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Lorsque le document est trop grand pour dtre reproduit en un seul clich6, 11 est f ilm6 d partir de I'angle sup6rieur gauche, de gauche d droite, et de haut en bas, en prenant le nombre d'images ndcessaire. Les diagrammes suivants illustrent la mdthode. errata to pelure. on d 1 2 3 32X 1 1 2 3 4 5 6 A SI ADAPTI COMMENTARIES ON TBI AWS OF ENGLAND: APPLICABLE TO REAL PROPERTY. BT SIR WILLIAM BLACKSTONE, KNT. *^. I ADAPTED TO THE PRESENT STATE OF THE LAW IN UPPER CANADA, BY ALEXANDER LEITH, 0/ Osgoodt HaU, BarritUr-at-Law. 'i TORONTO: W. C. CHEWETT & CO, 17 & 19, KING STREET EAST. 1864. Entered according to Act of the Provincial Legislature, in the year of our Lord one thousand eight hundred and sixty-four, by ALEXANDER LEITH, In the OflSce of the Registrar of tlie Province of Canada. PREFACE. (ar of our Lord The same considerations which induced Mr. Stephen some years ago to adapt ic well-known Commentaries of Sir W. Blackstone to the then existing state of lie law in England, apply with much greater force in the case of their adaptation the existing law in Upper Canada. Since the days of the learned commentator, reat changes haye been wrought by the Legislature, and it is almost superfluous say that the student who may have acquired a perfect knowledge of the original Bxt, though he may thereby have become acquainted with all the important ^rin- Uplea whereon the present law of real property rests, will still have obtained but ^ittle information which will qualify for actual practice. The works of Mr. Stephen ftnd Mr. Williams as elementary treatises of a general nature on the law of Real ?ropert/, and those of Mr. Smith and Mr. Hayes of a more advanced character, supply the student in England with what is wanting in Blackstone ; as regards the Canadian student or practitioner, however, they not only fail to do this, but lare calculated seriously to mislead by constant references to a state of the law (which does not exist with us. From the year 1792 the law in England and here [has been constantly tending in different directions, according as the Imperial land Provincial Legislatures have thought fit to meet the different exigencies and [requirements of the two countries : many statutes have been passed and many repealed in England, which have not been passed or repealed here; others passed land others reputled here, which have neither been passed or repealed in England. lAs regards even the introduction of the English Law by the first Act of the Parlia- [ment of Upper Canada (32 Geo. IIL), doubts and difficulties constantly arise as It* the extent to which the English Law was introduced ; for, the expression of the Legislature was that " in all matters of controversy relative to property and *' civil rights resort shall be had to the laws of England as the rule for the deci- " sion of the same," and, as remarked by the late lamented and learned Chief Justice of Upper Canada in the consideration of the question whether the Statutes of Mortmain were introduced hero, " it must be confessed that a wide field is " opened for disputes by the term civil rights " (a). (a) Ptat, ch. 1 A. PREFACE. u It is consideration of the above, the recollection of the difficulty T myself had, when a student, in tracing what laws were applicable here, the frequent occasionn I yet have as Examiner and Reader to the Law Society in observing that the sainf ' difficulty still exists, and the total absence of any work to supply the want, which has induced me to offer this work to the public. The objects I have had in view have been, Ist, to exclude from the original text all that was wholly inapplicable here, as for instance the law of copyhold tenures ; 2ndly, to exclude nothing which might either apply, or elucidate a principle ; and, Srdly, to interweave in the original text the required alterations. My endeavours to attain the last object have been attended with no little diffi- culty, and led perhaps sometimes to singularity of expression ; for the expression of new ideas, when fettered and cramped by the necessity for its introduction into former original matter which requires also to be preserved intact as much as pos- sible, is far more difficult than when scope is allowed to the use of language, and the pen can freely follow thought. . I need no warrant for exclusion of all that is wholly useless here ; but in regafo to the second object I had in view, viz., the exclusion of no part of the original text which might be applicable, or which, if not applicable, might serve to eluci- date or explain the principles on which the present law rests, I have in answer to any possible objections of those who prefer a superficial view, without tracing the law to fundamental rules, the weighty authority of Mr. Hayes, whose elegance of diction is unsurpassed by Blackstone himself, and of Lord St. Leonards (Sugden), recognized as one of the first real-property lawyers of the present day. Lord St. Leonards states that " it is seldom possible to understand a law which repeals a *' former one, and substitutes new provisions, unless wo have a competent know- " ledge of the law repealed." Mr. Hayes has said, in reference to the act (c. 83) respecting assurances of estates tail, " It is not possible to appreciate or expound " its provisions without some knowledge of the law of settlement, and an acquain- " tancc, more intimate, with those assurances which the statute has superseded, " with their various uses and modes of operation, their learning'and their Ian- *' guage." Moreover, no branch of the law has undergone fewer changes, or rests more upon, or can be more easily traced to, first principles, than the law applica^ ble to real property ; and independently of all this, the recognized grace and elegance of style and justness of thought of the learned commentator, justify and indeed require the retention of the original text as intact as possible. In a work of this general nature, embracing as it does an extended view of the law of real property, it was impossible to treat of the various subjects beyond giving a geneial outline of the law applicable to the subject matter. I do not pre- sume to lay this work before the profession as any other than as introductory to PaEFAOE. V le law of Real Property, and as adapted more especially to the use of students. ^he author of, perhaps, the most valuable general text-book we have, in his reface to his work, has said, " No general text-book, even on a much less comprehensive subject than the present, can be implicitly relied on by the practitioner : the author of such a general text-book is not in |he position of one who has undertaken to treat of and exhaust a particular subject " (a). I have, the text of Sir W. Blackstonc, given but a general view of the law as it exists ere at the present day, discarding what was wholly useless, and adding such Bneral information as I deemed important, either where the law as administered Equity would vary the doctrines of the Courts of Common Law, or where the legislature or modern decisions may have varied the former law. I have not roided, for fear of criticism, to enter fully into a subject when I have thought it Bquisite, even though, as in the case of treating of descents under the Statute of Victoria, there were neither text-books nor authorities to guide me. I have done lis, not by any means because I have felt myself beyond the reach of criticism, »r that this work is free from, perhaps, many errors, but because the avoidance f^of diflScult subjects would have been inexcusable, and it would have been better |o have been completely silent. I submit this work to my professional brethren with very great anxiety and kpprehension, i».r I am conscious that very many among them are better qualified than myself for the task I have undertaken, and the ordinary duties of my pro- Bssion have prevented my applying my own humble abilities as carefully as I Ihould have wished. I have ventured my own attempts to supply what I know |s much wanted, only in the absence of attempts by others, with the sincere ^esire to be of service to the student, and the hope and endeavour that no lults on 7117/ part may prevent my applying to the result of my labors the rords of Sir Edward Coke (h), " Albeit the student shall not at any one day, do what he can, reach to the full meaning of all that is here laid down, yet let him no way discourage himself, but proceed ; for on some other day, in some other place, his doubts will be probably removed." ToKONTo, May 2, 1864. (a) Smith, Itonl and Personal Property, Preface. {b) Proeme to 1 Init. If Proper ){ the En Provi )f Real Pi n Incovpo ^f tlie Feui ){ the Am the Mo( Freehol n Freeho )f Estate: )f EstateE lOf Estate! TABLE OF CONTENTS. CHAPTER I. f Property in General 1 CHAPTER I (A), f the English Laws in force hero, the Authority for their application, and for Provincial Legislation 10 CHAPTER II. f Real Property ; and first, of Corporeal Hereditaments 23 CHAPTER III. f Incorporeal Hereditaments ' 26 CHAPTER IV. f the Feodal System 32 CHAPTER V. f the Ancient English Tenures 41 CHAPTER VI. f the Modern English Tenures • BO CHAPTER VII. Freehold Estates of Inheritance 61 CHAPTER VIII. Of Freeholds not of Inheritance 73 CHAPTER IX. f Estates less tlian Freehold '. 89 CHAPTER X. f Estates upon Condition 99 CHAPTER XI. Of EBtatea in Possession, Remainder, and Reversion 106 1 ;■ viii TABLE or oontknts. CHAPTER XII. Of Estates ia Severalty, Joint-Tenancy, Coparcenary, and Common. . » 120| CHAPTER XIII. Of the Title to Things Real, In General 131 1 CHAPTER XIV. ■ OF DoBcont of Freehold Estates of Inheritance U^ The Present Law of Descent Mil CHAPTER XV. of Title by Purchase, and first, by Escheat I1b\ CHAPTER XVI. Of Title by Occupancy 194^ The forni( of the jura CHAPTER XVII. ■ to the perso Title by Proscription, and by Non-aaira, under Con. Stat. c. 88 197 1 ^*^. ^^]^ ^* Of Title by Prescription »■ ^ST i»d ' ^ writers on n CPAPTER XVIII. ■ concerning t Of Title by Forfeiture 236| few obeervati several objec CHAPTER XIX. ■ There is n Of Title by Alienation 24gl engages the sole and de£ CHAPTER XX. ■ °J®^„'^®t'5fg*^ Of Alienation by Deed 264 H « x i. •' ^ few that wi ^ and foundat CHAPTER XXI. ■ gj^n^ ^^ gg^, Of Alienation by Matter of Record, and under Execution 304 1 acquired, as satisfied witl CHAPTER XXII. ■ ining tl»e rea H We think it Conveyances by Tenants in Tail under Consolidated Statute, c, 83 326 1 fn-mer nroni ^„.^»,^-r. ,,,,^x-r ^ andtestamer CHAPTER XXIII. ■ rotely and s< Of Alienation by Devise 346^ natural law, dominion of APPENDIX. ■ fellow create Containing Statutes relating to Real Property 35 W J^'^®' ^^J ^ field or ot a to maintain world which mu:.*. beowi life. It is made, witho \ 120 131^ OF THE RIGHTS OF THINGS. CHAPTER I. 175 ■ OF PROPERTY IN GENERAL. 194H The former book of these Commentaries having treated at large of the Jura personarum, or such rights and duties as are annexed to the persons of men, the objects of oar inquiry in this second mU ^^ ^^'^ ^^ ^^® ^^'"'^ rerum, or, those rights which a man may H 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 stile the rights of dominion, or property ; concerning the nature and original of whieh I shall first premise a 2ii6H few observations, before I proceed to distribute and consider its several objects. There is nothing which so generally strikes the imagination, and 248 ■ 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 2S4H ^^ ^"^ other individual 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 posses- sion, we seem afraid to look back to the means by which it was 304 ■ 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 exam- ining the reason or authority upon which those laws have been built. . _ We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner ; not oaring to reflect that (accu- rately and strictly speaking) there b no foundation in nature or in 346 ■ 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 ss^H ^^^^^^ ^^^ <^o°6 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 muJ, 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 x^ ^p' OF THE RIGHTS them. But, Tvhen law is to be considered not only as matter of I practice, but also aa 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 foundation of man's dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator, And, while the earth 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 imme- diate necessities required. 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 fi state of primeval simplicity : as may be collected from the \ manners of many American nations when first discovered by the Europeans ; and from the antient method of living among the first Europeans themselves, 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 *' communia et indivisa omnibus^ veluti unum cunctis patrimonium " esset." Not that this communion of goods seems ever to have been applicable, even in the earliest ages, to ought but the substance of the thing ; nor could it be extended to the use of it. For, by the law of nature and reason, he, who first began to use ifc, 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 right 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, who- ever was in the occupation of any determined 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 injustice. Thus also a vine or other tree might be said to he 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 bis own repast. A doctrine well illustrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken is for the time his own. But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent domi- nion; and to appropriate to individuals not the immediate me only, (a) Gen. i. 28. OF THINGS. 8 justice. Thus but the very substance of the thing to be used. Otherwise innu- merable tumults must have arisen, and the good order of the world been continually broken and disturbed, while a variety of persons were striving who should get the first occupation of the same thing, or disputing which of them had actually gained it. As human life also grew more and more refined, abundance of conveniences were devised to render it more easy, commodious and agreeable ; as, habi- tations 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 instant that he quitted possession — if, as soon as he walked out of his tent, or pulled off 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 every thing else was in common, maintained a kind of permanent property in their dwellings, espe- cially for the protection of their young ; that the birds of the air had nests, and the beasts of the field had caverns, the invasion of which they esteemed a very flagrant injustice, and would sacrifice their lives to preserve them. 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 wandering life of their owners, before any extensive property in the soil or ground was established. And there can be no doubt, but that moveables of every kind became sooner appropriated than the permanent substantial soil : partly because they were more suscepti- ble of a long occupancy, which might be continued for months together without any sensible interruption, and at length by usage ripen into ati established right ; but principally because few of them could be fit for use, till improved and meliorated by the bodily labour of the occupant, which bodily labour, bestowed upon any subject which before lay in common to all men, is universally allowed to give the fairest and most reasonable title to an exclusive property therein. The article of food was a more immediate call, and therefore a more early consideration. Such as were not contented with the [ spontaneous product of the earth, sought for a more solid refresh- ment in the flesh of beasts, which they obtained by hunting. But I the frequent disappointments, incident to that method of provision, I induced them to gather together such animals 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 water also a very important point ; and therefor: the book of Genesis (the most venerable monument of antiquity, considered merely with a view to history) will furnish us with frequent instances of violent contentions concerning wells, the exclusive property of whfch 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, ■ <\ !1 OF TUE RIGHTS B£serling his right to a well in the country of Ahimelech, and exacts ' ing an oath for his security, " because 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 (i). All this while the soil and pasture of the earth remained still in common as before, and open to every occupant ; except perhaps in the neighbourhood of towns, where the necessity of a sole and exclusive property in lands (for the sake of agriculture) was earliei 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 neces< , sities. This practice is still retained among the wild and unculti- vated 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 territory, 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 Boman Empire. We have also a striking example of the same kind in the history of Abraham and his nephew Lot (r). When their joint substance became so great, that pasture and other conveniences grew scarce, the natural conse- quence was, that a strife arose between their servants, so that it waa no longer practicable to dwell together. This contention Abraham thus endeavoured to compose : " Let there be no strife, I pray thee, " between thee and me. Is not the whole land before thee ? Sepa- " rate thyself, I pray thee, from me. If thou wilt take the left hand, " then I will go to the right ; or if thou depart 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 every " where, 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." Upon the same principle was founded the right of migration, or sending colonies to find out new habitations, when the mother coun- try 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 stock- ing 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 driving out or massacrcing the inno- cent and defenceless natives, merely because they differed from their invaders in language, in religion, in customs, in government, or in colour ; how far such a conduct was consonant to nature, to reason, or to Christianity, deserved well to be considered by those who have rendered their names immortal by thus civilizing mankind. (o) Gen. xxi. 30. (6) Gen. xxvl IB, 18, «fec. (c) Geo. c. ziii. OF THINGS. imaiDed still in ept perhaps in of a sole and re) was earlier bherwise, when ry convenience t to seize upon sly their neces- Id and unculti- States, like the itself, and the n them still in niversal in the ed among the Ve have also a Abraham and came so great, natural conse- so that it was ion Abraham e, I pray thee, thee ? Sepa- the left hand, le right hand, acknowledged that was not his eyes, and watered every chose him all iham dwelt in migration, or mother coun- ctised as well iythians, and to the stock- kept strictly he seizing on ing the inno- sd from their nment, or in re, to reason, )se who have ind. As the world by degrees grew more populous, it daily became lore difficult to find out new spots to inhabit, without encroaching ipon former occupants; and, by constantly occupying the same Individual spot, the fruits of the earth were consumed, and its spon- ineous produce destroyed, without any provision for a future supply )r succession. It therefore became necessary to pursue some regular lethod of providing a constant subsistence ; and this necessity pro- luced, or at least promoted and encouraged, the art of agriculture; knd 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 blear that the earth would not produce her fruits in sufficient quan- tities without the assistance of tillage. But who would be at the pains of tilling it, if another might watch an opportunity to seize ipon and enjoy the product of his industry, art) and labour ? Had ^ot therefore a separate property in lands, as well as moveables, been rested in some individuals, the world must have continued a forest, |ind men have been mere animals of prey, which, according to some [>hilosophers, is the genuine state of nature; — whereas now (so iciously has Providence interwoven our duty and our happiness logether), the result of this very necessity has been the ennobling ^f the human species, by giving it opportunities of improving its fational faculties, as Well as of exerting it^ natural. Necessity l)egat property ; and, in order to insure that property, recourse was liad to civil society, which brought along with it a long train of iseparable concomitants: states, government, laws, punishments, bd the public exercise of religious duties. Thus connected toge- ther, it was found that a part only of society was sufficient to pro- ride, by their manual labour, for the necessary subsistence of all ; Imd leisure was given to others to cultivate the human mind, to ivent useful arts, and to lay the foundations of science. The only question remaining is, how this property became actually rested ; or, what it is that gave a man an exclusive right to retain in f)erraanent manner that specific land, which before belonged gene- ly to everybody, but particularly to nobody. And, as we before Observed that occupancy gave the right to the temporary use of the loil, so it is agreed upon all hands that occupancy gave also the |riginal right to the permanent property in the substance of the wth itself, which excludes every one else but the owner from the se of it. There is indeed some difference among the writers on latural law, concerning the reason why occupancy should convey this right, and invest one with this absolute property : Grotius and **uffepdorf insisting that this right of occupancy is founded on a acit and implied assent of all mankind, that the first occupant khould become the owner; and Barbeyrac, Titius, Mr. Locke, and )thers, holding that there is no such implied assent, neither is it accessary that there should be ; for that the very act of occupancy nlone, beine a degree of bodily labour, is from a principle of natural justice, without any consent or compact, sufficient of itself to gain a title. A dispute that savours too much of nice and scholastic refine- lent ! However, both sides agree in this, that occupancy is the thing by which the title was in fact originally gained ; every man 6 OF THE AIQHTS seising to his own continued use such spots of ground as he found 1 most agreeable to bis own convenience, provided he found them ' unoccupied by any one else. Property, both in lands and moveables, being thus originally 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, publici Juris once more, and is liable to be again appropriated by the next occupant. So, if one is pos- - sessed 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 seise it to his own use. But if he hides it privately in the earth or other secret place, and it is disco^ vered, the finder acquires no property therein ; for the owner hatl not by this act declared any intention to abandon it, but rather the contrary : and if he loses or drops it by accident, it cannot be col lected 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, atd, another seising the vacant possession, however well founded in theory, could not long subsist in fact. It was calculated merely foi the rudiments of civil society, and necessarily ceased among the complicated interests and artificial refinements of polite and estab- lished governments. In these it was found, that what became inconvenient or useless to one man, was highly convenient and use- ful to another; who was ready to give in exchange for it some equi valent, that was equally desirable to the former proprietor. Thus mutual convenience introduced commercial traffic, and the reciprocal transfer of property by sale, grant, or conveyance : which may he 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 sane by the new proprietor. The voluntary dereliction of the owner, and delivering the possession to another individual, amount to a transfer of the property ; the proprietor declaring his intention 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 convey- ance is an evidence of my intending to abandon the property : and Titius, being the only or first man acquainted with such my inten- tion, immediately steps in and seises the vacant possession J 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 effectual way of abandoning property, is by the death of the occupant : when, both the actual possession and intention of keeping possession ceasing, the property, which is founded upon such possession and intention, ought also to cease of , course. For, naturally speaking, the instant a man ceases to bo, be| ises tG acqui ;ht to •uld be "6 ceaa iconnec itablish( II that ihich ar fould hi Imost ev Ither gi dispos ispose lunicipa the 81 ho alone •der to rould occ le law, iW requi .ieain tak ery cou [aim unc lOse inh< The rig the de( tght of d< lat it has fe find es wise anc irmanen \lural, \ one's [ lan a got ions on t iblic, wl Hth hitns the de iundatio imrae(j itc and 1 fom a p learest r< le earlie illy the lis frcqi the Of in der his ^he spot 1 OF THINGS. )und as he found he found them thus originallj to a deolaratioo n use, it remains 1 time as he does m it; for then it ore, and is liable 3o, if one is pos. ilic highway, this be Tested in the use. But if he ), and it is disco. the owner hatV it, but rather the it cannot be col- possession ; and in the loser, who I doctrine of the 13 property, itd well founded k dated merely fct ased among the polite and estab- It what became venient and use- fur it some equl •oprietor. Thus ad the reciprocal : which may be )ossession whicl le thing by the ncy of the same f the owner, and mt to a transfei ion no longer to occupancy shall )ther light, if 1 deed of convey- } property : and such my intcn- >ossession i thus ius a good rigbl lat right against ng property, is possession and )erty, which is also to cease of ceases to bo, hei ises to have any dominion : else, if he had a right to dispose of ^s acquisitions one moment beyond his life, he would also have a Ight to direct their disposal for a million of ages after him : which [ould be highly absurd and inconvenient. All property must thcre- "6 cease upon death, considering men as absolute individuals, and iconnected with civil society : for then, by the principles before itablished, the next immediate occupant would acquire a right in ll that the deceased possessed. But as under civilized governments ^hich are calculated for the peace of mankind, such a constitution ^ould be productive of endless disturbances, the universal law of jmost every nation (which is a kind of secondary law of nature) has Ither given the dying person a power of continuing his property, disposing of his possessions by will ; or, in case he neglects to [spose of it, or is not permitted to make any disposition at all, the lunicipal law of the country then steps in, and declares who shall the successor, representative, or heir of the deceased ; that is, fho alone shall have a right to enter upon this vacant possession, in rder to avoid that confusion which its becoming again common buld occasion. And farther, in case no testament be permitted by le law, or none be made, and no heir can be found so qualified as the iw requires, still, to prevent the robust title of occupancy from ilgain taking place, the doctrine of escheats is adopted in almost ^ery country ; whereby the sovereign of the state, and those who laim under his authority, are the ultimate heirs, and succeed to lose inheritances to which no other title can be formed. The right of inheritance, or descent to the children and relations the deceased, seems to have been allowed much earlier than the |ght of devising by testament. We are apt to conceive at first view lat it has nature on its side ; yet we often mistake for nature what fe find established by long and inveterate custom. It is certainly wise and effectual, but clearly a political, establishment ; since the srmanent right of property, vested in the ancestor himself, was no itural, but merely a civil, right. It is true, that the transmission one's possessions to posterity has an evident tendency to make a lan a good citizen and a useful member of society : it sets the pas- [ons on the side of duty, and prompts a man to deserve well of the iblic, when he is sure that the reward of his services will not die ^th himself, but be transmitted to those with whom he is connected the dearest and most tender affections. Yet, reasonable as this lundation of the right of inheritance may seem, it is probable that Jb immediate original arose not from speculations altogether so deli- tite and refined, and, if not from fortuitous circumstances, at least om a plainer and more simple principle. A man's children or jiearest relations are usually about him on his death-bed, and are Ittie earliest witnesses of his decease. They become therefore gene- fally the next immediate occupants, till at length in process of time Ijhis frequent usage ripened into general law. And therefore also, the earliest ages, on failure of children, a man's servants born inder his roof were allowed to be his heirs, being immediately on Ihe spot when he died. For, we find the old patriarch Abraham OF THE RTGHTS V expressly doclariDg, tbat " Siooe God had given bim no seed, hig j " steward Eliezer, one born in bis bouse, was bis beir" (a). While property continued only for life, testaments were useless i and unknown : and, when it became inheritable, the inheritance was I 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 ot their families required. This introduced pretty generally the right of disposing of one's property, or a part of it, by testament; that is, b; written or oral instructions properly witnessed and authenticated, according to the pleasure of the deceased ; which we therefore em- phatically stile his wUi. This was established in some countries] much later than in others. With us in England, till modern times, a man could only dispose of one-third of his moveables from his wife I 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 not till after the restoration tbat the power of devising real property became so universal as at present. Wills therefore, and testaments, rights of inheritance, and sucoes^ I sions, are all of them creatures of the civil or municipal laws, and accordingly are in all respects regulated by them ; every distinct country having different ceremonies and requisites to make a testa- ment completely valid : neither does any thing vary more than the { right of inheritance under different national establishments. In England particularly, this diversity is carried to such a length, as if I 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 I 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 (b) ; in the division of personal estates, the females of equal degree are admitted together with the males, and no right of primogeniture is allowed. This one consideration may help to remove tbescruples 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 proceeding as contrary to natural justice ; while others so scrupulously adhere to the supposed intention of the dead, that if a will of lands be attested by only one witness instead of /tco, which the law requires, they are apt to imagine that the heir is bound in conscience to relinquish his title to the devisee. But both of them certainly proceed upon very erroneous principles, as if, on the one hand the son had by nature i\ right to succee*' to his father's lands; or as if, on the other hand, the owner was by mature entitled to direct (a) Gen, xv. 8. (o) In Upper Canada the law is different, the inheritance descending to all equally. (See/o«^, chapter on Descents.) OF THIMOS. » Ihe succession of his property after his own decease. Whereas the law of nature suggests, that on the death of the possessor the estate phould again become common, and be open to the next occupant, inless otherwise ordered for the sake of civil peace b^ the positive kw of society. The positive law of society, which is with us the Qunicipal law of England, directs it to vest in such person as the ist proprietor shall by will, attended with certain requisites, appoint; Lnd, in defect of such appointment, to go to some particular person, irho from the result of certain local constitutions, appears to be the leir at law. Hence it follows, that where the appointment is regu- irly made, there cannot be a shadow of right in any one but the )erson appointed : and, where the necessary requisites are omitted, le right of the heir is equally strong and built upon as solid a loundation, as the right of the devisee would have been, supposing luch requisites were observed. But, after all, there are some few things which, notwithstanding le general introduction and continuance of property, must still luavoidably remain in common ; being such wherein nothing but an ksufructuary property is capable of being had ; and therefore they kill belong to the first occupant, during the time he holds possession kf them, and no longer. Such (among others) are the elements of jight, air, and water ; which a man may occupy by means of his Endows, his gardens, his mills, and other conveniences ; such also kre the generality of those animals whioh are said to be ferse naturae, \t of a wild and untameable disposition : which any man may seize ^pon and keep for his own use or pleasure. All these things, so )ng as they remain in possession, every man has a right to enjoy rithout disturbance ; but if once they escape from his custody, or lie voluntarily abandons the use of them, they return to the common Itock, and any man else has an equal right to seize and enjoy them \fterwards. And thus the Legislature of England has universally promoted Ihe grand ends of civil society, the peace and security of individuals, py steadily pursuing that wise and orderly maxim, of assigning to kvery thing capable of ownership, a legal and determinate owner. ^\ A 10 OF THS LAWS IN FORCE irt ,' '1 U^ CHAPTER I. (a) OF THE ENGLISH LAWS IN FORCE HERE, THE I AUTHORITY FOR THEIR APPLICATION, AND FOR] PROVINCIAL LEGISLATION. Colonies by occu- pancy. Oooquest. I . w Cession. Wliat iaws in force. S Before enteriDg on the oonsideration of the rights appertaining to property, it may be proper to enquire as to what laws (Imperial or otherwise) aifect those rights in this, a British colouy, and by what authority such laws apply. The subject may be examined with reference, 1st, to the mode in I which colonies are established or acquired ; 2nd, the system uf laws which are to prevail on and 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 that section here- 1 tofore Upper Canada, stands in regard to those two subjects of| consideration. Colonies may be acquired by occupancy, as when British subjects! take possession of and settle in an uninhabited, uncivilized country (a), in which case the right is not only founded on the law of nature, but may be upheld ati spreading throughout the world the growth of Christianity and civilization : of such colonies Australia is an instance, for, though not originally uninhabited, still the assent or dissent of the uncivilized aborigines, so sparsely scattered in an immense continent, cannot be considered, or deemed of sufficient account to class that colony among those acquired by conquest ; and the same may be said of the early French possessions in this! country. Colonies may be obtained by conquest; which, as Blackstonel says, if not founded on the law of nature, is on that of nations ; of I such a colony, that at the Cape of Good Hope is an instance, taken from the Dutch in 1806 ; the British acquisition of Canada from the French can hardly, perhaps, come under this class of colonies, at any rate not so as to let in all the consequences attendant on acquirement by conquest, since, as will be seen in the sequel, on the country being ceded by the French monarch, the inhabitants were] guaranteed certain privileges. Colonies may, again, be obtained by treaty or cession j a right | founded on the law of nations. On the acquisition of a new colony by the Crown in either of the I above modes, the question immediately arises as to what system ofl laws is to be considered in force among the inhabitants, and by whati authority new laws are to be introduced; and this brings us to the| second subject of consideration.] (a) Blaokstone, vol. I. p. 107. IN UPPER CANADA. 11 [As regards colonies by occupancy, Blackstone says, "It bath in cmm of ooou' < been beld that if an nninhabited country be discovered and ''*°'^' < planted by British subjects, all the English laws then in being, < which are the birthright of every subject, are immediately in force < there; but this must be understood with very many and veir great restrictions. Such colonists carry with them only so muon < 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 commercial people, the laws of police and rf^venue, (such ' especially as are enforced by penalties), the mode Ci maintenance < for the established clergy, the jurisdiction of spiritual courts, and < a multitude of other provisions, are neither necessary nov oonve- [« nient for them, and therefore are not in force. What shall bo " admitted and what rejected, at what times and under what restric- « tions, must in case of dispute, be decided in the first instance by i" 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 superin< « tending power of the legislature in uhe mother country." 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 Parliament, unless they are expressed to apply to the colonies, or of such general import as that it can be clearly inferred they are intended to apply to all British subjects (a) ; the Crown also cannot alter or impose laws, or inter- fere with the interior legislation, as in the case of a colony by con- quest, but has nevertheless the right to appoint governors and other officers for the execution of the law, and of summoning representa- tive assemblies from among its inhabitants, for interior legislation; . 4. 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 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 British parliament. In conquered colonies, the laws existing at the time of conquest, or oomiuest. except, says Blackstone, " those contrary to the law of God," remain in force till altered by the King, who can impose on the conquered, as conqueror, such laws, British or otherwise, as he or any legislative council appointed by him may please : it will be borne in mind, however, that on grant of authority to make laws to a representative assembly, the same consequences follow as above named in the case of such grant in a colony by occupancy, and the prerogative rights of the Crown cease. The inhabitants at and after the time of conquest, are not to be deemed aliens, but British subjects (b). In ceded colonies, the rule is the same as in conquered colonies, or cession: except in so far as the power of the Crown may be modified bj] (a) Brook t. Brook, 9 H. L. Cases. (i) EM V. Oamp it U, 1 Cow. ^04r /C.0tAj-p %^yi^ u OF THE LAWS IN fORCB :>( i ' 'I'i [treaty on cession ; and it is to this latter class, pci-hnps, that ttiej acquisition of Canada, under the treaty of Paris of 17G3, thouglij then a conquered country, may bo most properly referred. AitoCaBMto. We are now arrived at the third and last subject, and havin| shewn the authority of the Crown to impose on Canada as a cedei coluny, such laws as it pleased, except so far as restricted by thtl treaty of cession, and that in the absence of interference by th« Crown, the existing laws would continue, we have now to considei] what laws were allowed to exist, what were imposed 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 wel enjoy the right to legislate for ourselves, subject only to the power ofl the Crown to withhold its assent to a proposed measure becomine law, and of the British Parliament to impose laws on us, except sol far as restrained in regard to taxation by Sta. 18 Geo. III., o. 12,! Con. Stat. Ca. p. xiv. Prior to the capture of Quebec by General Wolfe, in 1759 Canada belonged to the French ; on the capitulation of the towDJ it was provided in the articles that the inhabitants should be main- tained in possession of their goods, houses, privileges, and in the exercise of their religion. Montreal subsequently surrendered to the British, and by thej terms of the capitulation, the inhabitants were guaranteed the free exercise of their religion, but the guarantee did not extend to theii laws, usages, or customs. Treity of Pari*. In 1763, by the treaty of Paris (a), the French possessions werej ceded by that government to the King of Great Britain, undeij certain provisions founded in some measure on the articles of capita lation : afterwards, in the same year, the King, in the exercise oil his prerogative right, issued a proclamation introducing the law nfj England, civil and criminal, in general terms, into the ceded terri tory, then formed into the Province of Quebec, but by some inad vertence, the territory was so described as to exclude the greater part, in regard to which no provision was made for its civil govern ment. The French Canadian populace were dissatisfied with the! introduction of the British law; in 1766, the Attorney and Solicitoi General, to whom the Imperial Government had referred, reported in favor of reestablishing the French law in civil matters ; in 1772 and 1773, the Advocate General, the Solicitor General (afterwards! Lord Chancellor Loughborough), and the Attorney General (after- wards 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 colonies, and in 1774 the British Statute 14 Geo. III., c. 83, Con. Stat. Ca., 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]! («) See " Chalmers' Treaties," vol, I. p. 467. The French inhabitants werel guaranteed the exercise of their (the Roman Catholic) religion, as far as the! laws of England would permit ; but the guarantee did not extend to theirl laws or usages. See, however, Wilcox v. Wilcox, 8 L. C. Jur. pp. I, 2, Q.B.;| also Bovoman v. Stewart, L. C. Jur., the articles of capitulation, the treatj| and proclamation considered. See also Hall v. Camjf^ell, 1 Cow, 304. Proclamation Introducing Eogllsb law. Imp. 8M. 14 Geo. III. c. 83. IN UPPER CANADA. 