ; (2.) " Assurance " shall mean any deed <•• instrument (oth*"" than a " Awur»noe." will) by which any land may be conveyed r transferred i\> Law or in T. luity ; and (3.) " llent " shall extend to all annuities and i>eriodical sums of " Rent." money charged upon or payable out of any land . C. S. U. C. c. 88, s. 4J>. .'{. This Act shall commence and be deemed to have taken effect, and Cimimencemcnt clinpter eighty-eight of the Consolidated Statutes oi I'pper Canada, and "''" ^^'^' section twenty-two of the Act passed in the thirty-second year fif Her Majesty's reign, and chaptered seven, to have been repealed, on and after the first day of July one thousand eight hundred and seventy- seven, as respects any perstm who, (m and for twelve months continu- ously after the twenty-first day of December, one thousand eight hun- dred and seventy-four, resided without this Province, and is a person entitled to make an entry or distress or to bring an action or suit to re- cover any land or rent ; or so resident, is a mortgagor, or person entitled to redeem within the meaning of the nineteenth, twentieth or twenty- (irst sectioi of this Act ; or so resident is a person entitled to, or claim- ing under a mortgage within the meaning of the twenty-second section ; or so resident is a person entitled to bring an action, suit, or other pro- ceeding within the meaning of the twenty-third section ; or so resident as a person entitled to an action suit or other proceeding within the meaning of the twenty-fourth section of this Act ; or so resident is a person claiming an estate, interest or right, to take effect after or in defeasance of an estate tail within the meaning of the twenty-eighth section ; or so resident is a person entitled to demand dower ; and ex- cept as respects the persons, and in the cases mentioned above in this section, this Act shall be deemed to have commenced and taken effect and the said Acts to have been repealed from and after the first day of July, one thousand eight hundred and seventy-six. ;J8 V. c. 10. s. 10. 1 LAND OR RENT. 4. No person shall make any entry or distress, or bring any action or suit, to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action or suit, firat accrued to some person through whom he claims ; or if such right did not accrue to any person through he claims, then within tan years next after the time at vhich the right to make such entry or distress, or to bring such actioa or suit, first accrued to the person making or bringing the same. 38 V. c. 16, s. 1. 5. In the construction of this Act, the right to make an entry or dis- tress, or bring an action to recover any lar, 1 or rent, shall be deemed to have first accrued at such time as hereinafter is mentioned : No laud or rent to be recovered but within ten .years after the riirht of action accrued. Imp. Act, .1-4 W. IV. c. 27, ».2; ai-aa v. c. 5V, ». 1. When the right ehail be deemed to have flret ac- crued. (1.) Where the person claiming such land or rent, or some person Ondlspossewion through whom he claims, has, in respect of the estate or interest claimed, j v.''c.^27 ' ^t.^' been in possession or in the receipt of the profits of such land, or in re- r)54 APPENDIX, On abatement or death. Imp. Aft, 3-4 W. IV. c. 27, 8. 3. On alienation. Imp. Act, 3-4 W. IV. c. 27, ». 3. As to lands not cultivated or im- proved. Provjgo. When rent amountin)< to $1 reserved by leasn in writings has been wrongfully reueived, the right to accrue at the time the rent was wrong- fully received. Imp. Act, 3-4 W. IV. c. 27, 8. 9. No person after a tenancy from year to year to have any right ceipt of such rent, and has, while entitled thereto, been disposseRseil, or has discontinued such possession ur receipt, then such right shall be deemed to have first accrued at the time of such dispossession or diacon- tinuance of possession, or at the last time at which any such profits or rent were or was so received. C. S. U. C. c. 88, s. 2 (1). (2.) Where the person claiming such land or rent claims the estate or interest of some deceased person who continued in such possession or receipt, in respect of the same estate or interest, until the time of liis death, and was the last person entitled to such estate or interest who was in such possession or receipt, then such right shall bo deemed to have first accrued at the time of such death. C. S. U. C. c. 88, s. 2 ('.*). (3). Where the person claiming such land or rent claims in respect of an estite or interest in possession, granted, appointed, or otherwise as- sured by any instrument other than a will to him or some person thr< lugh whom he claims, by a person being in respect of the same estate or in- terest, in tlie possession or receipt of the profits of the land, or in receipt of the rent, and no person entitled under such instrument has been in possession or receipt, then such right shall be deemed to have first ac- crued at the time at which the person claiming, as aforesaid, or the per- son through whom he claims, became entitled to such possession or receipt by virtue of such instrument. C. S. U. C. c. 88, s. 2 (3). (4.) In the case of lands granted by the Crown of which the grantee* his heirs or assigns, by themselves, their servants or agents, have mr taken actual possession by residing upon or cultivating some portion thereof, and in case some other person not claiming to hold under sr.ch grantee has been in possession of such land, such possession having been taken while the land was in a state of nature, then unless it can be shown that such grantee or such person claiming under him while entitled to the lands had knowledge of the same being in actual possession of such other person, the lapse of ten years shall not bar the right of such grantee or any person claiming under him to bring an ac- tion for the recovery of such land, but the right to bring an action shall be deemed to have accrued from the time that such knowledge was ob- tained : but no such action shall be brought or entry made after twenty years from the time such possession was taken as aforesaid. 27-8 Y. c. 29, 8. 1 ; 38 V. c. 16, s. 15. (5. ) Where any person is in possession or receipt of the profits of any land, or in receipt of .any rent by virtue of a lease in writing, by which a rent amounting to the yearly sum of four dollars or upwards is re- served, and the rent reserved by sucii leivse has been received by some person wrongfully claiming to be entitled to such land or rent in rever- sion immediately expectant on the determination of such lease, and no payment in respect of the rent reserved by such lease has afterwards been made to the person rightfully entitled thereto, the right of the per- son entitled to such land or rent, subject to such lease, or of the person through whom he claims to make an entry or distress, or to bring an action after the determination of such lease, shall be deemed to have first accrued at the time at which the rent reserved by such lease was first so received by the person wrongfully claiming as aforesaid, and no such right shall be deemed to have first accrued upon the determination of such lease to the person rightfully entitled. C. S. U. C. c. 88, s. 10. (6.) Where any person is in possession or in receipt of the profits of any land, or in receipt of any rent as tenant from year to year or other period, without any lease in writing, the right of the person entitled APPENDIX. 555 been dispoBsessed, n such right shall be possession or disoon- I any such profits or 2(1). t claims the estate or n such ])os8ession or until the time of his tate or interest who shall bo deemed to LT. C. c. 88, s. 2 (•_>). t claims in resjject of ted, or otherwise as- nne person thr< aigh le aanie estate or iii- ho land, or in receipt trument has been in ned to have first ac- aforesaid, or the j)er- siich possession ur c. 88, 8. 2 {n). )f which the grantee* or agents, have no'' vating some portion " ig to hold under nd, such possession ■ nature, then unless 1 claiming under him same being in actual ears shall not bar the r him to bring an ac- bring an action shall :h knowledge was ob- ry made after twenty aforesaid. 27-8 V. t of the profits of any in writing, by which rs or upwards is re- en received by some land or rent in rever- if such lease, and no lease has afterwards , the right of the per- iase, or of the person tress, or to bring an I be deemed to have id by such lease was : as aforesaid, and no •n the determination S. U. C. c. 88, 8. 10. eipt of the profits of jrear to year or other the person entitled subject thereto, or ci the person through whom he claims, to make an entry or distress, or to bring an action to recover such hiud or rent, shall be deemed to have fir»t accrued at the determination of the first of such years or other periods, or at the last time when any rent pay- able in respect of such tenancy was received (whichever last happened). C. S. U. C. c. 88, s. 9. (7.) Where any person is in possession or in receipt of the profits of any land, or in receipt of any rent, as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or to bring an action to recover such land or rent, shall be deemed to have first accrued either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined. C. S. U. C. c. 88, s. 7. (8. ) No mortgagor or cestui que trvst shall be deemed to be a tenant at will within the meaning of the next preceding sub-section to his mort- gagee or trustee. C. S. U. C. c. 88, s. 8. (9.) Where the person claiming such land or rent, or the person through whom he claims, has become entitled, by reascm of any forfei- ture or breach of condition, then siich right shall be deemed to have first accrued when such forfeiture was incurred or such condition broken. C. S. U. C. c. 88, s. 2 (5). (10.) Where any right to make an entry ordistress, or to bring an action or recover any land or rent, by reason of any forfeiture or breach of condition, has first accrued in ret^iect of any estate or interest in reversion or remainder, and the land or rent has not been recovered by virtue of such right, the right to make an entry or distress, or to bring an action to recover such land or rent, shall be deemed to hav <^ first accrued in respect of such estate or interest at the time when the same became an estate or interest in possession, as if no such forfeiture or breach of condition had happened. C. S. U. C. c. 88, s. 4. (11.) Where the'estate or interest claimed is an estate or interest in reversion or remaiiider, or other future estate or interest, and no person has obtained the possession or receipt of the profits of such land, or the receipt of such rent, in respect of such estate or interest, then such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession. C, S. U. C. c. 88, 8. 2 (4). (12.) A right to make an entry or a distress, or'to bring an action or a suit, to recover any lard or rent, shall be deemed to have first ac- crued, in respect of an estate or interest in reversion or remainder, or future estate or interest, at the time at which the same became an es- tate or interest in possession, by the determination of any estate or estates in respect of which such land has been held or the profits thereof or such rent have be^n received, notwithstanding that the person claim- ing such land or icuu, or some person through whom he claims, has, at any time previously to the creation of the estate or estates which have determined, been in the possession or receipt of the profits of such land, or in receipt of such rent. 38 V. c. 16, s. 2. C. If the person last entitled to any particular estate on which any future estate or interest was expectant has not been in possession or receipt of the profits of such land, or in receipt of such rent, at the time when his interest determined, no such entry or distress shall be but from t)ie end of the Hrst year or laxt (Mkyment of rent. Imp. Act, 8-4 W. IV. c. 27, c. 8. In the case of a tenant at will, the rit(ht .shall he deemed to have accrued at the end of one year. Imp. Act, •2-4 W. IV. c. 27, 8, 7. Case of mortifa- (for or cestui iji* trust. In case of for- feiture or breach of condition. Imp. Act, H-4 W. IV. c. 27, s. 3. Where advantage of forfeiture U not taken by remainder-man, he shall have a new right when hiH estate comes into po!!.session. iu^p. Act, 3-4 \V. IV. c. 28, 8. 4. In case of future estates. Imp. Act, 3-4 W. IV. c. 27.S.3. Provisions for case of future estates. Imp. Act, 3-4 W. IV. 0. •_'7, s .5, 37-8 V. c. 57, S.2. Time limited as to future estates when person en^ titled to the particular estate si?. f 556 outnfpo«»e»Hioii, ■etc. Imp. Act, 37-8 V. c. 57, ». 2. The case of bar of future estate and of a subse- quent interest created after ■ri;;ht of crtry, etc., accrued to owner of parti- cular estate. Imp. Act, 37-8 V. c. 57, 8. 2. When the right to an estate in possession i.s barred, the rlnht of the .same per- sons to future estates shall also he barred. Imp. Act, 3-4 W. IV. c. 27, s. 20. An administra- tor to claim as if he obtained the estate without interval after death of de- ceased. 0-4 W. IV. c. 27, 8. 6. A mere entry not to be deemed possession. idem a. 10. No rijrlit to I.e }lru^ervud In uoutinuul claim. Idem a. 11. No descent, war- ranty, iVc, to bar a rij;lit of entry or action. Idem K. 31). Possession of one coparcener, &c. , not to be the possession of the others. Imp. Act. 3-4 W. IV. ■c. 37, a. 12. APPENDIX. made, and no such action or suit shall be brought, by any person be- coming entitled in possession to a future estate or interest, but within ten years next after the time when the right to make an entry or dis- tress, or to bring an action or suit for the recovery of such land or rent, first accrued to the person whose interest has so determined, or within five years next after the time when the estate of the person be- coming entitled in possession has become vested in possession, which- ever of those two periods is the longer. 