18 ItliOBe limits, \rhioh included, apparently, in the other territory, the jfhole of what was formerly Upper Canada : by the same act, after Boiting thoreia that the provisions made bv tho proclamation for the fil govern uiQDt had on experience been found to be inapplicable to lie state and circumstanoes of the province, the inhabitants whereof, : was further recited, amounted at the conquest to 65,000, profess- ]g the religion of the Church of Rome, and enjoying an estahlished )rm of constitution and system of laws by which their persons and roperty had been protected and governed for a long series of years, was provided that the proclamation sh'uld be revoked, that in all lattcrs relating to civil rights and the enjoyment of property, and stems and usages, resort should be had to the laws of Canada leaning tho French laws in force before the proclamation), until iiried by such ordinances as might from time to time be passed bv le Qovornor and Legislative Council, to be appointed as set forth tne act, and the Roman Catholic inhabitants were guaranteed in le free exercise of their religion ; it was, however, provided, that le act should not extend to lands granted or to be granted by the |ruwn in free and common soccage, and that the owner of lands, }ods or credits might devise or bequeath the same, notwithstanding ly law or custom prevalent in the province to the contrary, and the riminal law of England was retained. The act took effect on 1st lay, 1775. Thus it was that with the exceptions above named, the old [ranch law was again in force ; as applied to lands, it partook in its nture in some respects more of the feudal system than did the then dsting British law, and perhaps till recent changes, there were few Eirts of the world where some of the relics of the feudal system ^ere preserved so intact as in Lower Canada. The French law, with the above exceptions to it, continued in Dree till the Provincial Act 32 Geo. III., c. 1, 1792, modified, jwever, from time to time, by ordinances under 14 Geo. III., o. 83, ~ the Governor and Council, who, till the granting of a constitu- lon under the Imperial Act of 31 Geo. III., c. 31, had the legisla- |ve control of the Province. The most important changes under lose ordinances, were the introduction of the writ of Habeas lorpus, in 1784, by ordinance of 24 Geo. III., c 5, and of Trial by lury, in 1785, by ordinance of 25 Geo. III., c. 2. By Imperial Act 31 Geo. III., c. 31, 1791, Con. Stat. Ca., the jwers given by 14 Geo. III. c. 83, to the Governor and Council, to kgislate, were repealed, and the former Province of Quebec was Ivided into the two Provinces of Upper and Lower Canada, a ^parate constitution and representative form of government granted each, and the power of legislation vested in the Legislative ouncil and Legislative Assembly of each Province, to be appointed set forth in the Act, the assent of the Crown, expressed through le Governor, being always required to any measure becoming law. was also provided that all lands to be granted in Upper Canada lould be in free and common soccage, and that if the grantees esired it, grants should be on the same tenure in Lower Canada ; liis act, however, still lefl the former French Canadian law and rdinances of the Governor and Council in force in Upper Canada.] lUintrodaoed French law. Except criminal. French civil law in force till 1702 Upper Canada formed into a m- parate Province and granted a constitntiun. Lands to be granted In free and common soccage. 14 Vint Act of Upper Canadt IntrodueM Kng' lUb kw, 1702. Trial t>j Jury. What Kodlsh law not Intro- daced. $ *' lome things whic " ing in the first p n rest! Icept ai ]by the lofined, ided to )y thai tr sino( )gnize( >y thai IN UPPER CANADA. [« colony, it was unnecessary to the decision of the point before us >i to have gone further back than the Statute 81 Geo. III., oh. 1; (< whatever was done before cannot affect the question, thouch i( lome things which have been done afterwards mav. Then looK- II ing in the first place at the words of this statute, it is mv opinion II that they do not place the introduction of the English law on a II footing 'materially different as regards the extent of the iutroduo- II tion from what would have been, or rather from what was the "effect of the proclamation of Quebec of 7th October, 1763 (before II referred to), in those territories to which it extended, or from the |< footing on which the laws of England stand in those colonies in II which they are merely assumed to be in force on the principles of lithe common law, by reason of such colonies h-^ving been first II inhabited and planted by British subjects. The restrictions « intimated in the passage which I have cited from the Commen- " tariea above set out, and the reasons of Sir Wm. Grant in the |< case of the Attorney General y. 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 excepted in special terms all those British "Statutes which, being inapplicable to the condition of the colony, •< they might not wish to include as parts of the law of England. " And it is impossible to allow that they could have intended bv " 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 provide 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 unius exclusio eti alterius'* "And it may be said that the legislature in making these two " exceptions evinced their impression that if they had not 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 applies quantum " valeat ; but I am of opinion that we cannot allow it so much force as to admit that every English statute of a general nature not excepted, is in force because it was not excepted. The legis- lature looking on the Poor Laws and Bankrupt Laws as unsuited to the condition of the colony, were determined 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 which they have not excepted, and which could by their nature be enforced here, must therefore be binding on as, we should bo 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 J nor the statutes which disable persons from using a trade who have not served seven years* apprenticeship ; nor any of the 15 U racine ' uiultitude of acts relating to certain trades and manufactures; and \ this * iii<^c<^d i<^ would be easy to enumerate a long list of statutes, all] 16 OP THE LAWS IN FOECE [" actually capable of being acted upon in this country, but which " having been passed upon grounds and for purposes peculiar to " England, and either wholly, or in a great degree, foreign to this " colony, have never been attempted to be enforced here, and have " never been tai 3n to apply to us. And indeed several ocoaaions " 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 " Province, not having provisions in their nature applicable, and " such as it could be supposed the legislature intended to introduce " under the general words used by them ; these words too, it must " be remarked, are not such as expressly introduce the whole civil " law of England ; they seem rather intended 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 " property and civil 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 property as he thinks fit ; and when he has made a disposition " of it, the legality of which is questioned, that seems to present a " point which must be solved since our Statute 32 Geo. III., 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 questioned, and the person who " would be entitled to the property as the representative of the " deceased, if he had not the power to dispose of it as he has done. " To decide these constitutional points, for such they are, upon " principles so manifestly clear and consistent as to keep free from " all appearance of conflicting decisions, is more, I apprehend, than " it can be hoped to attain. That misera servitus which is said to " exist where " Jus est vagum" is so justly dreaded in these times, " that no 0U3 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 j 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 determine them, not by any arbitrary exercise " of their will, for they can claim no such right, but upon the best " views which they 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 legislature of the mother country " or the province may think fit to make." The judgment of the court was that the Statutes of Mortmain were in force in this country, but it was based rather on the ground that the Provincial Legislature, by various enactments, had assumed] " commerce ( IN UPPEA CANADA. 17 [they were ia force, and thus itself, as to those statutes, expounded the Statute of 32 Geo. III., than on a unanimous view of the cour^ 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 containing pro- visions not applicable to the circumstances of the colony. This view would appear upheld by a subsequent case. Whicker v. Hume^ 16 Jur. 391, in England, in which the question arose as to whether the same Statute of 9 Geo. II. was to be considered as introduced into New South Wales under a Statute of 9 Geo. IV., ch. 83, s. 24, providing that all laws in force in England, at the passing of that act, should be applied in the administration of justice in New South Wales as far as the same could hn ap pliatl ^YJt^jn fha flftl*;;^, and that as often as dbuTiits slioiiT3 arise as to the application of any such laws, the Governor in Council was to declare whether such laws did apply, and in the meantime, till such declaration, the supreme courts on trial of any action were to decide ) it was held in the Court of Appeal in Chancery in England, that the Statute of 9 Geo. 11. was not in force in New South Wales, by virtue of the Statute of 9 Geo. lY., as not suited to the circumstances of the colony. The question as to whether the Statutes of Mortmain were in force here, again came up subsequently, in the Court of Common Pleas, Halleck v. Wilson, 7 C. P. 28 j and Mercer v. Huston, 9 C. P. 349 ; and in the latter case the learned Chief Justice, in giving his judgment that the statutes are in force, states " 1 wish it to be '< understood as resting my conclusion that this statute is in force " here, on the decision of the Court of Queen's Bench, in Doe v. " Todd, and the recognition of that case in this court in Halleck v. « IFtYsow, 7 U. C. C. P. 28."^ If a British Statute were introduced by the Provincial Act of 32 Geo. III., ch. 1, the fact of its being repealed afterwards in England would not prevent its continued application in Canada. The Imperial Legislature by Statute 22 Geo. II., ch. 46, together with provisions respecting exactions of the occupiers of locks and woirs on the Thames, for regulating the assize of bread, and for preventing the spreading of distemper among cattle, made also pro* visions respecting Solicitors and Attorneys ; and though this statute was repealed by Imperial Statute 6 & 7 Vic, it was held to con- tinue to apply to gentlemen of the profession in Upper Canada (a). In considering what British Statutes are in force, the 18th eec. of the Imperial Statute 14 Geo. III., ch. 83, Con. Stat, of Canada, may be referred to. That section enacts, " Provided always, 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, here- " tofore made for prohibiting, restraining or regulating the trade or " commerce of His Majesty's colonies and plantations in America ;] (a) Dunne v. O'Reilly, 11 C. P. 404 ; Hodgina v. McNeil, 9 Grant 805. 2 Id or THE LAWS IN POROE ¥ ' ['' but that all and every of the said acts, and also all acts of Parlia. " ment heretofore made concerning or respecting the said colonies " and plantations, shall be, and are hereby declared to be, in force " within the said Province of Quebec, and every part thereof" I believe it was mainly on the effect of that section that the Statute 6 Geo. 11., oh. 7, has been held to be in force here, to which the right to the writ of Ji. fa. against lands, and of proceedings against lands in suits against executors, owes its foundation (a). That act j was passed according to its entituling, " for the more easy recovery " of debts in His Majesty's plantations 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, 2 O. S. 537. " 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 (82 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 of judicature should be such as that frequently it may be difficult to determine as to what laws are in force, and that not only as to civil but also as to criminal matters (b) ; in one case it is a question as to whether a particular statute is in force to restrain a man disposing of his property by will in a certain way j in another whether (before rights of entry could be conveyed) he were liable, under an English Statute (32 H. VIII., o. 9), which had not been acted on for a cen- tury, 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 having been in adverse possession for a year or more (c). In regard to these uncertainties arising from the introduction of the English Law in general terms, I would'refer again to the con- cluding part of the language of the learned Chief Justice above quoted. Having now examined how the English laws, as they existed on dSdifterKw!*^® 15th Oct., 1792, were introduced into Upper Canada, and with what exceptions, we have to consider in a general point of view what laws were subsequently introduced, and by what authority. On what autho- The authority after the passing of the Imperial Statute 31 Geo. III. 0. 31, and of the first Statute of Upper Canada rested on these otatutes alone; and in the paramount right of the British Parliament to impose laws on us.] rity (a) See post C. 21. (b) Baldwin ▼. Quesnel, 0. S. 166, E. T. 8 Wm. IV.; Wraffg v. Jarviit 4 0. S. 320 ; Shea r. Choate, 2 Q. B. U. C. 2] 1 ; Reffina v. Seeker, 14 Q. B- U. C. 604 ; Reffina v. Btll, 15 Q. B. U. C. 287 ; Cronr/n v. Widder et al., 16 Q. B. U. C. 856; Regina v. 3fercer, 17 Q. B. U. C. 602; Regina t- McCormick, 18 Q. B. D. C. 181 ; Marshall r. Piatt, 8 C P. U. C. 189 ; Reid V. Inglit «t al., 12 C. P. U. C. 191 ; Eodgint t. McNeil, 9 Grant 306. (c) Beatley v. Cahill, 2 Q. B. U. C. 820. IN UPPEE CANADA. 19 [By the Proviucial Act 2 Geo. IV., c. 1, the English Statutes of Jeofails, of Limitations, and for the amendment of the law, except those of more local expediency, were introduced, as they then (on the passing the act) were in force in England. The Consolidated Statutes of Upper Canada, c. 9, thus expresses what is above stated : — 1. " In all matters of controversy, relative to property and civil con'sSt Vo " rights, resort shall continue to be had to the laws of England as of introduction of " they stood on the said 15th day of October, 1792, as the rule for ^"8"''' ^'^• « the decision of the same ', and all matters relative 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 aflfected 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 amend- " ment of the law, excepting those of mere local expediency, 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 e£fectual 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 Imp. Act 3 & 4 Vic, c. 35, 1840, Con. Stat. Ca., the Provinces Act of union of of Upper Canada and Lower Canada were united into the now ^'^°'*°"** Province of Canada, and a new constitution granted, 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 Sta- tute 19 & 20 Vic. 0. 140, the Council was also made elective). Tiie Council was The Act of Union also provided that all laws, courts of justice, com-tive."*' '*'**' missions, adminbtrative and judicial officers, &c., in each of the former portions of the Province should continue. From the time of passing the Act of Union, provincial right of legislation rests on that act. As above mentioned, thd Imperial Parliament can still enact laws power of imp. which are binding in us notwithstanding the grant of a constitution impo^Tuws*** and of power to legislate for ourselves : Imperial statutes, however, do not apply to colonies, unless specially named, or the statutes be in their nature of such universal policy as manifestly to be intended to affect them. The insisting 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 Ameri- can war of independence. Various statutes affect the question ; by 6 Geo. lit. 0. 12, 1766, it was deckred that all the colonies and plantations in America had been; were, and of right ought to be] '( 1 1 1 L ! ^BHBt''' 1 20 OF THE LAWS IN FORCE M' Tax at ft; II. 'NaTigaticn and coninerce. [subordinate to and dependant 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 were imposed on tea imported into American colonies; by 18 Geo. III., c. 12 Con. Stat. Ca., the last named statute was repealed, so far as regarded the duty on tea, and after reciting that taxation by the Imperial Parliament for the purpose of raising a revenue in the coloniea in North America had occasioned great uneasiness and dis- orders 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 a.ssembly of 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 expedient 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 assem- blies 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 North America or the West Indies, except only " such duties as it might be expedient to impose for the regulation " of commerce ; the net produce of such duties to be always paid " and applied to and for the use of the colony, province, or planta- " tion in which the same shall be respectively levied, in such man- " ner as other duties collected by the authority of the 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 afiFect the " execution of any law which hath been or shall be made in the " Parliament of the said United Kingdom for establishing regula- " tions 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 appoint- " ing 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 of " Canada, and (except as hereinafter provided) in suchYnanner only " as shall be directed by any law or laws which may be made by] [« Her Majes '< tive Counci III., c. 22, n laws, usages a nant to any la plantations ar [pjjg nower us had come a very extrei debt or covens in Great Brit witness may oath to be m &o., in Greal formalities req evidence with open court; same effect, es and snbstitutii the Court rem evidence coulc examination, I could so enact In the well Court of Quee to bring befo] Canadian sher Under the 1 nlcs of a perse vested in the i The ictrod' stands on a di regard to this says. " The ( " Proclamatio " defined, wa " extended to " was by that " has ever si " expressly re " modified by (a) Smith v. The practical u theae cases, un cannot give evii under ttieso act probable the c stances shewn, mission to issu( oroBB interroga (6) 12 & U IN UPPER CANADA. 21 •arliament, le colonies luties were Geo. in., , so far as on by the ue in the 3s and dig- isposed to defence of I court or 10 taxes or est Indies to impose II ties to be manner as i or assem- f Imperial iting this Parliament issessment finces and ccept only regulation ways paid or planta- luch man- respective )viuces or eciting it oh power 1, subject cation of s enacted ffect the in the regula- 5ollecting on of the !r part of f Canada appoint- luties so y, by and ucil and peal any ) prevent the net all times vince of ner only lado by] [" Her Majesty, by and with the advice and consent of the.Legisla- '< tive Council and Assembly of such Province." By 7 & 8 Wm. III., c. 22, retinacted by Imp. Stat. 3 & 4 Wm. IV , c. 59 s. 56, all laws, usages and customs in practice in any of the plantations repug- nant to any law made or to be made in Great Britain relative to the plantations are declared void. The power of the Imperial Parlinrnent to enact laws binding on us had come up for consideration and been admitted in our courts ih a very extreme case (a); by 5 Geo. II., c. 27, in any action of debt or covenant in any American colony wherein any person residing in Great Britain shall be a party, the plaintiflF or 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, &o., in Great Britain where the deponent may reside, with the formalities required by the act, and the affidavit is to be received in evidence with the same effect is if the deponeni had appeared in open court ; Imp. Stat. 5 & 6 Wm. IV., c. 62, is somewhat to the same effect, extending the provisions of the former act to other suits, and snbstituting an a£&rmation for affidavit. In the cases referred to, the Court remarked on the injustice of these statutes, under which evidence could have been given without an opportunity for cross examination, but it was not doubted that the Imperial legislature could so enact. In the well koown case of John Anderson, 7 Jur. N. S. 122, the Court of Queen's Bench in England granted a writ of habeas corpus to bring before them the body of a man then in custody of a Canadian sheriff. Under the English Bankruptcy Acts the real estate in the colo- nics of a person who under them is adjudged a bankrupt, becomes vested in the assignee in Bankruptcy (b). The introduction of the English Criminal Law into Canada, Criminal law. stands on a different footing from that of the English Civil law ; in regard to this the learned Chief Justice, in the case referred to. says. (( The Criminal Law having been introduced by the Royal " Proclamation of 1763 into the Province of Quebec, as there " deflned, was afterwards, by the Statute 14 Geo. III., c. 83, " extended to the whole territory (including Upper Canada), which " was by that act made to constitute the Province of Quebec, and " has ever since been allowed to continue in force here, being " expressly recognized in Upper Canada by 40 Geo. III., c. 1, and " modified by that and many other subsequent statutes."] (a) Smith v. McGowan, 11 Q. B. 399 ; Gabriell v. Derbishire, 1 C. P. 422. The practical use of these Btatutes is much diminished by the decisions in those cases, under one of which it was held that as a plaintiflF or defendant cannot give evidence in his own favour, so neither can his affidavit be received under these acts ; and where the affidavit tendered is that of a witness, it ia probable the court might, on the ground of surprise, or on other ciroum- Btanoes shewn, grant a new trial, or stay proceedings so as to enable a com- mission to issue, to take the evidence of the witness on interrogatories and cross interrogatories. See also, Imp. Sta. 14 & 15 Vic. c. 99, ss. 7, 11. (6) 12 & 13 Vlo., 0. 106, 88. 142, 143 ; 24 & 25 Vic. c. 13i, 8. 218. 22 LAWS IN FORCE IN UPPEB CANADA. [The result therefore is that in respect to property and civil rights, .^stimony and proof, the laws of England, as they stood on the Iftth /,$^ctober, 1792, were then introduced (as above expressed by the Con- solidated Statute referred to) ; I apprehend the exception still con< tinues of those English laws unsuited to our then position as a colony ; the English Statutes of Jeofails, of Limitations, and for the amendment of the law previous to 17th Jan. 1822, were then intro- duced, except those of mere local expediency ; English laws once introduced here by provincial enactment, though repealed since in England, continue in force here ; no other Imperial statutes or laws affect us, unless expressed to apply to this province or the colonies generally, or unless perhaps they are of that general import and weight as that it can be clearly inferred they were intended to apply (the power of taxation being limited as above mentioned) ; and that except in so far as the power is so limited, the Imperial Legislature have power to impose laws on us.] i :. i -I ! ij!' n \ 1 1 CORPOREAL HEREDITAMENTS. 23 CHAPTER II. OF REAL PROPERTY J AND, FIRST, OF CORPOREAL HEREDITAMENTS. The objects of domiDion or property are thingt, as contra-dis- The objects of tinguished from persons : and things are by the law of England P'op®'*^' distributed into two kinds ; things real and things ^^^rsona/. Things real are such as are permanent, fixed, and immoveable, which can- Real, not be carried out of their place ; as lands and tenements : things personal are goods, money, and all other moveables; which maypenonai. attend the owner^s person wherever he thinj^^s proper to go. In treating of things real, let us consider, first, their several sorts or kiods; 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 real are Things real are: usually said to consist in lands, tenements, or hereditaments. Land comprehends all things of a permanent, substantial nature ; Lands, being a word of a very extensive signification, as will presently appear more at large. Tenement is a word of still greater extent, Tenements, and though in its vulgar acoep*tation it is only applied to houses *s.i7 and other buildings, yet in its original, proper, and legal sense, it signifies every thing that may be holden, provided it be of a perma- nent nature ; whether it be of a substantial and sensible, or of an unsubstantial ideal kind. Thus liherum tenementnm, frank tene- ment, 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 common, a peerage, or other pro- perty of the like unsubstantial kind, are, all of them, legally speak- ing, tenements. But an hereditament, says Sir Edward Coke, is by Hereditaments, 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 two kinds, corporeal and incorporeal. Corporeal consist of such as afiect the senses ; such as may be seen and handled by the body : Corporeal and incorporeal are not the object of sensation, can neither be seen nor *'*"^''^"'^" bandied, are creatures of the mind, and exist only in contemplation. 24 OF REAL FROPERTT: 1 1" I I Ck>rpoml here- diUments. Tiiiad. • S. 18. Its legal slgnifl' cation. • S. 19. What passes by it. Corporeal hereditaments consist wholly of substantial and perma- nent objects ; all which may be comprehended under the general denomination of land only. For land, says Sir Edward Coke, com- prehendeth in its legal signification any ground, soil, or earth what- soever; as arable, meadows, pastures, woods, moors, waters, marshes, furzes, and heath.* It legally inoludeth also all castles, houses, and I other buildings j for they consist, saith he, of two things ; land, | which is the foundation, and structure thereupon : so that, if I con- vey the land or ground, the structure or building passeth therewith. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism ; but such is the language of I the law : and therefore I cannot bring an action to recover posses- sion 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 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 loith water. For water is a movea- ble wandering thing, and must of necessity continue common by the law of nature ; so that I can only have a temporary, transient, usufructuary, property 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 vvater 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 extent, upwards as well as downwards. Cvjus est solum, ejus est usque ad coelum, is the maxim of the law, upwards ; therefore no man may erect any building, or the like, to overhang another's land : and downwards, whatever is in a dir3ct line, between the surface of any land and the centre of the earth, belongs [in general] to the owner of the surface [unless indeed there be reservations in any grant under which such owner claims title] ; so that the word " land" includes not only the face of the earth, but every thing under it, or over it. And therefore 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 sufincient 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 user of the water, as for mill purposes] : but the capital distinction 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 pi\7|jriety under the term made use of; but by the name of land, which is nomen gene- ralmimum, everything terrestrial will pass. [I may also add that by various modern statutes, the word " land " has a more exten- sive signification than it has at common law, and for the purposes of such statutes sometimes includes tenements and hereditaments corporeal and incorporeal, but when the word is not governed by such statutes, it has still only its common law extent.] INOORPOBEAL HEREDITAMENTS. 86 I I CHAPTER III. OF INCORPOREAL HEREDITAME^^'^" *S. 20, An incorporeal hereditament is a right issuing out of a thing Definition. Icorporate (whether real or personal), or concerning, or annexed to, ■ or exercisable ivithin, the same. It is not the thing corporate litseif, which may consist in lands, houses, jewels or the like; but* sotnetbing collateral thereto, as a rent issuing out of those lands or bouses, or an office relating to those jewels. In short, as the logi- cians speak, corporeal hereditaments are the substance, which may be always seen, always handled : incorporeal hereditaments are but a sort of accidents, which inhere in and are supported by that sub- stance ; and may belong or not belong to it, without any visible alteration therein. Their existence is merely in idea and abstracted contemplation ; though their effects and profits may be frequently objects of our bodily senses. And indeed, if wc would fix a clear notion of an incorporeal hereditament, we must be careful not to confound together the profits produced, and the thing, or heredita- ment, which produces them. An annuity, for instance, [to a man and his heirs,] is an incorporeal hereditament : for though the money, which is the fruit or product of this annuity, is doubtless of a corporeal nature, yet the annuity itself, which produces that money, is a thing invisible, has only a mental existence, and cannot be delivered over from hand to hand. So tithes, if we consider the pro*duce of them, as the tenth sheaf or the tenth lamb, seem to be completely corporeal ; yet they are indeed incorporeal hereditaments : for they being, merely a contingent springing right, collateral to or issuing out of lands, can never be the object of sense ; that casual share of the annual increase is not, till severed, capable of being shewn to the eye, nor being delivered into bodily possession. Incorporeal hereditaments are principally advowsons, tithes, commons, ways, offices, dignities, franchises, corodies or pensions, annuities, rents [reversions and remainders]. Advowson is the right of presentation to a church or ecclesiastical Advowson. benefice. Advowson, advocatio, signifies in clientelam redpere, the taking into protection j 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 thp officiating ministers, which before were given to the clergy in common, (from whence as was formerly men- tioned, arose the division of parishes,) the lord, who thus built a church, and endowed it with glebe or land, had of common right a power annexed of nominating such minister as he pleased (provided » 8. 21. 26 or REAL PROPERTY : *S.22. |l ho were canonically qualified) to officiate in that churoh, of whichl he was the founder, endower, maintaiDor, or, in one word, tbel patron (a). This instance of an advowson will completely illustrate the natnrtl 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 I man a title to such bodily possession. The advowson is the objectl of neither the sight nor the touch ; and yet it perpetually exists iQ] the mind's eye, and in contemplation of law. It cannot be deliv- ered from man to man by any visible bodily transfer, nor can I corporal possession be'*' had of it. If the patron takes corporal! possession of the church, the church-yard, the glebe, or the like, he intrudes on another man's property ; for to these the parson has an I exclusive right. The patronage can therefore be only conveyed bj operation of law, by grant, which is a kind of invisible mental | transfer : and being so vested it lies dormant and unnoticed, 1 occasion calls it forth, when it produces a visible corporeal fruit, by I entitling some clerk, whom the patron shall please to nominate, to I enter, and receive bodily possession of the lands and tenements of | the church. Advowsona are cither advowsons appendant^ or advowsons mi gross. Lords of manors being originally the only founders, and of course the only patrons, of churches, the right of patronage or< presentation, so long as it continues annexed to the pohdession of the I manor, as some have done from the foundation of the church to this day, is called an advowson appendant : and it will pass, or be conveyed, together with the manor, as incident and appendant thereto, by a grant of the manor only, without adding any other words. But where the property of the advowson has been once separated from the property of the manor, by logal conveyance, it is called an advowson in gross, or at large, and never can be appendant any more ; but it is for the future annexed to the person of its owner, | and not to his manor or lands. Advowsons are also either presentative (b), collative, or donative. An advowson presentative is where the patron hath a right of pre* sentation to the bishop or ordinary, and moreover, to demand of him to institute his clerk, if he finds him canonically qualified : and this is the most usual advowson. An advowson collative is where the bishop and patron are one and the same person : in which case the bishop cannot present lo himself; but he does, by the one act of I collation, or conferring the benefice, the whole that is done in com- mon oases, by both presentation and institution. An advowson donative is when the king, or finy subject by his licence, doth found a church or chapel, and ordains that it shall be merely in the gifl or disposal of the patron ; subject to his visitation only, and not to that of the ordinary ; and vested absolutely iu the clerk by the patron's deed of sbnation, without presentation, institution, or induction. (a) See Provincial Stat.'8 Vic, e. 74, post, b. 274, as to advowsons presen- tative under that act, relating to the temporalities of the Churoh of England in Upper Canada. (f>) See foregoing note. INCORPOREAL IIERKDITAMENT8. ST ir, nor can ♦Common of estovers or ealouvierSf that is necessaria, (from e$toJjfir, ^^"Vg.. I furnisb.) is a liberty of taking necessary wood, for the use of irniturc of a house or farm, from off another's estate. The Saxon ^ord, bote, is used by us as synonomous to the French e$f.over$ : and lercfore, house-bote is a sufficient allowance of wood, to repair, or burn in, the house; which latter is sometimes called fire-bote ; Llough-boto and cart-bote are wood to be employed in making and [epairing all instruments of husbandry : and hay-bote, or hedge- lote, is wood for repairing of hays, hedges, or fences. These botes [r estovers must be reasonable ones ; and such any tenant or lessee lay take off the land let or demised to him, without waiting for any eavc, assignment, or appointment of the lessor, unless he bo festrainod by special covenant to the contrary. These several species of commons do all originally result from tho Lame necessity as common of pasture, viz., for the maintenance and tarrying on of husban(1ry ; common of piscary being given for the kustenauce of the tenant's family ; common of turbary and fire-bote ibr his fuel ; and house-bote, plough-bote, cart-bote, and hedge-bote. For repairing his house, his instruments of tillage, and the necessary fences of his grounds. A species of incorporeal hereditaments is that of ways ; or the^ayi. ^ight of going over another man's ground. I speak not here of the public highways, nor yet of the common ways [dedicated to the public, or lanes] ; but of private ways, in which a particular man nay have an Interest and a right, though another be owner of the Boil. This may be grounded on a special permission ; as when the owner of the land grants to another the liberty of passing over his By grant. grounds, to go to ohuroh, to market, or the like: iu which case the >ift or grant is particular, and confined to the grantee alone ; it dies ?ith the person ; and if the grantee leaves the country, he cannot lassign over his right to any other : nor can he justify taking another |*person in his company. A way may be also by prescription : as ifProMription. jail the inhabitants of such a hamlet, or all the owners and occupiers of « s. so. iBUch a farm, have immeraorially used to cross such a ground for huch a particular purpose : for this immemorial usage supposes an loriginal grant, whereby a right of way thus appurtenant to land or houses may clearly be created. [Since 10 & 11 Vic, c. 5, Con. Stat., c. 88, immemorial usage is no longer requisite, and under ordi< nary circumstances, open, known, uninterrupted enjoyment, as of right, for twenty years, will prevent such prescription from being defeated by shewing the way was first enjoyed at some time prior to such twenty years (see c. 17)]. A right of way may also arise by act and operation of law : for, if a man grants me a piece of ground in the I middle of his field, he at the same time tacitly and impliedly gives me a way to come at it j and I may cross his land for that purpose ! without trespass [and so conversely, if I reserve the middle and grant the surrounding piece, the law will imply a reservation of a right of way over the land granted to that reserved, and this is termed a right of way by necessity (a)]. (a) Surdy v. Pigot, Tudor, Lg. Cas., 147, post, s. 298. or REAL raorERTT: Annultlei. • 8. 40. Dlfler from rent- ohargM. I lUnti: X)«flnltion. * S. 41. By tlio law of the twelve tables at Rome, whore a man had thJ right of way over another's land, and the road was out of repair, hJ who had the right of way might go over any part of the land hj pleased : which was the established rule in public as well as privatJ ways. And the law of England, in both (a) eases, seems to correj. pond with the Roman. ♦An annuity is a thing very distinct from a rent-chargo,with whicil it is frequently confounded : a rent-charge being a burthen imposedl upon and issuing out of lamhy whereas an annuity is a yearly suqI chargeable only upon the person of the grantoi*. Therefore, if a mani by deed grant to another the sum of j£20 per annum, without! expressing out of what lands it shall issue, ud land at all shall be| charged with it; but it is a mere personal annuity : which is off little account in the law, that if granted to an eleemosynary corpoJ ration, it is not within the statutes of mortmain ; and yet a man majj have a real estate in it, though his security is merely personal. Rents are another species of incorporeal hereditaments. Thel word rent or render, redltns, signifies a compensation or return, iti being in the nature of an acknowledgment given for the possessionl *of some corporeal inheritance. It is defined to be a certain profit| issuing yearly out of lands and tenements corporeal. It must be i ftrofit ; yet there is no occasion for it to bo, as it usually is, a sural of money : for spurs, capons, horses, corn, and other matters majfl be rendered, and frequently are rendered, by way of rent. It mayj also consist in services or manual operations ; as to plough so manji acres of ground, to attend the king or the lord to the wars, and thel like; which services in the eye of the law are profits. This profit! must also be certain ; or that which may be reduced to a certaintjl by either party. It must also issue yearly ; though there is no! occasion for it to issue every successive year ; but i^ may be reserved! every second, third, or fourth year : yet as it is to iL,e produced out! of the profits of lands and tenements, as a recompense for being! permitted to hold or enjoy them, it ought to bo reserved yearly,! because those profits do annually arise and are annually renewed. It must isme out of the thing granted, and not be part of the landl or thing itself; wherein it differs from an exception in the grant,! which is always part of the thing granted. It must, lastly, issue out! o( lands and tenements corporeal ; that is, from some inheritance! whercunto the owaer or grantee of the rent may have recourse to) distrain. Therefore a rent cannot be reserved out of an advowson,! a common, an ofiice, a franchise, or the like. ]3ut a grant of such! (rt) The doctrine of the text may be true with respect to ways of implied I necessity : but not so, perhaps, where the right of way is claimed under al specific grant : if, in the latter case, the grantee complains of the bad condi- tion of the road, and asks what remcily he has, if he is not allowed to go I out of the prescribed line of road ? he might possibly be told now, as a party making a similar complaint was told long ago by Mr. Justice Suit, that " if he went that way before in his shoes, he might now pluck on his boots." {Di/cs V. Dunafon, Godb. .'3; and see the ilrd note of Serjeant Williams to the case of Pomfret v. Ricroft, 1 Saund., 322 a) ; highways, (as Lord Mansfield said, in Taylor v. Whitehead, Dougl. 749), are goverueii by a different principle. (a) Ilartley v. Jc INCORPORIAL nXREOITAMENTS. 29 iii'ai'7 or fium may operate as a personal contract, and oblige the jntor to pay the money reserved, or subject him to an action of jebt : though it doth not affect the inheritance, and is no legal rent I contemplation of law. There are at common law three manner of rents, rent service, R*"*^"'**- ent-charge, and rent-seek. Ben t-aer vice, is so called because it hath me corporal service incident to it, as at the least fealty or the Bodal oath of fidelity. For if a tenant holds his land by fealty and* • 8. 42. en shillings rent ; or by the service of ploughing the lord's land, Lnd five ehillings rent; these pecuniary rents, being connected with bersonai services, are therefore called rent-service. And for these, [n case they be behind, or arrear, at the day appointed, the lord may listrain of common right, without reserving any special power of listrcss ; provided he hath in himself the reversion, or future estate tf the lands and tenements, after the lease or particular estate of the lessee or grantee is expired ; [and if the lessor have parted with his teversion, though the rent ^as due before, still he cannot distrain (a), for the privity of estate is gone; he may, however, sue for the rent )d the covenant to pay ; Lhe assignee can neither distrain nor sue For such rent, for at the time it fell due, there was no privity of ktate between him and the lessee, and as regards any transfer of the ^igbt to sue for the breach of covenant, it is void at law on the bommon law principles of maintenance (6), nor does the Sta. 32 VIII., 0. 