38 V. c. 16, s. 3. (2.) If the right of any person to make such entry or distress, or tu bring any such action or suit, has been barred under this Act, no per- son afterwards claiming to be entitled to the same land or rent in re- spect of any subsequent estate or interest under any deed, will, or set- tlement executed or taking efl'ect after the time when a rii^ht to make an entry or distress, or to bring an action or suit, for the re- covery of such land or rent, first accrued to the owner of the particular estate whose interest has so determined as aforesaid, shall make any such entry or distress, or bring any such action or suit, to recover such land or rent. 32 V. c. 16, s. 4. (3. ) Where the right of any person to make an entry or distress, or to bring an action to recover any land or rent to which he has been en- titled for an estate or interest in possession, has been barred by the determination of the period, hereinbefore limited, which is applicable in such case, and such person has, at any time during the said period, been entitled to any other estate, interest, right or possibility, in rever- sion, remainder or otherwise in or to the same land or rent, no entry, distress or action shall bo brought by such person, or any person, claiming through him, to recover such land or rent in respect of such other estate, interest, right or possibility, unless in the meantime such land or rent has been recovered by some person entitled to an estati , interest or right which has been limited or taken eifect after or in de- feasance of such estate or interest in possession. C. S. U. C. c. 88, s. 48. 7. For the purposes of this Act, an administrator claiming the estate or interest of the deceased person of whose chattels he has been appointed administrator, shall be deemed to claim as if there had been no interval of time between the death of such deceased person and the grant of the letters of administration. C. S. U. C. c. 88, s. 6. 8. No person shall be deemed to have been in possession of any land within the meaning of this Act, merely by reason of having made an entry thereon. C, S. U. C. c. 88, s. 11. 0. No continual or other claim upon or near any land shall preserve any right of making an entry or distress, or of bringing an action. C. fc>. U. C. c. 88, s. 12. 10. No descent cast, discontinuance 'or warranty, which has hap- pened or been made since the first day of July, one thousand eight hundred and thirty-four, or which may hereafter happen or be made, shall toll or defeat any right of entry or action for the recovery of land. C. S. U. C. c. 27, s. 80. 11. Where any one or more of several persons entitled to any land or rent as coparceners, joint tenants or tenants in common, have been in possession or receipt of the entirety, or more than his or their un- divided share or shares of such land, or of the profits thereof, or of such rent, for his or their own benefit, or for the benefit of any person by any person be- interest, but within ike an entry or dis- iry of such land or a so determined, or to of the person he- possession, which- 6, 8. 3. y or distress, or to er this Act, no pur- land or rent in re- y deed, will, or set- when a rii,'ht to or suit, for the re- ler of the particular aid, shall make any or suit, to recover try or distress, or to h he has been cn- been barred by the which is applicable ing the said period, jossibility, in rever- i or rent, no entry, son, or any person. t in respect of such i the meantime such ititled to an estati , iffect after or in de- S. U. C. 0. 88, s. 48. ;rator claiming the ihattels he has been as if there had been ised person and the c. 88, s. 6. ssession of any land oi having made an land shall preserve giag an action. C. y, which has hap- ne thousand eight appen or bg made, le recovery of land. ititled to any land iommon, have been ^n his or their un- )lit8 thereof, or of nefit of any person APPENDIX. 557 or persons other than the person or persons entitled to the ^her share or shares of the same land or rent, such p'.>ssessiosne»9ioii or re- ceipt of rent. Imp. Act, 3-4 W. IV. c. 27, s. l-t. Receipt of rent to be (leenieil re- ceipt of profits. Imp. Act, ;t-4 W. IV. c. 27, s. ;i.5. At the end of the period of limitation the T'mht of the party out of pos- Bession to he ex- tinj^uished. Imp. Act. 3-4 W. IV. c. 27, 8. 34. No arrears of dower to be re- covered for more than six jeurs. Idem X. 41. No arrears of rent or interest to he recovered for more than six years. Imp. Act, 3-4 W. IV. c. 27, s. 4i. Exception in fa- vour of subse- quent mortgagee when a prior mortgagee ha.s been in nosbe^i- sion. idem s. 42. 558 Mortpaffor to be bnrred at end of ten years from the time when the moTtfsnefB took poasesBion or from the last writtei. acknow- leilirment. Imp. Acts 3-4 W, IV., f. 27, 8. 28; and a7-8 V. c. 67, s. 7. AeknowlcdK- nieiit to one of several mortga- gors. Imp. Act, :i-4 W. IV. c. 27, «. 28. Acknowledg- ment by oi\e of ."several mortga- gees. Imp. Act 3-4 W. IV. c. 27, s. 28. Mortgagee may enter or sue with- in ten years from last payment. Imp. Act W. IV. 4 1 V. c. 28. APPENDIX. person entitled to sticli aubieqnent mortgage or incumbrance may re- cover in such action or suit the arrears of interest which have become due during the whole time that such prior mortgagee or incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years. C. S. U . C. c. 88, s. 20. MOKTOAUE8. 19. Where a mortgagee has obtained the possession or receipt of the profits of any land or the receipt of any rent comprised in liis mort- gage, the mortgagor, or any person claiming through him, shall not bring any action or suit to redeem the mortgage, but within ten years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledgment in writing of the title of the mortgagor, or of his right to redemption, has been given to the mortgagor or some person claiming his estate, or to the agent of such mortgagor or person, signed by the mortgagee, f)r the person claiming through him ; and in such case no such action or suit shall be brought, but within ten years next after the time at which such acknowledgement, or the last of such acknowledgments, if more than one, was given. 38 V. c. IG, s. 8. 20. In case there are more mortgagors tlian one, or more persons than one claiming through the mortgagor or mortgagors, such acknow- ledgement, if given to any of such mortgagors or persons, or his or their agent, shall be as etlectnal as if the same had been given to all such mortgagors or persons. 38 V. c. 16, s. 8. 21. In cjise there are more mortgagees than one, or more persons than one claiming the estate or interest of the mortgagee or mortgagees, such acknowledgment, signed by one t)r more of such mortgagees or persons, shall be effectual only as aL;ainstthe party or parties signing as aforesaid, and the person or persons claiming any part of the mortgage money or land or rent by, from, or under him, or them, and any pur- son or persons entitled to any estate or estates, interest or interests, to take (iffect after or in defeasance of his or their estate or estates, in- terest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mortgage as against the person or persons entitled to any other undivided or divided ptart of the money or land or rent ; and where such of the mortgagees or persons afore- Laid as have given such acknowledgment are entitled to a divided part of the land or rent comprised in the mitrtgage of some estate or interest therein, and not any ascertained part of the mortgage money, the mortgagor or mortgagors shall be entitled to redeem tlie same divided part of the land or rent on payment, with interest, of the part of the mortgage money which bears the same proportion to the wliole (jf the mortgage money as the value of such divided part of the land or rent bears to the value of the whole of the land or rent comprised in the mortgage. 38 V. c. 16, s. 10. 22. Any person entitled to or claiming under a mortgage of land, may make an entry or bring an action at Law or suit in Equity to re- cover such land, at any time within ten years next after the last pay- ment of any part of the principal mcmey or interest secured by such mortgage, although more than ten years have elapsed since the time at which the right to make such entry, or bring such action or suit first accrued. 38 V. c. 16, s. 12. APPENDIX. 559 icumbrance may re- which have become ;ee or incumbrancer }ugh such time may J.C. c. 88, 8. 20. sion or receipt of the nprised in his mort- ough him, shall not but within ten years ined such posaea.sion Ijiment in writing of jdemption, has been his estate, or to the mortgagee, or the o Bdcli action or suit ho time at which such ;ments, if more than 2'». No action or suit or other proceeding shall bo brought to recover any sum of numey secured by any mortgage, judgment, or lien, or otlierwise charged upon or payable out of any land or rent, at Law or in Eipiity, or any legacy, but within ten years next after a present right to receive the same accrued to some person capable of giving a discharge for, or release of the same, unless in the meantime some pnrt of the principal money, or some interest thereon, has been paid, or si»me acknowledgment of the right thereto .has been given in writ- ing signed by the person by whom the same is payable, or his agent, to the person entitled thereto or his agent ; and in such case no action or suit or proceeding shall be brought, but within ten years after such payment or acknowledgment, or tlie hist of such payments or acknow- ledgments, if more than one was made or given. 38 V. c. 10, s. J 1 . 24. No action, suit, or other proceeding shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent, at Law or in Equity, and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable and so secured, or any damages in re- spect of such arrears, except within the time within which the same woiiid be recoverable if there were not any such trust. 38 V. c. 10, s. 13. Money cliarxed u|Miii land and let^uieti to be deemed MatiNfled at the end of ten years if no in- terest paid or ac- knowk'dgnient given in writing in the nieantiinv. Imp. Acta 3-4 W. IV. c. 27.S. 40: and 37-a V. c. 67, 8. ». Time for recovcr- iu'J uharKoa and arrears of i n- tercst not to l)e unlar(;e(l by ox- preitH iniHtM for raising same. Imp. Act :i7-!j V. c. 67, s. 10. ine, or more persons gagors, such acknow- ;tr persons, or his or lad been given to all me, or more persons tgagee or mortgagees, if such mortgagees or y or parties signing as part of the mortgage ir them, and any per- iterest or interests, to estate or estates, in- ! to the moitgagor or igainst the person or pd part of the money ees or persons afore- tled to a divided part ome estate or interest nortgage money, the jom the same divided ist, of the part of the n to the wliole of the ft of the land (jr rent ent comprised in the a mortgage of land, suit in Equity to re- ixt after the last pay- irost secured by such psed since the time at ch action ur suit tirst DOWEH. 25. No action of or suit for dower shall be brought but within ten Action of dower years from the death of the husband of the doweress, notwithstanding *^*'.^'! '>'"""8ht any disability of the doweress or of any person claiming under her. 38 V. c. 16, s. 14. BAR OF ESTATE.S TAIL. 20. Whore the right of a tenant in tail of any land or rent to make an entry or distress or to bring an action to recover the same, has been barred by reason of the same not having been made or brought within the period limited by this Act, no such entry, distress or action shall be made or brought by any person claiming any estate, interest or right which such tenant in tail might lawfully have barred. C. S. U. C. c. 88, s. 28. 27. Where a tenant in tail of any land or rent entitled to recover the same has died before the exi)iration of the period limited by this Act, no person claiming any estate, interest or right which such ten- ant in tail might lawfully have barred shall make an entry or distress or bring an action to recover such land or rent, but within the period during whicli, if such tenant in tail had so long continued to live, he might have made such entry or distress or brought such action. C. S. r. 0. c. 88,8. 29. 28. Where a tenant in tail of any land or rent has made an ass\ir- auce thereof, which does not operate to bar the estate or estates to take etl'ect after or in defeasance of his estate tail, and any person is by vir- tue of such assurance, at the time of the execution thereof, or at any time afterwards, in possession or receipt of the profits of such land, or in the receipt of such rent, and the same persim or any other person whosoever (other than some person entitled to such possession or re ceipt in respect of an estate which has taken effect after or in defeas- ance of the estate tail) continues or is in such possession or receipt for the period of ten years next after the commencement of the time at Where period of limitation elapsed against a tenant, in tail to be deemed to have elapsed against those whose rights he uotild have barred. Imp. Act 3-4 W. iV. c 27, 8. 21. Term elapsed in such c:i8ea dur- ing the life of the tenant to be computed against those whose rights he could hbve barred. Imp. Act, 3-4 W. IV. c.27,8.22. In cases of pos- session under tn as.Hurance by a tenant in tail, which shall not bar the remain- ders, they shall be barred at the end of ten years after that period at which the as- surance, if then executed, would «vf 5G0 have barred them. Imp. Acts, 3-4 W. IV. c. '27, ». 23, and 32-8 V. c. 57, H. e. No suit inoqiiity to be hriiuKht after the time when the plain- tilT, if entitled iit law, iiiitrht have brou((ht an action. Imp. Act 3-4 \V. IV. c. 57, 8. fi. In cases of ex- press trust, the right shall not be deemed to have accrued until a convey- ance to a pur- chaser. Imp. Act, 3-4 W. IV. 0. 27, s. 25. Tn cases of fraud no time .ihall run whilst the fraud remains concealed. Imp. Act, 3-4 W. IV. c. 27, s. 20. Unices in the case of a bona fide purchaser for value without notice. Imp. Act, 3-4 W. IV. c. 27, s. 26. Savini; the juris- diction of ey- ment beitau mure than 30 ytani avo. Imp. Act, 2-3 W. IV. c. 71, 8. 1. 34. No claim which may be lawfully made at the Common Law, by custom, prescription or grant, to any profit or benefit to be taken or enjoyed from or upon any land of our Sovereign Lady the Queen, Her Heirs or Successors, or of any ecclesiastical or lay person or body cor- porate, except such matters or things as are hereinafter specially pro- vided for, and except rent, and services, shall, where such profit or benefit has been actually taken and enjoyed by any person claiming >(! by such tenant in 1 to his estate tail if hout the consent of e or estates as afore- ears, such assurance 3 against any person ct after or in defean- quity shall bring any •iiig which, by virtue have made an entry ne respectively, if he or right, in or to the c. 88, 8. 