34, transfer to him such right (c). By Con. Stat. o. 78, the executors or administrators of any lessor iiay distrain for arrears duo the lessor in his life-time, but the listress must be within six months after the determination of the |ease, and during the continuance in possession of the tenant from yhom the arrears are due ; this, of course is an infringement on the lie above laid down, that the distrainor must have in himself the ^•eversion to warrant a distress ; for in the case of a freehold rever- sion, it descends to the heirs of the lessor ; not to his personal representatives. There i^ a further instance in which the person not having at common law at least, the reversion on a lease, may nevertheless now by statute have the same remedies and rights as if he were rever- sioner : thus, if A. seised in fee have demised to B. for a term, reserving £20 yearly, and B. have snb-kt to C. for part of the term, ciong. stat. c. 90 reserving £100 yearly, with covenants for payment, and to repair, &c. ; here A., at common law, could never sue C. on the rent [reserved or covenants contained in the sub-lease, for there is neither oriviti/ 0/ contract nor of estate between A. and C, which subsists [only between B. and C. j and though if B. assigned his reversion ^ ° nierg»r. jto a stranger, he would as assignee of the reversion, be in privity [with C, both in estate and in contract, (so far, at least, as regards [covenants running with the land\ and so entitled to the rent and Ibanefit of such covenants under tne sub-lease ; yet the same effect laid not attend a conveyance from B. to A, (which operates as a Isurrender), of the reversion of B. ; for, by the doctrine of merger, to I (a) Hartley/ v. Jarvis, 7 U. C. Q. B. (6) Wittrock v. ffaUinan, 18 U. C. Q.B. (c) Fliffht V. Bentley, 7 Sim. Post, 8. 827. 90 or RKAL propertt: Rent-charge. m it--, which I shall hereafter allude (a), such reversion would thencefortl cease to exist, being drowned in the greater estate of inheritance oJ A., into which it has merged; the consequence was that though AJ might have purchased from B. under the supposition that he would, as assignee of B.'s reversion, be entitled to the benefit of the wholel rent and covenants in the sub-lease, he acquired, in fact no sucU benefit, for the reversion had ceased to exist, and therefore he could not claim as assignee ; nor, as before explained, could he otherwise sue C, by reason of want of all privity between them ; neither can he recover the rent reserved on the lease granted by himself, as tbe terni in respect of which it was payable is merged. The same unpleasant consequences followed, if B. purchased from A., hit (A/g) reversion, f^r here the greater estate of A. equally meets and merges the lesser estate of B., which thenceforth ceases, and oonse-j quently with it all its incidents : to remedy these and other cases, the Con. Stat. o. 90, es. 7 & 8 applies (6). At common law, a lessor could not distrain after the term watl ended ; the consequence was, that as a landlord could not distrain for rent on the day it was due (as presently mentioned), he couldl not when the rent fell due on the last day of the term, distrain at all ; to remedy this it is enacted by 8 Anne, c. 14, that rent maj be distrained for within six months after end of the term, during the continuance of the landlord's title, and the possession of the tenant from whom the arrears were due. As a general rule, rent service can only be reserved to the lessor, not to a stranger.] A rent-charge is where the owner of the rent hath no future inter est, or reversion expectant in the land ; as where a man by deed maketh over to others his tohole estate in fee-simple, with certain rent payable thereout, and adds to the deed a covenant or clause of distress, that if the rent be arrere or behind, it shall bo lawful U distrain for the same. In this case the land is liable to the distress, not of common right, but by virtue of the clause in the deed ; and therefore it is called a rent-cAar^e, because in this manner the land is charged with a distress for the payment of it. [Such a case as the above varies altogether from the case of a demise wherein the lessor has a reversion, and reserves rent, whicli is a rent service ; when a person grants his whole estate, leaving in himself no reversion, if he reserve rent, it will not, by reason of the Sta. Quia Emptores (c), operate as a reservation of rent service for tthich distress may be had of common right ; but it may operate a (jirant of a rent-charge, which will be a rent-seek, unless a power of distress be given. A rent-charge may also be created by express grant, as when A. grants lands in fee to B., and B. grants to A., in the same conveyance, a rent-charge out of the landn : or where, aa the first and only transaction, B., the owner of lands, should grant rent charge : it may also be created by conveyance under the Statute (a) Post, 8. 178. — / 1 ^ (b) See Statute in Appendix, and as to privity and covenants rnnaing with the land, 8. 827. 11 (a) Post, 8. 828. (b) 4 Geo. II., o. 28, b. 6. I (c) See B. 147. The strict demand required to forfeit lease on non-pajrment of rent. • H -I' 32 FEODAL SYSTEM. CHAPTER IV. OF THE FEODAL SYSTEM. It is impossible to understand, with any degree of accuracy either \ general ac- the civil constitution of this kingdom, or the laws which regulate the^nKInd* its Ifmded property, without some general acquaintance with the doctrine of feuds Qgty.e and doctrine of feuds, or the feodal law : a system so univer- necesBary. ^_^jj^ 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 inquiry. And though, in the course of our observations in this and many other parts of the present book, we may have occasion to search pretty highly into the antiquities of our 1 aglish jurispru- dence, yet surely no industrious student will imagine his time misem- ployed, when he is led to consider that the obsolete doctrines of our laws are frequently the foundation upon which what remains is erected; and that it is impracticable to comprehend many rules of the modern law, in a scholarlike scientifical manner, without having recourse to the antient. Nor will these researches be 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 the same edifices, in their pristine proportion and splendour. *The consti^uti-^n of feuds had its original from the military policj of the northern or Celtic nations, the Goths, the Huns, the Franks, the Vandals, and the Lombards, who all migrating from the same officina gentium, as Crag very justly entitles it, poured themselves in vast quantities into all the regions of Europe, at the declension of the Roman empire. It was brought by them from their own coun tries and continued in their respective colonies as the most likelj means to secure their new acquisition : and to that end, largo dis tricts 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 inferior officers and most deserving sol- diers. These allotments were called yeoc/a, 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 iha juramentum fideli- tati's, 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. Its origin. * S. 45. FEODAL SYSTEM. Allotments, thus acquired, naturally engaged such as accepted ita effects, them to defend them : and, as they all sprang from the same right of conquest, no part could subsist independent of the whole ; where- fore 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 feuda- tory, was therefore bound, when called upon by his benefactor, or immediate lord of his feud or fee, to do all in his 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 were also i ciprocally bound m their respective gradations, to pro- tect the possessions they had given. Thus the feodal connexion was its policy, established, a proper military subjection was naturally introduced, and an army of feudatories was always ready enlisted, and mutu- ally prepared 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 prudence of which consii- tution was soon sufficiently visible in the strength and spirit with which they maintained their conquests. The universality and early use of this 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 original as those whom we have been describing, at their first irruption into Italy, about a century before the Christian (era. They demanded of the Romans, " ut martins " populus aliquid sibi terrse daret, quasi stipendium : cseterum, ut " vellet, manibus atque armis suis uteretur." 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 evi- dently the same constitution, that displayed itself more fully about seven hundred years afterwards ; 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 terri- tories they had newly gained. And from hence too it is probable that the emperor Alexander Severus took the hint, of dividing lands conquered from the enemy among his generals and victorious sol- diery, duly stocked with cattle and bondmen, on condition of receiv- ing military service from them and their heirs for ever. Scarcely had these northern conquerors established themselves in their new dominions, when the wisdom of their constitutions, as well as their personal valor, 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, vrholly independent, and held of no superior at all), now they parcelled out their royal territories, or persuaded their 3 88 * S. 47. 84 FEODAL STSTXM. Its progress. * S. 48. subjects to Buxrender up and retake their own landed property, under the like feodal obligations of military fealty. And thus, in the compass of a very few years, the feodal constitution, or the doctrine of tenure, extended itself over all the western world. Which altera- tion of landed property, in so very material a point, necessarily drew afler it an alteration of laws and customs : so that the feodal lawa soon drove out the Roman, which had hitherto so universally cl: lained, but DOW became for many centuries lost and forgotten ; and Italy itself (as some of the civilians, with more spleen than judgment, have expressed it) beUuinas, atque ferinas, immanesque, Longo' bardorum leges accepit. ♦But this feodal polity, which was thus by degrees established over The period of Its oH the continent of Europe, seems not to have been received in reception in Bng- tjijg part of our island, at least not universally 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 rigor that was afterwards imported by the Nor- mans. For the Saxons were firmly settlied in this island, at least as early as the year 600 ; and it was not till two centuries after, that feuds arrived at their full vigor and maturity, even on the continent of Europe. This introduction, however, of the feudal tenures into England, Its gradual by King William, does not seem to have been effected immediately th^NMSSS"***^ after the conquest, nor by the mere arbitrary will and power of the barons. Conqucror; but to have been gradually established by the Norman barons, and others, iu such forfeited lands as they received from the gift of the Conqueror, and afterwards universally consented to by the 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 the fruitless insurrections of those who sur- vived, such numerous forfeitures had accrued, that he was able to reward his Norman followers with very large and extensive posses- sions : which gave a handle to the monkish historians, and such as have implicitly followed them, to represent him as 4iaving by right of the sword seized on all the lands of England, and dealt them out sienification of again to his OWD favouHtes. A supposition, grounded upon a mis- theMordcongttMt^gjjgQ gense of the woid conquest; which, in its feodal acceptation, signifies no more than acquisition ; and this has led many hasty writers into a strange historical mistake, and one which upon the slightest examination will be found to be most untrue. However, certain it is, that the Normans now began to gain very large posses- sions 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 probably the reasons that prevailed to effect it« establishment here by law. And though the time of this great revo- lution in our landed property canrot be ascertained with exactness, yet there are some circumstances that may lead us to a probable conjecture co( that in the ni| apprehended Saxons being | the kingdom bring over a 1| tered upon This apparent a foreign forcl the better inci them in a posj the king heldf the immediate survey called and in the lat all his nobility mitted their h vassals, and d have been th law J and perl is that which words : " stat\ " affirment, q< " hdmo regi a " omni fideliU " genas de/em has observed) fealty, which i it a tenant or to defend thei and domestic, this system, is performance < general counc <* vientes, et \ " haheant et t " oportet: et " integrum n " secundum q ^^ facere, et si " nostri praea This new p conqueror, bu bly of the wl Europe had security. Ai French natio up all its alloi them to the c such of their thus by degi into feuds, ai FEODAL SYSTEM. 85 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 j which occasioned the king to bring over a large army of Normans and Bretons, who were quar- tered upon every landholder, and greatly oppressed the people. This apparent weakness, together with the grievances occasioned by a foreign force, might cooperate with the king's remonstrances, and the better incline the nobility to listen to his proposals for putting them in a posture of defence. For, as soon as the danger was over. The compilation the king held a great council to enquire into the state of the nation ;book,*and the the immediate consequence of which was the compiling of the great J^e^rinci" °i survey called domesday-book, which was finished in the next yeariiandhoidarsto and in the latter end of that very year, the king was attended by "*'"*"y tenure, all his nobility at Sarum ; where all the principal landholders sub- mitted 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 sera of formally introducing the feodal tenures by ' law ; and perhaps the very law, thus made. at the council of Sarum, is that which is still extant, *and couched in these remarkable *8. so. words: "statuimus, ut omnes llberi homines /oedere et sacramento " affirment, quod intra et extra universum regnum Anglise Wil- " helmo regi domino sua fidcles esse volant; terras et honores illius " omni fidelitate ubique servare cum eo, et contra inimicos et alieni- " genas de/endere*' The terms of this law (as Sir Martin Wright The nature of the has observed) are plainly feodal : for, first, it requires the oath of *"^ " * *^' fealty, which made in the sense of the feudists every man that took it a tenant or vassal : and, secondly, the tenants obliged themselves to defend their lord's territories and titles against all enemies foreign and domestic. But what clearly evinces the legal establishment of this system, is another law of the same collection, which exacts the performance of the military feodal services, as ordained by the general council. " Omnes comites, et harones, et milites, et ser- " vientes, et universi liheri homines totius regni nostri prsedictif " haheant et teneant se semper bene in armis et in equis, ut decet et " oportet: et sint semper prompt i et beneparati, ad servitium suum " integrum nobis explendum et peragendum, cum opus fuerit; " secundum quod nobis debent de feodis et tenementis suis de jure ^^ facer e J et sicut illis statuimus per commune concilium totius regni " nostri prsedicti." This new polity therefore seems not to have been imposed by the conqueror, but nationally and freely adopted by the general assem- bly of the whole realm, in the same manner as other nations of Europe had before adopted it, upon the same principle of self- security. And, in. particular, they had the recent example of the French nation before their eyes ; which had gradually surrendered up all its allodial or free lands into the king's hands, who restored them to the owners as a beneficium or feud, to be held to them and such of their heirs as they previously nominated to the king : and thus by degrees all the allodial estates in France were converted into feuds, and the freemen became the vassals of the crown. The 36 FEODAL SYSTEM. * S. 61. Conge/^nenceB of its adoption. Grievances Trhich its introduction Ivto England occasioned, * S. 52. caused the insur- 'rectiou of the baroni, whicli produced Magna Cliarta. only difference between this change of tenures in France, and that in England, was, that the former was effected gradually, *by the consent of private persons ; the latter was done at once, all over England, by the common consent of the nation. In consequence of this change, it became a fundamental maxim and necessary principle (though in rtjality a more fiction) of our English tenures, " that the king is tuo universal 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 imme- " diately 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 supposition, as a substruction and foundation of their new polity, 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 system : and to oblige themselves (in re&pect of their lands) to maintain the king's title and territories, with equal vigour and fealty, as (f they had received their lands from his bounty upon these express conditions, as pure, proper, beneficiary feudatories. But whatever their meaning was, the Norman interpreters, skilled in all the niceties of the feodal con- stitutions, and well understanding the import and extent of the feodal terms, gave a very different construction to this proceeding : and thereupon took a handle to introduce, not only the rigorous doctrines which prevailed in the duchy of Normandy, 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 every thing they had to the bounty of their sovereign 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 a military discipline, with reason looked upon these deductions as grievous impositions, and arbitrary conclusions from principles that, as to them, had no foundation in truth. However, this king, and his son William Rufus, kopt 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 restitution of the laws of xving Edward the confessor, or antient Saxon system ; and accordingly in the first year of his reign, granted a charter, whereby he gave up the greater grievances, but etill reserved the fiction of feodal tenure, for the same military pur- poses which engaged his father to introduce it. But this charter" vras p tidually broken through, and the former grievances were revived and aggravated, by himself and succeeding princes ; till, in the reign of King John, they became so intolerable, that they occasioned his barons, or principal feudatories, to rise up in arms against him ; which at length produced the famous great charter at Runingmead, which, with some alterations, was confirmed by his son Henry HI. And, though its immunities (especially as altered on its last edition by his son) are very greatly short of those granted by Henry I., it was justly esteemed at the time a vast acquisition FEODAL SYSTEM. 87 to English liberty. Indeed, by the further alteration of tenures that has since happened, many of these immunities may now appear, to a coiLmon observer, of much less consequence than they really were when granted : 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 infer- ence ; that the liberties of Englishmen are not (as some arbitrary writers would represent them) mere infringements of the king's pre- rogative, extorted from our princes by taking advantage of their weakness ; but a restoration of that antient constitution, of which our ancestors had been defrauded by the art and finesse of the Norman lawyers, rather than deprived by the force of the Nor- man arms. ♦Having given this short history of their rise and progress, we * S- 63. will next consider the nature, doctrine, and principal laws of feuds; Nature of feuds. wherein we shall evidently trace the ground-work of many parts of our public polity, and also the original of such of our own tenures, as were either abolished in the last century or still remain in force. The grand and fundamental maxim of all feodal tenure is this : Maxim of fdudai that all lands were originally granted out by the sovereign, and are q^J^""^,. ^^1,^^ therefore holden either mediately or immediately of the crown. The '"^rf- Orautee, grantor was called the proprietor, or lord: being he who retained""" the dominion or ultimate property of the feud or feej and the grantee, who had only the use and possession according to the ternis of the grant, was styled the feudatory or vassal, which was only another name for the ten.ant or holder of the lands; though, on account of the prejudices which we have justly conceived against the doctrines that were afterwards grafted on this system, we now use the word vassal opprobriously, as synonymous to slave or bond- man. The manner of the grant was by words of gratuitous and pare donation, dedi et concessi ; which are still the operative words Mode of grant, in our modern infeodations or deeds of feoffment. This was per- corporal invegti- fected by the ceremony of corporal investiture, or open and noto-*"™- rious delivery of possession in the presence of the other vassals; which perpetuated among them the sqtsx of the new acquisition, at a time when the art of writing was very little known ; and there- fore the evidence of property was reposed 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 internal tes- timony of their own knowledge. Besides an oath oi fealty, or profession of faith to the lord,^.'**^"^ feai'y which was the parent of our oath of allegiance, the vassal or tenant ''™"^®' upon investiture did usually homage to his lord; openly and humbly kneeling, being ungirt, uncovered, *and holding up his hands both * S. 54. 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 homagmm, or manhood, by the feudists, from the stated form of words devenio vester homo. 1 ■ :{8 FEODAL SYSTEM. Ssrvlccs due to tlie lord — m peace; * S. 55. in war. When the tennnt had thus professed himself to be the man of his superior or lord, the next consideration was concerning the Kervice, which, as such, he was bound to render, in recompense for the land which he held, [and which gave rise to the tenendum 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 stiit to, the lord in his conrts in time of peace; and in his armies or warlike retinue, when necessity called him to the field. The lord was, in early times, the legislator and judge over all his feudatories : and therefore the vassals of the infer r lords were bound by their fealty to attend their domestic courts baron, (which were instituted in every manor or barony, for doing speedy and effectual justice to all the tenants,) in order, as well to answer such complaints as might be alleged against themselves, ns to form a jury or homage for the trial of their fellow-tenants; and upon this account, in all the feudal institutions, they are distinguished by the appellation of the peers of the court; pares curtls, or pares curiae. In like manner the barons themselves, or lords of inferior districts, were denominated peers of the king's court, and were bound to attend him upon sum- mons, to hear causes of greater consequence in the king's presence, and under the direction of bis grand justiciary; till, in many ccun- tries, the power of that officer was broken and distributed into other courts of judicature, the peers of the king's court still reserving 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 attending 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 liind. At the first introduction of feuds, as they were gratuitous, so 1 low feuds jwerc a'so they w-ire precarious, and held at the will of the lord, who was then the sole judge whether his vassal performed his services faith- fully. 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 o: assemblies. This was professedly done, lest their thoughts should be diverted from war to agriculture, lest 'he strong should encroach upon the possessions of the weak, and iest luxury and avarice should be encouraged by the erection of perma- nent houses, and too curious an attention to convenience 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 new customs and manners; when the fcrlility of the soil had encouraged 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 bogan now to be granted for the life, of the feudatory. But still feuds were not yet hereditary, though frequently 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 perform the services: and therefore infants, wc uen, and professed monks, who were inca- Rt firHt held. k. FEODAL SYSTEM. 80 Ipable of bear*iug arms, wore also incapable of succeeding to a *s.66. Igeuuine feud. But the heir, when admitted to the feud which his laDoestor 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-established the inheritance; or, in the words of the fecdal writers, U'tncertum el caducam hereditatem relevabat." This relief was afterwards, when feuds became absolutely hereditary, continued on tba death of the tenant, though the original foundation of it had ceased. For, in process of time., feuds came by degrees to be universally extended beyond the life of the first vassal, to his 8ona, or perhaps to such one of them as the lord should name ; and in this case the form of the donation was strictly observed : for if a feud was given to a man and his »on8, all his sons succeeded him in equal portions : aad, as they died off, their shares reverted to the lord, and did not descend to their children, or even to their surviving brothers, 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 feudatory died, his male descendants in infiniium were admitted to the succession. When any such descendant, who thus had succeeded, died, his male Lineal desceridants were also admitted in the first place ; and, in defect of ^^^Se'enUUod. them, such of his male collateral kindred as 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 ah the sons tliUiS confined to males, originally extended to all the males alike ; equally, all the sons, without any distinction of primogeniture, succeeding Adoption of the to equal portions of the father's feud. But this being found, upon primogeniture, many accounts, inconvenient, (particularly by dividing the services, and thereby weakening the strength of the feodal union), and honor- ary feuds (or titles of nobility) being now introduced, which were not of *a divisible nature, but could only be inherited by the eldest * s. 67. eon ; 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 The feudatory or dispose of his feud ; neither could he exchange, nor yet mortgage, ^'his'feud ^^■ nor even devise it by will, without the consent of the lord. For, "" *^^''®o'J["*''* 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 himself or from his posterity, who were presumed to inherit his valour, to others who might prove less able And, as the feodal obligation was looked upon as recipiocal, the feudatory being entitled to the lord's protection, in return for his own fealty and service ; therefore the lord could no more transfer Neither could his seignory or protection without consent of his vassal, than the^jj^°„t{^°^n' vassal could his feud without consent of his lord : it being equally sent of the yassai unreasonable that the lord should extend his protection to a person 40 FEODAL SYSTEM. VoMAlt had UnanU, bound to tham by like oMIgatloDi. • S. 68. Change in the nature of feudi. ■' T to whom he had exceptions, and that the vassal should owe subjec- tion to a superior not of his own choosing. Those were the principal, and very siniplo qualities of the genuine I or original feuds ; which were all of a military nature, and in the hands of military persons; though the feudatories, being under frequent incapacities of cultivating and manuring their own lands, soon found it necessary to commit part of them to inferior tenants : obliging them to such returns in service, corn, cattle, or money, as might enable the chief feudatories to attend their military duties without distraction : which returns, or reditus, were the original of rents, and by these means the feodal polity was greatly extended; these inferior feudatories (who held what are called in the Scots law " rere-fiefs") being under similar obligations of fealty, to do suit of court, to answer the stipulated renders or rent-service, and to promote the weliare of their 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 innovations. Feuds began to be bought and sold, and deviations were made from the old fundamental rules of tenure and succession; which were held no longer sacred when the feuds themselves no longer conti- nued to be purely military. Hence these tenures began now to be divided into fcodia propria et impropria, 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 wore comprised all such as do not fall within the other descriptions ; buch, for instance, as were originally bartered and sold to the feudatory for a price ; such as were held upon base or less honourable services, or upon a rent, in lieu of military service ; such as were in themselves alienable, with- out mutual license ; and such as might descend indifferently either to males or females. But, where a difference was not expressed in the creation, such new-created feuds did in all respects follow the nature of au 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 oppressive consequences were drawn from what origi- nally wa§ 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 different countries of Europe, very different structures have been raised : what effect it has produced on the landed property of England will appear in the following chapters. [hips, that attcnc ilii, ! OF THE ANCIENT ENGLISH TENURES. 41 CHAPTER V. OF THE ANCIENT ENGLISH TENURES. In this chapter we shall take a short view of the antient tenures if our English estates, or the manner in which lands, tenements and ereditauients, might have been holdcn, as the same stood in force, ill the middle of the seventeenth century. In which we shall easily erceive, that all the particularities, all the seeming and real hard- ibips, that attended those tenures, were to be accounted for upon 'eodal principles and no other; being fruits of, and deduced from, (be feodal policy. Almost all the real property of the kingdom is, by the policy of our aii lands ws, supposed to be granted by, dependant upon, and holden of, hoXTof w^e lome superior lord, by and in consideration of certain services to be aupdrior lord, endered to the lord by the tenant or possessor of this property, he thing holden is therefore styled a tenement, the possessors thereof ^en an /s, and the manner of their possesion a tenure. Thus, ill the land in the kingdom is supposed to be holden, mediately or xhe king, lord mediately, of the king, who is styled the lord paramount, or above P^a^oant; 11. Such tenants as held under the king immediately, when they ranted out portions of their lands to inferior persons, became also i,i« grantwm irds with respect to those inferior persons, as they were still tenants mesne lords, ith respect to the king ; and, thus partaking of a middle nature, ere called mesne, or middle, lords. So that if the king granted a anor to A., and he granted a portion of the land to 6., now B. was id to hold *of A., and A. of the king j or, in other words, B held * 8. eo. is lands immediately of A., but mediately of the king. The king iherefore was styled lord paramount : A. was both tenant and lord, rwas a mesne lord; and B. was called tenant paravail, or the • 'jnants p«rar«ii. west tenant, being he who was supposed to make avail or profit of ihc land. In this manner are all the lands of the kingdom holden, hich are in the hsnds of subjects : for, according to Sir Edward oke, in the law of England we have not properly allodium; which, e have seen (c), is the name by which the feudists abroad disiin- ish such estates of the subject, as are not holden of any superior. that at the first glance we may observe, that our lands are either liainly feuds, or partake very strongly of the feodal nature. Ml tenures being thus derived, or supposed to be derived, from he king, those that held immediately under him, in right of his irown and dignity, were called his tenants in capite, or in chief; Tenants in capife. rhich was the most honourable species of tenure, but at the same ime subjected the tenants to greater and more burthensomo ser- (c) Sec. 4t. 42 OF THE ANCIENT EN0LI8U TENURES. I vices than inferior tenures did. This distinction ran through all tbe different sorts of tenure, of which I now proceed to give bo account. I. There seems to have subsisted nnion{» our ancestors four prin. cipiil species of lay tenure, to which all others may bo reduced : the grand criteria of which were the natures of the • averal services or renders, that were due to the lords from their tenants. The service), serYire«,frw, ot Jn rcspect of their quality, were either free or ham services; Id unw'rwia. "'"' respect of their quantity and the time of exacting them, were eithctl ctrtam or uncertain. Free services were such as were not unbel coming the character of a soldier or a freeman to perform ; as, iA serve under his lord in the wars, to pay a sura of money, and thj like. Base services were such as were only fit for peasants or per-f sons of a servile rank ; as, to plough the lord's land, to make hiil hedges, to carry out his dung, or other mean employments. Thtl certain services, whether free or base, were such as were stinted igl quantity, and could not be exceeded on any pretence ; as, to pay J stated annual rent, or to plough such a field for three days. Tbel uncertain depended upon unknown continjrencies j as, to do militar}! service in person, or pay an assessment in lieu of it, when oallei upon ; or to wind a horn whenever the Scots invaded the realml which are free services ; or to do whatever the lord should oommandl which is a base or villein service. From the various combinations of these services have ariseu tlul four kinds of lay tenure which subsisted in England, till the midditl of the seventeenth century; and three of which subsist to this dajT Of these Bracton (who wrote under Henry III.) seems to give tbel clearest and most compendious account, of any author, ancient oti modern ; of which the following is the outline or abstract. " TeneJ " nients are of two kinds, franh-tencmcnt and lulli'mujc. And, oil " frank-tenements, some are held freely in consideration of homagel " and knight-service ; others in free-aocage, with the service " fealty only." And again : " Of villenages some are pure, and " others privileged. He that holds in pure villenage shall do what] " soever is commanded him, and always be bound to an uncertaiij " service. The other kind of villenage is called vitlein-aocage ; aDd| « these villein-socmen do villein services, but such as are certain " determined." Of which the sense seems to be as follows : first,! where the service was /ree but uncertain, as military service witkj homage, that tenure was called the tenure in *chivalry, per servitim militare, or by knight-service. Secondly, where the service was not! only /rce, but also certain, as by fealty only, by rent and fealty, &c.| that tenure was called liberum socagium, or free socage. These wen the only free holdings or tenements; the others were villenousml servile, as, thirdly, where the service was base in its nature, ani uncertain as to time and quantity, the tenure waa purum vi'llena\ gium, absolute or pure villenage. Lastly, where the service wai base in its nu^' c, but reduced to a certainty, this was still villenag but distinguisiiod from the other by the name of privileged villenage,^ villenagium privilegiatum ; or it might be still called socage (fron the certainty of its services), but degraded by their baseness into tb inferior title of villanum socagium, villein-socage. ivs, and so in pr bnsequcnces, as i • 8. 62. Knight-serTlce. Free tocoge. Villenage. OF THE ANCIENT ENQLISH TENURES. 4a 10 services, ;. Tho first, most univomal, and esteemed the most honourable Koight-Mrvice. pccies of tenure, wiis that by kDight-servioe, cr.lied in Latin servi- \nn mllitore ; and in hiw-Fronch chivalry, ox n-rvive th chivakr, BBwring to the fi>f d'fiaubert of the Normans, which name is rprussly given it by the Mirrour. This differed in very few points, I wo slmll presently see, from a pure and proper feud, being entirely lilitary, and tho general effect of tho feodal establishment in Ingland. To make a tenure by knight-service, a determinate quao- tv of land was neconsary, whioh was called a knight's fee, feodum xllUare; tho meaaure of which, in 8 Edward I., was estimated at relvo plough lands, and its value (though it varied with the times), , the reigns of Edward I and Edward II., was stated at 20/. per tntmt. And he who held this proportion of land (or a whole fee) Dutici. knight-service, was bound to attend his lord to the wars for forty ftys in every year, if called upon j whioh attendance was his reditua : return, his rent or service, for tho land he claimed to hold. If ho eld only half a kniglit's fee, ho was only bound to attend twenty ays, and so in proportion. And there is reason to *apprehend, that * S- ^^ m servioo was the whole that our ancestors meant to subject them- klves to ; tho other fruits and consequences of this tci ae being audulently superinduced, as the regular (though unforeseen) ap- endages of the feodal systen*. This tenure of knight-service had all the marks of a strict andN'tnreo'e^nt- kgalar feud : it was granted by words of pure donation, dedi et [ncessi; was transferred by investiture or delivering corporal pos- ssion of the land, usually called livery of seisin ; and was perfected homage and fealty. It also drew after it these seven fruits and |nsequcnces, as inseparably incident to tho tenure in chivalry, viz. """i"*"***' Ids, relief, primer 8oi.sin, wardship, marriage, fines for alienation, id esc'licat; all which I shall endeavour to explain, and to show be of feodal original. 1. Aids were originally mere benevolences granted by tho tenant Aid*. his lord, in times of difficulty and distress; but in process of le they grew to be considered as a matter of right, and not of Escretion. These aids were principally three : first, to ransom the krd's person, if taken prisoner; a necessary consequence of the kodal attachment and fidelity; insomuch that the neglect of doing I, whenever it was in the vassal's power, was by the strict rigour of V feodal law an absolute forfeiture of his estate, fc^econdly, to lake the lord's eldest son a knight, a matter that was formerly pnded with great ceremony, pomp, and expense. This aid could Dt be demanded till the heir was fifteen years old, or capable of paring arms : the intention of it being to breed up the eldest son ad heir apparent of the seignory to deeds of arms and chivalry, for |ie better defence of the nation. Thirdly, to marry tho lord's eldest aughter, by giving her a suitable portion : for daughters' portions [ere in those days extremely slender; few lords. being able to save wch out of *their income for this purpose; nor could they acquire honey by other means, being wholly conversant in matters of rms; nor, by the nature of their tenure, could they charge their [nds with this or any other incumbrances. From bearing their roportion to these aids no rank or profession was exempted : and ♦S. 64. 44 or THE ANCIENT ENGLISH TENTTRES. II ;i ^' R«llefa. ■:'t-'i« 'i! ^ ^ :M rrimer wisin. Wardship. ■J 3.1 : therefore even the monasteries, till the time of their dissolution,! contributed to the knighting of their founder's male heir (of whon their lands were holden), and the marriage of his female uesceadaoti And one cannot but observe in this particular the great resemhlaoa which the lord and vassal of the feodal law bore to the patron and client of the Roman republic; between whom also there subsisted j mutual fealty, or engagement of defence and protection. For, will regard to the matter of aids, there were three which were usuallJ raised by the client, visj, to marry the patron's daughter; to pay kij debts; and to redeem his person from captivity. These aids were ascertained and adjusted by the statute Westn 1, 3 Edw. I. c. 36, which fixed the aids of inferior lords at twent) shillings, or the supposed twentieth part of the annual value of eveij knight's fee, fur making the eldest son a knight, or marrying tbi eldest daughter : and the same was done with regard to the kin"*! tenants in copite, by stat, 25 Edw. III. c. 11. The other aid, ransom of t^^e lord's person, being not in its nature capable of anjj certainty, was therefore never ascertained. 2. Relief, relevium, was before mentioned as incident to evei) feodal tenure, by way of fine or composition with the lord for takinJ up the estate, which was lapsed or fallen in by the death of the k tenant. But though reliefs had their original while feuds were odIJ life-estates, yet they continued after feuds became hereditary ; aft^ the reign of Hen. II. the composition was universally accepted 100*. for every knight's fee; as we find it ever after establishe But it must be remembered, that this relief was only then payablnj if the heir at the death of his ancestor bad attained his full age one and twenty years. 3. Primer seisin was a feodal burthen, only incident to tin king's tenants in capite, and not to those who held of inferior i mesne lords. It was a right which the king had, when any of hij tenants in capite died seised of a knight's fee, to receive of the hei (provided he were of full age) one whole year's profits of the landj if they were in immediate possession : and half a year's profits, the lands were in reversion expectant on an estate fur life. 4. These payments were only due if the heir was of full age; bd if he was under the age of twenty-one, being a male, or fourteeiJ being a female, the lord was entitled to the icardfJilp of the hei^ and was called the guardian in chivalry. This wardship consist in having the custody of the body and lands of such heir, withoil any account of the profits, till the age of twenty-one in males, aoj sixteen in females. For the law supposed the heir-male unable I perform knight-service till twenty-one : but as for the female, sli was supposed capable at fourteen to marry, and then her husbaul might perform the service. The lord therefore had no wardship,! at the death of the ancestor the heir-male was of the full age twenty-one, or the heir-female of fourteen ; yet, if she was then und^ fourteen, and the lord once had her in ward, he might keep her till sixteen, by virtue of the statute of Westm. 