31. tee upon any express ion claiming through Bon claiming through med to have first ao- not before the time purchaser for a valu- have accrued only as irough him. C S. U. ght of any person to d or rent which he or sen deprived by such I not before the time iuoe might have been 33, ined shall enable any ^' for the recovery of ly bona fide purchaser in the commission of ;he purchase, did nroperty not on or before said day reduced into the possession of her hnsband, whether belonging to her before marriage or in any way acquired by her after marriage, free from his debts i> ~:d obligations contracted after the said fourth S»,y of May, and from his control or disposition with- 0194 APPENDIX. :J:, •ii It Pruvisio. out her consent, in as full and ample a manner as if she were sole and unmarried. C. S. U. 0. c. 73, s. 2. A woman mar- 2. Every woman who married between the fifth day of May, one rioa bptwccii 4ih thousand eight hundred and fifty- nine, and the second day of March, Suf iianfh '"872 °"® thousand eight hundred and seventy-two (both inclusive), without roav huid her ' any marriage contract or settlement, shall and may, notwithstanding rtal property jjgp coverture, have, hold and enjoy all her real property, whether be- debt»'or°c'>ntr(>l longing to her before marriage, or acquired by her by inheritance, of her hiiBband. devise or gift, or as heir-at-law to an intestiito, or in any other way after marriage, free from the debts and obligations of her husband, and free from his control or disposition, without her consent, in as full and ample a manner as if she continued sole and unmarried ; but tliia section shall not extend to any property received by a married w(juian from her husband during coverture. 0. S, U. C. c. 73, s. 1 ; 35 V. c. 16, s. 1. A woman mar- 4. The real estate of any woman married after the second day of ried after 2nd jjijarch, one thousand eight hundred and seventy-two, whether owned March, 1U72, may .,'..,.. rt • ■ % ■ t ■ hold any pro- by her at the time of her marriage, or acquired in any manner during perty free from her coveiture, and the rents, issues and profits thereof respectively, clalm'of heriuis- shall, without prejudice and subject to the trusts of any settlement band during her afiecting the same, be held and enjnyed by her for her separate use, ****• free from any estate therein of her husband during her lifetime, and from his debts and obligations, and from any claim or estate by him, as tenant by the curtesy ; and her receipts alone shall be a discliarge for any rents, issues and profits of the same ; but nothing herein con- tained shall prejudice the right of the husband as tenant by the curtesy in any real estate of the wife, which she has not disposed of inter vivos, or by will. 35 V, c. 16, s. 1 ; 40 V. c. 7, tiched. A (156). A womwi mar- 5. Every woman who has married since the fourth day of May, one mT* *1869 *may thousand eight hundred and fifty-nine, or who marries after the pass- hold hur personal ing of this Act, without any marriage contract or settlement, shall and Droperty free may, notwithstanding her coverture, have, hold and enjoy all her per- oVaintr^oi of her sonal property, whether belonging to her before marriage or acquired husband. Proviso. This Act not to prevent seizure In exacutiiin in certain cases. Personal earn- inf^ of married women pro- tticted. by her by inheritance, bequest or gift, or as next of kin to an intestate, or in any other way after marriage, free from the debts and obligations of her husband, and free from his control or disposition, without her consent, in as full and ample a manner as if she continued sole and unmarried ; but this clause shall not extend to any property received by a married woman from her husband durinn; coverture. 0. S. U. C. «. 73, a. 1. 6. Nothing herein contained shall bo conaiiued to protect the pro- perty of a married woman from seizure and sale on any execution against her husband for her torts ; and in such case, execution shall first be levied on her separate property. C. S. U. C. c. 73, a. 3. 7. All the wages and personal earnings of a married woman, and any acquisitions therefrom, and all proceeds or profits from any occupation or trade which she carries on separately from her husband, or derived from any literary, artistic or scientific skill, and all investments of such wages, earnings, moneys or property, shall, after the said second day of March, one thousand eight hundred and seventy-two, be free from the debts or dispositions of her husband, aind shall be held and enjoyed by such married woman and disposed of without her husband's consent as fully as if she were a feme sole ; and no order for protection shall ( she were sole and day of May, one ond day of March, inclusive), without \,y, notwithstanding operty, whether be- er by inheritance, in any other way 18 of her husband, r consent, in an full nniarried ; but thiD y a married woman J. 73, B. 1 ; 35 V. c. ' the second day of ;wo, whether cwnod any manner during hereof respectively, 8 of any settlement or her separate use, ng her lifetime, and m or estate by him, shall be a discharge nothing herein con- :enant by the curtesy sposed of inter vivos, I (150). rth day of May, one arries after the pass- settlement, shall and nd enjoy all her per- marriage or acquired 3f kin to an intestate, debts and obligations position, without her e continued sole and ny property received ,'erture. O.S. U. C. d to protect the pro- le on any execution case, execution shall , C. c 73, s. 3. Tied woman, and any from any occupation husband, or derived 1 investments of such the said second day ity-two, be free from be held and enjoyed ler husband's consent r for protection shall APPENDIX. 56S hereafter be necessary in respect ^f any of such earnings or aopiisi- tions ; and the possession, whet!i\,r actual or constrnctive of the hus- band, of any j)or8onal property ii any married woman, shall not render the same liable for his debt^. 35 V. c. IG, s. 2. **♦♦#*## 15. Every married woman having separate })roperty, whether real or Soparste pro- personal, not settled by any ante-n initial contract, shall be liable, upon '"';'>'''*;'"? , ' . I J. 1 1 \ 1 • 1,1 1 <■ , ' "^ t') l)u Italilo for any separate contract made or debt incurred by her before her mar- i,er deiiti btfore riage (suc'i marriage being sincii the said fourth day of May, one nmrriaKe. thousand eight hundred and fifty-nine, or after this Act takes effect), to the extent and value of such separate property, in the same manner as if she were sole and unmarried. C. S. U . C. c. 73, s. 14. IG. Every husband who, since the fourth day of Alay, one thousand eii,'ht hundred and fifty-nine, or hereafter, takes any interest in the separate, real or per8(mal property of hia wife, under any contract or settlement on marriage, shall bo liable, upon the contracts made or debts incurred by her before marriage, to the extent or value of such interest only, and no more. C. S. U. C. c. 73, s. 15. 17 . A husband shall not, by reason of any man'iage solemnized after the second day of March, one thousand eight hundred and seventy-two, be liable for the debts of hia wife contracted before marriage, but the wife shall be liable to be sued therefor, and any property belonging to her shall be liable to satisfy such debts, as if she had continued un- married. 35 V. c. IG, 8. 8. 18. A husband shall not be liable for any debts of his wife in respect of any employment or business in which she is engaged on her own behalf, or in respect of any of her own contracts. 35 V. c. IG, s. 8. 19. Any married woman shall be liable on any contract made by her respecting her real estate, as if she were a feme sole. 40 V. c. 7, Schcd. A (loG.) 20. A married woman may maintain an action in her own ntvme for the recovery of any wages, earnings, money and property, by this or any other Act declared to be her separate property, and shall have in her own name the same remedies, against all persons whomsoever for the protection and security of such wages, earnings, money, and pro- perty, and of any chattels or other her separate property for her own use, as if such wages, earnings, money, chattels and property belonged to her as an unmarried woman ; and any married woman may be sued or proceeded against separately from her husband in respecl of .my of her separate debts, engagements, contracts or torts, as it she were unmarried. 35 V. c. IG, s. 9. 21. A married woman, in her own name, or that of a trustee for her, may insure for her sole benefit, or for the use or benefit of her chil- dren, her own life, or with his consent, the life of her husband, for any definite peritxl, or for the term of her or his natural life ; and the amount payable under said insurance shall be receivable for the sole and separate use of such married woman or her children, as the case may be, free from the claims of the representatives of her husband, or any of his creditors. 35 V. c. IG, s. 3. 22. Any man-ied woman may become a stockholder or member of any bank, insurance company, or any other incorporated company or association, as fully and effectually as if she were a feme sole, and may 1.1 il.lllty of hUMlmiid for lldtltH r>( wife liufiiru inarrlafra wlivri) hu tnkui Hii iiitorust under a iiiiirria;ru HUttlclllCllt. Noii-UablUt/ of husband (or diibtM ectin8: her ri'al estate. Hnfts by and nirainst married women. Harried women may insure their • iwii or husband*' lives. Married women may hold stocks , etc, and vote. 500 APPENDIX. May ilcpoNit in a bank luul clu'que out. KlghtR nf hui- baiid's credlturi to UeiKmit^. Separate per- sonal prii|i4.rt,vof wife ilyini^ intcn- tato, how to Iju Ulatrlbutoa. Act not to affect niarrla(;o iiottlu- nienta, etc. Ag to property not coniiii); within the con- tract. vote by proxy or otherwise, and enjoy the like rights as other stock- holders or members. 35 V. o. 16, s. 5. 23. A married woman mity make deposits of money in her own name in any savings or otlier bank, and withdraw the same by her own checjue ; and an^ receipt or acquittance of such depositor shall bo a sufiicient legal discharge to any ouch bank. 36 V. o. Iti, s. U, 24 . Nothing hereinbefore contained in reference to moneys deposited, or invostiuents by any married woman, shall, us againat creditors of the husband, give validity to any deposit or investment of moneys of the husband made in fraud of such creditors, and any money so de- ]>osited or invested may be followed as if this Act had not been passed. 35 V. c. 16, N. 7. 25. Thfe separate personal property of a married woman dying intes- t.ite shall bo distributed in the same proportions between her husband and her children as the personal property of a husband dying intestate is to be distributed between his wife and children ; and if there be no child or children living at the death of the wife so dying intestate, then such property shall pass or be distributed as if this Act had not been passed. C. S. U. C. c. 73, s. 17. 26. Nothing in this Act contained shall be construed to prevent any ante-nuptial settlement or contract being made in the same manner and with the same effect as such contract or settlement might be made if this Act had not been passed ; but notwithstanding any such con- tract or settlement, any separate real or personal property of a married woman, acquired either before or after marriage, and not coming under or being affected by such contract or settlement, shall be subject to the provisions of this Act, in the same manner as if no such con- tract or settlement had been made ; and as to such property, and her personal earnings and any acciuisitions therefrom, such woman shall bo considered as having married without any marriage contract or settle- ment. C. S. U. C. c. 73, 8. li). CAP. CXXVI. H An Act respecting Doner. Ell MAJESTY, by and with the advice and consent of the Legis- lative Assembly of the Province of Ontario, enacts as follows : WIDOW TO BE ENTITLED TO DOWER IN CERTAIN CASE.S. Dower out of equitable estates. Dowor where husband hnd a right of eutry. 1. When a husband dies beneficially entitled to any land for an in- terest which does not entitle his widow to dower out of the same at Law, and such interest, whether wholly equitable or partly legal and partly 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 land. C. S. U. 0. c. 84, s. 1. 2. Where a husband has been entitled to a right of entry or action in any land, and his widow would be entitled to dower out of the same if he hf>cl recovered possession thereof, she shall be entitled to dower outoi he same although her husband did not recover possession is M other stock- y in hor own name wiine by hor own Bpositor shall be a 10, 8. U. moneys deposited, gainst creditors of lent of moneys of any money so de- d not been passed. Oman dying intes- ween her husband md dying intestate and if there be no I) dying intestate, if this Act had not led to prevent any the same manner |nt might be made ing any such con- perty of a married and not coming it, shall be subject as if no such con- property, and her ch woman shall bo contract or settle- APPENDIX. 567 thereof ; but such dower sh»U be sued for or obtained within the period during which such right of entry or action might be enforced. C. S. U. C. 0. 84, B. 2. 3. Dower shall not bo recoverable out of any separate and distinct P"**"" J'"' ■■"- lot, tract or parcel of land, which, at the time of the alienation by the I^,f*il;[,''i 'in ""* husband or at the time of his death, if ho died seised thereof, was in a nutn or naturu state of nature, and unimproved by clearing, fencing or otherwise for *''•"' iii""""'- the purposes of cultivation or occupation ; but this shall not restrict or diminish the right to have woodland assigned to the doweress under the thirty-fifth section of " The Dower I'roctdim' Act" from which it n^y gj^j shall be lawful for her to take tirewoo'l necessary for her own use, and c. &:>,<( 3:> timber for fencing the other portions of land assigned to her of the same lot, tract or parcel. 32 V. c. 7, s. 3. DOWKU ABUL»Hli.U 11* CKHTAIN CASES. 4. No widow shall bo entitled to dower ad ontiiim ecclenm, or dower Coriiin riower ex (UMiruiu patris. C. S. U. C. c.'84, s. 3. abolished. HOW DOWEK MAY BE BAUBBO. 5. A married woman may bar her dower in any lands or heredita- ments, by joining with her husband in a deed or conveyance thereof in which a release of dower is contained. 0. S. U. C. c. 84, s. 4. 