1, 3 Edw. I., c. it the two additional years being given by the legislature for no othej reason but merely to benefit the lord. This wardship, so far as it related to land, though it was not d(| *S. 68. OF THE ANCIENT ENGLISH TENURES. ould be part of the law of feuds, so long as they were arbitrary, emporary, or for life only ; yet, when they became hereditary, and lid consequently often descend upon infants, who by reason of their be could neither perform nor stipulate for the services of the feud, pes not seem upon feodal principles to have been unreasonable. tor the wardship of the land, or custody of the feud, was retained |y the lord, that he might, out of the profits thereof, provide a fit erson *to supply the infant's services, till he should be of age to erform them Y imself. And if we consider the feud in its original [iport, as a stipend, fee, or reward for actual service, it could not ) thought hard that the lord should withhold the stipend, so long ; the service was suspended. Though undoubtedly to our English icestors, where such a stipendiary donation was a mere supposition figment, it carried abundance of hardship ; and accordingly it ^as relieved by the charter of Henry I. before mentioned, whicti Dok this custody from the lord, and ordained that the custody, both 'the land and the children, should belong to the widow or next of ID. ]3ut< this noble immunity did not continue many years. The wardship of the body was a consequence of the wardship of lie land; for he who enjoyed the infant's estate was the properest erson to educate and maintain him in his infancy : and also, in a olitical view, the lord was most concerned to give his tenant litable education, in order to qualify him the better to perform liose services which in his maturity he was bound to render. When the male heir arrived to the age of twenty-one, or the heir kmale to that of sixteen, they might sue out their livery or ouster- \main; that is, the delivery of their lands out of their guardian's ands. For this they were obliged to pay a fine, namely, half a bar's profits of the land; though this seems expressly contrary to \agna carta. However, in consideration of their lands having een so long in ward, they were excused all reliefs, and the king's Quants also all primer seisins. When the heir thus came of full age, provided he held a knight's ^e in capite under the crown, he was to receive the order of knight- ood, and was compelled to take it upon him, or else pay a fine to the jing. For, in those heroical times, no person was qualified for deeds ' arms and chivalry who had not received this order, which was bnferred with much preparation and solemnity ; this prerogative abolished by 16 Car. I., c. 20. 5. But, before they came of age, there was still another piece of Marriage ithority, which the guardian was at liberty to exercise over his |>fant wards j I mean the right of marriage, {maritagium, as ontradistinguished from matrimonium), which in its feodal sense jgnifies the power, which the lord or guardian in chivalry had, of , sposing of his infant word in matrimony. For, while the infant [as in ward, the guardian had the power of tendering him or her iBuitabie match, without disparagement or inequality : which, if j>e infants refused, they forfeited the value of the marriage to their uardian ; that is, so much as a jury would assess, or any one would jnd fide give to the guardian for such an alliance : and, if the bfants married themselves without the guardian's consent, they ^rfeited double the value. This seems to have been one of the 45 % J 46 OF THE ANCIENT ENGLISH TENURES. Fines. * B. 72. Escbeate. * S. 73. : |.yjiii;;i greatest hardships of our antient tenures. There were, indee substantial reasons why the lord should have the restraint and contri of the ward's marriage, especially of his female ward ; because their tender years, and the danger of such female ward's intermai| tying with the lord's enemy: but no tolerable pretence could 1 assigned why the lord should have the sale or value of the marria . 6. Another attendant or consequence of tenure by kni^ht-serTHJ was that oi fines due to the lord for every alienation, whenever th tenant had occasion to make over his land to another. This dependej on the nature of the feodal connexion ; it not being reasonable ( allowed as we have before seen, that a feudatory should transfer Ibeoatise the serv land equally unc< jgervice proper, land consequence magnum serviti Igerving the king Iserrice to the ki Ithe like ; or to b Inatioa. It was ras not bound t( Iservice paid five lord's gift to another, and substitute a new tenant to do the servicflgrand serjeanty 1 jlittle. Tenure ISoots or other en lubjects, was (lik nd serjeanty These services, ersonal, and un( ersonal attendan in his own stead, without the consent of the lord : and as the feo*iii obligation was considered as reciprocal, the lord also could m alienate his seigniory without the consent of his tenant, whii consent of his was called an attornment. This restraint upon tl lords soon wore away ; that upon the tenants continued longer. F( when everything came in process of time to be bought and sold, tl lords would not grant a license to their tenant, to alicne, without fine being paid ; apprehending that, if it was reasonable for the heSvenient in many to pay a fine or relief on the renovation of his personal estate, it TraHfor it, by first sei much more reasonable that a stranger should make the same acknoiBuaking a pecuni ledgment on his admission to a newly-p irchased feud. Kecuniary satisfac 7. The last consequence of tenure in chivalry was escheat ; whicBnuch for every k is the determination of the tenure, or disi^olution of the mutual booBialied scutagium between the lord and tenant from the extinction of the blood of tlivell-known denoi latter by either natural or civil means : if he died without heirs his blood, or if his blood was corrupted or stained by commission treason or felony; whereby every inheritable quality was entire! blotted out *and abolished. In such cases the land escheated, fell back to the lord of the fee ; that is, the tenure was determini by breach of the original condition expressed or implied in feodal donation. In the one case, there were no heirs subsisting iBoutages on their *< the blood of the first feudatory or purchaser, to which heirs alone tlBom, to defray th grant of the feud extended j in the other, the tenant, by pe trating an atrocious crime, shewed that he was no longer to be trusi as a vassal, having forgotten his duty as a subject; and therefoi forfeited his feud, which he held under the implieu condition tl he should not bo a traitor or a felon. The consequence of which Should be imposed both cases was, that the gift, being determined, resulted back to tl»as omitted in his lord who gave it. [The law as to escheat has been much modifieBcutages or *escua by modern statutes, as explained hereafter, s. 252.] In the time of He These were the principal qualities, fruits, and consequences o nanner. Yet aft( tenure by knight-service: a tenure, by which the greatest partJ ubsequent statutei lands in this kingdom were holden, and that principally of the kio lo aids or tasks bi in capite, till the middle of the seventeenth century ; and which w fas held in our old created, aa Sir Edward Coke expressly testifies, for a military pni rat by consent oi pose, viz., for defence of the realm by the king's own principal sni [round-work of all jects, which was judged to be much better than to trust to hirelinj imes. or foreigners. The description here given is that of a knight-senic Since, therefore, proper ; which was to attend the king in his wars. There were all rat as a compensai Bome other species of knight-service ; so called, though improporlj requently confoun ailed, in our Noi astead of a militi een taken was ir oulouse ; but it i ance fell quite in hat, from this p ents, in the time nd at the king's i y his successors, ohn was obliged ,1 OF THE ANCIENT ENGLISH TENURES. 47 re, indeed md contm because o| s intermati 30 could 1 e marriagil ij-ht-servHi lenever t\ s depends asonable i transfer the servici the feo*di| could nd lant, whid it upon tb )nger. Foi nd sold, tb 3, withouti for the heil state, it me acknoi leat ; vhii uutual boi )lood of tl lottt heirs mmission nras entirel ^cheated, determini lied Ibeoaiise the service or render was of a free and honourable nature, land equally uncertain as to the time of rendering as that of knight- jserTice proper, and because they were attended with similar fruits land consequences. Such was the tenure by grand sergeant^, per linagnum servitium, whereby the tenant was bound, instead of IgerTing the king generally in his wars, to do some special honorary Igervice 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 coro- InatioQ. It was in most other respects like knight-service ; only he ras not bound to pay aid, or escuage ; *and, when tenant by knight- * S- 7^- ervice paid five pounds for a relief on every knight's fee, tenant by jrand serjeanty paid one year's value of his land, were it much or llittle. Tenure by cornage, which was to wind a horn when the Soots or other enemies entered the land, in order to warn the king's Bubjects, was (like other services of the same nature) a species of md serjeanty. These services, both of chivalry and of grand serjeanty, were all services, pergonal personal, and uncertain as to their quantity or duration. But, the*" ""** personal attendance in knight-service growing troublesome and incon- renient in many respects, the tenants found means of compounding |for it, by first sending others in their stead, and in process of time aaking a pecuniary satisfaction to the lords in lieu of it. This pecuniary satisfaction at last came to be levied by assessment, at so Duch for every knight's fee ; and therefore this kind of tenure was Pecnniary satb- balled scutagium in Latin, or servitium scuti; scutum being then a J""''*'"'* '° "*'* ell-kuown denomination for money ; and, in like manner, it was ailed, in our Norman French, escuage ; being indeed a pecuniary, Dstead of a military, service. The first time this appears to have een taken was in the 5 Hen. II., on account of his expedition to oulouse ; but it soon came to be so universal, that personal atten- ance fell quite into disuse. Hence we find in our ancient histories, hat, from this period, when our kings went to war, they levied ubsistingScutages on their tenants, that is, on all the landholders of the king- irs alone tW'*"^' ^ defray their expenses, and to hire troops ; and these assess- ents, in the time of Hen. II., seem to have been made arbitrarily nd at the king's pleasure : which prerogative being greatly abused ly his successors, it became matter of national clamour; and King ohn was obliged to consent, by his magna carta, that no scutage ihould be imposed without consent of parliament. But this clause as omitted in his son Henry III.'s charter, where we only find that outages or *escuage should be taken as they were used to be taken n the time of Henry II. ; that is, in a reasonable and moderate quences i nanner. Yet afterwards, by statute 25 Edw. I. c. 5, 6, and many test partt absequent statutes, it was again provided, that the king should take of the kin >o aids or tasks but by the common assent of the realm : hence it which VI ras held in our old books, that escuage or scutage could not be levied ilitary poi 'ot by consent of parliament; such scutages being indeed the ncipal so) ;round-work of all succeeding subsidies, and the land-tax of later to hirelioi imes. ght-senic Since, therefore, escuage differed from knight-service in nothing, e were all >ut as a compensation dlfi^ers from actual service, knight-service is mproporl] i^equently confounded with it. And thus Littleton must be under- called escuage. m t, by pe ,0 be trust therefoi dition tl of which ii )ack to tl ch modifii ♦ S. 75. 48 or THE ANCIENT ENGLISII TENURES. * S. 76. ¥ stood, when he tells us that tenant by homage, fealty, and esouageJ was tenant by knight-service : that is, that this tenure (being sub-l servient to the military policy of the nation) was respected as il tenure in chivalry. But as the actual sarvice was uncertain, aDjI depended upon emergencies, so it was necessary that this pecuniarjl compensation should be equally uncertain, and depend on the assesa-l ments of the legislature suited to those emergencies. For had the! escuage been a settled invariable sum, payable at certain times, iti bad been neither more nor less than a mere pecuniary rent ; and thel tenure, instead of knight-service, would have then been of anothetl kind, called socage; of which we shall speak in the next chapter. I For the present I have only to observe, that by the degeneratioJ of knight-service, or personal military duty, into escuage, or pecuJ niary assessments, all the advantages (either promised or real) of thel Teodal constitution were destroyed and nothing but the hardshiptl remained. Instead of forming a national militia composed of baronJ knights, and gentlemen, bound by their interest, their honour, anil their oaths, to defend their king and country, the whole of this sjJ tern of '''tenures tended to nothing else but a wretche'^. means oil raising money to pay an army of occasional mercenaries. In thel mean time the families of all our nobility and gentry groaned undel the intolerable burthens, which (in consequence of the fiction adoptei after the conquest) were introduced and laid upon them by the sub'l tlety and finesse of the Norman lawyers. For, besides the scutageil to which they were liable in defect of personal attendance, whici however were assessed by themselves in parliament, they might btl called upon by the king or lord paramount for aids, whenever hiif eldest son was to be knighted or his eldest daughter married ; m to forget the ransom of his own person. The heir, on the death oil his ancestor, if of full age, was plundered of the first eaiolumeDt( arising from his inheritance, by way of relief and primer seisinl and, if under age, of the whole of his estate during infancy. Anii| then, as Sir Thomas Smith very feelingly complains, '< when hi " came to his own, after he was out of wardship, his woods decayedf " houses fallen down, stock wasted and gone, lands let forth an| " ploughed to be barren," to reduce him still further, he was yet tJ pay half a year's profits as a fine for suing out his livery ; and alsJ the price or value of his marriage, if he refused such wife as haf lord and guardian had bartered for, and imposed upon him ; or twici that value, if he married another woman. Add to this, the untimeljl and expensive honour of knighthood, to make his poverty more comJ pletely splendid. And when by these deductions his fortune wassJ shattered and ruined, that perhaps he was obliged to sell his patrij mony, he had not even that poor privilege allowed him, withooj paying an exorbitant fine for a licence of alienation. A slavery so complicated, and so extensive as this, called alou| for a remedy in a nation that boasted of its freedom. Palliativei were from time to time applied by successive acts of parliameolJ which assuaged some temporary grievances. At length the military tenures, with all their heavy appendag _ ^ (having during the usurpation been discontinued) were destroye i>y"i2Car.li.'c.24. at 006 blow by the statute 12 Car. II. o. 24, which enacts, " th Abolition of military tonnreR OF THE ANCIENT ENGLISH TENURES. 49 \(t the court of wards and liveries, and all wardships, liveries, primer |« seisins, and ousterlemains, values and forfeitures of marriages, by |« reason of any tenure of the king or others, be totally taken away,. |« And that all fines for alienations, tenures by homage, knight- |« service, and esouage, and also aids for marrying the daughter or |« knighting the son, and all tenures of the king in capite, be like- ly wise taken away. And that all sorts of tenures, held of the king «or others, be turned into free and common socage; save only |« tenures in frankalmoign, copyholds, and the honorary services l« (without the slavish part) of grand serjeanty." A statute, which Iwas a greater acquisition to the civil property of this kingdom than I even magna carta itself: since that only pruned the luxuriances Itbat had grown out of the military tenures, and thereby preserved them in vigour; but the statute of King Charles extirpated the I whole, and demolished both root and branches. 4 50 OF THX MODERN ENGLISH TENURES. CHAPTER VI. OF THE MODERN ENGLISH TENURES. The tenure of socage, and others, reserved. i'^ In free socage, service certain. All lands here to be granted in socage. * S. 79. U:- Although, by the means that were mentioned in the precedingl chapter, the oppressive or military part of the feodal constitatioii| was happily done away, yet we are not to imagine that the consiitnJ tion itself was utterly laid aside, and a new one introduced in its! room : since, by the statute 12 Car. II. the tenures of socage a frankalmoign, the honorary services of grand serjeanty, and th«| tenure by copy of court roll, were reserved ; nay, all tenures iai general, except frankalmoign, grand serjeanty, and copyhold, were! reduced to one general species of tenure, then well known and sub-l sisting, called free and common socage. And this, being sprungl from the same feodal original as the rest, demonstrates the necessitjl of fully contemplating that antient system ; since it is that alone t«| which we can recur, to explain any seeming or real difficulties, that| may arise in our present mode of tenure. The military tenure, or that by knight-service, consisted of whatl were reputed the most free and honourable services, but which in I their nature were unavoidably uncertain in respect to the time ofi their performance. The second species of tenure, or free-soeageA consisted also of free and honourable services ; but such as weiel liquidated and reduced to an absolute certainty. [By Imp. Stall 81, Geo. III., c. 31, s. 48, Cons. Stat. Canada, all lands to ' granted by the crown in Upper Canada, were to be in free and com- mon socage (a), and in England also] *this tenure has in a manner I absorbed and swallowed up (since the statute of Charles the second)! almost every other species of tenure. And to this we are next to I proceed. Socage, in its most general and extensive signification, seems I to denote a tenure by any certain and determinate servibe. And in I this sense it is by our antient writers constantly put in opposition to I chivalry, or knight-service, where the render was precarious and uncertain. Thus Bracton ; if a man holds by a rent in money, without any escuage or serjeanty, " id tenementum did potest aoca- gium : but if you add thereto any royal service, or escuage, to any, , the smallest, amount, " illud dici potent feodum militare." So too the author of Fleta ; ex donationihus, servitia militaria vel magnat " serjantiae nan continentibus, oritur nobis quoddam nomen gene- " rale, quod est socagium " Littleton also defines it to be, where I the tenant holds his tenement of the lord by any certain s-'-vice, in lieu of all other services ; so that they be not services of chivalry, or knight-service. And therefore afterwards he tells us, that what- 1 (a) Ante p. 13. OF THE MODERN ENGLISH TENURES. 51 soever is not tenure in chivalry, is tenure in socage: in like manner as it is defined by Finch, a tenure to be done out of war. The service must therefore be certain, in order to denominate it socage ; as to hold by fealty and 208. 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 : frce-socage, where services are not only certain, but honourable ; [and t;iWem-socage, where the services, though certain, are of a baser nature. Such as hold by the former tenure are called in Glanvil, and other subsequent authors, by the name ot liheri sohemanni, 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 conse- ♦ g. po. quences appertaining thereto, was always by much the most free and independent species of any. And therefore I cannot but asdcnt to Mr. Somner's etymology of the word ; who derives it from the Saxon appellation soc^ which signifies liberty or privilege, and, being joined to a usual termination, is called socage, in Latin socagium ; signifying thereby a free or privileged tenure. This etymology 1 seems to be much more just than that of our common lawyers in i general, who derive it from soca^ an old Latin word, denoting (as they tell us) a plough : for that in antient time this socage tenure [consisted in nothing else but services of husbandry, which the tenant was bound to do to his lord, as to plough, sow, or reap for ^ him ; but that, in process of time, this service was changed into an ! annual rent by consent of all parties, and that, in memory of its original, it still retains the name of socage or plough-service. But this by no means agrees with what Littleton himself tells us, that to hold by fealty only, without paying any rent, is tenure in socage; for here is plainly no commutation for plough-service. Besides, even services, confessedly of a military nature and original (as escuage, which, while it remained uncertain, was equivalent to knight-service), the instant they were reduced to a certainty, changed both their name and nature, and were called socage. It was the certainty therefore that denominated it a socage tenure ; agd nothing sure could be a greater liberty or privilege, than to have the service ascertained, and not left to the arbitrary calls of the lord, as in the tenures of chivalry. Wherefore also Britton, who describes lands in socage tenure under the name of fraunke ferme, tells us, that they are " lands and tenements, whereof the nature of " the fee is changed by feofi^ment out of chivalry for certain yearly " services, and in respect whereof neither homage, ward, marriagu, " nor relief can be demanded." Which leads us also to another observation, that if socage tenures were of such base and servile ^original, it is hard to account for the very great immunities which * s. si. the tenants of them always enjoyed ; so highly superior to those of the tenants by chivalry, that it was thought, in the reigns of both Edward I. and Charles II., a point of the utmost importance and value to the tenants, to reduce the tenure by knight-service to fraunke ferme or tenure by socago. We may, therefore, I think, ^iii 52 OF TUE 3I0DERN ENGLISH TENURES. n.:i u :1: M S. 82. fairly conclude in favour of Soranor's etymology, and the liberal extraction of the tenure in free socage, against the authority evenl of Littleton himself. Taking this then to be the meaning of the word, it seems probable I 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- service. This is peculiarly remarkable in the tenure which prevails in Kent, called gavei-kind, which is generally acknowledged to be a species of socage tenure ; the preservation whereof inviolate from the innovations of the iSorman conqueror is a fact universally knowu. And those who thus preserved their liberties were said to hold in| /ree and common socage. As therefore the grand criterion and distinguishing mark of this] species of tenure are the having its renders or services ascertained, it will include under it all other methods of holding free lands by I certain and invariable rents and duiicH: and, in particular, petti | serijeantt/, tenure in hurgogc, and gavel-kind. We may remember that by the statute 12 Car. II. grand ser- geantyis not itself totally abolished, but only the slavish appendages belonging to it : for the Honorary services (such as carrying the king's sword or banner, officiating as his butler, carver, &c. at the Cjronation) are still reserved. Now petit sergeant]/ bears a great resemblance to grand sergeanty; for, as one is a personal service, so the other is a rent or I'^nder, both tending to some purpose rela- tive to the king's per*son. Petit sergeanty, as defined by Littleton, consists in holding lands of the king by the service of rendering to him annually some small implement of war, as a bow, a sword, a lance, an arrow, or the like. This, he says, is but socage in effect: for it is no personal service, but a certain rent : and wo may add, it is cl(!ai)y no predial service, or service of the plough, but in all respects Hheruin et commune socagiiim: only being held of the king, it is by way of eminence dignified with the title of parvum servitlum regis, or petit sergeanty. And magna carta '•.^spected it in this light, when it enac'.ed that no wardship of the lauds or body should be claimed by the king ^n virtue of a tenure by petit ser- geanty. Tenure in burgage is described by Glanvll, and is expressly said by Littleton to be but tenure in socage : and it is where the king or other person is lord of an anci'^nt borough, iu which the tene- ments are held by a rent certain. It is indeed onl} a kind of tourn socage; as common socage, by which other lands are holden, is usually of a rural nature. A borough, as we ^lave formerly seen, is usually distinguished from other towns by the right of sending members to parliament j and, where the right of election is by bur- gage tenure, that alone h a proof of the antiquity of the borough. Tenure in burgage, therefore, or burgage tenure, is where houses, or lands which were formerly the scite of bouses, in aa ancient borough, are held of some lord in commou socage, by a certain established rent. And these &e«m to have withstood the shock of the Norman encroaohments principally on account of their insignifi- I cancy, which ma OP THE MODERN ENQLISr TENURES. 53 cancy, which made it not worth while to compel them to an altera- tion of tenure; as an hundred of them put top;ether would scarce have amounted to a knight's fee. Besides, the owners of them being chiefly artificers and persons engaged in trade, could not with any tolerable propriety be put on such a military establishment, as the tenure of chivalry was. The free socage, therefore, in which * s. ss. these tenements are held, seems to.be plainly a remnant of Saxon liberty j which may also account for the great variety of customs, affecting many of these tenements so held in ancient burgage ; the I principal and most remarkable of which is that called Borough Eng- Borough Kngiish. liih ; so named in contradistinction as it were to thp Norman cus toms, and which is taken notice of by Glanvil, and by Littleton, viz, that the youngest son, and not the eldest, succeeds to the bur- age tenement on the death of his father. For which Littleton gives this reason : because, the younger son, by reason of his tender age, is not so capable as the rest of his brethren to help himself. Other authors have indeed given a much stranger reason for this custom, as if the lord of the fee had anciently a right of concubinage with his tenant's wife on her wedding-night; and that therefore the tenement descended not to the eldest, but the youngest son, who was more certainly the offspring of the tenant. Jiut I cannot learn that ever this custom prevailed in England, though it certainly did in Scotland, (under the name of mercheta or marcJieta), till abolished by Malcolm III. And perhaps a more rational account than either may be fetched (though at a sufficient distance) from the practice of the Tartars ; among whom, according to Father Duhalde, this custom of descent to the youngest son prevails. That nation is com- posed totally of shepherds and herdsmen ; and the eldest sons, as soon as they are capable of Icauint? a pastoral life, migrate from their father with a certain allotment of cattle, and go to seek a new habitation. The youngeat son, therefore, who continues latest with his father, is naturally the heir of his house, the rest being already 1 provided for. And thus we find that, among many other northern nations, it was the custom fi)r all the sons but one to migrate fromyr tl^ lather, which one be*c8jQe his heir. ,.''^ The nature of the tenure in gavel-kind affords us a stronger a»vei-kind. argument that tenure in socage is a remnant of Saxon liberty. It is universally known what struggles the Kentish men made to preserve their ancient liberties, and with how much success luose struggles were attended. And as it is principally here that we meet with the custom of gavel-kind (though it was and is to be found in some other parts of the kingdom), we may fairly conclude that this was a part of those liberties ; agreeably to Mr. Selden's opinion, that gavelkind before the Norman conquest was the general custom of the realm. The distinguishing properties of this tenure are various; some of the principal are these : 1. The tenant is of age sufficient to aliene his estate by feoffment at the age of fifteen. 2. The estate does not escheat in case of an attainder and execation for felony; their maxim being " the father to the bough, the son to the plough." 3. Inmostpir-es he had a power of devising lands by will, before the statute for that purpose was made. 4. The lands descend, not to the eldest, youngest, or any one son only, but to all . * S. 84. 54 OP THE MODERN ENQLISH TENURES. S'll * P. 65. Socege tennros con«t(ler«Nl. * 8. 80. Ueld of superior 'lordB. Subject to the feudal render, or services, being cei^in. I«l '^ Oftth of fealty. To aids. * S. 87. Reliefs. the sons togetlier; which was indeed anciently the most usual* course of descent all over England, though in particular places particulai customs prevailed. I Having thus distributed and distinguished the several species ofl tenure in free socage, I proceed next to shew that this also partakes very strongly of the feodal nature. Which may probably arise from its antient Saxon original ; since (at tvas before observed) feuds wore Dot unknown among the Saxons, though they did not form a part of tbeir military policy, nor were drawn out into such arbitrary conse- quences as among the Normans. It seems, therefore, reasonable to imagine, that socage tenure existed in much the same state before the conquest as after ; that in Kent it was preserved with a high hand, as our histories inform us it was ; and that the rest of the socage tenures dispersed through England escaped the general fate of other property, partly out of favour and affection to| their particular owners, and partly from their own insig. nificanoy : since I do not apprehend the number of socage tenures soon after the cooquest to have been very considerable, nor their value by any moans largo ; till by successive charters of enfran- chisement granted to the tenants, which are particularly mentioned by Britton, their number and value began to swell so far, as to make a distinct, and justly envied, part of our English system of tenures. ♦However this may be the tokens of their feodal original will evidently appear from a short comparison of the incidents and conse- quences of socage tenure with those of tenure in chivalry ; remarking their agreement or difference as we go along. 1. In the first place, then, both were held of superior lords ; one of the king, either immediately, or as lord paramount ; and (in the latter case) of a subject or mesne lord between the king and the tenant. 2. Both were subject to the feodal return, render, rent, or service of some sort or other, which arose from a supposition of an origina! grant from the lord to the tenant. In the military tenure, or more proper feud, this was from its nature uncertain ; in socage, which was a feud of the improper kind, it was certain, fixed, and deter- minate (though perhaps nothing more than bare fealty), and so continues to this day. 3. Both were, from their constitution, universally subject (over and above all other renders) to the oath of fealty, or mutual bond of obligation between the lord and tenant. 4. The tenure in socage was subject, of common right, to aids for knighting the son and marrying the eldest daugh*ter ; abolished by the statute 12 Car. II. 5. Relief is due upon socage tenure, as well as upon tenure in chivalry. 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 [and it might be shewn that it was agreed on erecting the tenure, that no relief should be payablo (Co. Litt. by Harg., 93, A. n. 2. 3 Lev. 145) ; and if no rent be reserved, no relief is payable.] G. Primer seisin was entirely abolished by the statute. OF THE MODERN ENGLISH TENUBES. 55 * S. 88. 7. WardKhip is also incident to tenare in sooace ; but of a nature wardihip. very difforont from that incident to knight-service. For if the in- heritance 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 personal service being required, there was no occasion for the lord to take the profits, m order to provide a proper substitute for his infant tenant; but his nearest relation (to whom the inheritance cannot descend) shall be his guar- dian 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 ago the law supposes him capa- ble of choosing a guardian for himself. It was in this particular, of wardship, as ^so m that of marriage, and in the certainty of the render or service, that tho socage tenures had so much the advan- tage of the military ones. But as the wardship ceased at fourteen, there was this disadvantage attending it : that young heirs, being left at 80 tender an age to choose their own guardians till twenty-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. o. 24) enacted, that it should be in the power of auy father by will to appoint a guardian, till his child should attain the age of twenty-one. And, if no such [or an improper] appoint- ment bo made, the Court of Chancery will frequently interpoiie, and conrt of Chftn- name a guardian, to prevent an infant heir from impr&videntlyg^,^"?^''*"'"* exposing himself to ruin ; [a power in the court which it should seem is not excluded by 22 Vic. o. 93, Con. Stat. c. 74, sec. 1 (o), by con. stat. o. 74, which it is provided that "the right of appointing guardians of ^""^^ateCoart « infants (such infants not having a father living, or any legal " guardian authorized by law to take charge of their persons and " estates) shall belong exclusively to the Surrogate Courts." And, by sec. 3, such guardians, so appointed, shall have the charge and management of the real and personal estate, and the care of the person and education of the infant]. 8. The value of marriage and fines for alienation are demolished 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 which Tenure by almost all the free lands of the kingdom were holden till the resto- abo^tohedr '^ ration in 1660, when the former was abolished and sunk into the latter : so that the lands of both sorts are now holden by one uni- versal tenure of free and common socage; [and by Imp. Act 81 G. imp. stat. 31 III. 0. 31, 8. 43, all grants of lands in Upper Canada thereafter were ***"• "^- *'• ^^• to be in free and common socage.] (0) The other grand division of tenure, mentioned by Bracton as villain tenure. cited in the preceding chapter, is that of villenage, as contradistin- guished from liberum tenementum, or frink tenure. And this (we (a) Re Stannard, Ghana. Chambers Bep. 16 ; 6 Grant, 632 ; Con. Stat. 0. 12, B. 26 ; but see, per Robinson, C. J., Doe Marianne v. Alexant^^, 1 Q. B. 120. (6) Ante p. 18. 50 or THE MODERN ENQLISU TENURES. Of manors. may remember) he sub-divided into two classes, pure and privilegtH villonagos ; from whence have arisen two other species of modern tenures. . 00. *in. From the tenure of pure villenace have sprung the present copyhold tenures in England, or tenure oy 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 arc in substance as ancient as the Saxon constitution, though perhaps differing a little, in some immaterial circumstances, fVom those that exist at this day : just as we observed of feuds, that they were partly known to our ancestors even before the Norman conquest. A manor, manerium, a manendo, because the usual resi- dence 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 tcrrae domintcales or demesne lands ; being occupied by the lord, or dominus manerii, and his servants. The other, or tenemental, lands they distributed among their tenants; which, from the different modes of tenure, were distinguished by two different names. First, hook-land, or charter-land, which was held by deed under certain rents and free-services, and in effect differed nothing from the free- socage lands : and from hence have arisen most of tho freehold I tenants who hold of particular manors, and owe suit and service to the same. The other species was called folk-land, which was hold by no assurance in writing, but distributed among tho common folk or people at the pleasure of the lord, and resumed at his discretion ; being indeed land held in villenage, which we shall presently I describe more at large. The residue of the manor being unculti- vated, was termed the lord's waste, and served for public roads and for comcjon of pasture to the lord and his tenants. Manors were formerly called 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 All manors must barons, who had a large extent of territory held under the Crown, before the'stat. of K™°*®^ ^^* frequently smallei manors to inferior persons to be quia mptoru. holden of themselvcs : which do therefore 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, especially if it hath belonged to an antient feodal baron, or hath been at any time in the hands of the crown. In SubinfendationB. imitation 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 subinfeudatian 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 Courts-baron. » S. 91. or THE MODRRN XNQLIBH TENURES. 67 Superiors of the terre-tenant, or him ytho occupied tho land : and klso that tho mesno lords thomqelves were so impoverished thereby, that they were disabled from performing their sorvices to their own Luperior. This occasioned the Statute of Westm. 8, or jiu'a Quia emptoref. tmptorcif, 18 Edw. I. o. 1, which directs that upon all sales or feoCF- leuts of land, the feoffee shall hold the same, not of his imme- Hate feoffor, but of the chief lord of the fee, of whom such feoffor biuself held if** And from hence it is clear, that uU manors existin;; * B. 02. 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 ; lod by the operation of that statute, and other statutes, no tenant fin capile since the accession of that princo, and no tenant of a Icomnion lord, since the statute of quia emptores, could create any Inew tenants to hold of himself [hence also it follows that no manors lezist in Canada]. I Now, with regard to the folk-land, or estates held in villcnago. Tenure* in Ithis woB a species of tenure neither strictly feodul, Norman, nor'"'*"^**" ISaxoD ; but mixed and compounded of them all : and which also, |oa account of the heriots that usually attend it, may seem to have Isomewhat Danish in its composition. Under the Saxon government [there were a sort of people in a state of downright pervitude, used land euiployed in the most servile works, and belonging both they, Itbeir children, and effects, to tho lord 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 strangers to any other than a fcodal stato, 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 protec- tion, and raised the tenant to a kind of estate superior to downright slavery, but inferior to every other condition. This they called villenage, and the tenants villeins, either from the word t;i7js, orV*"«'°*- I else, as Sir Edward Coke tells us, a villa ; because they lived chiefly I in villages, and were employed in rustic works of the most sordid kind : resembling the Spartan hclotes, to whom alone the culture of the lands was consigned ; their rugged masters, like our northern ancestors, esteeming war the only honourable employment of mankind. * These villeins, belonging principally to lords of manors, wero either villeins regardant, that is, annexed to the manor or laud ; or else they were in gross, or at large, that is, annexed 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 purloined from him, might be claimed and recov- ered by action, like beasts or other chattels. They held indeed small portions of land by way of sustaining themselves and families; but it was at the mere will of the lord, who might dispossess them whenever he pleased ; and it was upon villein services, that is, to carry out dung, to hedge and ditch the lord's demesnes, and any other the meanest offices : and their services were not only base, but uncertain both as to their time and quantity. A villein could * s. 93. 58 OF THE MODERN SNaLISH TENURES. • S. 94. acquire no property either in lands or goods : but, if he purchased! either, the lord might enter upon them, oiM the villein, and seizel them to his own use, unless ne oontriyed to dispose of them agaiii before the lord had seized them; for the lord had then lost hisg opportunity. In many places also a fine was payable to the lord, if the villein I presumed to marry his daughter to any one without leave from thel lord : and, by the common law, the lord might also bring an actioal against the husband for damages in thus purloining his property,! For the children of villeins were also in the same state of bondage! with their pa^'^rents; whence they were called in Latin, natiui, which! gave rise to the female appellation of a villein, who was called a I neife. In case of a marriage between a freeman and a neife, or a| villein and a freewoman, the issue followed the condition of the| father, being free if he was free, and villein if he was villein ; con- trary to the maxim of the civil law, that partus seguitur ventrmX But no bastard could be born a villein, because, by another maxim of our law, he is nullms filiua : and as he can gain nothing bj inheritance, it were hard that he should lose his natural freedom b; it. The law however protected the persons of villeins, as the king's subjects, against atrocious injuries of the lord : for he might not! kill or maim his villein ; though he might beat him with impunity, since the villein had no action or remedy at law against his lord, batj in case of the murder of his ancestor, or the maim of his own person, Neifes indeed had also an appeal of rape in case the lord violated! them by force. Villeins might be enfranchised by manutaission, which is either! express or implied : express, as where a man granted to the villein a deed of manumission : implied, as where a man bound himself in a bond to his villein for a sum Oi money, granted him an annuity by deed, or gave him an estate in fee, for life, or years ; for this was dealing with his villein on the footing of a freeman, it was in some of the instances giving him an action against his lord, and in others vesting in him an ownership entirely inconsistent with his former state of bondage. So also if the lord brought an action against his villein, this enfranchised him ; for, as the lord might have a short remedy against his villein, by seizing his goods (which was more than equivalent to any damages he could recover'), the law, which is always ready to catch at any thing in favour of liberty, presumed that by bringing this action he meant to set his villein on the same footing with himself, and therefore held it an implied ^manumission. But, in case the lord indicted him for felony, it was otherwise ; for j the lord could not inflict a capital punishment on his villein, without calling in the assistance of the law. Villeins, by these and many other means, in process of time Tenure by copy gained Considerable 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, in others better than their lords. For the good-nature and benevolence of r..'»r'y lords of manors having, time out of mind, permitted their villeins and their children to enjoy their possessions without inter- ruption, in % regular course of descent, the common law, of which Mode of enfran cbidog them. ♦ S. 95. ot court-roll. or THE MODERN ENQLISH TENURES. 59 Rustom ie the life, now gave them title to prescribe against their Sords ; and, on performance of the same services, to hold their lands Sn spite of any determination of the lord's will. For though in/ general they are still said to hold their estates at the will of4;he lord, yet it is such a will as is agreeable to the custom 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 manors in which the hands lie. And, as such tenants had nothing to shew for their lestates but these customs, and admissions in pursuance of them, lentered on those rolls, or the copies of such entries witnessed by the Isteward, they now began to be called tenants hy copy of court-roll, land their tenure itself a copyhold. Thus copyhold tenures, as Sir Edward Coke observes, although Ivery meanly descended, yet come of an antient house ; for, from ■what has been premised, it appears, that copyholders are in truth Ino other but villeins, who, by long a series of immemorial encroach* Iments on the lord, have at last established a customary right to Ithose estates, which before were held absolutely at the lord's will.'*' lAnd these encroachments grew to be so universal, that \7hen tenure lia viilenage was virtually abolished (though copyholds were reserved) [by the statute of Charles II., there wajs hardly a pure villein left in the nation. For Sir Thomas Smith testifies, that in all his time (and he was secretary to Edward VI.) he never knew any villein 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 corporations, in the preceding times of popery. For he tells us, that "the holy fathers, monks, " and friars, had in their confessions, and especially in their extreme " and deadly sickness, 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 I " consciences, were glad to manumit all their villeins. But the said " holy tathers, with the abbots and prion, did not in like sort by I " 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 j " and so kept their villeins still." By these several means the generality of villeins in the kingdom have long ago sprouted up into copyholders j their persons beinw enfranchised by manumission or long acquiescence ; but their estates, in strictness, remaining sub- I ject to the same servile conditions and forfeitures as before ; though, in general, the villein services are usually commuted for a pecuniary quit rent. * As a farther consequence of what has been premised, we may collect these two main principles, which are held to be the suppor- ters 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 imraemorially. For immemorial custom is the life of all tenures by copy ; so that no new copyhold can, strictly speaking, be granted at this day. * S. 96. * S. 97. 60 OF THE MODERN ENGLISH TENURES. I :| *s. * S. 101. Tenure in franktilmoign. k: ♦ 8. 102. M ' if In some manors, where the custom hath been to pcrout the heiil to succeed the ancestor in his tenure, the estates are styled copj.l holds of inheritance ; in others, where the lords have been morel vigilant to maintain their rights, they remain copyholds for life onlj;[ for the custom of the manor has in both cases so far superseded thJ will of the lord, that, provided the services be performed or stipu.[ lated for by fealty, he cannot, in the first instance, refuse to admitl the heir of his tenant upon his death ; nor, in the second, can iiel ir'uove his present tenant so long as he lives, though he holds noini.[ nully by the precarious tenure of his lord's will. ♦Thus much for the ancient tenure of pure villenage, and tlel modern one of copyhold at the will of the lord, which is linealljl descended from it. ^ I *Thus have we taken a compendious view of the principal andl fundamental points of the doctrine of tenures, both ancient andl modern, in which we cannot but remark the mutual connexion andl dependence that all of them have upon each other. And upon the I whole it appears, that whatever changes and alterations these tenures I have in process of time undergone, from the Saxon acra to the 12| Car. II., all lay tenures are now in efiiect reduced to two species; free tenure in common socage, and hase tenure by copy of court-roll, [the former alone existing in Upper Canada]. I mentioned lay tenures only; because there is still behind onel other species of tenure, reserved by the statute of Charles II., which is of a spiritual nature, and called the tenure in frankalmoign. Tenure in frankalmoign, in libera elesmosyna, or free almsJ is that whereby a religious corporation, a^^^regate or sole, holdet]i| lands of the donor to them and their successors forever. The! service which they were bound to render for these lands was not certainly defined; but only in general to pray for the souls of the! donor and his heirs, dead or alive; and therefore they did no fealt; (which is incident to all other services but this), because this divine service was of a higher and more exalted nature. This is the tenure! by which almost all the ancient monasteries and religious houses held their lands ; and by which the parochial clergy, and very many ecclesiastical and eleemosynary foundations, hold them at this day; the nature of the service being, upon the Keformation, altered, and made conformable to the purer doctrines *of the Church of England. It was an old Saxon tenure ; and continued under the Norman revo- 1 lution, through the great respect that was shown to religion and religious men in ancient times. All such donations are indeed now out of use ; for, since the statute of quia emptores, 18 Edw. I., none but the king can give lands to be holden by this tenure. So that I only mention them, because frankalmoign is excepted by name in the statute of Charles II, and therefore subsists in many instances at this day. Which is all that shall be remarked concerning it ; herewith concluding our observations on the nature of tenures. OF PBEEHOLD ESTATES OF INHERITANCE. 61 CHAPTER VII. OF FREEHOLD ESTATES OF INHERITAlSrCE. The next objects of our disquisitions are the nature and properties |of estates. An estate in lands, tenements, and hereditaments, signi- Ifies such interest as the tenant hath therein : so that, if a man [grants all his estate in Dale to A. and his heirs, everything that he jean possibly grant shall pass thereby (a). It is called in Latin htatvs ; it signifying the condition or circumstance in which the jowner stands with regard to his property. And, to ascertain this lirith proper precision and accuracy, estate? may be considered in a Ithreefold view : first, with regard to the quantity of mterect which ithe tenant has in the tenement ; secondly, with regard to the time |at which that quantity of interest is to be enjoyed ; and thirdly, 'with regard to the number and connexions of the tenants. First, with regard to the quantity of interest which the tenant The quantity of I has in the tenement, this is measured by its duration and extent. **'***■ I Thus, either his right of possession is to subsist for an uncertain I period, during his own life, or the life of another man ; to determine at his own decease, or to remain to his descendants after him ; or it is circumscribed within a certain number of years, months, or days; or, lastly, it is infinite and unlimited, being vested in him and his representatives for ever. And this occasions the primary *s. 104. division of *estates into such as aro freelwld, and such as are less I than freehold. [The quality of an estate has reference to its tenure, as whether I in common, in joint tenancy, on condition, &c.] An estate of freehold, liberum tenementum^ or franktenement, Definition of an I is defined by Britton to be " i\xQ possession of the soil by a freeman." "tate of freehold. " And St. Germyn tells us, that the possession of the land is called " in the law of England the franktenement or freehold." Such estate, therefore, and no other, as requires actual possession of the laud, is, legally speaking, /reeAo^c^ (&) : which actual possession could [prior to the Stat. 14 & 15 Vic. c. 7 j Con. Stat. o. 90, see post, s. 317, by which the 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 thefeodal investiture. And from these principles we may extract this description of a freehold : that it is (a) Co. Litt. 846. (J) " Such interests only as may continue for the period of a life, are estates of freehold ; all interests for a shorter period, or, more properly speaking, for a definite space of time, are chattel interests." (Treat, on Est. 203, by Preston). ■ijlf 62 OF FREEHOLD ESTATES OF INHERITANCE. I. Fi«-simple. * S. 105. Ill 'III sucli an estate in lands as [was formerly, only] convoyed by livery t. seisin ; or, in tenements of an incorporeal nature, by what is equJ valent thereto. 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 bjl common law be conveyed without livery of seisin, these are properljl estates of freehold ; and, as no other estates [were required to be]| conveyed with the same solemnity, therefore no others [were or yetj are] properly freehold estates. Estates of freehold rthus understood) are either estates of iriherxA tance, or estates not of inheritance. The former are again divided) into inheritances absolute or fee-simple; and inheritances limited^] one species of which we usually call fee-tail. I. Tenant in fee-simple (or, as he is frequently styled, tenant inl fee) is he that hath lands, tenements, or hereditaments, to hold tol hire and his heirs for ever: generally, absolutely, and simply;! without mentioning tchat heirs, butreferring that to his own pleasure,! or to the disposition of the law. The true meaning of the word feel (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 oil service to any superior. This is property in its highest degree;! and the owner thereof hath absolutum et directum dominium, and I therefore is said to be seised thereof absolutely in dominico suo, in! his own demesne. But feodum, or fee, is that which is held ofl some superior, on condition of rendering him service; in which I superior the ultimate property of the land resides. And thereforel 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 duel 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 England are holden mediately or immediately of tb'^ 'ang. The king, therefore, only hath ahsolutum et directum dotHiHtumA but all subjects' lands are in the nature of feodutn 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 eitLet of those ways, unless accompanied with those feodal clogs whicli were laid upon the first feudatory 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 strongest 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 fori ever : yet this dominicum, property, or demesne, is strictly not I absolute or allodial, but qualified or feodal : it is his demesne, as of\ (a) Co. Litt. 1. OF FREEHOLD ESTATES OF INHERITANCE. 63 'ee : that is, it is not purely and simply his own, since it is held of superior lord, in whom the ultimate property resides. ♦This is the primary sense and acceptation of the word/ee. But Sense of the as Sir Martin Wright very justly observes), the doctrine, " that all^"'^-^"' < lands are holden," having been for so many ages a fixed and * S- loe. ndeniuble axiom, our English lawyers do very rarely (of late years ispecially) use the word fee in this its primary, original sense, in ontradistinction to allodium or absolute property, with which they are no concern ; but generally use it to express the continuance ir quantity of estate. A fee, therefore, in general, signifies an state of inheritance; being the highest and most extensive interest hat a man can have in a feud ; and when the term is used simply, ithout any other adjunct, or has the adjunct of simple annexed to t (as a fee, or a fee-simple\ it is used in contradistinction to a fee ionditional at the common law, or a fee-tail by the statute: import- Dg an absolute inheritance, clear of any condition, limitation, or estrictions to particular heirs, but descendible to the heirs general, hether male or female, lineal or collateral. And in no other sense ban this is the king said to be seised in fee, he being the feudatory f no man. Taking, therefore, fee for the future, unless where otherwise Distinction be- plained, in this its secondary sense, as a state of inheritance, it is and^jn^r^re?! applicable to, and may be had in, any kind of hereditaments, either hereditamenta. oorporsal or incorporeal, ""ut there is this distinction between the Itwo species of hereditaments; that, of a corporeal inheritance, a Imaa shall be said to be seised m his demesne as of fee ; of an lincorporeal one, he shall only be said to be seised as of fee, and not lin his demesne. For, as incorporeal hereditaments are in their jnature collateral to, and issue out of, lands and houses (a), their lowner hath no property, dominicum, or demesne, in the thing itself, Ibut hath only something derived out of it, resembling the scrvitutes, lor services, of the civil law. The dominicum or property is fre- Iquently *in one man, while the appendage or service is in another. * s. 107. iThue Caius may be seised as of fee of a way leading over the land, [of whkh Titius is seised in his demesne as of fee. Tu(i^e-simple or inheritance of lands and tenements is generally I vested or resides in some person or other; though divers inferior estates may be carved out of it. As, if one grants a lease for tw»nty-one years, or for one or two lives, the fee-simple remains vested in him and his heirs; and, after the determination of those years or lives, the land reverts to the grantor or his heirs, who shall hold it aj^ain in fee-simple. Yet sometimes the fee may be in obey- Fee sometimes Id yiMct^ that is (as the word signifies) in expectation, remembrance, '^^^"""^ end contemplation in law ; there being no person in esse, in whom it can vest and abide : though the law considers it as always poten- tially existing, and ready to vest whenever a proper owner appears. Thus, in the case of a parson of a church, who hath only an estate I therein for the term of his life ; the inheritance remains in abey- ance. And not only the fee, but the freehold also, may [though not as a general rule] be in abeyance ; as, when a parson dies, the (a) See S. 20. 64 OF FREEHOLD ESTATES OF INHEBITANOE. is necessary. * S. lOS. Not required in wiUs: freehold of his glebe is in abeyance until a successor be named, a then it vests in the successor. The word '* heirs" is necessary in the grant or donation, in ordetl Tile word "heirs" to make a fee, or inheritance. For, if land be given to a maul forever, or to him and his assigns forever, this vests in him but ail estate for life. This v«ry great nicety about the insertion of thel word ''heirs" in all feoffments and grants, in order to vest a fee,i!| plainly a relic of the feodal strictness ; by which, we may remembeil it was required *that the form of the donation should be punctuallJ pursued ; or that, as Cragg expresses it, in the words of BaldnJ " donationes sint stricti Juris, ne quia plus dondsse praesumatwl " guam in donatione expresserit." And therefore, as the personall abilities of the donee were originally supposed to be the only indacfrl luents to the gift, the donee's estate in the land extended only to Im own person, and subsisted no longer than his life ', unless the donorl by an express provision in the grant, gave it a longer oontinuanceJ and extended it also to his heirs. But tjiis rule is now softened b}[ many exceptions. For, 1. It does not extend to devises by will ; in which, as thejl were introduced at the time when the feodal rigour was apace wear! ing out, a more liberal construction is allowed ; and therefore [eveil before the 4 Wm. IV. c. 1], by a devise to a man forever, or to onel and his assigns forever, or to one in fee-simple, the devisee [took] m estate of inheritance ; for the intention of the devisor [was] suffil ciently plain from the words of perpetuity annexed, though he hadl omitted the words of inheritance. [And by 4 Wm. IV. c. 1, Con. Stat cl 82, 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 off the will that testator intended to devise a lesser estate. Post o. 23.]| 2. Neither [did] this rule extend to fines or recoveries, considered asl a species of conveyance ; for thereby an estate in fee passed by acti and operiition of law without the word '* heirs:" as it does alsoj for particular reasons, by certain other methods of conveyance, whicll have relation to a former grant or estate [in fee. Thus, a releasel from one co-parcener to another, or from one joint-tenant in fee tol another, of the entire estate (a), of all the right, of the releasoT,! will, without any words of limitation, convey a fee. Nor is the wordl requisite in case of a release of a right in extinguishment of thel 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 I to the freeholder wiH pass the fee without use of the word "heirs;"! and in contracts for sale of lands, as where A. seised in fee contracts! to sell to B., without use of the word " heirs," or defining the quanT tity of estate intended to be conveyed, it will be assumed to be al contract for an estate in fee (6)]. 3. In creaLons of nobility by writ,[ the peer so created hath an inheritance in his title, without express- 1 ing the word " heirs j" for heirehip is implied in the creation, unless it be otherwise specifically provided : but m creations by patent, which are stricti Juris, the word " heirs " must be inserted, otherwise there Nor !n certain conveyances. (a) Ruttan v. Rutlan, Mich. T. 4 Vic. U. C. {b) See, further, Preston Est. vol. 2, 42, post s. 825. or FREEHOLD ESTATES 02' INHERITANCE. 65 • 8. 100. no iDheritance. 4. In grants of lands to sole corporations and [heir successors, the word " successors" supplies the place of "heirs;" for as heirs take from the ancestor, so doth the successor from the predecessor.* But in a grant of land to a corporation aggregate, tho Tord " successors " is not necessary, though usually inserted : for, Llbeit such simple grant be strictly only an estate for life, yet, as fhat corporation never dies, such estate for life is perpetual, or equi- valent to a fee-simple, and therefore the law allows it to be one. Lastly, in the case of the king, a fee-simple will vest in him, nthout the word "heirs" or "successors" in the grant; partly Ifrom prerogative royal, and partly from a reason similar to ^^e 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. II. We are next to consider limited fees, or such estates of inhe-Of iimitwifoes. ^itance as are clogged and confined with conditions, or qualifications, of any sort. And these we may divide into two sorts : 1. Qualified^ or hase fees ; and, 2. Fees conditional, so called at the common law; and afterwan- ' fees-/ai7, in consequence of the statute de donia. 1. A base, or qualified fee, is such a one as hath a qualification a bnxe or Subjoined thereto, and which must be determined whenever the i"*"^** **"• qualification annexed to it is at an end As, in the case of a grant to A. and his heirs, tenants of the manor of Dale ; in this instance, rhenever the heirs of A. cease to be tenants of that manor, the grant is entirely defeated. So, when Henry VI. granted to John Talbot, lord of the manor of Kingston-Lisle in Berks, that he and his heirs, lords of the said Ukanor, should be peers of the realm, by |tbe title of barons of Lisle ; here, John Talbot had a base or quali- Sed fee in that dignity, and, the instant he or his heirs quitted the keignory of this manor, the dignity was at an end. This ^estate is * s. no. la fee, because by possibility it may endure forever in a man and his Iheirs ; yet, as that duration depends on the concurrence of collateral Icircumstances, which qualify and debase the purity of the donation, lit is therefore a qualified or base fee. [The term "base fee" is [frequently made use of in the Con. Stat. c. 83, as to barring entailed I estates (c. 22) ; and, as there used, it signifies, by s. 1, that estate jin fee simple into which an estate tail is converted; where the I 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 heirs, viz., so long as there is issue of the grantor, the tenant in tail, and its duration depends on that collateral circumstance which qualifies I and debases the purity of the grant in fee simple.] 2. A conditional fee, at the common law, was a fee restrained toAcouditionaifoe I some particular heirs, exclusive of others : " donatio stricta et " coarctata ; sicut certia haeredibus, quibusdam a successione " exclusis ;" as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs ; or 5 66 OF nu:::HOLD xstatis or inhkbitamoi. proprietor. Suou oor 'tions^ nature of fou'^ , t he.' t/ cy iu and were not yet arriveu i; h'. we find strong traces )f tL '*v as ! i to the hein ma7« of his body, in exclasion both of oollateralg, anj lineal females also. It was called a conditional fee, by reason of the condition expressed or implied in the donation of it, that, if th donee died without such particular hein, 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, tbe grant should he at an end, and the land return to its antient es vere strctly ag-eeable to the aef .ti to bt; mere estates for life, >luto estates in fee-simple. And ui :d.^ conditional fees, which could I n )t be alienated from the linuage of '^rst purchaser, in our earliest { Siixon laws. Now, with regard to the condition annexed to these feet by the I common law, our ancestors held, that such a gift (to a man and the heirs of his body), was a gift upon condition, that 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 * s. iiL thing to which it was before annexed, becomes absolute, *and wholly I unconditional. So that, as soon as the grantee had any issue born, his estate was supposed to become absolute, by the performance of I 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 forfeit it for treason ; which he could not do, till issue bom, longer than for his own life ; lest thereby the inhe- 1 ritance 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 as to bind his issue. And this was thought the more reasonable, because, by the birth of the issue, the possibility of the donor's reversion was rendered more 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 his body, and therefore, in default of them, must have reverted to the donor. For which reason, in order to subject the lands to tbe ordinary course of descetit, the donees of these condi- tional fe^ simple took care to aliene as soon they had performed tbe condition by having 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 (d) Co. Litt. 19. iuheritanoes, as or FRSEHOLD EBTATK8 Or INHERITANCE. er necessary to be kno^ as well for tbr) dcolariuj ho^< the cjmmon law stood in such ca ', as for the sake of anauities, and suoh like ! ioheritanoes, as are t ot within the statutes of entail, and t^.:>refore remain as at ihe ooi; * on law. ■*'The inconvenien. << whi^h attended these limited and fettered *s.ii3. inheritances, were V'obably what induced th? judces to give way to The lUtut* de [ tl.L tiuti J Snesse of oonstrr.otion (*br ',-ch it undoubtedly was), in«fc»<»- order to shorten the duration of these coiiditional estates. But, on the other hand, the nobility, who were willing to perpetuate their ^ ^sessions in their own fkmilies, to put a stop to tnis practice, procured the statute of Westminster the second, 18 Edward I., c. 1, (commonly called the statute de donia sonditionalibuB) to be made ; vhioh paid a greater regard to the private will and intentions of the donor, than to the propriety of such intentions, or any public con- siderations whatsoever. This statute revived in some sort the antient feodal restra; nts which were originally laid on alienations, by enacting, that fro;:^ thenceforth the will of the donor be observed; and that the tenements so given (to a man and the heirs of his body) should at all events go the issue, if there were any ; or, if none, should revei , to the donor. Upon the construction of this act of parliament, the judges deter- mined 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 reversion. 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 original of estates-tail, I now proceed to wh»t m»y or; consider what things may, or may not, be entailed ^under the^uu^.^ statute de donis. Tenementa is the only word used in tho statute : and this Sir Edward Coke expounds to comprehend all corporeal hereditaments whatsoever ; ana also all incorporeal hereditaments, which savour of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed 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 savour not at all of the realty, cannot be entailed. Neither can an office, which merely relates to such personal chattels ; nor an annuity, which charges only the person, and not the lands of the grantor. But in these last, if granted to a man and the heirs of his body, the grantee hath still a fee-conditional at common law, as before the statute ; and by his alienation (after issue born) may bar the heir or reversioner. 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 donis. Next, as to the several species of estates-tail, and how they are B^tw taUw* respectively created. Estates-tail are either general or «pecta/. jj^ecSJ.**"*'^'^**' • 8. 118. ■IT- HI t i" 68 OF TREEHOLD ESTATES Of INHERITANCE. li \f: M t Tail-general is where lands and tenements are given to one, and tbo Jieirs of his body begotten : which is called tail-general, because, how often soever such donee in tail be married, his issue in general hj all and every such marriage is, in successive order, capable of inheriting the estate-tail, per ybrmam doni. Tenant in tail-special is where the gift is restrained to certain heirs of the donee's body, • 8. lu. an(l ^oea not go to all of them in general. And this may '''happen several ways. I shall instance in only one ; as where lands and tenements are given to a man and the heirs oj his body, on Mart/ h 1 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 Tto him and his Jieirs) give him an estate in fee : but they being heirs to be by him begotten, this makes it a fee-tail ; and the person being also limited, on whom such heirs shall be begotten^ (viz. Mary hU present wife) this makes it a fee-tail special. Estates in general and special tail, are farther diversified by the distinction of sexes in such entails ; for both of them may cither be in tail male or tail female. As if lands be given to a roan, and his heirs male of his body begotten, this is an estate in tail male general; but if to a man and the heira female of his body on his present wife begotten, this is an estate in tail female special. And, in case of an entail male, the heirs femak shall never inherit, nor any derived from them ; nor, ^ converso, 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- tail ; 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 grandson can succeed to neither of the estates; for he cannot convey his descent wholly either in the male or female line. As the word heirs is necessary to create a fee, so in further limita- Words necessary tion of the strictucss of the feodal donation, the word body, or some ui?"*** * '^ other words of procreation, are necessary to make it a fee-tail, and ascertain to what heirs in particular *the fee is limited. If, there- fore, either the words of inheritance or words of procreation 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 off- spring ; all these are only estates for life, there wanting the words of inheritance, his heirs (a). 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 lost wills and testaments, 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 irregular modes of expression (5). ♦ S. 116. (a) Co. Litt 20. (i) Co. Litt. 9, 27. OF FREEHOLD ESTATES OF INHERITANCE. 69 There is still another species of entailed estates, now indeed grown Prankmarritv*. out of use, yet s<;ill capable of existing in law ; which are estates in libero maritagio. ot frankmarriage. These are defined to be, where tenements are given by one man to another, together with a wife, who is the daughter or cousin of the donor, to hold in frankmarriage. Now, by such gift, though nothing but the word frankmarriage is expressed, the donees shall have the tenements to them, and the heirs of their respective bodies begotten ; that is, they are tenants in special tail. For this one word, frankmarriage^ does ex vi ter- mini, not only create an inheritance, like the word frankalmoign, but likewise limits that inheritance ; supplying not only words of descent, but of procreation also. Such donees in frankmarriage are liable to no service but fealty ; fur a rent reserved thereon is void, until the fourth degree of consanguinity be past between the issues of the donor and the donee. The incidents to a tenancy in tail, under the statute Westm. 2, lacidenti to a are chiefly these (a): 1. That a tenant in tail may commit tuatte **'"'"'^ '° *^'' on the estate-tail, by felling timber, pulling down houses, or the * s- ^i^- like, without being impeached, or called to account for the same. 2, That the wife of the tenant in tail shall have her dower, or thirds, of the estate-tail. 8. That the husband of a female tenant in tail may bo 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 descending with assets to the heir, [and may now be barred by a conveyance in conformity with the provisions of the Stat. 9 Vic. o. 11, Con. Stat. o. 83j. All which will be hereafter explained at large. Thus much for the nature of estates-tail: the establishment of which family law (as it is properly styled by Pigott,) occasioned infi- nite difficulties and disputes. Children grew disobedient when they knew they could not be set aside : farmers were ousted of their leases made by tenants in tail; for, if such leases had been valid, then, under colour of long leases, the issue might have been vir- tually disinherited : creditors 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 ; of suits in conse- quence of which our 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 mischiefs unknown to the common law; and almost universally considered as the common grievance of the realm. But as the nobility were always fond of this statute, because 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 of the S^J^ST'^'Jon,. statute de donis, and the application of common recoveries to this mon reoorerie*. (a) Go. Litt. 224. 70 or TRUBOLD XSTATU OF INHKBITAMOl. • 8. IIT. • 8. 118. fi V !| r- 1 ■4 . ^ '■ •■ -l It Tin* • bw. intent, in the twelfth year of Edward IV.; whioh were then opeolj declared bj the jadgee to be a *8nffioient bar of an eetate-tail. For though the courts had, ao long before as the reign of Edward III. tery frequently hinted their opinion that a bar might be effected upon these principles, yet it was ncTcr carried into execution, till Edward IV. obserTing (in the disputes between the houses of York and Lancaster) how ntUe effect attainders for treason had on fami- lies whose er tes were protected by the sanctuary of entails, gave his countenar ..e to this proceeding, and suffered Taltarum's case to be brought before the court (a) : wherein, in consequence of the principles then laid down, it was in effect determined, that a com< mon recoTeiy suffered by tenant in tall should be an effectual destruction thereof. What common recoveries were both in their nature and consequences, and why they were allowed to be a bar to the estate-tail, must be reserved to a subsequent inquiry. At present I shall only say, that they were fictitious proceedings, introduced by a kind otpia frav*^ to elude the statute dt donii, which was found so intolerably mischievous, and whioh yet one branch of the legisla- ture would not then consent to repeal ; and that these recoveries, however clandestinely intyxluoed, became by long use and acqui- escence a most common assurance of lands ; and were looked upon as the legal mode of conveyance, by which tenant in tail mig t dis- pose of his lands and tenements : so that no court would suffer them to be shaken or reflected ou, and even acts of parliament have by a side-wind countenanced and established them. This ezfiedient having greatly abridged 3states-tail with regard to their duraiion, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then reigning, finding them frequentlv ^resettled in a similar manner to suit the convenience of families, had address enough to procure a statute (6), whereby all estates of inheritance (under which general words estates-tail were covertly included) are declared to be forfeited to the king upon an; conviction of high treason. The next attack which tl^ey suffered in order of time, was by the statute 32 Hen. VIII., c. 28 (c), whereby certain leases made by tenants in tail, which do not tend to the prejudice 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 put upon the statute of fines, by the statute 82 Hen. Vin., c. 36, whicn declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons claiming under such entail. This was evidently agreeable to the intention of Henry VII., whose poliov 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 (a) Tud. RI. Prop, oaaes, 662. (e) Bte jfott, (6) 26 Hen. YIIL, e. 18. 819. or rEBKHOLD I0TATU Or IMHIBITANOl. 71 • 8 111). order to weaken the ovorgrown power of hb noblei. Bat u they, from the oppoiite reasooe, were not euily brought to oooaent to fluch • provision, it was therefore couched, in hia act, under covert and obscure ezpresaiona. And the judgea, though willing to con- itrae that statute aa favourably aa poaaible for the defeating of entailed estatea, yet heeitated at giving finea ao extensive a power by more implication, when the atatute de donia had expressly declared that they should not be a bar to estates-tail. But the statute of Henry YlIL, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and establishea that intention. Yet, in order to preserve the property of the crown from any danger of infringe- ment, all estatea-tiil created by the crown, and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 84 & 85 Hen. VIII., 0. 20, which enacts that no feigned recovery had against tenants in tail, where the estate was created by the *orown, and the remainder or reversion continues still in the crown, shall be of any force and effect. Which is allowing, indirectly and col- latoraliy, their full force and effect with respect to ordinary estates- tail, where the royal prerogative is not concerned. By a statute of the succeeding year (a), all estates-tail are ren-OhargM to which dered liable to be charged for payment of debts due to the king by lubuT'**' "* record or special contrajl ; as since, bv the bankrupt laws, they are also subjected to be sold [in England/ for the debts coDtraoted by a bankrupt. And, by the construction put on the statute 43 Eliz., 0. 4, an appointment b^ tenant in tail of the lands entailed, to a charitable use, is good without fine or recovery. [It has been mentioned before that estates tail might have been formerly barred by warranty descending with assets to the heir, aa well aa by fines and recoveries ; let the student now peruse the remarks on warranties, ch. 22, where the effect of the bar of that nature and its abolition is explained ; the operation of fines and recoveries, their abolition, and the mode of barring substituted therefor, by 9 Vic. c. 11, Con. Stat. o. 88, is reserved for future consideration (6) ; OmwysBee of I may now, however, mention shortly, that by that statute, every ckmlstlt. e.'ss.*' actual tenant in tail in possession, remainder, expeotaocv, or otherwise, except issue inheritable ia expectancy to an estate tail, and tenants in tail after possibility of issue extinct, and those restrained by the before-named act of 84 & 85 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 the extent of the estate conveyed ; but if it should happen that at the time of such conveyance there should be a protector to the settlement (gene- rally a person having a 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 remainder or reversion.] Estates tail being thus by degrees unfettered, are now reduced (a) 88 Hen. VIII., o. 89, a. 75. (b) Cb. 22. 72 :'l OT FREEHOLD ESTATES OF INHERITANCE. again to almost the same state, even before birth of issue, as condi. iloDal fees were in at common law, after the condition was performed by the birth of issue. For, first the tenant in tail is now enabled to alien his lands and tenements, and thereby to defeat the interest as well of his own issue, though unborn, as also of the [remainder- men and] reversioner : secondly, he is now liable to forfeit them for high treason : and, lastly, he may charge them with reasonable leases, and also with such of his debts as are due to the crown on specialties. [In England, also, estates tail are not only liable to sale under the bankrupt laws, but by 1 & 2 Vic. o. 110, a judgment operates as a charge on, and binds lands of the debtor, and is binding against the issue of his body, and all persons whom he might, without the assent of any other, cut off and debar from anj remaiader, reversion, or other interest j in Upper Canada we had a similar provision, Con. Stat. o. 89, s. 40, repealed by 24 Vie. c. 41]. OF FREEHOLDS, NOT OF INHERITANOS. 78 CHAPTER MIL OF FREEHOLDS, NOT OF INHERITANCE. •S. 120. We are next to discourse of such estates of freehold, as are not of linheritance, but /or li/e only. And of these estates for life, some [are conventional, or expressly created by the act of the parties; others Inierelj kffal, or created bv construction and operation of law. We 'will consider them in their order. 1. Estates for life, expressly created by deed or grant, (which Kautoi for life, laione are properly conyentional) are where a lease is made of lands jor tenements to a man, to hold for the term of his own life, or for {that of any other person, or for more Wvm than one : in any of iwbich cases he is styled tenant for life ; only, wken he holds the testate by the life of another, he is usually called tenant pur outer Ivie (a). These estates for life are, like inheritances, of a feodal iDatare ; and were, for some time, the highest estate that any man jcould have in a feud, which (as we have before seen (b) ) was not [in its original hereditary. Tiiey [were] given or conferred by the ■same feodal rigbts and solemnities, the same investiture or livery of jseisin, as fees themselves } and they are held by fealty, if demanded, land such conventional rents and services as the lord or lessor, and Ibis tenant or lessee, have agreed on. ♦Estates for life may be created, not only by the express words * g. 121. Ibefore mentioned, but also by a general grant, without defining or. Iliiuitiog any specific estate. As, if one grants to A. B. the manor etmum^ tenancy I of Dale, this makes him tenant for life. For though, as there are'^'^^'^' [no words of inheritance or heira, mentioned in the grant, it cannot I be construed to be a fee (c), 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 u term I of life generally, sh^ll be construeu to be an estate for the life 0/ the {grantee ; in case the grantor hath authority to make such grant : ■ for an estate for a man's own life is more beneficial and of a bigher 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. I Such estates for life, will, generally speaking, endure as long asoreBtatoiibriife. I the life for which they are granted : but there are some estates ^o' atl^^nuJJ* life, which may determine upon future contingencies, before theciei. ^ 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 ' (a; See 0. 16. (6) S. 65 (e) See aut« ■. 107. 1 'I 74 or FBKKHOLDS, NOT OF INHERITANOX. *8.123. ReMOMbU Mto- wrf. m happens, wben the widow marries, or when the grantee obtains % benefice, the respective estates are absolutely determined and gone. STet, while they subsist, they are reckoned estates for life ; becaase the time for which they will endure being uncertain, they may y 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 determine bjl his civil death : [as in case of outlawry, ^or attainder for treason] (a) : for which reason in conveyances the grant is usually madt " for the term of a man's natural life ;" which can only determini by his natural death. ^The incidentt to an estate for life are principally the following; ortheiKcidrata. ^^^^^"^ ^re applicable not only to that species of tenants for life, which are expressly created by deed ; but also to those, which an created by act and operation of law. 1. Every tenant for life, unless restrained by covenant or agree- ment, may of common right take upon the land demised to him reasonable estovers (b) or botes. For he hath a right to the fulll enjoyment and use of the land, and all its profits, during his estate therein. But he is not permitted to cut down timber or do othet waste upon the prem'ses : for the destruction of such things, as art not the temporary profits of the tenement, is not necessary for tliej tenant's complete enjoyment of his estate , but tends to the permt.] nent and lasting loss of the person entitled to the inheritance (c\ 2. Tenant for life, or his representatives, shall not be prejudiced 3. BmUemeatfl. by any suddcu determination of his estate, because such a determina. tion is contingent and uncertain. Therefore, if a tenant for his ovtl life sows the lands, and dies before harvest, his executors shall hart the emblements, or profits of the crop : for the estate was determined b; the act of God, and it is a maxim in the law, that actus Dei nemml facit injuriam. The representatives, therefore, of the tenant foi| life shall have the emblements to compensate for the labour anj expense of tilling, manuring, and sowing the lands ; and also for tlit encouragement of husbandry, which, being a public benefit, tending to the increase and plenty of provisions, ought to have the utmoit security and privilege that the law can give it. Wherefore, by the feodal law, if a tenant for life died between the beginning of Sep< tember and the end of February, the lord, who was entitled to tbe reversion was also entitled to the profits of the whole year; but if he died between the beginning of March and the end ^ofl August, the heirs of the tenant received the whole. Frcm hence our law of emblements seems to have been derived, but witli very considerable improvements. So it is also, if a man be tenant for the life of another, and cestut/ que vie, or he on whose life the land is held, dies after the corn sown, the tenant pur auter vie shall have the emblements. The same is also the rule, if > 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) Wmi. Real Prop. 23. (6) See i. 86. (e) As to whether the outting of timber would in Canada be deemed wiite, see B. 281, and at to what ia waste. ' •8.123. or IBXEHOLDS, MOT OF INHERITANOS. 