6. 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 or conveyance shall be ett'ectual to bar her dower unless made in conformity with " The Married Woman'ii Meal Estate Act." 40 V. c. 7, Seized. A. (157 & 158). See C. S. U. C. c. 84, s. 5. 7. A power of attorney executed by a married woman authorizing Powers of attor- the attorney to execute a deed barring or releasing her dower, shall be ""y,^ ^" valid both at Law and in Equity, provided that the power of attorney bv^urrleo'"'" is executed in conformity with said Act. 40 V. c. 7, i'ched. A. (167 women. & 158). See 29 V. c. 28, s. 22, part. Dower may tjo liarrod by Joint deed o( tiuhlwiid and wife. Uower may bo barred by Hi-|iarato deed of wife, made pursuant to. Kev. SUt. c. 127. sent of the Legis- acts as follows : LIN CA.SE.S. riy land for an in- ut of the same at r partly legal and Bsion, or equal to fin estate in joint Y to dower out of if entry or action v out of the same mtitled to dower cover possession AHOBRTAININO VALUE OF DOWER. On sales icJiere loife is a lunatic. 8. Where an owner of land whose wife is a lunatic, or of unsound mind, and confined as such in a Lunatic Asylum, is desirous of selling the land free from dower, he may apply in that behalf to the Judge of the County Court of the County in which he resides, or to a Judge of one of the Superior Courts, and if the Judge approves, he may, by an order to be made by him in a summary way, upon such evidence as to the Judge seems meet, and either ex parte or upon such notice as he may deem requisite, dispense with the concurrence of the wife for the purpose of barring her dower, and also he shall ascertain and state in the order the value of such dower, and order such amount to remain a charge upon the property, or to be secured otherwise for the wife's benefit as he deems best, and thereupon a conveyance by the husband, expressed to be free from his wife's dower, shall, subject to the terms and conditions mentioned in the order, be sufficient to bar her right Dower on con- veyance where wife is a lunatic. Dower to be ascertained and to be chari;ed on land or secured fur wife's benefit. 568 APPENDIX. thereto, as if she were of sound mind, and had duly executed a deed jointly with her husband for that purpose. Fee to Judge. (2.) On every such application, the Judge shall be entitled to hi» own use to a fee of five dollars, and no other fee or charge of any kind shall be payable in respect thereof, either to the Clerk or otherwise. Rev. Stat. (3.) Sections six, seven, eight and ten of " The Married Woman'i b'&lo to apply. ^^"'^ Estate Act" shall apply to the order to be made on the said ap- plication. 40 V. c. 8, 8. 34 (1-3). On certain other sales. Simiiur npplica- 9. The next preceding section shall apply to any case in which an tion t(j ascertain agreement for sale has been made and a conveyance has been exe- other cases. ciited by the husband, and any part of the purchase money has been retained by the purchaser on account of dowor, and to any case in which an indemnity has been given against the do..er of the wife. 40 V. c. 8, s. 34 (4). Application in order to convey free from dower where wife disentitled by misconduct. Rev. Stat. 127, K8. «, ' & 10 to apply. 7 8 )plv 10. Where the wife of an owner of land has been living apart from him for two years, \mder such circumstances as by law disentitle her to alimony, and such owner is desirous of selling the land free from dower, he may apply to a Judge of one of the Superior Courts, and, if the J udge approves, he may, by order to be made by him in a summary way, upon such evidence as to the Judge seems meet, and either ex parte or upon notice (to be served personally unless the Judge other- wise directs), dispense with the concurrence of the wife for the purpose of barring her dower, and thereupon a conveyance by the husband, ex- pressed to be free from his wife's dower, shall, subject to any terms mentioned in the order, be sufficient to bar her right thereto, as if she had duly executed a deed jointly with her husband for that purpose. (2.) Sections six, seven, eight and ten of " The" Married Woman's Real Estate Act" shall apply to the order to be made on the said application. 40 V. c. 8, s. 35. DEEDS BARRING DOWER BEFORE 2XD M.VhCH, 18^7, OONFIRMEU. Marcli, ia7" confirmed. r, , , 11. Where a husband lias before the second day of March, one thou- dowiri)trore2nd sand eight hundred a,id seventy-seven, duly conveyed land of which he was owner, any deed ■'v conveyance executed before the said day by his wife for the purpose of barring her dower, to which deed or convey- ance her husband is not a party, is and shall be taken and adjudged to be valid and eflFectual to have barred her dower in the lands in which such deed or conveyance professed to bar dower, notwifistanding the ab- sence or want of a certiticate touching her consent to be barred of her dower, and notwithstanding any irregularity, informality, or defect in the certificate (if any), and notwithstanding that such deed or convey- ance may not have been executed, acknowledged or certified, as required by any Act on or before the said day in force, respecting the barring of dower. 40 V. c. 8, s. 36. ily executed a deed 11 be entitled to his r charge of any kind erk or otherwise. Married Womau't aade on the said ap- ly case in which an ance has been exe- ase money has been and to any case in .er of the wife. 40 en living apart from y law disentitle her the land free from erior Courts, and, if )y him in a summary meet, and either ex ss the Judge other- wife for the purpose by the husband, ex- ubjoct to any terms ;ht thereto, as if she i for that purpose. 'Carried JVoman'n Real the said application. OONFIR.MEU. of March, one thon- 'eyed land of which fore the said day by lichdeed orcoiivey- land adjudged to be lands in which such withstanding the ab- to be barred of her mality, or defect in ich deed or couvey- ertified, as required icting the barring of APPENDIX, CAP. CXXVII. 559 An Act to facilitate the conveyance of Real Estate hy Married Women. HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Piovince of Ontario, enacts ad fol- lows : — • 1. This Act." Act may be cited as " The Married Woman's Real Estate short title. Interpretation of. 2. In the construction of this Act (1.) "Real estate "shall extend to lands, chattels real, rents and " Eeal estate hereditaments, whether corporeal or incorporeal, and to any undivided share thereof ; to any estate, right or interest therein, whether legal or equitable ; to any charge, lien or incumbrance in, upon, or affecting real estate, either at Law or in Equity; to money subject to be invested in real estate ; and to any interest, charge, lien or incumbrance in, upon, or affecting such money as aforesaid. (2.) " Judge " shall mean a Judge of one of the Superior Courts, a Judge of a County Court, or a Junior or Deputy Judge. 36 V. c. 18, 8.2. 3. Every married woman, being of the full age of twenty-one years, may, by deed, convey her real estate, and convoy, release, surrender, disclaim, or extinguish any interest therein, and may also, by deed, release or extin-^- sh any power which may be vested in, or limited or reserved to her in regard to real estate ; and may also, by deed, bar her dov>er, and any right or inchoate right of dower in any real estate; and ma^ ilso, by deed, appoint an attorney or attorneys for the pur- poses aforesaid and in every of them as fully and effectually as she could do if she were a feme sole ; but except as hereinafter otherwise provided, no such conveyance, release, surrender, disclaimer, or ex- tinguishment shall be valid or effecttial unless the husband is a party to '.nd executes the deed by which J;he same is effected ; and, except as hereinafter otherwise provided, no such deed appointing an attorney shall be valid or effectual unless the husband is a party to and executes the same, or the deed executed in pursuance thereof. 30 V. c. 18, s. 3 ; C. S. U. C. c. 83, a. 11 ; 40 V. c. 7, inched. A (157). -Sec 29 V. c. 28, s. 22 in part. ******** 12. The pow^ers of conveying given by this Act to a married woman shall iiot impair or affect any powers which independently of this Act, may either by statute, contract or settlement be vested in or limited or reserved to her so as to prevent her from exercising such powers in any case, except so far as by any conveyance made by her under this Act, she may be prevented from so doing in consequence of such powers having been suspended or extinguished by such conveyance. 36 V. c. 18, s. U; C. S. U. C. c. 83, e. 43. 13. Every conveyance before the twenty-ninth day of March, 1873, executed by a married woman of or affecting her real estate, in which her husband was a party, is, and shall be taken and adjudged to be valid and .effectual to have passed the estate which such conveyance professed to pass of such married woman in the said real estate, not- ' Judge." A married woman, with her hnsband's concurrence, may convej' real estate or any interest theri'in, and r'.lfiase and extinifuish powers and appoint an attorney as a feme nuk. The po'vcrs of convt^iny- .i^en by this Act to a married woman not to interfere with any other power. Defective con- veyances to be valid. 570 APPENDIX. withstanding the absence or want of a certificate of her consent to con- vey the same ; and notwithstanding any irregularity, informality, or defect in the certificate (if any) ; and notwithstanding that such con- veyance may not have been executed, acknowledged or certified as required by any Act at or before the said date in force respecting the conveyance of real estate by the married woman in presence of her hug- band, or on the same day on which or at the same place at which such conveyance was executed by her husband. 36 V. c. 18, a. 12. Certain titles not 14. Nothing in this Act contained shall render valid any conveyance to be prejudiced, to the prejudice of any title, subsequently to the execution of such conveyance, and before the said date acquired from the married woman by deed duly executed and certified as by law required, unless the actual possession or enjoyment of the real estate conveyed or intended to be conveyed by the prior conveyance has been had at any time sub- sequent thereto by the grantee therein, or those claiming by, from or under him, and he or they have been in such actual possession or en- joyment continuously for the period of three years before the said date, and he or they were at the eaid date in the actual possession or enjoy- ment thereof ; and nothing in this Act contained shall render valid any conveyance from the married woman which was not executed in good faith, or any conveyance of land of which the married woman or those claiming under her, is or are in the actual possession or enjoy- ment contrary to the terms of such conveyance. 36 V. c. 18, s. 13. It H' Effect of bar of dower in «agea. 42 VIC, CAP. XXII. An Act to amend the Law of Doiper. [Assented to 11th March, 1879. J ER MAJESTY, by and with the advice and consent of the Legis- lative Assembly of the Province of Ontario, enacts as follows :— 1. No bar of dower contained in any mortgage, or other 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 efiect to the rights of the mortgagee or grantee under such instrument. wife entitled to 2. In the event of a sale of the land comprised in any such mort- of'^purclia-se'''"" 8*'g6 or other instrument, under any power of sale contained therein money ariHing or under any legal process, the wife of the mortgagor or grantor who from sale under shall have SO barred her dower in such lands, shall be entitled to mor gage. dower in any surplus of the purchase money arising from such sale, which may remain after satisfaction of the claim of the mortgagee or grantee, to the same extent aa she would have been entitled to dower in the land from which such surplus purchase money shall be derived had the same not been sold. 3. A mortgagee or other person holding any money out of which a married woman shall be dowable under the preceding sections of this Act may pay the same into the Court of Chancery to the credit of such married woman and the other persons interested therein. (2.) The Court of Chancery, or any Judge thereof, may on a sum- mary application by petition or motion, make such order for securing Payment of money into Court. Order for secur- ing right of dow> er. APPENDIX. 571 f her consent to con- rity, informality, or iding that such con- dged or certified as force respecting the presence of her hua- place at which such c. 18, B. 12. iilid any conveyance le execution of such 1 the married woman required, unless the onveyed or intended had at any time sub- claiming by, from or lal possession or en- before the said date, possession or enjoy- id shall render valid was not executed in e married woman or possession or enjoy- 36 V. c. 18, B. 13. ni'er. nth March, lS7d.] consent of the Legis- , enacts as follows :— or other instrument r security, upon real iter extent than'shall mortgagee or grantee I in any such mort- le contained therein ;agor or grantor who shall be entitled to sing from such sale, of the mortgagee or en entitled to dower tiey shall be derived oney out of which a ding sections of this 3ery to the credit of sted therein. reof, may on a sum- h order for securing the right of dower of any married woman, in any money out of which 8he shall be dowable, as may be just. 4. A widow shall not be entitled to take her interest in money under widow's election, this Act, and in addition thereto a share of the money as personal estate. 5. In case of a suit for partition or administration or any suit in Partition or Ad. which a partition or sale of land is ordered, and in which the estate of nilnisiration any tenant in dower or tenant by the courtesy or for life is estuolish- ed, if the person entitled to such estate has been made a party to the proceedings, the Court or Judge shall determine whether such estate ought to be exempted from the sale or whether the same should be 8old ; and in making such determination regard shall be had to the interests of all the parties. (2.) If a sale is ordered including such estate, all the estate and in- terest of every such tenant shall pass thereby ; and no conveyance or release to the purchaser shall be required from such tenant ; and the said purchaser, his heirs and assign5i, shall hold the premises freed and discharged from all claims by virtue of the estate or interest of any such tenant, whether the same be to any undivided share, or to the whole or any part of the premises sold. (3.) In such case the Court or Judge may direct the payment of such sum in gross out of the purchase money to the person entitled to dower or estate by the courtesy or for life, as may be deemed, upon the principles applicable to life annuities, a reasonable satisfaction for such estate ; or may direct the payment, to the person entitled to dower or estate by the courtesy or for life, of an annual sum, or of the income or interest to be derived from the purchase money or any part thereof, as may seem just, and for that purpose may make such order for the investment or other disposition of the purchase money or any part thereof as may be necessary. 