75 detdrmioable estate for life), and the husband sows the land, and Afterwards they are divorced a vincvJo matrimonii, the husband kbail have the emblements in this ciase ) for the sentence of divorce the act of law. But if an estate for life be determined by the enant's own actj (as, by forfeiture ; or, if a tenant during widow- hood thinks proper to marry,) in these, and similar cases, the tenants, baving thus determined the estate by their own acts, shall not be Entitled to take the emblements. The doctrine of emblements jztends not only to corn sown, but [to other products of annual labor, ad] to roots planted, or other annual artificial profit, but it is Dtterwise of fruit trees, grass, and the like ; which are not planted iBDuaily at the expense and labour of the tenant, but are either a permanent, or natural profit of the earth. For when a man plants tree, he cannot be presumed to plant it in contemplation of any present profit ; but merely with a prospect of its being useful to bimself in future, and to future successions of tenants. 3. A third incident to estates for life relates to the under-tenants, ^"j^J^^^'f,"' For they have the same, nay greater indulgences than the lessors, the original tenants for life. The same ; for the law of estovers ind emblements with regard 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 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 ^he case of a woman who holds durante viduitate ; her taking hus- band is her own act, and therefore deprives her of the emblements : but if she leases her estate to an under-tcn&nt, who sows the land, and she then marries, this her act shall not deprive the tenant of bis emblements, who is a stranger, and could not prevent her. The [lessees of tenants for life had also at the common law another most lunreasonable 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 quarter-day, or other day assigned for payment of rent (a). To Iremedy which it is now enacted (6), that the executors or adminis- Jtrators of tenant for life, on whose death any lease determined, shall Irecover of the lessee a ratable proportion of rent, from the last day I of payment to the death of such lessor. II. The next estate for life is of the legal kind, as contradistin-n. Ofteumc/in jguished from conventional; vi*., that of tenant in tail after pos-^^f^j^^^ uiUlity o/itsue extinct. This happens where one is t-^nant in special «««*»<«• I tail, and a person from wbose 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 possibilty of issue extinct. As where one has an estate 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 there- Ifore the law makes use of this long periphrasis, as absolutely > » (a) 10 Rep. 127. Tador Rl. Prop, oases 166. {b) Stat. 11 Geo. II. e. 19 a. 15. M 76 OP FREEHOLDS, NOT OP INHERITANCE. ♦S.125. PI. li necessary to give an adequate idea of his estate. For if it ^ called him barely tenant in fee-tail special, that *would not bavi distinguished him from others ; and besides, he hcs no longer estate of inheritance, or fee, for he can have no heirs oapablo taking per formam doni. Had it called him tenant in tail with issve, this had only related to the present fact, and ^rould not hati excluded the possibilty of future issue. Had he been styled tana in tail without possibility/ o/ issue, this would exclude time past well as present, and he might under this description never have " any possibility of issue. No definition, therefore, could so exa^itljl mark him out, as this of tenant in tail after possibilitt/ ofittn extinct, which (with a precision peculiar to our own law) not onij takes in the possibility of issue in tail, which he once had, buti ' states that this possibility Is now extinguished and gone. This estate must be created by the act of God, that is, by tlJ death of that person out of whose body the issue was to spring ; in no limitation, conveyance, or other human i.ot can make it. For,i land be given to a man and his wife, and the heirs of their U bodies begotten, and they are divorced a vinculo matrimonii, ib]! shall neither of them have this estate, but be barely tenants for "" notwithstanding the inheritance once vested in them. A possibillt|L of issue is always supposed to exist in law, unless extinguisheil by the death of the parties : even though the donees be each ( them an hundred years old. In general, the law looks upon this estate as equivalent to sJ estate for life only; but the tenant has some of the advantages o| tenant in tail, as not to be punishable for waste. *III. Tenant by the curtesy of England, is where a man raanieil a woman seised of an estatj of inheritance, that is, of lands anj| tenements in fee-simple or fee-tail; and has by her issue, born i which „ .r. capable of inheriting her estate. In this case he sballl on the death of his wife, hold the lands for his life, as tenant b;| the curtesy of England. *There are four requisites necessary to make a tenant by tlul curtesy ; marriage, seisin of the wife, issue, and death of the wife.1 1. The marriage must be canonical and legal. 2. The seisin of tliel wife must be an actual seisin or possession of the lands ; not a banl right to possess, which is a seisin in law, but an actual possession,! which is a seisin in deed. And therefore a man shall not be tenant! by the curtesy of a remainder or ref ersion [expectant on an estate! of freehold, though it would be otherwise if expectant on an estatel Coi years, as in the latter case the seisin of the freehold is not in the! tt 'ira t foi years, but in the remainder-man or reversioner ; and tm possession of tl>o tenant is the possession of the reversioner]. But! of Boiuo incorporeal hereditaments a man may be tenant by the! CDitf -• , '"'iori.(h there havo beer no actual seisin of the wife ; asini cs:ie o'l an advowsc j, whore the church has not become void in the! li< .-tiaie cf the wife : wl^itih a man may hold by the curtesy,! b' ru^" I is impossible ever to have actual seisin of it, and impo-\ lesue boru alive. /cTia'a .'cy^in.': L fern,. 8. The issue must be born alive. Some! have Tt no+vOJ fuat it must be heard to cry; but that is a mistake. Cryinjj; i;.Jced a iht stronrjest evidence of its being born aliva; but I * S. 126. Tennncy by the curtay. * 8. 127. Its four requi- eitea — 1. Marriage — which muAt be legal; 2. Seisin of the wife— which must^be an actual seisin ; OF PREEHOLDS, NOT OF INHERITANCE. 77 ♦ S. 128. possession. I is not the only, evidence (a). The issue also must be born during he life of the mother ; for if the mother dies in labour, and the e,jarcan operation is performed, the husband in this case shall not tenant by the ^curtesy : because at the instant of the mother's Lib, he was clearly not entitled, as having had no issue born, but le land desc nded to the d Id, while he was yet in his mother's omb; and the estate being once so vested, shall not afterwards be ken from him (6). In general there must be issue born : and such bue as is also capable of inheriting the mother's estate. Therefore, [a woman be tenant in tale male, and hath only a daughter born, le husband is not thereby ent. tied to be tenant by the curtesy ; tcause such issue female can never inherit the estate in tail male, [nd this seems to be the principal [origin of the rule that] the bsband cannot be tenant by the curtesy of any lands of which the ife was not actually seised : [viz., that] in order to entitle himself [ Buch estate, he must have begotten issue that may be heir to the pfe : but no one, by the standing rule of law [prior to 4th Wm. J, c. 1, could] be heir to the ancestor, of any land whereof the kcestor was not actually seised (c) ; and therefore, as the husband had bver begotten any issue that [could take as heir to the mother] be [all not be tenant of them by the curtesy. And hence we may eervc, with how much nicety and consideration the old rules of were framed j and how closelj they are connected and inter- Dven together, supporting, illustrating, and demonstrating ono btber. The time when the issue was born is immaterial, provided I were during the coverture ; for whether it were born before or ter the wife's seisin of the lands, whether it be living or dead at le time of the seisin, or at the time of the wife's decease, the [isband shall be tenant by the curtesy. The husband, by the birth the child, becomes tenant by the curtesy in?'/ la/^, and may do Death of the wife, any acts to charge the lands, but his estate is not consummate till |e death of the wife : which is the fourth and last requisite to ttke a complete tenant by the curtesy. I [If the wife's estate should be equitable only, thus if the lands Curtesy of [ould be vested in trustees for her and her heirs, her husband ^iviii equitable estates III be entitled to be tenant by the curtesy. In the same manner as the estate were legal, iu case he has had issue which might |herit, which is one instance of the maxim that equity follows the I shall, however, again allude to the husband's right in equity curtesy in the equitable estates of his wife, in treating of the ^dow's right in equity to dower out of the equitable estates of her ttsband, where much the same principles apply. The tenant is ktitled to emblements, and liable for waste, which we shall also Insider under the head of dower]. 1 IV. Tenant in dvwer is where the husband of a woman is seised * S- 129. an estate of inheritance, and dies ; in this case, the wife shall i^'^'^"- Jive the third part of all the lands and tenements whereof he was |ised at any time during the coverture, to hold to herself for the rm of her natural life. (a) As to the evideuce, see Jonea v. Ricketts, 10 W. R. 576. (i) But eee Tud. Lg. Cases, 62. (c) See s. 209. V ^^':v u 78 or FBEXHOLDS. NOT OF INHERITANOB. ,1' i ILU •8.130. Who may b« •ndowad. Adultery. Attaint. ^A^m •8.1S1. Alien. Of what endowed (Ulaw. In treating of this estate, let us first eonsider who mav )A endowed ; secondly, of what she may be endowed [at law] ; thirdljl the manner how she shall be endowed ; fourthly, how dower nuijl be barred or prevented [and fifthly, of what she may be endovtjl in equitTJ : I 1. Who may be endowed. She must be the actual wife of tlii| party at the time of his decease. If she be divorced a vinc^ matrimonii, she shall not be endowed; for uhi nullum matriti^l nium, ibi nulla dot. But a divorce a menta et thoro only, doth m destvoy the dower ; no, not even for adultery itself by the oomou^ law. Yet now by the statute Westm. IL, if a woman voluntari]}! leaves (which the law calls eloping from) her husband, and HtJ with an adulterer, she shall lose her dower, unless her husband M voluntarily reconciled to her. [It seems that the leaving must M voluntary on the part of the wife ; for where the husband abandooei the wife unprovided for, and she afterwards lived in adultery, tUi was held no bar to her right to dower (a)]. It was formerly that the wife of an idiot might be endowed, though the husband an idiot could not be tenant by the curtesy : but as it seems to be present agreed, upon principles of sound sense and reason, that an idiot cannot many, being incapable of consenting to any contract,! this doctrine cnunot now take place. By the ancient law, the wifij of a person attainted of treason could not be endowed; to t1 intent, says S^uundforde, thci 'f the love of a caa's own life cann restrain him from such atrocious acts, the love of his wife and obi dren may : though Britten gives it another turn, viz., that it is pi sumed the wife wa^ privy to her husband's crime. However, t; statute 1 Edw. VI. c. 12, abated the rigor of the common lawii this particular, and allowed * the wife her dower. But a subsequei statute (b) revived thif severity against the widows of traitors, w! were thereby barred of their dower (except in the case of certaii modern treasons relating to the coin) (c), but not the widows felons ( )• \ (a) Graham t. Law, 6 C. P. U. C. (6) 6 A 6 Ed. VI. c. 11. (c) 5 EliE. e. 11 ; 18 Eliz. o. 1 ; 8 & 9 Wm. III. c. 26 ; 15 & 1« Qm. II. o 28,| (<;) Bat see S. 256, note. (e) S. 249. (/) 8. 249. (ff) 2 C. P. U. C; 186. In possession ; thii or VBKXHOLDS, NOT OF IIIHIBITANOS. 79 [To entitle • widow to dower at law (as distinot from ber right B«qaU(M. In equity, which is presently explained), the rule is] that she iisotoMiiininthe Entitled to be endowed of all lands and tenements of which her bvis> i>wbMid daring land was seised in fee simple or fee tail at any time daring the^«t«?iiihni> overture, and of which any issue which she might have bad migl^t JJ^^^jJJSJ* y possibility have been heirs [to which may perhaps be added, iura* if my of ibat the seisin must have been a aole seisin, and of an estate of ^g^^,'[it, heritance in j>o$te$sion (a); though seisin in law would suffice, as m by Stat. 4 Wm. 4, c. 1, a right of entry or action to such te — of which more hereafter]. [As to that part of the rule which requires that the issue which Ab to tbt imi*. {he wife might have bad might by possibility inherit;] if a man ttised in fee simple, hath a son by his first wife, and after marries a leoond wife, she shall be endowed of his lands ', fbr her issue might ij possibility have been heir, on the death of the son by the former fife. But if there be a donee in special tail who holds lands to im and the heirs of his body begotten on Jane his wife ; though ane may be endowed of these lands, yet if Jane dies, and he mar- ies a second wife, that second wife shall never be endowed of the nds entailed ; for no issue, that she could have, could by any pos- ibilHy inherit them [it will be observed that there is no necessity at issue should actually be born, as is requisite in tenancy by the urtesj, but the possibility suffices]. [There must, to entitle the widow to dower at law have been seism saitin. the husband during coverture, and that of an estate of inheritance possession ; this branch of the rule is however subject to an excep- lion, created by 4 Wm. IV. o. 1, Con. Stat. c. 84, s. 2, which we will at nee dispose of before considering the general rule : by s. 2 " when j^. j^^ ^^ ^^^ ' a husband has been entitled to a right of entry or action to any I' lands, and bis widow would be entitled to dower out of the same < if he had recovered possession thereof, she shall be entitled to ' dower though her husband did not recover possession ; but such I' dower shall be sued for or obtained within the same period during which the right of entry or action might be enforced ;" thus if he husband were disseised before coverture and so continued during overture till death, the widow would yet be entitled to dower, if not arred by the statute of limitations. It is the necessity for seisin In the husband wbioh excludes the widow at law from dower in rust estates of the husband, of which the legal seisin is in the trus> le ; we shall presently see, however, that a widow is now in equity ntitled to dower out of trust estates to which the husband dies neficially entitled-~so also dower does not attach on a remainder Q fee dependint on a life estate, if the remainderman die or alien nding the life estate (b), for the seisin of the freehold is in the enant for life, and the remainder also is not an estate of inheritance n possession ; but if a remainder or reversion be dependant only n a term of years, as the possession of the tenant is the possession iind constitutes the seisin, of the remainderman or reversioner, lower will attach ; and this is so also with regard to tenant by the] (a) Wms. Rl. Prop. 199 ; Watkins Gonv. 89. (6) Cummiog V. Algotre, 12 Q. B. U. C; Pulkenv. Evans, 13 Q. B. U. C. 80 or FREEHOLDS, NOT OF INpERITANCE. '"^Pi SeMn in law flufBees. ■> b. 132. I [curtesy ; it was by force of that Bart of the rule now under consid. Old form of eration that the widow was excluded from dower under one form of lUM tobardwer. conveyance to uses to bar dower in vogue before the statute last referred to ', which form shortly stated was thus, to the purchaser for | life, with remainder to a trustee and his heirs during the purchasers' life, with remainder to the heirs and assigns of the purchaser ig I fee (a) ; it will be seen under this form of conveyance, though quoad the life estate the purchaser is seised in possession^ yet that estate is not of inheritance^ and though (by force of the rule in I Shelley's case) he is entitled to the remainder, which is an estate ofl inheritance, still it is not an estate of inheritance in possession. If I the tate be subject to a term of years granted before coverture \A way uf mortgage, the widow of the mortgagor will be entitled to dower at law, with a cesset executio during the term (i), and Id | equity be entitled to redeem if she thinks fit.] A seisin in law of the husband will be as eSeotual as a seisin is I deed, in order to render the wife dowable ; for it is not in the wife's power to bring the husband's title to an actual seisin, as it is in the husband's power to do with regard to the wife's lands : which is one reason why he shall not be tenant by the curtesy, but of such lands whereof the wife, or he himself in her right, was actually; seise ' 'd deed. The seisin of the husband, for a transitory instant* only, when | But not a transi- tho Same act which gives him the estate conveys it out of him again, tory seisin. ^j^g ^hgro by a fine land is granted to a man, and he immediately I renders it back by the same fine) such a seisin will not entitle the wife to dower: for the land was merely in transitu, and never rested in the husband; the grant and render being one continued Aaof grtmteeto act; [so also the widow of a grantee in fee to uses, in whom the use is immediately executed into possession by the Statute of Uses, in the cestui que use, 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 shall [ not have dower, for the seisin of B was but transitory, the same con- veyance which gave him the estate also immediately took it from him I by declaring a use on which the Statute of Uses would operate (c);] but, if the land abides in the husband for the interval of but a single moment, it seems that the wife shall be endowed thereof (d), ance'aSTr^n- [*^ where a Vendor executed a deed of conveyance to a purchaser | ▼eyanwby way in fee, who, immediately after such execution, re-conveyed the lands mo gage. ^^ ^^^ vendor by way of mortgage, to secure the unpaid purchase money; it was held the wife of the purchaser was entitled to I dower (e). In any such case wherein the parties desire quoad the purchase money to be placed in the relative positions of mortgagor] (a) More fully explained post. (6) 11 Q. B. U. C. 338. (c) Per Esten, V. C, Norton ▼. Smith, in Appeal, 7 U. C. L. J. (d) This doctrine was extended very far by a jury in Wales, where the j father and son were both hanged in one cart, bat the son was supposed to have surviTed the father, by appearing to struggle longest ; whereby he became seised of an estate in fee by surnTorship, in consequence of which fieisin his widow had a verdict for her dc^er. (Cro. Eliz. 508). («) Pottt V. Meyeri, 14 Q. B. U. C. ; Hon t. Smith, 20 Q. B. U. C. ; 8. 0. in appeal, 6 C. ^, C. 259. asas. Secus, if the sei- sin rested at all in the husband. OF FREEHOLDS, NOT OF INHERITANCE. II I [-jn J mortgagee, and the wife of the purchaser declines to bar dower, the lands may be conveyed by comnaon law c nveyance, or by I grant, to some third person, to the use of the purchaser and his beirs till default in payment of the purchase money, and on default I to the use of the vendor in fee ; here on the happening of the event, viz., default, the use limited to the vendor will arise and the j fee pass to him (a), 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 conditional limitation, restricted and liable to be defeated by the very terms of the conveyance (6).] [A widow will be restrained in equity from claimin'; dower out of fj"* "f P"'^''er- real estate purchased with partnership property in thj name of her* p Proper y- husband for the purposes or partnership in trade (c) j for such pro- perty is considered in equity as personal estate, and therefore not liable ♦^^o dower, and moreover the husband is trustee for the partner- ship. So also if the husband before marriage had contracted to sell, '^n'tl»cUo*"fii 01 granted a right of purchase of, his real estate ; here, if the con- before marriage, tract 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 j, h^gi^nj redemption is forfeited at law but is subsisting in equity (in which trustee or case the mortgagee is still in equity considered as trustee for the """"^'Ksgee. mortgagor) (e), the widow, it has been said by high authority Cf), is in strictness at law entitled to dower ; for there was in the nus- band till that was required to entitle his widow to dower, assuming bim to have been seised in fee ; but, as remarked in one case on the point, '' if the wife of a trustee or mortgagee were to be so ill- " advised as to prosecute her lejal claim, equity would at this day " undoubtedly »addk her with all the costs, and restrain the action '< at law."] [The seisin must ha^e been a 8oIe seisin ; therefore the widow of a soie seisin, joint tenant is not, though the widow of a tenant in common is, entitled to dower (g). I may add '^hat in case of exchange of land«i, ExciwDge. the widow is not entitled to dower ^ the land both taken and given in exchange : she is in such case pw to her election as to the lands out of which she will be endowed (h)_^. Where dower is allowable, it matters not though the husband al^ne Jor incumber] the lands during the coverture ', for he alienes thesm liable to dower. 8. Next, as to the manner in which ^^ woman is to be endowed. The manner in There [were] four species of dower ; [and] a lifth, meotiofted by jl^^d'the d^MMi Littleton, de la plus belief which was abolished together witi: the ftfies. (a) Post chapter on uses. (6) Watkins' Conveyancing 103 and note. (c) PhiUips V. Phillips, 1 My. & K. C49, 1 Lg. Cas. Eq., White & Tud. 166, 163. {d} 14 Ves. 691 ; See post, Dower in Equity. (e) S. 159. (/) Sugden Vendors, c. 12, a. 1 ; Lewin on Trusts, 260 ; Park on Do-^er, 100. But as against the right of y^idow of mortgagee even at Uw, tee Earn V. Ham, 14 Q. B. U. C. 497. (y) Hashill v. Frater, 12 C. P. U. C. 883 ; ffam v. JTam, 14 Q. B. U. C. 49T (h) Co. Litt 81, b. 6 \l \l,'. !B* 82 Of FREEHOLDS, NOT OF INHERITANCE. military tenaros of which it was a oonsequenoe. 1. Dower b; the I cont'inon law; or that which is before described. 2. Dower h\ i)articular custom ; as, that the wife should have half the husband i ands, or in some places the whole, and in some only a quarter. • 8. 133. 8* Dower ad ottium ecclesiee ; which is where tenant in fee "'simple of I full age, openly at the ehurch door, where all marriages were foi. merly celebrated, after affiance made and (Sir Edward Coke in hii translation of Littleton, adds) troth plighted between them, doth endow his wife with the whole, or such quantity as he shall please, of his lands; at the same time specifying and ascertaining th« same ; on which the wife, after hor husband's death, may enter without farther ceremony. 4. Dower ex amenm patria ; which u only a species of dower ad ostium ecclesiee, made when the bus. band's father is alive, and the son, by his consent expressly given, endows his wife with parcel of his father's lands. In either of these cases, they must (to prevent frauds) be made in facte eccleti^ et ad ostium ecclesiee; non enim valent facta in Ucto mortali, nee | in camera f out alibi vhi clandeatina fuere conjugia. Dower In equity, [To the above may now be added dower in equity, given by tie By Con. St. 84. gj^tute 4 Wm. IV. c. 1, Con. Stat. o. 84, which statute abolished at the same time dower ad ostium ecclesiee, and ex assenau patrit; and as dower by particular custom never could exist in Canada (a), And at common the Only kinds of dower here are, at common law, and in equity.] [It is beyond the province of this work to enter into questions of | practice, and as the mode of assignment of dower and the whole subject indeed, is ably and fully treated of elsewhere (b), I forbear entering into the proceedings in the action of dower, merelj remarking that till assignment the widow has no actual estate in the lands, as there is no certainty of what part she will be endowed. Till assignment she has but a right of action, which, though assign* able in equity, is not at common law ; and it does not seem to me that Con^ Stat. o. 00, s. 5, allows an assignment of such a right (c)]. 4. How dower may be barred or prevented. A widow may be barred of her dower not only by elopement, divorce, and other disa* bilities before mentioned, but also by detaining the title deeds, or evidences of the estate from the heir, until she restores them: and, by the Statute of Gloucester (d), if a dowager aliens the land assigned her for dower, she forfeits it ipso *facto, and the heir may recover it by action : [by this latter remark must probably be understood the ease of a dowager conveying by feoffment a greater estate than for her own life (e), for, as before explained, such mode of conveyance prior to 14 & 16 Vic. 0. 7, would pass such greater estate bi/ wrong, and the Eenalty was forfeiture of all estate. Various provincial statutes ave provided simpler means for enabling married women to bar their contingent right during the lives of their husbands, than by the former method of levying a fine or suffering a recovery. The early statutes required an examination, and certificate by the parties] law, only remain. Till aaaignment no estate. The mode of barring dower. • 8. 137. Early statntei required exami- I:; (a) Burrowes t. Cairru et al., 2 U. C. Q. B., 288. (6) Draper on Doww. As to mode of assignment, see 24 Vic. c. 40. (e) See s. 290 and c. 21. {d) 6 Sd. 1 c. 7. («) 2 Inst. 809. or rnEEQOLDs, not of inheritanob. 88 fezaniiniog, as to the consent of the wife to be barred being volun- tary ancl without coercion ; and this was by analogy to the similar examination which was requisite when the wife barred her dower ai on a flat, by fine or recovery. Many difficulties arose fVom informalities in the certificates. The Stat. 24 Vic. c. 40 s. 19, enacts that no action stat. u vie. be thereafter brought in case the claimant joined in a deed to con- j^/^flpa^J" '" vey the lands or release dower to a purchaser, though the acknow-'** ledgment may not have been had, or be informal. At present, dower may be barred by the married woman joining in a deed or conveyance to which her husband is a party, containing a release of dower; but where the husband is not a party the examination of the wife and certificate prescribed by the statute is requisite (a) ; unless, indeed, as has been (b) suggested, the section abovo referred to may virtually abolish necessity for such examination and certificate, since it becanie law ("IS May, 1861).] [The acceptance by a widow of wuat is devised to her expressly in Acceptance la lieu of dower is a good bar to her claim for dower (c); but she must "«" of dower, have had an opportunity of exercising her election, and not have accepted in ignorance of the devise and acceptance being in lieu of dower ((f). A conveyance by the heir at law in lieu of dower is a sufiBoient bar to an action for dower; so also a bond (e). Time also Time mny bar. may bar the action, for by Stat. 24 Vic. c. 40, s. 18, no action lies bat within twenty years from the husband's death, nor till one calendar month's notice in writing demanding the same has been ^ven by the claimant to the tenant of the freehold ; and thus if no demand be made till after the commencement of the last calendar month of such twenty years, a period of less than twenty years may be a bar; and when the husband's interest was a mere right of entry or action, the time which would bar the husband will also bar the wife, notwithstanding her coverture, for in such case the Statute which gives her dower by virtue of such rieht in her husband, limits the suing for the dower to the period during which such right might be " enforced (/^l. *Another method of barring dowers is by jointures,,Jpintnre. ^ as regulatea oy the statute 27 Hen. VIIL o. 10 [or by ante-nuptial * ®' ^^' settlement in hen of dower]. ' A jointure, which strictly speaking means a joint estate, limited to both husband and wife, but in common acceptation extends also to a sole estate, limited to the wife only, is thus defined by Sir Edward Definition. Coke : " a competent livelihood of freehold for the wife, of lands <' and tenements, to tal:e effect, in profit or possession, presently " after the death of the husband, for the life of the wife at least." This description is framed from the purview of the statute 27 Hen. Vni. c. 10, before mentioned, commonly called the statute of uses, of which we shall speak fully hereafter. At present I have only to observe, that before the making of that statute the greater part of the land of England was conveyed to uses, the property or possession of the soil being vested in one man, and the use, or profits thereof, (a) Con. Stat. o. 84. (6) Draper on Dower, p. 44. (c) Walton V. Hill, 8 Q. B. U. C. 662 ; Pulker et ux. v. Evant, 13 Q B. U. C. 546, ((/) See Cooper v. Watson, Q. 6. U. C, A. D. 1864. (e) Germain et ux. v. Shuert, 7 C. P. U. C, 816. (/) C. 84 s. 2. IMAGE EVALUATION TEST TARGET (MT-3) /v ^>,/2^ :/u 1.0 I.I £ us 112.0 1.8 1.25 1.4 i4 < 6" — ► v] <^ /i / /A 'WJ^ '/ Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. MS80 (716) 872-4503 \ V •^ v> ^ 4' >5' o^ 84 OF FREEHOLDS, NOT OF INHEBITANOE. i 'm : i '.! Of Uses. ♦ S. 188. Kequisitea. in another, yrhose directions, mih regard to the disposition thereof, the former was in conscience obliged to follow, and might be com- pelled by a court of equity to observe. Now, though a husband had the use of lands in al»olttte fee-simple, yet the wife was not entitled to any dower therein, he not being seised thereof; where- fore it became usual, on marriage, to settle by express deed some special estate to the use of the husband and his wife, for their lives, in joint tenancy, or jointure, which settlement would be a provinon for the wife in case she survivedher husband. At length the statute of uses ordained that such as had the use of lands, should, to all intents and purposes, be reputed and taken to be absolutelv seised and possessed of the soil itself. In consequence of which legal seisin, all wives would have become dowable of such lands as were held to the use of their husbands, and also entitled at the same time to any A ternnder Stat, special lands that might be settled in jointure, had not the same statute provided, that upon making such an estate in jointure to the wife before marriage, she shall be forever precluded from her dower. But then these four requisites must be punctually observed : 1. The jointure must take effect immediately on the death of the husband. 2. It must be for her own life at least, and not pur atUer vie, or for any term of years, or other smaller estate. 3. It must be made to herself, and no other in trust for her. 4. It must be made, and so in the deed particularly expressed to be, 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 ecclesisSf and may either accept it or refuse it, and betake herself to her dower at common law ; for she was not capable of consenting 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 her dower pro tanto at the common law. [A more usual mode, in Canada at least, of preventing right of uarbyante-nup-dower in present or future acquired property, is by settlement or «.i »Hi«mant. agreement before marriage, by which the intended wife accepts any provision in her favour which is declared to be in lieu of dower in such present or future to be acquired property (a) ; and if the intended wife were adult at the time of the agreement, the inade- quacy, precariousness, or failure of the provision for her, will not prevent her being barred ; on this point Lord St. Leonards (&) thus expresses himself, « If the present were a jointure operating as a << bar under the Statute of Uses, [above explained — Ed.] the case " would have been governed by s. 7 of that statute ; but in equity " the bar rests soleli/ on contract, and my opinion is that in this " court, 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] (a) Draper on Dower, 49. (&) Dyke T. Rendall, 2 Do Oex Mao. & Oor. 209 ; see also Buckingham- shire V. Drury^ 2 Eden 60 ; Corbet v. Corbet, 1 8. & S. 612. tial settlement. Though inade- quate, or it £fdl8. For the ha r is good by the eoa tract. OF FREEHOLDS, NOT OF INHERITANCE. 85 [« ber dower might have attached : this has nothing to do with « the performance of covenants or the like. . . . My con- " elusion 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."] STt must be borne in mind, however, that the above remarks were e in a case in which the widow was seeking to enforce her dower, not against the heir at law, or a devisee, or a volunteer, but against a purchaser for value, who on purchase had notice of the settlement and agreement of the wife to accept the husband's bond in lien of dower ; still, however, it would appear on the whole that the acceptance by an adult woman before marriage of any provision in lieu of dower, will, though it fail, bar her as a matter of contract as against the husband and those claiming under him.] [in/anfs may be barred at law by sufficient legal jointure under the infants barred at Stat, of Hen. VIII., as above explained. If the jointure be competent jointMe!**** it will be good though it be not of the value of the dower (a) ; and Not by ante-nnp- though at law an infant may not be bound by her ante-nuptial ***> »8'«*™»'>*- agreement to accept a provision in lieu of dower, still in equity a otherwiK, in provision made for an infant on her marriage, at least if with the IqJJi'^bie^cfa^ assent of her father or guardian, and substantially equivalent to a tore, good legal jointure, would be sufficient, as a good equitable Jointure, to restrain her from enforcing her legal right to dower (b) ; cer- ! tainly, however, a mere precarious and uncertain provision which she might never enjoy, though it might bar an adult on her con- tract to accept it as above mentioned, would not bar in case of an in&nt (c) ; 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 there- fore never take any thing.] 5 Whether a provision, which is not valid as a good legal jointure ler the Stat, of Hen.YIII., but is still substantially equivalent to it, Bnt, ir made would bar an infant in equity, if made before marriage without ^1^°^^^^^^°^' (usent of her father or guardian, is not perhaps quite clear. In one case (d) it is said " a female infant is bound by the settlement made " on her marriage as to dower and thirds, not by force of her agree- " ment in the settlement, but by reason of the consent of her parents " and guardians and of the Stat of Hen. VIII." Perhaps if the equitable jointure be in all respects adequate and tantamount to a good legal jointure ; as for instance, if it complied in all respects with what is required under the statute, except that it was an equitable estate of freehold instead of a legal estate, the infant would be barred, and be restrained in equity from prosecuting her claim at] (o) Drury v. Brury, 8 Bro. P. C, Toml. ed., 492; 4 Bro. C. C. 506 n. ; Barvey t. Ashley, 8 Atk. 607. (b) See cases last note, but see Fiaher ▼. Jameton, 12 0. P. IT. 0. 601. (c) Carruiheray. Carruthert, 4 Bro. C. C. 500, 518 ; Smithr. Smith, 5 Ves. 189. {d) Simaon JU^Jonea, 2 Russ. & Myl. 877 ; Stamper v. Barker, 6 Madd. 157. ■.t 1 86 OF FREEHOLDS, NOT OF INHEBITANCE. "I f^^ [law ; and that in such a case equity would follow the law ; and that as the infant would be barred at law without her assent or tie assent of parents or guardians, so also she will be barred in equity, if the provision only failed in being a good legal bar, because it wag an equitable estate (ji) ; it iray well be contended that the assent of parents and guardians is not requisite for the protection of the infant, as the statute- is a sufficient protection; and that the absence of such ass&nt will not, on the one hand, render an adequate equita- ble jointure invalid, and on the other hand, that the presence of such assent will not render an inadequate one valid.] AssrntofpArents [The acceptance before marriage by an infant of an insufficient tivl diimicter^if" equitable jointure, or of one which has failed, would not suffice, in jointure Lad. ' equity, to deprive her of her legal right to dower, though accepted with the assent of parents or guardians ; in other words, the concur- rence of parents or guardians will not give force to a settlement accepted by an infant, which would not have been binding on her without such concurrence (b) j for " a competent livelihood " is required at law ; an incompetent jointure, or one that turns ont worthless, would not be a good legal bar, under the Stat. Hen. YIIL, and the courts of equity proceed only by analogy to this, unless indeed they can proceed and bar as on a matter of contract, (as in the case of an adult as above mentioned), which ground is insuffi- cient where it is an infant who contracts to her own disadvantage, Former mode of A Conveyance to a husband may be so drawn, as that he may reconve; umr/o^er never ^^'^0*^' *^^ dowcr of his wife attaching; a form of such convey- auachtd even, ancc oncc uscd, was to give the purchaser (the husband) an estate for life, with remainder on the determination of that estate, by forfeiture or otherwise, during the life of the husband, to a trustee for him, with a further remainder to the heirs and assigns of tie purchaser ; under such limitations dower never even attached, for the only estate of which the husband would be seised in possession, during his life would be the life estate ; the remainder in fee is prevented from becoming an estate of inheritance in possessioUf by force of the rule in Shelley's case (c) and the law of merger, in consequence of the intervening estate to the trustee (d); such limitations as the above will, however, now no longer suffice, for by Con. Stat. c. 84, s. 1, " When a husband dies beneficially entitled " to any land for an interest which does not entitle his widow to " dower out of the same at law, and such interest whether 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 lands ;" under such limitations as the above, the estate, it will be observed, is] (a) Dniry v. Drury, supra, Harg. Co. Litt. 36 B., note?; Williamiy, Chitty, 3 Ves. 545 ; Corbet v. Corbet, 1 S. & S. 612 ; Sugden Statutes, 246, 2 Ed. 74. (6) Simton v. Jonti, 2 Rusa & My., 877, 365 ; Field v. Moore, 7 De. G., M. & G., 691, 706, 709; see Harvey y. Ashley, 8 Atk. 607; Aimlie y. Mtd- leycott, 9 Ves. ; Buckinghamshire V. Drury, 2 Eden, supra; Corbet v. Corbti 1 S. & S. 612. (e) Pott. 242. ((0 Watkins Conv., p. 91 and notes. Now useloRf! by Con. SUt. 84. .1 I OV V&IEHOLDS, MOT OF INHERITANCE. 87 fpartlj legt^l ^^^ partly equitable, eqaal to an estate of inheritance in possession. Another form sometimes adopted, and which it seems to Another tana \me can yet be adopted with effect, was to convey to the pnrchaser inS^/ndJSVhff" fee (the hosband), to saoh uses as he should appoint, and in default ^ri|B>>twui of and till appointment, to him in fee (the limitations were usually be detM%' less simple than as above in fee, but I prefer so to state them) (a) ; uader such limitations, dower does attach, subject to be divested, on exercise of the power of appointment; for the husband, till exercise of the power is seised of an estate of inheritance in possession ; but oa execution of the power, the appointee (a purchaser from the husband), comes in as if named in the conveyance to the husband (ill consequence of the peculiar operation of such powers and appoint- ments, as hereafter explained), 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 conveyance, or by grant, to B. (the husband), in fee, to such uses as he (B.) shall by deed appoint, and in default of and till appointment, to him (B.) in fee ; d. sells to C., and conveys and appoints the estate to 0. in fee, reciting the power of appointment ; the whole transaction is now to be read as though by the first conveyance, A. had conveyed to B. and his heirs, to the use of C. and his heirs ; which would under the statute of uses vest the legal estate and fee in G. (b), and so paramount to the right of dower (c) ; of course if B. die without exercise of the power, then if the limitations be in the simple form I have put them, the widow of B. would be entitled to her dower, which was never divested. 