6. Where any married woman is a party to such proceedings as pe- Detormir.mg titioner, if her claim is an inchoate right of dower, then, in case of .^"'[J® "^'^'.*'P| '^ sale, the Court shall determine the value of such right according to dower. the principles applicable to deferred annuities and survivorships, and shall order the amount of such value to be paid ; or shall order the payment to such married woman, of .an annual sum, or of such income or interest as is provided in section five of this Act, and such payment shall be a bar to any right or claim of dower. 42 VIC, CAP. XX. An Act to give to Mortgagees certain powers now commonly inserted in Mortgages. [Assented to 11th March. 1879.] HER MAJESTY, by and with the advice and consent of the Legisla- tive Assembly of the Province of Ontario, enacts as follows : — 1. Where any principal money is secured or charged by deed here- Powers incident after executed on any hereditaments of any tenure, or on any interest *° 'uortgages. therein, the person to whom such money shall, for the time being, be payable, his executors, administrators and assigns, shall, at any time ^zsmm 572 APPENDIX. after the expiration of six months from the time when such principal money shall have become payable, according to the terms of the deed, or after any interest on such principal money shall have been in arrear for six months, or after any omission to pay any premium or any in- surance which, by the terms of the deed, ought to be paid by the per- son entitled to the property subject to the charge, have the following powers, to the same extent (but no more) as if they had been in terms conferrad by the person creating the charge, namely : 1st. A power to sell, or concur with anj' other person in selling, the whole or any part of the property by public auction or private con- tract, subject to any reasonable conditions he may think fit to make, and to rescind cr vary contracts for sale, or buy in or re-sell the pro- perty, from time to time, in like manner. 2nd. A power to insure, and keep insured, from loss or damage by fire, the whole or any part of the property (whether affixed to the freehold or not) which is in its nature insurable, and to add the prem- iums paid for any such insurance to the principal money secured at the same rate of interest. Receipts for pur- 2. Receipts for purchase money given by the person or persons ex- ficiTntdi'bcharges ^^cising the power of sale hereby conferred, shall be sufficient dis- charges to the purchaser, who shall not be bound to see to the application of such purchase money. before 3. No such sale as aforesaid shall be made until after three months' notice in writing has been given to any subsequent encumbrancer, and to the person entitled to the prcjparty subject to the charge and to such encumbrance, the notice to be given either personally or at his usual or last place of residence in this Province, which notice may be given at any time after any default in making a payment provided for by the deed. (2.) In case of the death of the person entitled subject to the charge, and of his interest therein passing to infant heirs or devisees, the notice shall be given as aforesaid to his executors or administrators, as well as to his heirs or devisees, as the case may be. (3.) The notice for an infant heir is to be served upon bi*" guardian, and is also to be served upon the infant himself, if over the age of twelve years. Notice sale. Improper not title .ser. sale 4. But when a sale has been effected in professed exercise of the V* '^^^^^ powers hereby conferred, the title of the purchaser shall not be liable if ii to be impeached on the ground that no case had arizen to authorize the exercise of such power, or that such power has been improperly or irregularly exercised, or that no such notice as aforesaid has boen given ; but any person damnified by any such unauthorized, improper, or irregular exercise of such power, shall have his remedy against the person selling. Form of mtlee. ^- ^he notice of sale may be in the following form or to the follow- ing eflect : I hereby require you on or before the day of 18 , (a day not teso than three calvndar months from the service of the notice, awl not less than six calendar mouths after the default) to pay off the principal money and interest secured by a certain indenture dated the day of 18 , and expressed to be made between {here state jjarties and describe mortgage property) which said mortgage when such principal e terms of the deed, 11 have been in arrear premium or any in. o be paid by the per- have the following ey had been in terma ely : jerson in selling, the ction or private con- ly think fit to maije, in or re-sell the pro- m loss or damage by lether affixed to the and to add the prem- pal money secured at person or persons ex- nil be sufficient dis- see to the application 1 after three months' nt encumbrancer, and the charge and to such jonally or at his usual 1 notice may be given nt provided for by the subject to the charge, leirs or devisees, the ors or administrators, y be. 3d upon hi", guardian, 3lf, if over the age of !ssed exercise of the ler shall not be liable '. arizen to authorize 13 been improperly or i aforesaid has been luthorized, improper, 3 remedy against the 'orm or to the follow- 3ay of 18 , ; service of the notice, [fault) to pay oS the j I indenture dated the 3 be made between which said mortgage APPENDIX. was registered on the day of (and if Ute mortgage has been assigned add ; and has since become the property of the under- signed). And I hereby give you notice that the amount due on the said mortgage for principal, interest, and costs respectively, is as fol- lows : (set the same forth). And unless the said principal money and interest and costs are paid on or before the said day of I shall sell the property comprised in the said indenture under the authority of the Act entitled "An Act to give to Mortgagees certain powers now commonly inserted in Mortgages. " Dated the day of 18 . G. The notice of ->.-« of laipds may be registered in the registry office of the registration division in which the lands are situate, in the same manner as any other instrument aftecting the land, and such registration shall have the same effect, and the duties of the registrar in respect of the same shall be as in the case of any other registered instrument, and the fee to bo paid such registrar for registering the same shall be fifty cents. 7. The affidavit for the purpose of registering the notice shall be by the person who served the same, and "hall prove the time, place, and maimer of such service, and also that the copy delivered to the regis- trar is a true copy of the notice served. (2.) A copy of any such registered notice and affidavit, certified under the hand and seal of office of the registrar, shall in all cases be receiv- ed sls prima facie evidence of the facts therein stated. 8. The money arising by any sale eflected as aforesaid shall be ap- plied by the person receiving the same as follows : first, in payment of all the expenses incident to the sale or incurred in any attempted sale ; secondly, in discharge of all interest and costs then due in res- pect of the charge in consequence whereof the sale was made ; and thirdly, in dischi ge of all the principal moneys then due in respect of such charge ; and the residue of such money shall be paid to the subsequent encumbrancers according to their priorities, and the bal- ance to the person entitled to the property subject to the charge, his heirs, executors, administrators, or assigns, as the case may be. 9. The person exercising the power of sale hereby conferred shall have power by deed to convey or assign to and vest in the purchaser the property sold, for all the estate and interest therein, which the person who created the charge had power to dispose of. 10. At any time after the power of sale hereby conferred shall have become exercisable, the person entitled to exercise the same shall be entitled to demand and recover, from the person entitled to the pro- perty subject to the charge, all the deeds and documents in his posses- sion or power relating to the same property, or to the title there- to, which he would have been entitled to demand and recover if the same property had been conveyed, appointed, surrendered, or assign- ed to and were then vested in him for all the estate and interest which the person creating the charge had power to dispose of ; and where the legal estate sh^l be outstanding in a trustee, the person entitled to a charge created by a person equitably entitled, or any purchaser from such person, shall be entitled to call for a conveyance of the legal estate to the same extent as the person creating the charge could have called for such a conveyance if the charge had not been made. 573 Registration notice. of Affidavit for re glKtration. Certified copy of rctfistered notice to be evidence. Application of purchabe money. Conveyance to the purchaser. 0'.. lerof charge may call for title deeds and con- veyance of legal estate. 574 APPENDIX. Taxation of 11. The mortgagee's costs may, withont any order, be taxed by the costs. Master in Chancery or Loc J Master, at the instance of any party in- terested. Provisions as to 12. So much of this Act as provides for a power to sell shall not ap. appiy^Yii' certain P^Y ^^ *he case of a deed which contains a power of sale ; and so much ca«eii. of this Act as provides a power to insure shall not apply in the case of a deed which contains a power to insure, nor shall this Act apply to any deed which contains a declaration that this Act is net to apply thereto. 43 VIC, CAP. XIV. An Act to amoid certain particiilars in the law of Real Property. H R. S. O., c. 108 K. 30 repealed. [Assented to 5th March, 1880.] ER MAJESTY, by and with the advice and consent of the Legis- lative Assembly of the Province of Ontario, enacts as follows ;— 1. No person shall hereafter acquire a right by prescription to the access and use of light to or for any dwelling-house, workshop or other building ; and the thirty-sixth section of the Real Property Limita- tion Act is hereby repealed : but this section shall not apply to any such right which has been already acquired by twenty years' use before the passing of this Act. 2. Where any real estate is devised by any testator, dying after the passing of this Act, to the heir or heirs of such testator, or of any other person, and no contrary or other intention is signified by the will, the words "heir" or "heirs" shall be constmed to mean the person or persons to whom such real estate would descend under the law of Ontario in case of an intestacy. 3. Where a dowress has-, after the death of her husband, actual pos- session of the land of which she is dowable, either alone or with heira or devisees of her husband, the period of ten years within which her action of dower is to be brought shall be computed from the time when such possession of the dowress ceased. This section does not apply to any case in which the right of action has ceased before the |>assing of this Act. 4. The ninth section of the Act respecting Dower, chapter one hun- dred and twenty-six of the Revised Statutes, shall apply to any case ^es. '° ' where any person owns or has the right to sell (whether as trustee or otherwise) land which is subject to the dower of a lunatic, whether such dower is inchoate or complete, and whether the person applying is or is not the husband of the lunatic ; and the tenth section of the same Act shall apply to any case in which an agreement for sale had been made, a conveyance executed by the husband before the passing of this Act and part of the purchase money retained by the purchaser on account uf dower, or an indemnity given against such dower. Meaning of "heir" in a devise of -eal estate. Time from which right to bring action of dower to be computed. R. S. O., c. 126, sees. OandlO.ex jrder, be taxed by the tance of any party in- er to sell shall not ap- of sale ; and so much lot apply in the case of all this Act apply to 3 Act is net to apply w of Real Property. lo 5th March, 1880.] consent of the Legig- , enacts as follows :— )y prescription to the ise, workshop or other leal Property Limita- [lall not apply to any by twenty years' use fitator, dying after the jh testator, or of any >n is signified by the snsti-ued to mean the Id descend under the r husband, actual pos- er alone or with heirs Bars within which her id from the time when tion does not apply to before the f>assing of wer, chapter one hun- lall apply to any case whether as trustee or of a lunatic, whether r the person applying s tenth section of the ;reement for sale had nd before the passing ined by the purchaser nst such dower. INDEX. A. ABATEMENT, 432. . ABOLITION of fines and recoveries, 504. of real and mixed actions, 421, 425, ACCOUNT, by joint-tenant and tenant in common, ib8. ACCUMULATION, trusts for, 403. !,„{f«finnB 442 444 ACKNOWLEDGMENT, to prevent Statute of Limitations, ii£, -w. ACTIONS, droiturel, 421, 424. possessory, 420, 421, 424. real and mixed, abolished, 421, 42o. of formedon, 422 n. o. ADVANCEMENT of children, 490, 491, 492, 493. ADVERSE possession, 426. SJl^D^V^lfe'^oSi- in Great Britain ^may be used in Courts here, 55. AGENT, 326, 327, 345, 357, 3o8, 364, 442. authority to, 357, 358, 364. to execute deed must be under seal, 3o». purchase by, from principal, 6iD. AGREEMENT for lease, 358.-See Contract. AIDS, 91, 92, 96, 97, 104. ^I^^^^^^^STdeed.-See CONVKTAKCES. by devise, 321, 323. hy particular tenants, oUU. by the feodal law, 310. fines on, 93. 97. forfeiture by, 292, 320. S Cdfptchred not allowed so early as lands descended, 310. of title by, 310. ?Icgrocai''coSl;it. of lord and vassal required to. 85. 311. restraint upon, 311. ALIENE, how one may, 312. who may, and to whom, dm. ffiiSf attmmrii:' n^descent to or from, 282, 320. 'rijW a^ cJmmon' law "to hold and transmit, 282, 320. ALIQUo/part"^^ a'?eafpayment of rent with reference to, 168. 169. ALLODIAL propertiy, 76. 115. ALLODIUM, 89, 116, 116. ALLUVION, 291. , „^„ ALTERATION of deed, 342. AMBIGUITY in a deed, 332. AMELIORATING waste, m. ANCIENT EngUsh tenures, 89. ANNUITIES, 63, 65, 66. ANNUITY in lieu of dower, 154. 576 INDEX. y'' ANTENUPTIAL Bettleraent, 149j 150. APPEAL to the Queen in Council, 51. APPLICATION of purchase muuey, .130. APPOINTMENT, powers of, 151, 152, 153 n. o. APPORTIONMENT of rent, 134. APPURTENANT, to a fee right of easement must be claimed as, 462. ewements pass by conveyance of land, 332. ASSETS by descent, 274, 278, 336. ASSIGNEE, at common law, could not enforce covenants, 67, 367. bound and entitled during privity of estate, 367, 368. ASSIGNMENT, 344, 366. covenants in, 367, 368, 369, 370, 371, 372. of contingent interests, 248. of dower, 158. of right of entry, 182, 183. ASSIZE, 420. of bread, 35. ASSURANCES, common, 321, 322. ATTAINDER, 234, 28:3. consequences of, 286, 313. corruption of blood on, abolished, 287. forfeiture on, abolished, 287. ATTAINTED persons incapable of conveying, 313. ATTESTA'i ION of deeds, 342. of wills, 406. ATTORNMENT. 312. AUTRE VIE, tenant pur, 130, 131, 133. may devise, 290. B. BANKRUPT laws, English, not in force here, 29, 31, 32. BARGAIN and sale, 388. corporations could not formerly convey by, 390. may now, 391. was invalid without enrolment, 390. objections to at present day, 391. operation of at common law, 389. powers cannot be engrafted on, 391. requires money consideration, 391. registration of dispensed witn, 390. BASE fee, meaning of, 120. enlarged, 518. BASTARDS, cannot inherit, 281. can have no collateral heirs, 282. BATTEL, wager of, 424 n. BILLS of exchange and promissory notes, wlmr payable, 160. BLOOD, corruption of, 286. taken away, -iH. statutes respecting, 287. BOOK land, 107. BOND, 393. defeazance on, 395. forfeiture of, 394. how avoided, 393. satis'action and discharge of, 394. to the Crown, 394. BOROUGH, English, 102. BOTES, 132, .305. BRITISH North America Act, 40. Columbia, 23. how acquired, 23. representation in Senate, 23. Commons, 23. Parliament, power of to enact laws in a colony, 18. subjects, 18. BURGAGE tenure, lOL INDEX. 577 c. CANADA, Dominion, 22, 23, 40. Province of, 20, 21, 25, 40. Lower, Province of, 28, 40. tenure in Upper, 97- Upper, formed into a separate Province, 29. CANADIAN right of legislation, 28, 45. CANCELLING of deed, 343. CAPACITY to purchase or convey.- See Amene. CAPITA, succession per, 473, 474. CAPITE, tenants in, 89, 92. CARTA Magna, 80, 97. CART-BOTE, 305. CERTAIN services, 90. CESSION, colonies may he ac(inired by, 17. CESTUI (lue 'trust, 382, 383. use, 374, 375, 376, 377, 378, 379, 382, 383. vie, 1.33. vie, fraudulent concealment of death of, 250. CHANCERY, Court of, established, 38. jurisdiction of, 38, 39, 57. appointment of guardian by, IOC. CHARGING lands, power of, 311. CHARITABLE uses, 298. CHARTER or deed, 322. CHATTELS, real, 165. of a wife, 316. CHILDREN in womb, 241. CHIROGRAPH, 322. CHIVALRY, tenure in, 90, 94. CHURCH of England, 357. of Rome, 25, 27, ;356. CIVIL death, 181. rights, 37. _ society, ends of, 15. CLEARING wild lands, 300. waHte by, 300, 307. COGNIZEE of a fine, 507. CUGNIZOR of fine, COLLATERAL heir, relations, COLONIES acquired by cession, 17, 20. by conijueat, 17, 19. by occupancy, 16, 17. what laws in ferce in, 16. North American, 27. COMMERCE, regulation of, 46. COMMON law conveyances, 346. of estovers, 132. recoveries.— See Recovery. tenant in, 253, 265, 266, 267. COMMONS, 63. COMMUNION of property, 2. COMPUTATION of time, 159, 160. CONCLUSION of a deed, 337. C0:;CORD in a fine, CONDITION, 121, 180 n. c. breach of, 177. broken righVof entry for, not assignable, 182. distinction between and limitation, 180 n. c. estates upon, 177. expressed, 177, 179. how avoided, 184. illegal, 184. implied, 177. 37 578 INDEX. CONDITION-CorK/nuerf. imposBible, 184, .3!)4. in deed, 181. 335. inlaw, 181. in restraint of marriage. 181 n. h. of re-entry on breach of covenant gone on license, 372. precedent. 170, 372 n. c. Bubsetiuent, 179. void, 181, 184 n. h. CONDITIONAL fee, 120. limitation, 181. CONFIltMATION, 3(J3. by deed, 3(54. implied, 3G4. operative words, .'W4. CONQUEST, 17, 10. HiKnification of the word, 78, 277. * ♦ CONSANGUINITY, CONSIDERATION, .324, 330. good or valuable, 326. CONSTITUTIONS given to Upper and Lower Canada, 28. (.'ONSTRUCTION of devises, 403 et seq. CONTINGENT interestn, asKignment of, 248, 31.3. devise of, 248, 400. remainders, 240, 241, 242. CONTINUAL CLAIM, 352, 410. does not i)reserve right of entry, 3.52, 426. effect of, ab()litihe. what person can take by a, 330. DEEDS of revocation of uses, 393. to charge or discharge lands, .393. to lead or declare uses, 393. DEFEAZANCE, 347, 273, 395. DELIVERY of a deed, 341. proof of, 341. syntboHcal, 348. DEMESNE, 116, 117. DEMISE, implied covenant in, 2.';9, .%7. none when express covenant, 359. DENIAL of landlord's title in ejectment, 303. DERRLIC'l'ION. lands by, 291. DERIVATIVE conveyances, .340, 301. DESCENT, present law of, 409. advancement by settlement, 491. " to co-heir, encpiiry necessary, 489. in case of partial intestacy, 490. in case of grand-children, 490. (tff erence between tmder present Act and Stat, of Distribution!), 491. " Ancestor," not used in the Act in its strict sense, 487. based on civil law and Statute of Distributions, 469. blood relationship. 488 n. b. copied from the Act of New York, 4Q9. co-parcenary, descent in, abolished, 489. descent no longer traced from purchaser, 469. " per capita prevails when degrees of consanguinity eciual, 473. " partly per stirpes, partly per capita when unequal, 473, 474, 482. INDKX. r,8l of Distributions, 491. lual, 473. 73, 474, 482. DKriCENT Cimtiniird. floeti not inclinl" «mtntt! tail, 4(!!t, .'MX). " " HHtate inveHtetl in tniKtBwo, 4(i!>, 4H!>. f(;o Hiraplti hereditament veHted in Ixm tnistte dcHcendu t«i lej{«l perMonal lepre- wintativBH, 4!t;{. lidtclipot, 47.">. half blood, riKiit of, 475. " peculiarity in caHO of anceHtral ostntfiH, 487. huHband ana wife may each Mharc aH if unmairiud, 482. pitrfhane, 40!), 47<'). '• KcineU " identical with " entitled to " for purpoxes of deHcent, 47 J. 8>immary of inA ki»s equitable as weU as legal within the R. S. O. c. 100, 515. female, 125. how created, 125. incidents to, 136. in incorporeal hereditaments, 123. male, 12.5. of" whSh'^e^'rsion in'^the Crown not barred by common recovery, 530. origin of, 123. special or general, 124, 125. to what charges liable, 128. what may be entailed, 123. what cannot be entailed, 123, 124. words necessary to create, 125. ENTRY, 340, 418, 419, 420. effect of, abolished, . necessary in leases for years, 350. of one joint tenant formerly was the entry of all, 262, 269. with force, 175, 419. writ of, 421— See Right of Entry. ENTRY and feoffment, release by way of, 363. EQUITABLE estates descend as legal, 469. interests, transfer of, 340. waste, 309. EQUIT'" of redemption, proviso for, 186. „„ ^„„ ^ ^ ^ee Mortgage, MoBTQAOEE, Mortgagor. ESCHEAT, 94, 106, 272, 279. . , distinction at common law between it and forfeiture, 284. different effects of, 285. . t. * obo lands of dissolved corporations do not escheat, 2»S. of two kinds, 280. , when tenant dies without heirs, 280. when tenant is attainted, 280. principles of, 280. upon attainder, 283, 284. upon attainder, distinction between and, zoo. former consequences of, 285. qualified by statute, 387. 584 INDEX. ESCROW, 341. ESCUAGE, 95. tenant by, 95, 96. ESTATE, 161. at HuiTerance, 170. at will, 16.5. by the courtesy, 136. for life, 130, 131, 132, 133. for yjars, 158, 162. from year to year, 168. in common, 253. in coparcenary, 262. in dower, 139. in fee nimple, 115. in foe tail, 12;i— See Entails. in frank marriage, 264. in joint tenancy, 253, 254. in lands, 1 13. in mortgage, 184. in possession, remainder, and reversion, 232i 249. in severalty, 253. less than freehold, 159. of freehold of inheritance, 113. of freehold not of inheritance, 130. pur autre vie, 130, 162, 289, 290. ESTATES in /«««ro. 163. not revested by destruction of deed, 343. £ur autre vie are within R. S. 0. c. 105, 469. ,, 248, 323, 330. ESTOVERS, 135. EVIDENCE, affidavits sworn in England may be used here in, 54 n a. English law as to introduced, 29. EXCEPTIONS from grant, 332. in R. S. O. c. 100, 529, 530. in Statute of Prescription, 467. . EXCHANGE, 346, 360. creates no warranty, .360. must be by deed, 360. EXECUTORY devise, 245, 380. a fee may be limited on a fee by, 246. does not need particular estate to support it, 245. subject to rule against perpetuities, 246. term of years may be limited after life estate by, 246. EXECUTORS and administrators, liability of, on debts, 336. may distrain for rent, 68, proceedings against, as to lands uf deceased, origin of, 36, 274. EXPECTANT heir, dealings with, 251, 252. EXTINGUISHMENT, release by way of, 363. FARM, :m. FARMER, 356. FEALTY, oath of, 75, 79, 82, 104. tenant by, 96. FEE, base, 120. conditional, 120. limited, 119. meaning of the word, 116. r^ualified, 120. simple, 115. tail, 117— See Entails. upon a fee, 246. words necessarv to create a, 117. FEME covert— See Marbied Woman. F. INDEX. 585 leceased, origin of, 30, FEOFFMENT, 179, 347. haft no longer a tortious operation, 170. FER^ naturae, animals, 14. FEUD (or fief), change in nature of, 86. corporal investiture in, 82. fealty and homage in, 82. honorary, 85. how held at first, 83. how held afterwards, 84. maxim of tenure in, 81. military, 86. mode of grant of, 81. nature of, 81. not assignable without lord's assent, 85. proper and improper, 86. services in a, 82. FEUDAX, system, 74. consequences of adoption of, 79. effects and policy of, 75. establishment of, 76, 77. grievances caused by, 80. origin of, 76. progress of, 77. received in England, 77. opposed to allodium, 115. FIEF. -See Feud. FIERI FACIAS, goods, , ^ ,j j i«k what personal interest in lands may be sold under, 165. lands, 36. given by statute 5 George II., 36. priority of, 161. FINE for alienation, 93, 97, 166. FINES, of land, 126, 128, 129, 504, 506. abolition of, 517. force and effect of, 508. how levied, 507, 508. parties levying must have had a freehold, 508. FINES, who bound by, 508. FIRE, accidents by, 305. bote, 132. tenant's liability on damage by, 305. FOLKLAND, 107. FORCIBLE entry, 175, 418. FORECLOSURE, 186, 445. FORFEITURE, i;«, 164, 173, 185, 186, 292, 294, 313. by alienation, 202, 320. none now for alienation, 301 . by attainder, 284. by breach of condition or covenant, 304. by disclaimer, 302. by lapse, 303. by waste, 304. by distinction between escheat and, 284. of title by, 292. relief by courts of law against, 186. the degrees and means of, 292. FORMEDON, action of, 442 n. a. FRANCHISES, 73, 178. FRANK almoign, 97, 99. marriajte, 264. tenement, 114. FRAUDS, statute of, 326, 327, 328, 400, 405, 40«. FREE AND COMMON SOCAGE, 28, 99, 112. FREEHOLD, 113. estates, 113, 114, of inheritance, 113. 586 INDEX, TnEEKOhD-Continuetl. cannot at common law commence in futuro, 163, 235 n. a, 351. definition of, 114. hut may under the Statute of Uses, 237. determmahle, 131, 132. in futuro, 235, 236 n. a, 237, 351. lies in grant as well as in livery, 353. quantity of interest in, 113. quality of interest in, 113. not of inheritance, 130. FRENCH law continued in force, 26. introduced, 27. when in force in Upper Canada, u;itil when, 29. FUTURE estate, 199 n. a. 6- GAVEL kind, 101. GIFT, 252. " GIVE," effect of the word, a52. GRAND Sergeantry, 95. GRANT, 392. creates no warrantry, 364. freehold lies in, 353. operation of, on declared uses, 354. under R. S. O., c. 98,354. plea of non existing, 457, 458, 459, 400. to the king, 119. GUARDIAN, 106. appointment of by father of child, 106. Court of Chancery, 106, Surrogate Court, 106. holding over, 175, H. HABEAS Corpus, introduction of into Canada, 28. English writ of no effect, 56. HABENDUM in a deed, .333, 334. not essential, 334. HALF-BLOOD, admitted, 497, 500, 501, 502. formerly could not inherit, 486, .501. take equally with whole blood as a rule, 475 exception to the rule, 487. HEIR dealings with expectant, 251. how he took at common law on devise, 275. liable for ancestor's drbts, 278. " HEIRS " a word of limitation, 276. necessary word to create a fee, 117. not required in wills, 117. of the body, 124, 125. HEREDITAMENTS, 60 corporeal, 60. incorporeal, 60. HOMAGE, 82. tenant by, 79. HONORARY FEUD, 85. HOTCHPOT, 264, 26.5. HOUSEBOTE, 132, 305. HOUSE OF COMMONS OF CANADA, 44. representation in of ONTARIO, 44. QUEBEC, 44. NOVA SCOTIA, 44. NEW BRUNSWICK, 44. MANITOBA, 44. INDEX. 587 RIO, 44. 3EC, 44. ^ SCOTIA, 44. BRUNSWICK, 44. ITOBA, 44. HOUSE OF COMMONS OF ^^^^^^^'^^Z^Loninoi BRITISH COLUMBIA,44. " PRINCE EDWARD ISLAND, 44. HUSBAND AND WIFE, rights of at common law, 315. I. IDIOTS, conveyances and purchases by, 314. ILLEGAL conditions, 184. IMMEMORIAL usage, 64, 456. IMPEACHMENT of waste, 309. IMPERIAIi Parliament, power of, 52, .54, .58. taxation by, 52, 53. IMPLIED condition, 177. covenant, 252, 359. tenancy, 169. ^ . ,„„ tenancy, covenants in, 10». warranty, 505. IMPOSSIBLE condition, 184, 394. INCORPOREAL hereditaments, 62, 63. INDENTURE, 323. INFANTS, bar of dower, 150. .,,. oik conveyances by and to, 249 n a, 6Lt, ■no. INHERITANCE at common law, 479. estates of, 113. right of, 11, 12. under R. S. O. c. 10.5, 479, 480. words of, 117, 124. INNOCENT conveyances, 301: IN PAIS matter, 322. INSANITY, effect of, upon contracts, 314. ^, . , , „ . or.Q INSTRUMENTS must be pleaded accordmg to their legal eQect, AW. INTERLINEATION in a deed, 343. INTERESSE termini, 163, 3.50, 361. INVESTITURES, origin of, 348. J. JEOFAILS, statutes of, 29, 38. JOINT tenancy, 2.53. consequence of dissolution, ibi. how created, 255. how destroyed, 2.59, 260, 261. incidents to, 257. properties of, 255, 2.56. . ^ . a. orq JOINT tenant may bring account and ejectment against co-tenants, i58. may not bring trespaHS against co-tenant, ZM. JOINTURE, 83, 148. assent of parents of infants to, IM. competent, 1.50. dower barred by, 148. equitable, 150. in case of infants, 150. legal, 148, 149. origin of, 377. requisites to, 149, 150, . . JUDICATURE, 51. JURY, trial by, 29. JUS acrescendi, 259. JUSTICE, natural, 11. E. KING, the. grants to, 119. KNIGHTHOOD, 96. m^f^m £88 INDEX. KNIGHT service. 