5. Dower in equity, arising by virtue of the statute above referred me right in to. Prior to the statute a widow was not entitled to dower out of gj[*^y ^°* trust estates of her husband, though they might have been equitable ko dower at estates of inheritance in possession ; this varied from the law as to ^j Jf^t^"* °' curtesy which gave the husband a life interest in such estates of the wife, the other requisites to qualify the husband being present. It Husband must will be observed, the husband must die beneficially entitled, there-'*'* *"***'***• fore if the husband alien there will be no dower. An instance of an interest wholly equitable being an estate of inheritance in possession, is afforded by the simple case of lands held by A in fee in trust for B and his heirs ; the old form as above given of limitations to uses instuioe of estate to bar dower affords an instance of that interest named in thopl^y^tiue statute as partly legal and partly equitable equal to an estate of ^i''^^ quaufleh inheritance in possession, the first life estate to the purchaser and his remainder in fee being legal estates, and the intervening estate to a trustee for him being an equitable estate, and the three together equal to an estate of inheritance in possession. A widow will be entitled to dower when the husband has conveyed in fee by way of Dower of an mortgage before coverture, and dies entitled to the equity of redemp-^o^*'**'"^*™**^ tion ; that is, she may, on redemption, claim dower : so also where a husband contracts to purchase in fee, and dies, she will be entitled ^"ntJ.^^*'' to dower as against the heirs-at-law (d) ; and I apprehend that even chase, though the contract could not be enforced in law by reason of default in the purchaser in the terms of the contract, still, if it be a con-] (a) See Forms, Daviddon's Cony., Tol. 2, 169-178. (h) See S. 884. (e) That ezeoutiona may thus be defsated— po<< execution. {d) Craig v. Templeton, 8 Grant, 483. m i'' 88 hm I ''■if Oompuldonby widow of iU complotion. Principle, ooii> Tendon. On flame prln- dple, widow barred on con* tract to flell. Entitled in equi- ty to dower out of what maybe personal estate at law. So alw husband entitled to cur- tesy out of personality, And eqititable estates of the wife. What in such eases shall be actual seisin soffl' cient to qualify for curtesy. * S.189. Liable for waste. Clearing wild lands? ON fBEKHOLDS, NOT OF INHERTTANOE. [tract subsisting and capable of being enforced in equity, (where under ordinary circumstances mere default in payment of the purchase money on the day named is immaterial) the widow will be entitled to dower ; and in such cases even be entitled to call on the I personal representatives of the deceased husband to administer and I Eay the purchase money and complete the contract. The case of a usband having contracted to purchase, and the widow being entitled to dower in equity, proceeds on the principle that, in equity, what is agreed to be done is to be considered as done, the money considered as actually converted into land, and the vendor from the time of the contract a trustee for the purchaser, who is thenceforth | deemed beneficially entitled ; and by application of the same princi- Ele in the converse case, viz., that of a husband who be/ore marriage I as contracted to sell, and married before payment of the purchase money or conveyance ; here, though as above mentioned, the widov would at law be entitled to dower, still equity will restrain an action at law at the instance of the purchaser; for by the contract the land in equity is deemed as converted into money, and the vendor trustee for the purchaser. So again, a widow may, on the principle above mentioned, be entitled in equity to dower out of what would be personal estate at law ; thus, under certain circumstances, money vested in trustees with express injunctions to lay out the same in tLe purchase of lands in fee simple or fee tul for the benefit of the husband and his heirs, even though never so laid out dutiiig the husband's lifetime, will, nevertheless, be looked on in equity as actually converted into lands, and the delay of the trustee!) in doing what they ought to have done shall not prejudice the widow (a) ; on the same principles, a husband will, in equity, he entitled to curtesy out of personal estate at law, as if money be stipulated to be laid out in lands to be settled on a /erne covert in fee or in tail, the husband is entitled to curtesy, though no purchase be actually made in the lifetime of the wife ; and he will be decreed the interest of the money till a purchase can be found, and when the investment can be made he will have a life estate in the lands (h) ; so also, as a general rule, the husband is entitled in equity to curtesy in the equitable estates of the wife, under the same circumstances as would entitle him to take if they had been legal estates ; but where the husband claims in equity as tenant by the curtesy of equitable estates of the wife, some difficulty arises sometimes from the analogy of the rule at law, that the wife must have had actual seisin to entitle the husband to curtesy ; and the question in equity is how far that analogy shall apply, and what shall be actual seisin of the equitable estate ; possession and receipt of the rents and profits will be clearly sufficient seisin, and the mere fact that the rents and profits are directed to be paid to the separate v,se of the wife during ^coverture will not exclude the husband (c)]. [Tenants in dower and by the curtesy are equally liable for waste, the nature of which we shall consider hereafter (d), as also whether the cutting of timber for the purpose of cleanng and cultivation would be waste.] (a) Lewin on Trosts, 798, 794, 622. (i) Lewin on Tmsts, 798. (c) Tud. Lg. Ca. 49, Follet v. I^rer, 14 Sim. 125. (d) S. 181. Of ESTATES LESS THAN FREEHOLIX CHAPTER IX. OF ESTATES LESS THAN FREEHOLD. *0f estates that are less than freehold, there are three sorts : 1. * s. i4o. Igstates for years ; 2. Estates at will j 3. Estates by sufferance. ffiff^SSd'^ I I. An estate for years is a contract for the possession of lands or j, An^tate for [tenements, for some determinate period ; and it takes place where a ye»B. jan le^^eth 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 quarter, or any less time, this lessee is respected as a tenant for years, and is Btyled so in some legal proceedings ; a year being the shortest term ■vbich the law in this case takes notice of. And this may, not ■improperly, lead us into a short digression, concerning the divbion land calculation of time by the English law. The space of a year is a determinate and well-known period, con- or the diTUoa Iflisting commonly of 365 days : for, though in bi8*sextile or leap- °' *'^ ^^^ years it consists properly of 366, yet, by the statute 21 Hen. III. Year. Ithe increasing day in the leap-year, together with the preceding Iday, shall be accounted for one day only. That of a month is more ^^^^^i^^ [ambiguous : there being, in common use, two ways of calculating [months; either as lunar, consisting of twenty-eight days, the sup- Lunar or [posed revolution of the moon, thirteen of which make a year : or, '='^«'"*"- jaa calendar months of unequal lengths, according to the Julian [division in our common almanacs, commencing at the calends of [each month, whereof in a year there are only twelve. A month lin law is a lunar month, or twenty-eight days, unless otherwise [expressed ; not only because it is always one uniform period, but Ibecause it falls naturally into a quarterly division by weeks. There- Ifore a lease for " twelve months" is only for forty-eight weeks ; but jif it be for " a twelvemonth," in the singular number, it is good for ithe whole year. For herein the law recedes from its usual calcula- ItioD, because the ambiguity between the two methods of computa- Ition ceases ; it being generally understood that by tho space of time Icalled thus, in the singular number, a twelvemonth, is meant the phole year, consisting of one solar revolution. [The statement that a month in law means lunar month, unless I otherwise expressed, is subject to an exception, created by 12 Vic, Con. Stat. && 0. 10, Con. Stat., o. 5, under which, in all acts passed in that year and subsequently, the word month means calendar month, unless inconsistent with the context or object of the act; and in the con- struction of contracts, the meaning of the word month has always depended much on the intention of the parties, and will be con- strued as calendar if the intention to that effect can be clearly] 90 Day. LenaM fbnnerly oonsidwed men iMHUniortiM lord. * 8. 145. •8.14S. What conatltates ao estate for year*. ■m !: A laaie for years may be made to coamienoe in futuro; nnt so, a lease Ibr life. OF ISTATES LB88 THAN IBUHOLIh [gathered from tbe contract ; oommerc'.al usage also governs the mean* mg, as in the case of bills of ezcbangd and promissory notes.] In tl^ space of a day all the twenty-four hours are usually reckoned ; {}^ law generally rejecting all fractions of a day in order to avoid dii. putes ; therefore if I am bound to pay a certain sum of money on t certain day, I discharge the obligation if I pay before twelve o'clock at night of that day ; fbut bills of exchange and promissory notei require to be paid before three of the afternoon of the day whei payable (a). And the law does not reject the consideration of i portion of a day in any case in which it is requisite to consider it, as for instance in determining the priority of delivery of executiooi to a sheriff.] But to return to estates for years. These estates were originallj granted to mei-e farmers or husbandmen, who every year rendered some equivalent in monev, provisions, or other rent, to the lesaori or landlords : but in order to encourage them to manure and cul& vate the ground, they had a permanent interest granted them, not determinable at the will of the lord. And yet their possession mi esteemed of so little consequenee, that tkey were rather considend as the bailiffs or servants of the lord, who were to '''receive and account for the profits at a settled price, than as having any pio. perty of their own [and from this sprung the principle of law tbt the possession of the tenant is the possession of the landlord « reversioner]. * Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years. And therefon this estate is frequently called a term, ^ermtniM, because itsduratim or continuance is bounded, limited, and determined : for every sooU estate must have a certain beginning, and certain end. But m certum est, quod certum reddi potest: therefore, if a man makei lease to another, for 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, S. hath named the years, it is then reduced to a eertainty. If no I day of commencement is named in the creation of this estate, it [ begins firom the making, or delivery, of the lease. A lease forgo many years as J. S. shall live, is void from the beginning ; for it ia neither certain, nor can ever be reduced to a certainty, during the continuance of the lease. And the same doctrine holds, if a parson make a lease of his glebe for so many years as he shall continne parson of Dale; for this is still more uncertain. But a lease for twenty or more years, if J. S. shall so long live, or if he should m long continue parson, is good : for there is a certain period fixed J beyond which it cannot last ; thouc^'a it may determine sooner, the death of J. S., or his ceasing to be parson there. We have before remarked, and endeavoured to assign the reason I of, the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance : observing, that I an estate for life, even if it be j>ur auter vie, is a freehold , but that I an estate for a thousand years is only a chattel, and reckoned part of the personal estate. Hence it follows, that a lease for years may be | (a) Oon. Stat o. 42; Sinclair v. Robton, 16 Q. B. U. C. 211. or I8TATX8 1108 THAR fRKEHOLD. 91 Bsde io oommenoe tVi futuro, tboagb a lease for life cannot. As, f I grant lands to Titius to bold from Miohaelmas next for ^twenty • 8. IM. lean, this is good ; but to bold from Michaelmas next for the term hf his natural life, is void. For no estate of fVeebold can commence \n futuro; because it cannot be created at common law without Irery of seisin, or corporal possession of the land ; and corporal lossession cannot be given of an estate now, which is not to com- aence now, but hereaner. [The statement that no estate of freehold can be created to com- uni«M by eon- aence in futwrOf must bowever be considered as confined to such gStUM?!'^ Ration by common law conveyance, for by deed of bargain and ial6 or other conveyance operating under the Statute of Uses, wherein Sreiy of seisin or prior ^ssession in the grantee is not required, a ' ebold estate can oe limited to commence in futuro; tbus A. can . -gain and sell to, or covenant to stand seised to the use of, B. and ^is heirs from a fhture day, on the arrival of which the estate will irest, the seisin of the freehold in the meantime remaining in the liai^inor or covenantor] (a). And because no livery of seisin is Deoessary to a lease for year?, such lessee is not said to be teiwd or jiave true legal seisin of the lands, nor indeed does the bare lease othenriM tni rest any estate in the lessee [unless a use for the term be raised in fntoncwo"* |the lessor for the lessee, which can be executed into possession by temiinL the Statute of Uses ; see pozt^ s. 832] ; but only pives him a right Df entry on the tenement, which right is called his interest in the |(em, or, interesse termini : but when he has actually so entered, ind thereby accepted the grant, the estate is then, and not before, vested In him, and he is possessed, not properly of the land, but ox jthe term of years ; the possession or seisin of the land remaining dll in him who hath the freehold. Thus the word term, does not lerely signify the time specified in the lease, but the estate also and interest that passes by that lease; and therefore the term may Jezpire during the continuance of the time; as by surrender, for- jfeitare, and the like. For which reason, if I grant a lease to A. for Ithe term of three years, and after the expiration of the said term to |B. for six years, and A. surrenders or forfeits his lease at the end jof one year, B's. interest shall immediately take effect: but if the Iremainder had been to B. from and after the expiration of the said Ithree years, or from and after the expiration of the said tim^, in this [case B's. interest will not commence till the time is fully elapsed, [whatever may become of A's. term. Tenant for term of years hath incident to and inseparable from Entitled to his estate, unless by special agreement, the same estovers which we"^^*"' formerly observed (&) that tenant for life was entitled to ; that is to say, house-bote, fire-bote. plough-bote, and hay-bote; terms which have been already explained (e). * With regard to emblements, or the profits of lands sowed by * s. i4s. tenant for years, there is this difference between him and tenant for*"^"™"** life ; that where the term of tenant for years depends upon a cer- tainty, 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 out before mid- , -Xi ? ■■> > il (a) S. 884. (&) S. 122. (e) S. 85. 02 01* ISTATIS LK8S THAN FRKXHOLD. ■ f t»*"-'ii"* -KV !:'•' m UJ ti summer, tbe end of his teim, the landlord shall have it; fortli« tenant knew the expiration of his term, and therefore it wag hii own folly to sow what he never could reap the profits of. But whei) the lease for years depends upon an uncertainty : as, upon the dettji of the lessor, being himself onlv tenant for life, or being a hu8b«Dd seised in right of his wife ; or if the term of years be determinable upon a life or lives; in all these cases the estate for years not beiDel certainly to expire at a time foreknown, but merely by the act A God, the tenant, or his executors, shall have the emblements in the I same manner that a tenant for life or his executors shall be entitled I thereto. Not so, if it determine by the act of the party himself; ul if tenant for years does any thing that amounts to a forfeiture ; io I which case the emblements shall go to the lessor and not to tht lessee, who hath determined his estate by his own default. BitatM leMthan [Estates less than freehold, though chattels only in the eye of tlu ftethoid, chattel* 2j^^^ yet inasmuch as they savor of the realty, are sometimes termed chaiteh real, they devolve on death to executors and administraton,! and not to the heir, and the proper limitation in a lease for yearaii to executors, though it will be sufficient if such limitation \A omitted, as the law in such case will oast the estate on the executon or administrators. It follows also that these estates are not saleable by the sheriff under a writ against lands, but are under a writ against goods. The mode of creation and of transfer of these estates is treated of hereafter (a), and of rents we spoke before (5).] TeuBdeaatwUi. II. The sccond spccies of estates not freehold are estates at wm An estate at will is where lands and tenements are let by one nai to another, to have and to hold at the will of the lessor; and tbi tenant by force of this lease obtains possession. Such tenant hath I no certain indefeasible estate, nothing that can be assigned by bin to any other; for the lessor may determine his will, and put bin I out whenever he pleases. But every estate at will is at the will of both parties, landlord and tenant, so that either of them may deter- mine his will, and quit his connexion with the other at his ovs pleasure. Yet this must be understood with some restriction. * s. 146. * For, if the tenant at will sows his land, and the landlord, before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits. And this for the same reason upon | which all the cases of emblements turn ; viz. the point of uncer- tainty, since the tenant could not possibly know when his landlord I would determine his will, and therefore could make no provision against it; and having sown the land, which is for the good of tbe public, upon a reasonable presumption, the law will not suffer him to | be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will, for in this case the | landlord shall have the profits of the land. Whatdsterminea What act does or does not amount to a determination of the will I *•" ""^ on either side, has formerly been matter of great debate in our courts. But it is now, I think, settled, that (besides the express determination of the lessor's will, by declaring that the lessee shall (a) 8. 318-827. (6) B. 41. T or ESTATES LESS ^HAN FREEHOLD. 98 hold no longer: whioh must either be made upon tbe land, or jiotioe must be given to the lessee) the exertion of any act of owner- khip by the lessor, as entering upon the piemises and cutting timber, kr tuakiog a feoffment, [with liTerr of seisin, in which case notice lo the tenant is presumed, or making an ordinary conveyance], or lease for years of the land, to commence immediately [coupled with Vtice to tbo tenant of such conveyance or lease (a)1, any act of lesertion by the lessee, as assigning his estate to another, or com- nitting waste, which is an act inconsistent with the tenure ; or, irhioh is instar omnium, the death ov outlawry of either lessor or issee, puts an end to or determines the estate at will (b). The law is, however, careful that no sudden determination of the Jill by oue party shall tend to the manifest and unforeseen prejudice [f tbe other. This appears in the case of "' emblements before men- * s. 147. honed; and, by a parity of reason, the lessee, after the determina* poD of tbe lessor's will, shall have reasonable ingress and egress to etch away his goods and utensils. And, if rent be payable quar- erly or half-yearly, and the lessee determines the will, the rent shall le paid to the end of the current quarter or half-year [but if the fes8or determines he loses the rent, Tudor Lg. Ca. 19], And, upon winrerent ia re V same principle, courts of law have of late years leaned as much nii7eon8tniedto 1 possible against construing demises, where no certain term is men- B^*to y w''^" jjoned, to be tenancies a^ will, but have rather held them to be enancics from year to year, so long as both parties please, especially jrhere an annual ren'. is reserved ; in which case they will not suffer ktber party to determine the tenancy, even at the end of the year, Vithout reasonablf notice to the other, [which is to be, under ordi- Hdf ye«uf'« ^ary circumstances, half a year at least prior to the expiry of tbe ""^ *'• ® "* ' urreDt year of the tenancy ; thus, if the tenancy commenced on tbe enth day of July, 1861, a notice to quit given on the next tenth day |f January would be too late, and the tenant be entitled to hold for Dother year from the tenth day of July, 1862, and be entitled fur- lier to a proper notice, to be given him half a year at least prior to ich last named day. The notice is to be half a year, not six Not 6 months, l^onths, and the difference is material if February happen to be one ' the months included in the period, in which case the period would |ot comprise half a year. And it would seem that the half year is be a ftiU half year, and thus not 182, but 183 days (c)]. But 183 d«y«. [The leaning of the courts against uncertain tenures at will in kvor of the more certain tenures from year to year have caused the Mter to be of no unfrequent occurrence ; it may be stated, as a inference! ofiaw fneral rule, that wherever there is a tenancy, and a payment ofancfes from year ent with reference to a year, or some aliquot part of a year, and *® y®"- here be no evidence from which it can be shewn that a tenancy of uother nature was agreed on ; then the law will assume the tenancy] (a) Doe David T. Thomat 6 Ex. 856. (b) Blackstone adds that taking a distress for rent and impounding it on he premises would be a determination by Uie landlord of the tenancy ; and pis formerly was so, because formerly the landlord could not impound on pe premises, but now he can so impound, by 11 Qeo. II., 0. 19, per Martin Doe Daviee v. Thomas, 6 Ex. 858. (e) Woodfall Ld. & T. 298. H X If- ii 94 EaUte kt suffar- «nce. •0.160. or I8TATI8 LH8 THAN FRUHOLD. [to be one Arom year to year : and where a tenant at will pays ttA with reference to a year, or aliquot part of a year, the tenanoj J will is converted into a tenancy fVom year to year ; bnt the pajnitnl must be with reference to a certain period of holding : for if thenj be mere payment of rent de die in Jiem under an express agrceutir for a tenancy at will, a tenancy from year to year will not arise (a)1 and if the intention of the parties be express and apparent to or a mere tenancy at will, the fact of the rent being^ reserved payi with reference to a year, or aliquot portion, as for instance quarterlj] will not create a tenancy from year to year, and override the ol6ii|| expressed intention of the parties (b). If a person enter undetl void lease, (as being for more than tnree years, and not under get! as required by Con. Stat. c. 90); or under an agreement fori lease, and afterwards pay rent as above, a tenancy from year to vi will be implied ; so also if a tenant hold over after the expiry of term and pay rent : and in these cases the terms and stipulationi the void, intended, or expired lease will govern as far as reasonil applicable to a yearly tenancy; if for instance it contained a poi in the landlord to re-enter for non-payment of rent, or a covenant the lessee to repair, such power, and obligation to repair will applied to the new tenancy from year to year. Though payment rent with reference to a vear, or aliquot portion, unexplained gii rise to an implication of a yearly tenancy ; still both payer receiver may shew the circumstances under which payment made, for the purpose of repelling the implication (c).j III. An estate at tufferance, is where one comes (a) into possoi of land by lawful title [otherwise than by act of law], but keeuij afterwards without any title at all. As if a man takes a lease forj year, and, after the year is expired, continues to hold the pren without any fresh leave from the owner of the estate. Or, if ai maketh a lease at will, and dies, the estate at will is thereby de mined; but if the tenant oontinueth possession, he is a tenant i sufferance. But no man can be a tenant at sufferance against i king, to whom no laches^ or neglect, in not entering and ousting til tenant, is ever imputed by law ; but his tenant, so holding over^ considered as an absolute intruder. But, in the case of a this estate may be destroyed whcLever the true owner shall makei actual entry on the lands and oust the tenant; for, before entiy,! cannot maintain an action of trepan against the tenant by soff ance, as he might against a stranger : and the reason is, because t tenant being once In by a lawful title, the law (which presumes i wrong in anv man), will suppose hiui to continue upon a title eqoi' lawful ; unless the owner of the land by some public and avoi act, such as entry u, will declare his continuance to be tortious,! in common language, wrongful. JfJ^jf J22i^ [In actions of ejectment, it is frequently necessary to detenniJ atsufferanoe whether the defendant is tenant at will or by sufferance; for if r JJK notS***'l>e *«°ant at will, he cannot be ejected without a determination ( ■niiut tenant — - _— atwiU. (a) Riekardton v. Lan^ffe, 4 Taunt. 128, Tad. Lg. Oase8,*2I. (b) Tador's Lg. Cases, 21 ; Richardton t. Langrige. (0 Ibid. ((Q 2 Inst 184, 1 Inst. 271. re or years, or o Of XBTATXa LK88 THAN rRKXBOLD. 05 irminatiOD ( «et Iftbt tonaooy by notice to quit, or demand of pouession, or other act linfficieDt for that purpose ; but if he be tenant at aufferanoe, there [i no D00c66ity for any such atepa prior to the action ; and in refer- (De<) to this question of some practical importance, Richards, J., remark" (a) : " As a general rule where a party is let into possession |« ai purchaHer he becomes tenant at will, and cannot be turned out l<( of possession without a previous demand, but many oases in our courts go to the extent tnat where a party enters agreeing to pay : by 8 certain day, and makes default, then he may be ejected as having forfeited his right. Where parties after the expiry of the V( time ^r payment in a mortgage or agreement, or after a forfeiture li< in a lease, remain on premises without being recognized as lawfully in possession, they are tenants at sufferance, and not entitled to K demand of possession." (&)] [Tenants at sufferance are not entitled to emblements (c) ; the Tenaney can inanoy can only arise by implication of law, it cannot be created of '^" **' pontraot (t/).J [Remedies are afforded to landlords as against their tenants ^ho ^^IJ!^'^ •s^'"* lold over after the determination of their leases, by various statutes ; tanLiia; "* he determination (among other modes, as by surrender or merger). Day be by efflux of time and the expiry of the term granted ; by brfeiture, as where the landlord has right to reenter on non-payment f rent; or by notice to quit by either party, as in oases of tenan- cies at will, or from ^ear to vear : as above stated, a tenant holding rer after determination of his term, becomes tenant at sufferance, od formerly landlords, to obtain possession, were compelled] to Formerly only jiake formal entries on their lands, [and oust their tenants, or] ^*)c'°>*">*> over possession by the legal process of ejectment [in wLioh entnr I supposed (e) ; and after actual entry, but not before, the land- And, ancr entry, prd might proceed in an action of trespass for damages ; whereon,] ''**'i>""! t the utmost, by the common law, the tenant was bound only to ocount for the p/ofits of the lands so by him detained. [This action ^^^ ^ [as, and yet is, termed an action of trespass for mesne profits.] profits. [The landlord might also sue the tenant for his use and occupa- Liabuity for uaa on of tbc land, from the time of the determination of the original ""* °**™***'°°' knanoy ; and now, before entry or recovery in ejectment, the land- [rd,byCon. Stat. o. 27, s. 60 (/), on the trial of the action ofayOon. statsr eotment, on proof of service of notice of trial, and of the landlord's ^^^^o'»ni |ht to recover, may give proof of the mesne profits from the deter- in action of cjeet- kination of the tenant s interest down to the time of the verdict or ™*°*' I some preceding day to be named therein, and the iury are to give keir verdict as to the whole matter, both as to the recovery of the pole or any part of the premises, and the damages to be paid for kesne profits ; and the landlord may afterwards bring an action for jie mesne profits accruing from the time of thr verdict or day so cified down to time of delivery of posseBrjion of the premises covered.] And by statute 4 Geo. II. o. 28, in case any tenant for By stat. 4Qeo. jTe or years, or other person claiming under or by collusion with tenutTuaUe for (o) Lundff y. Dovey, 7 0. P. U. C. 40. I) Doe Bmnett v. Turner, 7 M. ^ W., 236. (c) Doe Bennett t. Turner, 7 M. & W., 236. (d) Watk. Oonv., 24. («) Doe Leeton v. Sayer, 8 Gamp. 8. f) Imp. Stot. 15 & 16 Vic, o. 76, s. 214 ; Harrison C. L. P. Act, 440. 98 OF ESTATES LESS THAN FBEEHOLD. V cable. By Con. Stat, c, 27, certain over- security for costa and damages. double yearly sucb teoent, shall wilfully hold over after the determination of the I ^^^^' term, and demand made and notice in writing given, by him to whonl the remainder or reversion of the premises shall belong, for deliver. [ ing the possession thereof; such person, so holding over or keepioij the other out of possession, [who thus becomes tenant at sufieranoe|| shall pay for the time he detains the lands, at the rate of donblel ByiiGeo.n. ten- their yearly value. And, by statute 11 Geo. II. o. 19, in caseanjl mines'^eaM^and tenant, having power to determine his lease, shall give notice of U for douWe rent'* ^"*®°'^°° *^ ^^^^ *^® premises, and shall not deliver up the possessiotl at the time contained in such notice, he shall thenceforth ptjl double the former rent, for such time as he continues in possossioal IThe latter statute was passed inasmuch as the former (4 Geo. E)| y took in cases of the landlord giving notice to quit (a) : M statute 11 Geo. II. extends to cases of tenant giving notice andnotl quitting, and the double rent given by it may be distrained for, al well as sued for ; whilst the double value given by 4 Geo. II. cai| only be sued for, and such double value cannot be recovered nnM the holding over be wilful, and not under a mistake without a fail When not appii- and reasonable claim of title ; nor does the statute from its langnaJ apply to weekly tenancies, or it should seem, to tenancies from qwrj ter to quarter (6).] [A landlord may frequently find it advisable to avail himselfd hoiSuKtenante, Con. Stat c. 27, ss. 57, 58, 59 (c) ; under which, in case the tenl compeSed togive q^ interest of any tenant holding under a lease or agreement gl writing for any term or number of years certain, or from year i year, expires, or is determined by notice to quit, the landlord, cm action of ejectment, may, as pointed out in the act, obtain fromf court or judge an order that the tenant find security for the i and damages to be recovered in the action, and on default of giv When not appii- the Same then judgment; the act does not apply when the tenan[j{ cable. ig determined, not by expiry or efilux of time, but by forfeiture,! on right of re-entry by landlord for forfeiture on breach of con nants (d), nor to a parol lease, nor to a lease where the ternii uncertain as a lease for life (e).] By C!on. Stat. 9. [By Cou. Stat. c. 27 s. 63 and following sections, when a tenii ^51l!!!1?!IL»r*" after *1>6 expiry of his term wrongfully refuses, on demand A ceeding against ^ ^ ,. c • it. i ji j i x xi. certain tenants writing, to go out of posscssion, the landlord may apply to the con overhoiding. ^^ ^ Judge thereof, who, on a proper case made out as required I the statute, may order a writ to issue directed to a commissioner who thereon issues a precept to the sherifiT to summon twelve jun to inquire whether there was a tenancy for a term which has expin and whether tho tenant wrongfully refuses without right or color i| right to go out of possession. The subsequent proceedings pointed out by the statute, and are somewhat analogous to procei ings at nisiprius, and, on being returned to the court, the court (I a Judge may on consideration thereof issue a precept to thesheiifl (a) Richardson v. Langridge, Tad. Lg. Caaes, 9. (&) Woodf. Ld. & Ten. \c) Imp. Stat. 16 & 16 Vic, c. 76, s. 213 ; 1 Geo. IV., c. 87 ; Harr. G.l| P. Act, p. 486. (rf) Doe Cundy y. SharpUy, 15 M. & W., 558 ; Doe Ttndal v. Roe, 1 Dow.,^ C, 146. (e) Woodf. Land. & Ten., 8 ed. 828. or ESTATES LESS THAN VaEEHOLD. 07 [to place the landlord in possession. The statute does not apply towheanotappu- \ determination by forfeiture, as on right of reSntry for breach of **•**•• covenants (a) ; nor does it apply to a tenancy at will, as the statute speaks of a term (6). Mere non-payment of rent or breach of covenant by the tenant Right or r»«iitry does not determine the lease, unless there be a right reserved to the o?C5^'??S?°* landlord to reenter thereon; and even then so much does the law ^^^^h of cove- lean against forfeiture, that to determine a lease for forfeiture for °*°''' non-payment of rent great nicety exists, unless, as is now usual, the proviso for reentry dispenses therewith. Thus, 1. A demand must SMotnew nqni- I be made of the rent; 2. on the very day when due; 3. for thenrawS?? precise sum, a pennv more or less makes the demand bad; 4. a'^nt* convenient time berore sunset ; 5. on the land, and at the most notorious place on it; 6. and this though no one be on the land ready to pay. In one case (c) it was held a demand at half-past ten in the morning was too early, and not a good demand, as not being a convenient time before sunset; and Bramwell B. referred to Co. Litt. 202 a, where it is said the demand must be such a convenient I time just before sunset as to admit of t]tie money being numbered and received. To obviate the difficulties of such a demand, the proviso wheni^thepro- for reentry usually dispenses expressly with its necessity; and by the demwad'ui*^ Con. Stat c. 27 s. 51 (d) it is not req[uisite, in oases where half aJ^Jhin^nl'sto* year's rent is in arrear, and no sufficient distress is to be found on c. 27, a. si, mch' the premises countervailing the arrears then due, and the lessor has^^'JJH'^®' power to reeii' "^r for non-payment. The statute abo bars the tenant from relief in equity six months after execution, and points out the mode of relief and of staying proceedings by payment. There remains to be considered the summary remedy of ouster ofsamnn^nme- the overholding tenant by the landlord by force if necessary. There tlfnLit ' °' is no doubt that, on the determination of the tenant's interest, the landlord may enter and take possession, committing no breach of the peace , and this even though the tenant have not relinquished possession, and has some of his goods in the house, and the land- lord forcibly break open the outer door; but when the entry is forci- ble, and attended with circumstances amounting to a breach of the peace, the right of the landlord to expel the tenant has been denied, (e) but not by a unanimous judgment of the court ; and in a sub- sequent case (/) Parke B. thus expresses himself: ** The next point Thoaghacoompk- " was that raised in Newton v. Earlandj and if it were necessary M^iJ!ll!ShrfS« " to decide it, I should have no difficulty in saying that where a p<»<». *>«* " breach of the peace is committed by a freeholder, who, in order " to get into possession of his land, assaults a person wrongfully " having possession of it against 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 cannot] ^^t thoSghoot ______^.____^_____— _______^___ to cWil AOUOD. (a) In re McNab, 8 U. C. Q. B. 185. (6) Adnerant T. Shriver, T. T. 6 & 7 Wm. IV. ; R. & H. Dig. 263. (e) Acock* V. Phillipa, 6 H. & N. 183. (d) Imp. Stat. 15 & 16 Vio. 0. 76 ; 4 Geo. II. c. 28 ; Ear. C. L. P. Act 428. («) Newton v. Harland, 1 M. & Or. 644. (/) Harvey v. Bridget, 14 M. & W. 487. 7 98 OiMrdl«iit,tni» tMi, and has- bttdl Inddlnf : \ m ON ESTATES LESS THAN ntBEHOLD. \^* see how it is possible to doubt thnt it is a perfeotlv good justifies. *' tion to say that the plaintiff was in possession of the land agaimt " the will of the defendant, who was owner, and that he entered opot " it accordingly, even though in so doing a breach of the peace vn *t committed." The weight of opinion and authority are in faTolaw, 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. Kigtat of entry [It was a rulo at common law that a right of entry for breach of con- rommon law." ** dition Subsequent could only be reserved to the grantor and his hein, and not to a stranger ; and when reserved, it could not be assigned, the simplicity of the common law requiring that every man should assert his own right of entry or action. The consequence was that in the common case of a right of reentry reserved to a lessor and his heirs for non-payment of rent, or other cause, the assignee of the lessor could take no advantage of the clause of re-entry. This vas remedied 8 j far as regards grantees of reversions by 32 Hen. VIII, c. 84, under which they have the same benefit of a condition in case of a breach subsequent to the grant to them, as their grantors would have had, provided it relate to the payment of rent, the restriction from waste, or other like object tending to the benefit of the reversionary] (a) It will be seen in the next section that certain conditions are void u contrary to law ; a condition in restraint of marriage generally, which is the case put in the text, is within this rale as against public policy ; the conse- quence is, the grantee would hold the estate discharged of the condition, aa being a condition subsequent void in its creation ; Smith Rl. Prop, void con- ditions— 5co5J'^,g' for condition broken, but only relates to rights of entiy as on a dis- tio:i broken. tmn, &o- (<*) ' ^^^ consequence is, the right of an assignee to enter {for condition broken whilst assignee still rests on the statute of Henry (ft)-] In all these instances of limitations or conditions subsequent, it is orthe natm of to be observed that so long as the condition, either express or im-torNt!^^'''''' plied, either in deed or in law, remains unbroken, the grantee may have an estate of freehold, provided the estate upon which such condition is annexed be in itself of a freehold nature; as if the original grant express either ar. 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 uncertainty preserves the freehold; because the estate is capable 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 ut- I most a chattel interest, which must determine at a certain time, and I may determine sooner, (as 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, by such its uncertainty, ranked among estates of freehold. These express conditions, if they^ be impouibh at the time of con^^n* i>ow their creation, or afterwards become impossible by the act of Qod ot"° \ the act of the feoffor himself, or if they be contrary to law, or re- ifugnaiit (c) to the nature of the ei^te, are void. In any of which cases, if they be conditions tiuhteqvsntf that * is, to be performed after the estate is vested, the estate shall become absolute in the * 8.167. I tenant. As, if a feoffment be made to a man in fee-simple, on con- dition 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 I ironum 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 I the estate shall be vacated and determined : here the eondilion is Toid, and the estate made absolute in the feoffee. For he hath by the grant the estate vested in him, 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 grant to a man that, if he kills another or goes to Rome in a day, he shall have an estate in fee ; here, the void con- dition being precedent, the] estate which depends thereon is also Toid, and the grantee shall take nothing by the grant, for he hath no estate until the condition be performed. There are some estates defeasible upon condition subsequent, that require a more peculiar notice. Such are, (a) Sunt T. Bishop, 8 Ex. 676. (b) See farther post, b. 827 ; Sngden Ven. e. 16 b. 1, oh. 19. A statute was in force here, 12 Vio. c. 71, sinee repealed by 14 & 16 Vic. c. 7, which gave power to assign a right of entrj for condition broken, i. e., broken before assignment. (e) Brovn v. Stuart, 12 Q B. U. C. 610. II ■i I 104 UI. BaUtM held In pledge. Ftvum vadium, or llTiag pledge. Mortuumva- dium, or mort- * 8. 1S8. I m ■ ' - if • 1'^ If:: \ ON SSTATI8 UPON CONDITION. III. Estates held in vadio, in gage, or pledge, which are of two kinds, vivum vadium, or living pledge, and mortuum vadium, dead pledge, or mortgage. Vivum vadium, or living pledge, is vrhen a man borrows a sqiu (suppose j£200^ of another, and grants him an estate, as of 201. ptf annum, to hola till the rents and profits shall repay the sum so bor- roweu. This is an estate conditioned to be void so soon as suoli sum is raised. And in this case the land or pledge is said to be IW. ing ; it subsists and survives the debt, and, immediately on the dia. charge of that, results back to the borrower. [Oases of this kind are very unusual, and are known as Welsh mortgages] ; but mor. tuum vadium, a dead pledge, or mortgage, (which is much more common than the other,) is where a man borrows of another a speoifio sum, (e. g. 2001.) * and grants him an estate on condition that if he, the mortgagor, shall repay the mortgagee the said sum of 200/. on a certain day mentioned in the deed, that then the mortgagor may reenter on the estate so granted in pledge ; or, as is now the more usual way, that then the mortgagee shall reoonvey the estate to the mortgagor. In this case, 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. But, so long as it continues conditional, that is, between the time of lending the money and the time allotted for payment, the mortgagee is called tenant in mortgage. But as it was formerly a doubt whether, bj taking such estate in fee, it did not become liable to the wife's dower, and other incumbrances, of the mortgagee, (though that doubt has been long ago over-ruled by our courts of equity,) it therefore became usual to grant only a long term of years by way of mortgage, with condition to be void on payment of the mortgage- money ; which course has been since pretty generally continued [in England], principally because on the death of the mortgagee suoh term becomes vested, in his personal representatives, who alone are entitled in equity to receive the money lent, of whatever nature the mortgage may happen to be, [and this avoided the inconvenience in case of a mortgage in fee on the death of the mortgagee, in which case the real representative or heir was the person to reoonvey and Con. sut. e. 87. the personal representative the person to receive the money. In Upper Canada this inconvenience does not arise, as by Con. Stat. o. 87 the personal representative may reconvey though the mortgage were in fee, and the usual course is for a mortgagor to convey to the full extent of his interest in the lands]. As soon as the mortgage is created, the mortgagee may immedi- ately enter upon the lands, but is liable to be dispossessed upon per- formance of the condition by payment of the mortgage-money at the day limited. And therefore the usual way is to agree that the mortgagor shall hold the land till the day assigned for payment; when, in case of failure, whereby the estate becomes absolute; the mortgagee may enter upon it and take possession, without any pos- sibility at law of being afterwards evicted by the mortgagor, to whom the land is now for ever dead. But here again the courts of equity interpose; and, though a mortgage be Uios forfeited, and the ON ESTATES UPON CONDITION. 