90, 91, 94, 95, 96, 99. aboliahed, 106. KNIGHT'S fee, 91, 95. LAND, by alluvion or dereliction, 291. deviaable before Conquest, 397. of deceased may be sold under execution against his executors or administrators, 36, 274, aS6. holden mediately or immediately of the crown, 81. meaning of the term, 59, 60, 61. origin of property in, 7, 9. LAPSF -V a will, 304. Li. ;.DLO^uj. renedies of, against overholding tenants, 171, 172, 173, 174. LATENi v,;a.itn i.y, 332. LAW of En!;land, 17. of nations, 17. of nature, 16. LEAP-YEAR, 159. LEASE, 354, 356. and release, 392. by ecclesiastical corporations, 356. by joint-tenants, 257. by religious bodies, 356. by tenant in tail, covenants in, 359. formalities required by Statute of Frauds, 357. in future, 162. must be by deed in certain cases, 357. operative word in, 357. of settled estates, 356. tenancy from year to year under a void, 358. who may, 356 LEASE and RELEASE, 392. LEGACIES given to witnesses of wills made void, 402. LEGISLATIVE Assembly, ) on Council, ( '^*'- LEGISLATION, Canadian right of, 28, 45. LICENSE of alienation, 97. of mortmain, 292, 293. LICENTIA concordandi, 507. LIFE, estates for, 130. determinable estates upon a contingency, 131. forfeiture of estates for, 133. a general grant creates, 130. incidents to estates for, 132. LIGHT, easement of no longer acquirable, 467. LIMITATION, 180 n. a, 181. of suits in equity, 454. words of, 275, 276. LIMITATIONS (of Wm. IV.), R. S. 0., c. 108, Statute of, abolishes the doctrine of non-ad- verse possession, except in two cases, 427, 431. abolishes effect of entry and con- tinual claim, 427, 441. acknowledgment of title to bar, 442, 444. acquiescence, 455. adverse possession under ,427, 431. arrears of dower under, 446. arrears of rent under, 429. as to lands, runs only from actual adverse possession, 432. as to rent charge, runs from last payment or receipt, 432. (I INDEX. 589 LIMITATIONS (of Wm. IV.), R. S. 0., c. 108, Statute of or administrators, 36, 7i. \ie doctrine of non-ad- possession, except in ses, 427, 431. ffect of entry and con- claim, 427, 441. ^ment of title to bar, 14. ce, 455. ssession under ,427, 431. lower under, 446. rent under, 429. I, runs only from actual le poBseasion, 432. charge, runs from last (nt or receipt, 432. -Continueil. Crown not affected by, 431. diflEerent meanings of word " rent" in, 428, 431. disabilities under, 448. effect of, as to rent reserved, 429, 447. effect of, as to right accruing by instrument inter vivos, 43;{. effect of as to right accruing on forfeiture, 4:i9, 444. effect of, in cases of future es- tates, 43;3. effect of, in cases of right to im- mediate possession, 433. _ effect of, in cases of tenancies at will, 431, 435, 436, 4;J8. effect of, in cases of tenancies un- der unwritten lease, 431. entails barred by. 451. estates ulterior to entails barred by, 4.53. extinguishes right after ten years, 427, 443. how defeated in cases of tenancies • at will, im. infants' statutory bar against, 448. limits actions to ten years from right accruing, 427. mortgagor barred at end of ten years from possession by mort- gagee or acknowledgment, 444. mortgagor and cestui que trust, not tenants at will within, 438. mortgagee may enter after ten years from last jiayment, 445. no disabilities allowed to mortga- gor, 444, object of, 427. ofisuits in equity, 454. personal remedy for arrears of rent under, 429. policy of, 46H. possession of co-tenant under, 428, 442. possession of younger brother un- der, 428, 442. prevents right of entry being tolled, 425. relieves land from rent over due for six years, but leaves per- sonal remedy, 446. remedy for rent and interest, 446.. rent, different meanings of the word, 428, 431. runs from accrual of right, runs from default on contract of sale, 436. runs from wrongful receipt of rent in certain cases, trusts as to, 454. when it begins to run agains* ad- ministrators, 441. 33^ 590 INDEX. » X LIMITATIONS (of Wm. IV.), R S. 0., c. 108, Statute oi-Continued. when it berins to run against landlord, 431. when it runs in caHes* of abate- ment, or of diNpossession, 432, 433. when mortgagee barred 1>y, 444, 445, 446. when mortgagor barred by, 443. when uon -payment of rent will not bar reversioner, 430. when reversioner has new right under, 430, 440. when right to estate in possession barred, right to future estate also barred, 440. when _ wrongful receipt of rent will not bar reversioner, 430, wild lands excepted from, 453. LIMITATIONS, former Statutes of, 423, 426. adverse possession under, 426. doctrine of non-adverse possession under, 420. possession of co-tenant under, 427. . possession of younger brother under, 427. ran only from adverse possession, 420. LIMITED fees, 119. LIVERY, 97. in deed, 350. in law, .352. of seisin, 179, 348, 350. LORD could not aliene without consent of tenant, 85, 310. mesne, 88. paramount, 88. LUNATIC, contracts by, 314. M. MAGNA Charta, 80. " MAINTENANCE, common law principles of, 67. MANITOBA, how formed, 24. representation in Senate, 24. " Commons, 24. MANORS, 107, 109. MANUMISSION of villeins, 112. MARITAGIUM, 93, 95, 97. MAKRIAGE, solemnization, who may make laws as to, 49. !MARRIED woman, rights of the husband at common law, 315. right to chattels real, 316. devise by, 408. eipiity to a settlement, 316. release of mortgage by, 189. separate property of powers as to disposal, 317. tenant in tail, cannot convey without her husband, 515. MAXIM of tenure, 79. MEMORY, time of legal, 456. MEKGER, 68, 250, 304, 366, 518. MESNE profits, 171. may be recovered in ejectment by landlord, 171. MILITARY feuds, 79. MODERN English tenures, 99. MONSTERS cannot inherit, 281. MONTH, meaning of, 159. in statute, 160. , in mortgages, 160. in commercial transactions, 160. MORTGAGE, Welsh, 185. ins to run against , 431. in cases of abate- r of disposseHsion, agee barred by, 444, gor l)arred by, 443. ayment of rent \vill eversioner, 430. ioner has new rij-ht SO, 440, estate in poasession ■ght to future estate barred, 440. ful receipt of rent bar reversioner, 430. cepted from, 453. ider, 42G. ,427. INDEX. 591 MORTGAGES. 15. Act as to short forms of, 224, ct seq. does it extend to leaseholds, 225. defects in the forms, 224, et acq. clauses in, considered, 225 to 231. Assignment by executoi-s of the lands and redemption money, 101. of, necessity that mortgagor should join in or assent, 220. subject to equities subsisting between mortgagee and mortgagor up to time of notice, 220. re,','istration not notice of, 221. covenants for title on, 221. by mortgagee in iiossession without consent of mortgagor, liability to account for rents, &c., thereafter, 221, Attornment clause to create a tenancy, how framed, 209, Covenant for title, damages if title defective, l'J3, Disentailing Act, Mortgage under, 517, Distress clause 206, n. ft, right to make under mere grant of the right, 208. does not confer a landlord's remedy, 208, right of, by attornment clause, 208. Foreclosure, 180. Insurance, hre, mere contract to indemnify to extent of loss, 125. application of money under assignment policy, 199. ceases on absolute assignment by insured of subject of insur- ance without consent, 195. does not cease on the mere mortgage of property, 19G. covenant to keep up, form of, I'M. interim recei])t for, invalid except in equity, unless under seal, 197. moneys, when to be applied to reinstate the property, 198, power to insure under 42 Vic, c. 20, 199. right of mortgagee to insure and charge mortgagor, 210. life, not a'mere contract to indemnify, and valid though the in- sured have no interest at time of death, 19.5. interest overdue six years ceases to be a charge on the land, 210. may be tacked to principal as against the heir of mortgagor if liable on covenant, 211. , liability for on covenants continues for twenty years, 210, how advisable to calculate, 211. increase of, in default of payment, when allowed,_212 Leaseholds, when mortgage of, should l)o by sub-lease or assignment, 221. mort;jrage of by sub-le.ase, 223. does Short Form of Mortgage Act apply to, 225. Notice, Registry laws as to, 221. Payment of, to surviving mortgagee or his executors, 190. Power of sale, 200. under 42 Vic. c. 20, 200. should extend to assigns, 201. be given to personal not real representatives, 201. assigns cannot exercise, unless named in, 201. should not be conditional on notice given, 202. notice of intent to exercise, 202. how given, 201, 202. form of, 203. should provide for validity of sale in any event, 203. how to be exercised, 203. if improperly exercised, sale set aside, 204. exercised, sale set aside, 204. mortgagee purchasing under, 204. may buy in for taxes, 205. cannot buy from mortgagor under pressure, 205. second mortgagee may buy on sale by first mortgagee, 205. surplus proceeds of sale under, how to be applied, 205. mortgagee buying under his power of sale still remains mort- gagee, 205. asE 592 INDEX. III ill i MORTGAGES, power of aa,\e— Continued. in Act (M) to Khort forniH of mortgages bailly framed, 224. PoHHefwion, not adviRable, mortgagee hIuuiUI take, 210. mortgagee in, liabilit> thereon, 210. what charges allowed againHt mortgagor, 210, 211. mortgagor in, definition of poHition of, 212, 213. right to, 08 between mortgagor and mortgagee, 212. after default, 213. imtil default, 213. of mortgagor on non-execution of mortgage by mortgagee 215. ' of tenant of mortgagor on demise after the mortgage, 217, before the mortgage, 21'J. Quiet enjoyment, proviso for, 209. Redemption, proviso for, 180. on mortgage by tenant in tail, right of heirs general to redeem, 187. Release under Registry Act, 187, 189. no effect till registered, 188. unless mortgage registered, 188. unless assignment, if any, registered, 188. should not lie executed before registry of mortgairt', 188n. 6. action on, if releasor not entitled, 189. by married women, 189. by executors, 191. one of several should not, when residi'e not sufficient, 192. can on payment, 193. could not formerly angign the land, 191. partial, should not be given so as to prejudice the re- maining security, 188. of part, should not be given with notice of prior sale by mortgagor of another part, 192. may be given to a purchaser thereof entitled to indemnity against the mortgage, VXi. Short Forms of Mortgages, Act as to, 224. clauses of, considered, 225, 226, 227, 228, 229, 230, 231. interest six years overdue m|ky be added to prin- cipal, 211. Taxes, mortgagee may purchase estate at sale for, 2(^. Tenant of mortgagor, on demise after the mortgage, 217. what acts of the mortgagee absolve him from liability to the mortga- J"--, 218. how he becomes tenant to the mort- gagee, 217. on demise before mortgage, right of mortgagor or mort- gagee to the rents, 219. Tenant in tail, mortgage of, effect of on the entail, 187. MORTGAGEE barred by Statute of Limitations, 444, 445, 446. in fee, personal representatives of may re-convey, 191 n. c. right of entry of, 185, 444, 445, 446. ' right of to purchase under power of. sale, 204. MORTGAGOR barred by Statute of Limitations, 186. demise to, 213, 214, 21.5, 216. equity of redemption of, 186. ecjuity of redemption of may be forfeited, 186. right of possession of, 444, 445, 446. tenant at will to mortgagee, 213, 215, 216. sufferance to mortgagee, 214. MORTMAIN, alienation in, 292. license of, 293, 294, 297. evasion of, 293. statutes of, in force here, 30, 34, 299. MOVABLES, property m, 4. INDEX. 698 • framed, 224. artgHgor, 210, 211. 212. tgage by mortgagee, r the mortgage, 217. tgttge, 21'J. of heirs general to I, 188. registered, 188. Bgistry of lnortga^'e, 1, 189. 'e not sufficient, 192. L91. to prejudice the re- lale by mortgagor of titled to indemnity 5, 227, 228, 229, 230, y be added to prin- 5 mortgagee absolve )ility to the mortga- tenant to the mort- mortgagor or mort- N. NATIONS, law of, 17. NATTTRK. law of, ItJ. NAVIGATION, regidation of, 54. NEW BRUNSWICK, how ac(iuired, 22. formed into independent colony, a, represeiitation in Senate, 22. " in Commons, 22. NEWFOUNDLAND, 23. NOVA SCOTIA how acquired. 22. representation in Senate, 22. " in Commons, 22. NEW YORK, reviied statutes of, 4G9, 471, 472, 490, 491, 493. NON-ADVERSE possession, 42«. T>„»ur.D,PTini« NON-CLAIM of title by, 418. See Limitations (Statutb ok) and Prehcbiption. NON-COMPOS, effect of, on contracts, 313, 314. NON-EXISTI^lG grant, plea of, 458. NORTH American colonies, 27. NOTICE to quit, 170, 171. NULLUM Tempus Act, 290, 432. 0. OATH of fealty, 75, 79, 82, 104. OBLIGATION of bond, 393. how avoided, .■J94. )CCUPANCY, 3, 4, 7, 8, 9, 10, 279, 289. of title by, 289. colonies acquired by, 16, 17. . occurred only in tenancies pit?- autev vie, MM. special, 290. ONTARIO, Provincial constitution of, 47. representation in Senate, 43. " in Commons, 44. OPERATIVE words of conveyance, 330. ORDER necessary in deedu, 328. ORDINANCES, 2(i. OUSTER ofthe freehold, 418. . 170171 OVERHOLDING tenants, remedies agamst, 171, 17^2, IM, Ui. PAIS, matter in, 321, .322. PAPER or parchment, deeds must be on, 6A^. PARCELS in a deed, 330. PARAMOUNT, lord, 88. PARAVAIL, tenant, 88. PARCENARY, 262. can it arise now, 265. how it arises, 262 how dissolved, 263. , nan oi>n nature and properties of, 262, ZM. PARCENERS, 262. , . „. in cases of frank marriage, -204, why so called, 263. PARUASM'-iLy authorism^ conveyances to religiouB «es, 298. 299. 300. Canada', legislative authority of, 45, 46, 47. Imperial, power of, to impose laws, oi, &». Imperial, power of taxation by, 53. PARLIAMENTARY conveyance by possession, 443. PARTITION, 263, 360. deed of, 263, 360, 361. must be by de«d if voluntary, 263, 2b7. sale in proceedings for, 263. 38 594 INDEX. rERPETUITIES, 24B. 247. ditferent expreiiKionB of the rule againitt, 247 n. n. how period within the rnlH againHt, iixed, 247 n. a. ruHtraint againHt, 247 n. a. nile aKainHt, contiidercd, 247. time allowed by rule aKaiimt, 240. PERSONALTY, guccenaion to, compared with (leHc«'nt of realty, 4C8, 461), 475, 478, 480, 4!'.l, 48a, 486, 489, 490, 491, 495, 497. will of, conatrued according to law of domicH. 401. PETIT Hergeanty, 101. PLEADING of title by prescription, or by non-exiMtinu' grant, 457, 458, 459, 466. PLOUiJHHOTE, 1.S2, 164. POSSK.SaiON, 270. doctrine of, non-iKlvene, 426. of co-tenant, 269. of tenant, that of landlord, 162. of tenant for years, 18 poHHeHHion of remainderman or rev ner, 137. of yonnger brother, 269, 428. right of, 271. POSSESSORY Actions, 420. POSSIBILITY not aHHignable at common law, 313. POSTHUMOUS child, 241, 275. POWER to charge landH, origin of, 311. POWERS cannot be grafted on a bargain and sale, 391. of appointment, 151, 152, 153 n. n. of sale in moitgagest, 200, 201, 203, 204, 205. PRAECIPE, tenant to, 511, 621, 524 n. n. PRECp] DENTS, advantages of adhering to, in a deed, 323. PREMISES of a deed, 329. PRESCRIPTION, 64, 455. at common law, 455, 460. crown barred by statute of, 467. descent of an estate by, 463. dominant and servient grant, 460. disabilities and exceptions imder statute of, 461. distinction between custom and, 460. does common law prescription exist in Ontario? 459. easements under statute of, 4()3. " enjoyment" in statute of, meaning of, 456, 466. evidence of, 456. how defeated, 456, 557. how time of, calculated, 457. in a que estate, 461. incorjjoreal hereditaments alone can be claimed by, 461. in whom to be laid, 461. interruption to claim by, 465. less than 30 years will not give title by, 467. light under statute, 463. no longer acqiiirable, 467. manner of, 462. non existing grant, 458. necessity for knowledge of former law of, 468. object of the statute of, 464. of title by, 461. plea of, and of non existing grant, 457, 458, 459, 466. jioliey of the statute of, 468. * profits a prendre in statute of, 463. reipiisites, 4.56. thirty years give title by, 464. time calculation of, 4(>4. what may and what may not be claimed by, 462, 463- PRIMARY conveyances, 346. PRIMER s..jin, 92, 10.5. PRIMOGENITURE, 13, 85, 483, 502. PRINCE EDWARD ISLAND, 23. how acquired, 23. INDEX. 695 475, 478, 480, 4;',l, 459, 466. ner, l;}7. PRINCE EDWARD IShX^iD-Continrnd. , „ ^ „„ repruHBntation in Sonuto, -'.i. " ill ComiiiuiiH, 23. PRIVITY of cf)ntract, 344. of eMtftte, ;144, 367. PRO(^LAMATION on Hne, 507. of 1703, '25, 31. PROPERTY, 10. communion of, 23. exiHted in nioveubleH firBt, 4. oriirin of, 1. riKht of, 1, 271, 420, 421, 422. PROTECTOR *totht^HGttlement, 511, 51H, .520, 521. 522, 523, .524, 525, .526, .527. analogous to tenant to tht) prii!ci)M' ill. deed by wliich appointed munt hn nnuteved, 52b. how appointed, .521, 522. who may and who may not bo, .)24. PROVINCES, union of the, 40. , ,, .„ .,, r/> PROVINCIAL Lei^iBlatijre, authority of, 47, 48, 4'.l, .A). PROVINCIAL Con»titution of Ontaii", 45. , (fxccutive power in, 4o. leKiHlativi- " 45. PROVISO for re-entry.— See Rioht of Entuy. PUNCTUATION in deedH, 32!t. PUR auter vie, tenant, 130. PURCHASE, by feudiat« called conquent, 277. definition of, 274. .... , , i ott difference between acquiHition by, and deHcent, 277. effect of taking by, varied by statute R. ». O. c. IOj, ^7J, iifi. legal signification of, 279. money, application of, 330. of title by, 274. PURCHASER at common law, 277. on devise, heir taken aH, 27.1. . right heir, or "heir of the boily ' taking as, 276. under statute 14 & 15 Vic, R. S. 0. c. 105, 273. Q. QUALIFIED fee, 119. QUEBEC, Province of, 26, 27. representation in Senate, 43. " in Commons, 44. surrendered, 25. QUE estate, prescribing in a, 462, 463. QUIA Emptores, Statute of, 70, 109. R. RACK rent, 73. RASURE in a deed, .342. READING of d^od», 337. , ,. , , ,„^ REAL and mixed actions abolished, U). REAL property, 59. RECITALS in a deed, .329. RECOGNIZANCE, 394. defeazance on, olio. RECOVERY, common, 504, .508, .511. abolished, 504. deeds to declare the uses of, .512. force and effect of, 511. nature of, 508. proceeding under, .509. voucher in, 509. REDDENDUM. 3;«. . . , ^^^ REDEMPTION, time for limited, 186. 596 INDEX. ■'I' REENTRY on breach of covenant, condition of, 372. REGISTRY, necessary to conveyance by tenant in tail, 526. necessary to deeds by which protector appointed, 526. necessary to deeds of conveyance to reh'gious uses, 299 RELEASE, 361, 362. by way of enlargement, 361. extinguishment, 363. entry and feoffment, 363, requisites of, 361. operation of, 361, 362. passing an estate, 363. pattsing a right, 363. RELIEFS, 92, 105. REMAINDER, 232. contingent, 241, 242, 243. contingent freehold, how 'imited, 242. contingent, how defeated, 243. creation of, 233. must pass on creation of particular Mtate, 239. must vest in grantee during continuance of particular estate, 239-, particular estate necessary to support, 2.34. possession of tenant for years, is possession of him in, 137. rules to be observed on creation of, 2.'M. trustees to preserve contingent, 243, what estate will supporc a, 239. vested, 240; when remainder must vest, 239, 240. RENff, 62, 63, 66. apportionment of, 73. assignee of overdue, 67. charge, 69. d-^finition of, 62. different meanings of, in Statute R. S. 0. c. 108, 428, 431. distress for, 67, 68, 69. double, 172. effect of payment of, under a void or expired lease, 169, 170. executors mftv distrain for, 68. lands relieved from, after six years, 446. merger of, 68. origin of, 86. personal liability for, under covenant, not alterec'. by R. S. O. c. 108, 446, rack, 66, 73. release •f part of land charged, 70. right of contestation of one of several owners, 71. release from judgment, 72. seek, 66,72. RESERVATION in a deed, 335. RESULTING use, 324, 381. REVERSION, 249. definition of, 249. incidents to, 249, 250. merger in, 250, 251. origin and nature of, 249. possession of tenant for years is possession of him in, 137. purchaser of, must give reasonabb value, 251, .252. statutory alteration of rule, 252. surrender of, 71, 251. REVERTER, possibility of, 119. REVOCATION of a will, 409, 410. of uses, 381. RIGHT civil and natural, 10. of entry, 173, 174, 175, 419. of entry assignable and devisable, 182, 183, 400. of entry of mortgagee, 185, 444, 445, 446. -J * INDEX. 597 ;ate, 230. r. 108. 44C, mGHT—Continued. of entry for condition broken not assignable, 183. of entry for non-payment of rent or breach of covenant, 172. of entry not assignable nor devisable at common law, 182, 400. _ of entry on breach of condition subsequent, and on oonditionallimitatioii, (hutiuction between, 439. of posseHsion, 420, 422. of property, 421, 422. . of possession and of property might be distinct, 271. of way, 64. RIGHT to real property, 1. , writ of, 421, 423. writ of, abolished, 425. writ of, ijroceedings on, 423. ROYAL ASSENT to bills, 44. RULE in Shelley's case, 275. RULES ot descent considered, 469 c« se?. , ,, , • i .,i RUPERT'S LAND and the NORTH-WEST TERRITORY, how acquired, 24. S. SAXON chronicle, 78. SCUTAGE, 9(5. SEA, dereliction or encroachment of, 291, SEALING of deeds, 337, 340. SEALS, antiquity of, 337, 338, 339. SEIGNIORY not assignable without vassal's assent. So, 310. SEISED, equivalent to " entitled to," 472. SEISIN, livery of, 348, 349, 350, 351. SENATE OF CANADA, 43. , ^ . ., representation in of Ontario, 43. " " Quebec, 43. " " Nova Scotia, 43. " " Nflw Brunswick, 43. " " Manitoba, 43. " " British Columbia, 43. " " Prince Edward Island, 43. SBPj^RATE property of married women, 315, 316, 317, 318, 319. case, 89. S£?.VICE feodal, 82, 83, 84. fee, 89 in socage, 90. knight, 90, 91. villein, 90. SETTLEMENT antenuptial, to bar dower, 149. protector to the, 511 to 528. strict, 244, 520. SEVERALTY, estates in, 252. SHELLEY'S case, rule in, 275. SHIFTING use, 381. SIGNING of deeds, 340. of wills, 406. SOCAGE, 98, 99, 100. incidents of, 104. free, 100. land ^n Upper Canada to be held in, 08, 99, 112. SOCIETY, ends of civil, 15. law of, 14. SPECIAL occupant, 290. SPECIALTY debts, heir liable for, 278. devisee liable for, 402. SPECIFIC performance of agreement for a lease, 358. SPRINGING use, 380. STATUTE MERCHANT, 177. STAPLE, 177. JJ .i fll ^■; iff 598 INDEX, STATUTES of Jeofails, 29, 38. of LimitationB, 29, 38. of Mortmain, 30, 34, 374. Magna Charta, 80. 21 Hen. III. 159. 52 Hen. III. i. 23, (Marlbridge), 308. 6 Ed. I., c. 5 (Gloucester), 308. 7 Ed. I., Stat. 2. 295. 13 Ed. I., c. 1 (Westm. 2. de donis conditionalibus), 122, 126, 140, 180, 295, 311. c 32 (West 2), 295. 18 Ed. I., Statl, c. 1 (Quia EmptoFPs), 105, 109, 288, 334. Stat. 3, 29. Stat. 4, 508. 27 Ed. I., Stat. 2, 296. 34 Ed I. Stat. 3, 296. 27 Ed. III., c. 9, 313. 15Ric. II., c. 5, 296, 375. 11 Hen. VII., c. 20, 520, 529. 23 Hen. VIII., c. 6, 296, 298, 313. 27 Hen. VIII., c. 10 (U8e8),149, 150, 2.36, 237, 254, 257, 301, 324, 346, 354, 361, 373,378, 386, 389. 27 Hen. VIII., c. 16 (Enrolments). 389, 392, 417. 32 Hen. VIII., c. 1 (Wills), 128, 399. c. 28, 530 c. 34, 67, 183, 369, 371. e. 36, 128 34 & 35 Hen. VIII., c. 20, 129, 248, 399, 512. 14 Eliz. c. 8, 512. 43 Eliz. c. 4, 400. 21 Jac. I., c. 16 (Limitation!]). 12 Car. II., 0. 24, 97, 99, 101, 104, 106. 22 & 23 Car. II., c. 10 (Distributions), 469, 475, 480, 483, 484, 486, 489, 491. 29 Car. II., c. 3 (Frauds), 326, 327, 339, 341, 342, 343, 350, 361, 364, 365, 386, 400, 405. c. 30 (Distributions), 495. I Jac. II., c. 17 (Distributions), 481, 496, 500. 3&4Wm. &M.,c. 14, 402. 7 & 8 Wm. III., c. 22, 54. 10 & 11 Wm. III., 0. 16, 241. 11&12 Wm. III., c. 6, 297. 4 Anne, c. 16, 258, 268, 394. 4 & 5 Anne, c. 16, 312. 6 Anne, ?. 18, 176, 250. 8 Anne, c. 14, 69. c. 28, 67, 171, 172. 5 Geo. II., c. 7, 36, 55, 274. 5 Geo. II., c. 28, 73. 7 Geo. II., c. 20, 186. 9 Geo. II., c. 36 (Mortmain), 34, 298, 374, 400. II Geo. II , c. 19, 73, 172, 174, 302, 312. 14 Geo. II., c. 20, 291, 511. 22 Geo. II., c. 46, 35. 25 Geo. II., c. 6, 401. 6 Geo. III., c. 12, 52. 7 Geo. Ill,, 0. 46, 52. 9 Geo. III., c. 16 tNullum Tempos), 432. 12 Geo. III., c. 73, 304. 14 Geo. III., c. 78, 197, 211, 304. 14 Geo. III., c. 83, 28, 29, 30, 35, 36, 56, 57. 18 Geo. III., c. 12, 25, 52, 53. 24 Geo. III., c. 5 (Ordinance of Quebec), 28. 25 Geo. III., c. 2 (Ordinance of Quebec), 28. 31 Geo. III., c. 3, 98. 31 Geo. III., c. 31, 28, 37, 99. 32 Geo. III., c. 1 (Stat, of U. C), 28, 29, 30, 32, ;i3, .34, .35, 36. 37 Geo. III., c. 8 (Stat, of U. C), 390. INDEX. 699 STATUTES— Continwerf. 26, 140, 180, 295, 311. 7, 301, 324, 346, 354, 39 & 40 Geo. III., c. 98 (Imp. Act), 403. 40 (Jeo. III., c. 1 (Stat, of U. C), :W, 56. 43 Geo. III., c. 6 (Stat, of U. C), 514. c. 46 (Imp. Stat), 424. 2 Geo. IV., 0. 1 (Stat, of U. C), 37. 0. 83 (Imp. Stat.), 34. llGeo. IV.,c. 60, 56. 59 (Imp. Stat.), 54. 74 (Imp. Stat), 319. „ ,^„ 4 Wm. IV., c. 1 (Stat, of U. C), 128, 145, 349, .390, 513. 5 & 6 Wm. IV., c. 54 (Imp. Act), 140. 5 & 6 Wm. IV., c. 62 (Imp. Stat.), 55. 2 & 3 Vic, c. 4 (Imp. Stat), 52. 3 & 4 Vic, c. 35 (Imp. Stat), 40, 53. 6 & 7 Vic, c. 13 (Imp. Stat.), 19. 6*7 Vi3., c. 73 (Imp. Stat), 135. 8 & 9 Vic, c. 106 (Imp. Stat), .389, 505. 9 Vic, c. 11 (Stat of Canada), 512. c 34 (Stat, of Canada), 390. 13 & 14 Vic, c 63 (Stat, of Canada), 390. 14 & 15 Vic, c 6 (Stat, of Canada), 273. c 7 (Stat of Canada), 183. 19 & 20 Vic, c 140 (Stat of Canada), 40. 22 & 23 Vic, c 35 (Imp. Act), 199, 470. 23 & 24 Vic, c 121 (Imp. Stat), 19. 24 Vic, cl (Can.), 73. 25 Vic, c 20 (Imp. Stat.), 56. 28 & 29 Vic, c 63 (Imp. Stat), 55. . 30 & 31 Vic, c. 3 (British North Amenoa Act, 1867), 40. 32 & 33 Vic, c 3 (Can.), 41. 32 & 33 Vic, c 29 (Can.), 179. 33 Vice 3 (Can.), 24. 34 & 35 Vic, c 28 Imp. Stat.), 41. 36 Vic, c 13 (Can.), 22, 44. 35 Vice 16(0nt), 136. (U. C. Consolidated) c. 27, 421. c 44, 443. c 51, 425. c. 78, 443. c. 82, 403. Revi8er under the Statute uitatiouB, 43& WAGER of battel, 424, n. WARDSHIP, 92, 105, 106. WARRANTY, 336, 501. . by tenant in tail, 504, nOo. by tenant in tail abolished, 505. express, 506. implied at common law, 505. superseded by covenants for title, 336. WASTE, 306. ameliorating,'306. how far iSngiish law of, applies as to clearing wild lands, 306, 307. permissive, 309. present remedies for, 309. proceeds of, 308 punishment of, 309. voluntary, 304. who are liable for, 306. words grant or exchange create no, 505. writ of, abolished, 309. WATER, 5. WAYS, right of, 64, 65 n. 6. by necessity, 65. WELLS, 5. WELSH mortgage, 185. WIFE, chattels real, 316. powers of as to disposal of realty, 317, 318 n. c, 319. WILLS, 12, 13, .^97. (See Devise.) alienation by 397. allowed of land held in socage, 399. after acquired freeholds pass by, 405. may pass by at common law, 404. attestation to, 406. . , ... .^r need not show requisite formalities compbed with, 40b. c'o°StS iSetoiriScSse if specific performance would be enforced, 410. credibility of witnesses to, 401. laao AO'i death, will speaks from, on death after 1 January, 1869, mi. devise of " all my real estate " would not pass after acquired freeholds before 32 Vic c. 8, 404. " die without issue " meaning of, 414. estate, when all of devisor passes by, 413. executory devise, 245, 402. execution of, 406. j , u i joc when presumed to have been duly had. 496. wMr„,v. inc. valid under joint provisions of Acts of Charles and William, 406. executed abroad of lands here, 401. feudal, restraint upon, 398. ... , i. aia fee simple, enlargement to, by imposition of a charge, 414. ^ on gift over on death under certain age, 414. under a certain age without issue, 41*. general devise now passes whole estate, 413. includes power of appointment how far, 413. ^^ indefinite bequest of all my leaseholds meant " present leaseholds, 404. infant vnll of invalid, though he die after majority, 411. lapse, estates tail and gifts to issue not to, 416. lapsed devise, subject of, wQl ^lass under residuary devise, 41J. married woman can make a will as if sole, 408. of a fee without words of inheritance, 117, 118. * ^LrduL^t'stVS c"a,^'^^^^ matter of a devise that fails unless contrary in- tention appeari 412. 604 INDEX. m VflhUi-Continued. rights of entry pasH by, 400. revocfttion by marriage, 409. none by alteration of circumstanceB, 410, by conveyance nnJer the old laws, 410. by contract to convey, 410. HoUliers and Hailors', will of, 40(). subject to rule ajjainst perpetuities, 240, 247 n. «. to corporations, 31)9. trustees or executors devise to, 415. WILD lands, title to, how affected by Statute of Limitations, 4.53, widow not entitled to dower out of, 158. WITNESS to a deed, 342, 357. to a will, 406. WORDS of inheritance and of procreation necessary in deeda to create a fee tail, 125. and of procreation not necessary in wills, 117, 125. necessary in deeds to create a fee, 117. not necessary in wills, 117. WRIT of covenant real, .507. of dower, 425. of entry, 420, 421. of right, 423. of waste, 309. WRITTEN conveyances, introduction of, a50. YEAR, meaning of, 158. to year, tenancy from, 167. YEARS, estates for, 161, 162. JSi' fee tail, 125.