105 I 'estate absolutely vested in the mortgagee at the common law, yet *s.ifi9. Ithev will consider the real value of tne tenements compared with (the 8'ii° borrowed, and will allow the mortgagor to recall or redeem ■his estate, paying to the mortgagee his principal, interest, and ex- Ipenscs, for otherwise in strictness of law an estate worth £1000 IjDight be forfeited for non-payment of £100, or a less sum. [It is, Ihowever, provided bv Con. Stat. c. 88, s. 21 (post ch. 17) that theOon-^*"'. liDortgflgor shall not be entitled to redeem but within twenty years tion umi^T'^ Inezt aiter the time that the mortgagee shall obtain possession or 'receive rents, unless in the meantime an acknowledgment in writing ibal! have been given by the mortgagee of the right of the mort- (Tor, in which case the right to redeem is limited to twenty years Tom Buch acknowledgment]. This reas' able advantage, allowed mortgagors, is called the eguitjf of redemption : and this enables mortgagor to call on the * lortgagee, who has possession of his state, to deliver it back and account for the rents and profits re- leived, on payment of his whole debt and interest, thereby turning ;he mortuum into a kind of viuum vadium. But, on the other and, the mortgagee may either Jby aid of a court of equity, or un- Jer a power of sale (if any) in his mortgage,] compel the sale of the state, in order to get the whole of his money immediately ; or else ail upon the mortgagor to redeem his estate presently, or, in default ;hereof, to be for ever foreclosed from redeeming the same ; that is, lose his equity of redemption without possibility of recall. And 10; in some cases of fraudulent mortgagen (a) [as giving a second loAgage without disclosing the first], the fraudulent mortgagor for- feits all equity of redemption whatever. [By 7 Geo. II. o. 20, and Con. sut. c. 27, Stat. c. 27, ss. 74--75, the common law courts under certain wm^imes'*' M can biroumstances can exercise equitable power after forfeiture; thusJjJ^JJJ^JI*''"* |f DO suit be pending for foreclosure or redemption, and the mort- Bgee bring ejectment, the court in which the action is pending JDan stay the proceedings and compel the mortgagee to reconvey on payment of principal, interest, and costs, provided the right to redeem be not denied, or the amount with which the premises are chargeable]. [The other species of estates, those held by statute merchant and htatute stapUy have long been in disuse in England and were never ID use here, and therefore I pass on to subjects of more practical Importance, and for the same reason dismiss consideration of the estate by elegit, which is briefly referred to hereafter (ch. 21), and irhicb, though it subsists in England to the present day, is practi- cally unknown here]. (a) 4 & 6 W. & M. c. 16. I 106 or ESTATES IN POSSESSION, REMAINDER AMD REVERSION. CHAPTER XI. • 8.163. £it«tM in poi- teuton. il Eftate in r*. mainder. • B. 104. 1^ OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION. * Hitberto yre have eonsidered estates solely with regard to tbeit duration, or the quantity of interest whioh the owners have thereio. We are now to consider them in another view ; with regard to th« time of their enjoyment, when the actual pernancy of the profit) (that is, the taking, perception, or receipt, of the rents and oth«i advantages arising therefrom) begins. Estates, therefore, with respect to this consideration, may either be in possesaiun or is expectancy : and of expectancies there are two sorts ; one created by the acts of the parties, called a remainder; the other by aetof law, and called a reversion. I. Of estates in possession (which are sometimes called estates exeaited, whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstances or oontlB. gency as in the case of estates executory), there is little or nothiog peculiar to be observed. All the estates we have hitherto spoken (rf | are of this kind ; for, in laying down general rules, we usually appljf them to such estates as are then actually in the tenant's possession. I But the doctrine of estates in expeotancy contains some of the nicest and most abstruse learning m the English law. These irill therefore require a minute discussion, and demand some degree of attention. II. An estate, then, in remainder may be defined to be, an estate limited to take effect and be enjoyed after another estate is deter- mined. "'As if a man seised in fee-simple granteth lands to A. for twenty years, and, after the determination of the said term, then to B. and his heirs forever : here A. b tenant for years, remainder to B. in fee. In the first place, an estate for years is created and carved cut 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 afterwards, when added together, bsing equal only to one estate in fee. They are indeed different parts, but they constitute only one whole : they are carved out of one and the same inheritance : they are both created, and may both subsist, together ; the one in possession, the other in expectancy. So, if land be granted to A. for twenty years, and after the determination of the said term to B. for life ; and after the determination of B.'s estate for life, it be limited to 0. and his heirs forever : this makes A. tenant for years, with remainder to B. for life, remainder over to C. in fee. Now, here the estate of inheritance > or ISTATES IN FOSglSSION, RXMAIMDXR AND RXYERfilON. 107 • e. 166. Lndergocs a division into thre« portioni. There is firit A.'s estate for years carved out of it ; and after that B.'s estate for life ; and Iben tho whole that remains is limited to C. and his heirs. And bere also the first estate, and both the remainders, for life and in fee, are ono estate only ; being nothing but parts or i)ortions of one entire Koheritance : and if there were a hundred remainders, it would still be the same thing ; upon a principle grounded in mathematical itb, that all the parts are equal, and no more than equal, to the fbole. And hence also it is easy to collect, that no remainder can je limited after the grant of an estate in fee-simple; because a fee- jjmple ia the highest and largest estate that a subject is capable of leDJoyiDg ; and he that is tenant in fee hath in him the tehole of the lestate : a remainder, therefore, which is only a portion, or residuary \nart, of the estate, cannot be reserved after the whole is disposed of. U, particular estate, with all '*' the remainders expectant thereon, is looly one fee-simple ; as 40^. is part of 100/., and 60/. is the remain- Ida of it : wherefore, after a fee-simple once vested, there can no liDore be a remainder limited thereon, than after the whole 100/. is lippropriuted there can be any residue subsisting. I Thus much being premised, we shall be the better enabled to ruIm to tw eb- jcomprehend the rules that are laid down by law to be observed in JJ^'^iJi,*J***"*° Itbe creation of remainders, and the reasons upon which those rules ■are founded. 1. And, first, there must necessarily be some particular estate, some eitatapr*- Iprecedent to the estate in remainder. As, an estate for years to ^-t'j^^l^^^u. Iremaindcr to B. for life ; or, an estate for life to A., remainder to i. Id tail. This precedent estate is called the particular estate, as being only a small part, or particula, of the inheritance ; the residue lor remainder of which is granted over to another. The necessity of Icreatiog this preceding particular estate, in order to make a good Iremainder, arises from this plain reason ; that remainder is a relative [expression, and implies that some part of the thing is previously Idisposed of : for where the whole is conveyed at once, there cannot Ipossibly exist a remainder ; but the interest granted, whatever it be, |will be an estate in possession. An estate created to commence at a distant period of time, with- AnMt«t«offrM- lout any intervening estate, is therefore properly no remainder ; it is mraceaufattire Ithe whole of the gift, and not a residuary part. And such future SJ''°ni,^*^*inl ■estates [could at common law] only be made of chattel interests, esute, is do r«- Iwbich were considered in the light of mere controcts by the ancient Mt!id'not'^*»t I law, to be executed either now or hereafter, as the contracting common uw. parties should agree; but an estate of freehold must [except by coDvejance under the Statute of Uses, have been! created to com- jmeDce immediately. For it is an ancient rule of the common law, [that an estate of freehold cannot be created to commence infuturo; jbutit ought to toko effect presently, either in possession or remainder : because at * common law [before 14 & 15 Vic. c. 7, Con. Stat. C. 90] • g. lee. no freehold in lands could pass without livery of seisin ; which must operate either immediately, or not at all. [Another reason some- times assigned, was, that the freehold should not be placed in abey- ance, the doing which, inasmuch as certain real actions had to be brought against the tenant of the freehold, would have led to the] 108 or E6TATBB IN POS8K8SION, BKMAINDXR AND REVERSION. or ESTATES 1 [inconTeotenoe, whilst the freehold is in abeyance, of there being no tenant of the freehold against whom to bring the action : aud agaio if the freehold could have been placed in abeyance, there woulij have been no feudal tenant to perform the feudal duties]. It woulj therefore [have been] contradictory, if an estate, which was not to commence till thereafter, could [have been] granted by a cooTeT. Mice which import [ed] an immediate possession. TheroU)ro, though a lease to A. for seven yean, to commence from next Miohaelmas,!! good ; yet a conveyance [not operating under the Statute of Ubci] to B. of lands, to hold to nim and his heirs forever from the end of three years next ensuing, is void. 80 that when it is intended to grant an estate of freehold [independently of the Statute of Uses, but by way of remainder], wnereof the enjoyment shall be deferred till a future time, it is necessary to create a previous partionltt 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 ?Con, Stat. c. 90)] for the grantor to deliver immediate possession of tbe 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 ii 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 remainder-man is seised of his remainder at the same time that the termor is possessed of his term. The enjoj. ment of it must indeed bo deferred till hereafter; but it is to all intents and purposes au estate commencing in jpraeseati, though to be occupied and enjoyed %n futuro. • s. 166. [And here let me call the attention of the reader to the fact, that I TharuiM of law ^^ ^'^J frequently observe herein that a particular state of the law ■oaMUmeare- etill contiuues as law; although the grounds or reasons whereon it rMuom on which was originally founded, have by legislative enactment or othertrise footed hare ccased to cxist, and that the maxim " cessante ratione cessat et tpw lex," does not apply ; thus the principle on which it was first estab- lished that no freehold estate oould 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 Con. Stat. c. 90, corporeal hereditaments, so far as regards the immediate freehold thereof, lie in grant as well as in livery; and so independently even Und«r8t»tjrf of the aid of the Statute of Uses, to which I will presently allude, freSoid nn ba° lands can be conveyed without actual possession accompanying the cn^itiin/uturo. conveyance ; still the rule of law holds good as first established that no freehold estate can be created by deed to commence in futuro; whilst I say this, however, I must be "uaderstood as referring to a deed operating as a common law conveyance, by transmutation of possession, as a feoffment, or release (see s. 310), because it will be seen (s. 834) that by the aid of the Stat, of Uses an estate of free- hold can be created by deed, to take effect in futuro ; thus A., for sufficient consideration, can bargain and sell to B., to hold to him and his heirs 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.] or EHTATES IN P088X88ION, BEMAINDEB AND RKV£RiilON. lOU Ifiind his heint on such event or expiry. In tlioflc instances however [the estafo limited to B. and his heirs is granted and created as a [future r»tatc, by way of future use, to take effect on the happening [of the future event, the freehold in the meantime remaining in A. ; linJ when the event happens, the bargainor or covenantor holds for Itbe benefit or use of the bargainee or covenantee, and on this the litatute iiumediutcly execula the uat, and transfers to the latter the {legal estate in poBsession in fee simple ; such an estate is not limited lor created bjf way of remainder, and therefore its creation or exis- tence docs not conflict with the rules herein laid down as against remainders ; 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 fnagic effect of the statute supplies the place of livery of seisin, md the bargainee or covenantee is assumed to be in possession ; 333.] As DO remainder can be created without such a precedent particular What Mtote wui pstale, therefore the particular estate is said to support the remain- JJ^S^^,* ^ ]cr. But a lease at will is not held to be such a particular estate as rill support a remainder over. For an estate at will is of a nature I slender and precarious, that it is not looked upon as a portion of [be ioheritaoce; and a portion must first be taken out of it, in order constitute a remainder. Besides, if it be a freehold remainder, kvery of seisin must [at common law have been] given at the time If its creation ; and the entry of the grantor to do this determines |he estate ot will * in the very instant in which it is made ; or if the • g i^j^ emainder be a chattel interest, though perhaps the deed of creation Dight operate as & future contractf if the tenant for years be a party D it, yet it is void by way of remainder ; for it is a separate inde- pendent contract, distinct from the precedent estate at will; and [very retuaiudcr must be part of one and the same estate, out of ]rhich the preceding particular estate is taken. And hence it is Bnerally true, that if the particular estate is void in its creation, or f any means is defeated afterwards, the remainder supported thereby liall be defeated also : as where the particular estate is an estate for be life of a person not in eae; or an estate for life upon DoditioD, on breach of which condition the grantor enters and roids the estate. In either of these oases the remainder over is oid. 2. A second rule to be observed is this : that the remainder must The nnudndar ommence or pass out of the grantor at the time of the creation of^ton^J^"^ be particular estate. As, where there is an estate to A. for life, ttcuiwcitet*. [ith remainder to B. in fee : here B.'s remainder in fee passes from pe grantor at the same time that seisin is delivered [or conveyance kadej to A. of his life estate in possession. And it is this which jiduces the necessity at common law of livery of seisin being made ' the particular estate whenever a freehold remainder is created. [or, if it be limited even on an estate for years, it is necessary liat the lessee for years should have livery of seisin, in order to unvey the freehold from and out of the grantor, otherwise the kmainder is void. Not that the livery is necessary to strengthen be estate for years ; but, as livery of the land is requbite to con- 110 OE ESTATES IN POSSESSION, REMAINDER AND REVERSION. OF ESTATES • S. 108. Mnit TMt Id !l;;ia vey the freehold (a), and yet cannot be given to him in remaindetl without infringing the possession of the lessee for years, therefor I the law allows such livery, made to the tenant of the partioi^l estate, to relate and enure to him in remainder, as both are but ok I estate in law. I aum TMt ID * -^ '^*'^*^ ™^ wspeoting remainders is this : that the remaindal gfantM daring must vest in the grantee during t^e continuance of the particnlvl parUeniw'Mtato, cstate, or tfo instonti that it determines. As, if A. be tenant fot| f/^tMnS****** ^^^®' remainder to B. in tail : here B.'s remainder is vested in hinj "' at the creation of the particular estate to A. for life : or if A. td B. be tenants for their joint lives, rem'^inder to the survivor in fe*' here, though during their joint Ivadb Le remainder is vested it neither, yet on the death of either of them the remainder vests in. stantly in the survivor; wherefore both these are good remainden But, if an estate be limited to A. for life, remainder to the eldot son of B. in tail, and A. dies before B. hath any son ; here tlit remainder will be void, for it did not vest in any one during tlii continuance, nor at the determination, of the particular estate : ml even supposing that B. should afterwards have a son, he shall not take by this remainder ; for, as it did not vest at or before the egjj of the particular estate, it never can vest at all, but is gone for eTct, And this depends upon the principle before laid down, that the m cedent particular estate, and the remainder, are one estate in lavj they must therefore subsist and be in esse at one and the same i» etant of time, either during the continuance of the first estate, « at the very instant when that determines, so that no other estate in\ possibly come between them. For there can be no interveni estate between the particular estate and the remainder suppoi thereby : the thing supported must fall to the ground if once support be severed from it : [atid moreover en the death of A principle would again apply that the freehold should not be in a1 ance or suspense until B. should have a son]. It is upon these rules, but principally the third, that the dootrii of contingent remainders depends. For remainders are either vi or contingent. Vested remainders (or remainders executed, whei a present interest passes to the party, though to be enjoyed futuro) are where the estate is invariably fixed, to remain to a del minate person, after the * particular estate is spent. As if A. tenant for twenty years, remainder to B. in fee ; here B.'s is vested remainder, which nothing can defeat or set aside. Contingent or executory remainders (whereby no present inten passes) are where the estate in remainder is limited to take effei either to a dubious and uncertain person, or upon a dubious ai uncertain event ; so that the particular estate may chance to determined, and tb.e remainder never take effect. First, they may be limited to a dubious and uncertain pen As if A be tenant for life, with remainder to B's eldest son (thi unborn) in tail ; this is a contingent remainder, for it is unoerl whether B will have a son or no : but tho instant that a sop ia boi Vetted raaulB* den. • B. 169. Ofeoiitiiigent ortzecntoty remalndwi. I. Where the estate ta Umited to an uncertain rion— one an- (d) By Con. Stat. o. 90 the immediate freehold of lands now lies in gruii well as in liver/. or ESTATES IN POSSESSION, REMAINDEE AND BEVERSIOT. Ill • 8. 170. the remainder is no longer contingent, bat vested. Though, if A had died before the contingency happened, that is, before B's son ^ born, the remainder would hare been absolutely gone ; for the particular estate was determined before the remainder could vest. l^y> by ^^^ Bind rule of law, if A were tenant for life, remainder to his own eldest son in tail, and A died without issue born, but leaving his wife enceiiUe, ot big with child, and after his death a posthumous son was born, this son could not take the land, by virtue of this remainder; for the particular estate determined before there I was acy person in esse, in whom the remainder could vest. But, to I remedy this hardship, it is enacted by statute 10 & 11 Wm. III. o. 1 16, that posthumous children shall be capable of taking in remainder, i in the same manner as if they had been born in their father's life- time : that is, the remainder is allowed to vest in them, while yet in their mother's womb. This species of contingent remainders to a person not in being, Must be j)oe«nainder to the heirs of B ; now, if A dies before B, the remainder I is at an end j for during B's life he has no heiVf nemo est haeres ImentiB : but if B dies first, the remainder then immediately vests [in his heir, who will be entitled to the land on the death of A. n!his is a good contingent remainder, for the possibility of B's dying [before A is potentia propinqutt, and therefore allowed in law. But i remainder to the right heira of B (if there be no such person as ^ in este) is void. For here there must two contingencies happen : Brst, that such a person as B shall be bom ; and, secondly, that he jihall also die during the eontinttance of the particular estate ; which Bake it potentia remotissima, a most improbable possibility. A emainder to a man's eldest son, who hath none (we have seen) is Dd, for by common possibility he may have one ; but if it be lited in particular to his son John, or Bichard, it is bad, if he Itave DO son of that name ; for it is too remote a possibility that he jthottld not only have a son, but a son of a particular name. Thus nay a remainder be contingent, on account of the uncertainty of the trton who is to take it. A remainder may also be contingent, where the person to whom s. Wh«re th« St is limited is fixed and certain, but the event upon which it is to ^certiiiu. lake effect is vague and uncertain. As, where land is given to A tor life, and in case B survives him, then with remainder to B in lee : here B is a certain person, but the remainder to him is a con- tingent remainder, depending upon a dubious event, the uncertainty T)f his surviving A. During the joint lives of A and B it is contin- gent ; and if B dies first, it never can vest in his heirs, but is for per gone ; but if A dies first, the remainder to B becomes vested. I [It is to be observed, however, that if there be no uncertainty iniftheMnonand pe person or event on which the remainder itself is limited, the JJ^^uJ*,^*^"* Inere uncertainty, whether it will ever take efiect in potsession is of aetoai e^joy- not sufficient to give it the character of a contingent remainder. 1^°,^ tt»°* Hius in the case of a lease to A. for life, remainder to B. for life, renuiBdw Mug Ihe limitation of the remainder if to a person in being, and ascer-] '**''>*^^'* ■ I "il I. vn less than freehold. Defeated by ."■* 1', h: :' i s 112 OF ESTATES IN POSSESSION, REMAINDER AND REVERSIOK. rtained, and the event on whioh it is limited is certain, viz., tie determination of A's. estate ; it is therefore a vested and not a con. I tingent remainder ; and yet it may never take effect in possession because B. may die before A. : nor would it make any difference i| i the estate sranted to A. were in tail instead of for life, for snch estate is still a particular estate, and the law will not assume that it will not come to an end in B's. lifetime ; and on the determinatiot of that particular estate, B. is predetermined on as the persoo to | whom the estate shall go (a)]. * s. 171. * Contingent remainders of either kind, if they amount to nfrtt. I cannot teHmited^o?^) cannot be limited on an estate for years, or any other particular estate, less than a freehold. Thus if land be granted to A. for t«a years, with remainder in fee to the right heirs of B., this remainder is void : but if granted to A. for life, with a like remainder, it ji good. For, unless the freehold passes out of the grantor at the time when the remainder is created, such freehold remainder ij 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 it can vest no where : unless therefore the estate of sucli particular tenant be of a freehold nature, the freehold cannot vestio| him, and consequently the remainder is void. Contingent rei^'iainders may be defeated, by destroying or deter- 1 PMticubtf'eBtate. "^^"•''o '^® particular estate upon which they depend, before the contingency happens whereby they become vested. Therefore wheo there is tenant for life, with divers remainders in contingency, he I may, not only by his death, but by alienation, surrender, or other! methods, destroy and determine his own life-estate, before any otl those remainders vest; the consequence of which is that he utteiljl defeats them all. As, if there be tenant for life, with remainder to I his eldest son unborn in tail [with remainder to A. in fee], and the tenant for life, before any son is born, surrenders his life-estate [tol A.], he by that means defeats the remainder in tail to his son : tori bis son not being in esse, when the particular estate determined, i remainder could not then vest ; and, as it could not vest then, hji the rules before laid down, it never can vest at all. In these casesi therefore it is necessary to have trustees appointed to preserve the I contingent remainders ; in whom there is vested an estate ial remainder for the life of the tenant for life, to commence when hiil estate determines. If therefore his estate for life determines otberl wise than by his death, the estate of the trustees, for the residue ofl his natural life, will then take effect and become a particular esvm in possession, sufficient to support the remainders depending ill contingency. [A strict settlement is framed with regard to the above ; thiu,| lands are limited to A. for life, with remainder to trustees, dutinJ the life of A., to take effect immediately on the determination, ill A's. life-time, of that estate, by surrender or otherwise, with remaiof ders afler the death of A., to his first and other sons successively iDl tail male. When an ostate is thus settled, the father cannot defettl his sons' estates, nor can any son, during the father's life-time, eveD]! OP ESTATES Trustees to support contin- gent nmainden. Strict settle- ment. (a) Stephen Com. 382. OF ESTATES IN POSSESSION, fiEMAlNDER AND BEVBRSION. 113 fwhen of age, do more tban defeat his own issue ; but the son first entitled in tail can, when of age, with the cor mrrence of the father, and after his death when tenant in tail in possession, defeat the fhole Bettlcment and convey in fee; the mode of which is explained eh. 22. I may here explain Oon. Stat. o. 90, 8. 6, which enacts that Con. sut. 90, o.o. g contingent remainder which existed between 80th May, 1849, and 2nd August, 1851, shall be deemed to have been capable of taking effect, notwithstanding the determination by forfeiture, surrender, or merger of any preceding estate of freehold. It will be seen that during the period named in the act, the above rule which requires that a contingent remainder should vest immediately on determina- tion of the particular estate was suspended ; and that in the case above put, there would no necessity for trustees to rapport the con- tingent remainders, as they would take effect notwithstanding the destruction of the particular estate by other means than in its natnral course ; this arises from an act to that effect, 12 Vic. c. 71, having been passed, which was repealed by a subsequent act 14 & 15 Vie. c. 7 ; the period named in the Con. Stat., is that which intervened between the coming into force of the two other statutes respectively.] * In devises by last will and testament (to which more latitude • s. 172. is given than to deeds, on the supposition that the devisor may be ^ecutofydeTiw hops consilii\ remainders may be created in come measure contrary to the rules above laid down, though our lawyers will not allow such dispositions to be strictly remainders, but call them, by another name, that of executory devises, or devises hereafter to be executed. An executory devise of lands is such a disposition of them by will that thereby no estate vests at the death of the devisor, but only on some future contingency. It differs from a remainder in three very material points : — 1. That it needs not any ^particular estate to support it. 2. That by it a fee-simple, or other less estate, may be limited after a fee simple. 3. That by this means a remainder may be limited of a chattel interest, after a particular estate for life created Of fatnn «8tat«. in the same. 1. The first case happens when a man devises a future estate to needs not any arise upon a contingency j and till that contingency happens, does^^p^j^^** not dispose of the fee-simple but leaves it to descend to his heir-at- law. As if one devises land to a feme-sole and her heirs, upon her day of marriage : here is in effect a contingent remainder, without any particular estate to support it ; a freehold commencing in /uturo. This limitation, though it would be void in a deed [operating only as at common law], yet is good in a will, by way of executory devise. For, since by a devise a freehold may pass without corporal tradition , or livery of seisin (as it must do if it passes at all), therefore it may commence tn/u/uro / because the principal reason why it cannot commence in/uturo in other cases, is the necessity [which existed at common law] of actual seisin, which always operates in prsesenti. and since it may thus commence in /uturo, there is no need of a particular estate to support it ; the only use of which is to make the remainder, by its unity with the present estate, a present interest. 2. By executory devise, a fee simple or other less estate may be limited after a fee ; and this happens where a devisor devises his 8 • 8. 178. 114 01 ESTATES IN POSSESSION| REMAINDER AND REVERSION. m A fM may be limitod on a fee. ♦ 8. 174. Unless the Umi' tation create a perpetuity. Term of years irhole estate in fee bat limits a remainder thereon to commence on a future contingency. As if a man devises land to A. and his beirg- but if he dies before the age of twenty-one, then to B. and his heirs ' this remainder, though void in a deed [operating only at commot law, and not under the Statute of Uses, by way of shifting use (a)], is good by way of executory devise. But in both these species of executory devises, the contingencies ought to be such as may happen within a reasonable time ; as within one or more life of lives in being, or within a mode*rate term of years, for courts of justict will not indulge even wills, so as to create a perpetuity, which the law abhors ; because by perpetuities, (or the settlement of an inte. rest which shall go in the succession prescribed, without any power of alienation), estates are made incapable of answering those ends of social commerce, and providing for the sudden contingencies of private life, for which property was at first established. The utmost length that has been hitherto allowed for the contingency of an executory devise of either kind to happen in, is that of a life oi lives in being, and one-and-twenty years afterwards. As when lands are devised to such unborn son of a feme-covert, as shall first attain the age of twenty-one, and his heirs ; the utmost length of time that can happen before the estate can vest, is the life of the mother and the subsequent infancy of her son : and this hath been decreed to be a good executory devise (b). 3. By executory devise, a term of years may be given to one nan MtotefoHife"" fo"^ ^^s li^«» ^^^ afterwards limited over in remainder to another, created in the which oould uot be dono by deed ; for by law the first grant of I it, to a man for life, was a total disposition of the whole term ; a life estate being esteemed of a higher and larger nature than an; Bestraint against term of years : yet, in order to prevent the danger of perpetuities, it was settled, that though by devise such remainders may be limited to as many persons successively as the devisor thinks proper, yet they must all be *in es«e during the life of the first devisee, for then all the candles are lighted and are consuming together, and the ultimate remainder is in reality only to that remainder-man who happens to survive the rest : and it was also settled that sucli remainder may not be limited to take effect, unless upon such con* tingency as must happen (if at all) during the life of the first devisee. [This important rule against perpetuities requires some further explanation beyond that given by the learned commentator, as since he wrote, the leading case of Cadell v. Palmer (c) was decided j Id Termor 21 years that casc it was sctUed that by executoiy devise a term of twenty- Htm in being One ycars, to take effect after the expiry of lives in being, need not to m?nojrity '*"** ^^^® *°y reference to the minority of any person, but may inde- daring which peudently thereof be created as a term in gross, during which there ^"resting?/ th^ ™t^7 ^6 ^ suspenso in vesting of the ultimate interest ; thus, not ultimate fiiterest. only as in the instance above taken by Blackstone, may lands be] (a) Pott S. 884, Shifting Uses. (6) See^o«^, S. 176, the rale against perpetuities more falljr ezplaiaecl, and it will be seen, does not so limit as stated in the text, (e) 10 Bing. 140 ; Tador's Lg. oases, 860 ; 1 CI. & Finn. 872. same. perpetuities. • S. 176. Rule against perpetuities considered. OF ESTATES IN POSSESSION, REMAINDER AND REVERSION. 115 :or, as since fdevised to such unborn son of Vkfeme covert as shall first attain the age of twenty-one, which would be a limitation with reference to minority ; but lands may be so devised, that there may be in the gnit place an estate in fee given to Z. and bis heirs, with an nltimate limitation over in fee, in defeasance of the prior estate in fee to such person (if any) as at the end of twenty-one years from the expiry of any number of named lives in being shall answer the description of heir of the body of any named person in being ; assume Z. to be the person to whom the first estate in fee is devised, ^, to be the person named in favor of whose issue the ultimate limitation over in fee is made (who may be unmarried or an infant instance of. eri, ventre sa mere), and that the lives in being taken as those which are to expire before the term of twenty-one years shall begin are those of A., B. and C. ; now it is manifest that till death of A., B. and Cm ^°*^ ^^^ expiry of twenty-one years afterwards, the ultimate limitation cannot absolutely take efiect, or the interest created by it vest in any one ; because till then it is uncertain who among all the issue (if any) of A. will at auch time be the heir of his body, and this by reason of the possibility of the death of the heir apparent, or of all the issue, before the expiry of the term ; now, if on death of the testator, A. were en ventre sa mere (in which event he is as decided in the above case, as far as regards the rule in question, to be deemed in esse), and he lived to the age of seventy, and lefb surviving him and B. and C. as his issue two sons, the eldest of whom should just before the expiry of the term of twenty-onq years die, leaving a son on such expiry en ventre sa mere, and there- fore in esse ; here would be a case in which practically the property would be tied up, and not indefeasihly alienable in fee by any one J^^Jj^^^JJj^® for over 100 years from the death of the testator : for, till the expiry property may be of the term, as it is uncertain whether the estate given to Z. may **** "P" not be defeated, he and his heirs can convey only a de/easihie estate ; and as far as regards the estate to take effect in defeasance of the prior estate, that is incapable of being released to Z. and his heirs, or of being conveyed to others; first, during the period of gestation of A. (assume six months) ; then his lifetime and the concurrent lives of B. and C. (70 years) ; follows now the term of twenty-one years; then the period of gestation of A/s grandson (assume six months) ; and although on the expiry of the term the ultimate limitation will take effect, and the fee vest absolutely in the grandson in the mother's womb in defeasance of the prior estate, still practi- cally a further period of twenty-one years after birth must be allowed for the minority of the grandson, during which, as an infant, he cannot convey, or rather perhaps can convey only an estate whicbj on attaining majority, he could avoid.] [It frequently happens that the rule against perpetuities is ex- Different exprm- pressed; first, as prohibiting the rendering property inalienuhle for J|*'^gp'^hibuw a longer period than lives in being, and twenty-one years afterwards ; rendering propep. sometimes, secondly, as prohibiting the creation of an interest which fong°e'M£rn1»T*!^8 is to be in suspense, and incapable of vesting for longer than such *" »»«ng«nd 21 period ; thus preventing the possibility of a conveyance in the mean- 2.^i«ohibiiin{. time of an indefeasible fee-simple. Now, the first mode of expres-J^^JJ,," "^"f,, ,3 sioQ conveys the full effect of the rule, if you look onli/ at the first] to be in Ba«p«nse 116 OF ESTATES IN POSSESSION, REMAINDER AND REVERSION. and incapable of [estate ID fee; for, witbin the lives in being and the term of twenty- than°ucKriod' °^^ y®"" ^^^^> ^^°^ ®'''**® ""**' ^^^^^^ ^® defeated altogether, or become an inde/eatible estate in fee, and as such, in the latter case capable, after the prescribed limit, of being aliened, as any other fee-simple absolute ; and all restraint to be imposed by a testator on the possibility of capacity so to alien afler such time the theretofore defeasible estate, is forbidden by the rule : so also when Blackstone wrote that the contingency on which an executory devise must take effect, should be *' within one or more life or lives in being, or witbin " a moderate term of years," such first mode of expression* also conveyed the full effect of the rule as then understood (a) ; and the estate would be alienable indefeasibly on the expiry of the lives, and the attaining majority, within at least twenty-one years after, of the parties ultimately benefited. But, after it was settled that to the lives in being might be added, as a term in gross, without reference to any minority, a period of twenty-one yeaifi; and when regardin? not exclusively the first estate in fee, but the second also ; then the second mode of expression, for practical purposes at least, wonld appear to convey more complete information than the first: thug, although in the instance above put, of the estate vesting in the infant grandson of A., it is in one sense theoretically true that the property is in la\7 not absolutely inalienable beyond the lives of A., B. and C, and the term of twenty-one years, inasmuch as an infant is not incapable of conveying during minority ; still, practically, and for the very purposes on which the rule is based, viz., the allowing power indefeaiibly to dispose of property free and unfet- tered, the estate is inalienable during the minority of the infant, few would ventnre to purchase from him when on attaining as Period fixed by nualogy to the time witbin which strict Mttlement could be dtffeftted. m majority he might defeat the conveyance ; moreover, in the case put there is in the infant's life a period during which he must be physically as well as mentally incapable of contracting.] [The period of lives in being and twenty-one years after, seems to have been fixed on by analogy to the time on expiry whereof, after the decision in Taltarum's case, the then most permanent mode of | settling, viz., by way of strict settlement, could be defeated; and which, as hereafter explained (6), would be under any circumstances DO later than the life of the first taker (the tenant for life), and the attaining majority of the tenant in tail next in remainder, who could then suffer a recovery. It will thus be seen that the effect of being allowed to add by executory devise to lives in being a term in gross, without reference to minority, during which there may be a suspense in vesting is, that by executory devise property may be tied up for a longer period than by an ordinary strict settlement inter partes. [IBefore concluding I may add that the decision inCadellv. Palmr I and the above observations equally apply to limitations by way of equaiijVaiM '117 springing use, and that limitations not too remote by way of execu- way of springing jqj.^ dcviso would also uot be too remote when created by way of springing use (c).] (a) Whether Blackstone and others so understood the rule, see arguendo, ■Cadell v. Palmer, Tudor Lg. Cases, 878, 887. (i) Post oh. 22. (c) Post s. 834, as to Springing uses. Limitation* not too remote by executory devise way use. OF ESTATES IN POSSESSION, REMAINDER AND REVERSION. 117 fl may also remark before leaving the subject of contingent and Oontins«nt executory interests, that in the time of Blapkstone they were notJ|J^g"abie»*tUw- awignable at law to strangers (a) ; but the right might be released to the terre-tenant or reversioner (6), as tending to render unim< paired subsisting vested estates. Such interests were also devisable b°\^^'^ U will under the Statute of Wills (c) ; bo also were possibilities **** "' if coupled with an interest, or the person to be benefited were ascertained (d). An assignment on sufficient consideration was also AgMgnment en- enforced inequity; not, however, so much as a valid conveyance f'"^<»d''»«^«>"y' of the subject matter thereof, but rather as a contract to convey and jgake good the contract ; and though such interests were not strictly assignable at law, the assignee might yet at law be bound by estoppel, as on a fine or recovery, or even it would seem by indenture (e) ; but now valid at law now these interests are by statute (Con. Stat. o. 90) capable of being ^y ^^- ^^ "• *'• conveyed at law, of which more hereafter (/)]. Thus much for such estates in expectancy, as are created by the express words pf the parties themselves; the most intricate title in the law. There is yet another species, which is created by the act and operation of the law itself, and this is called a reversion. III. An estate in reversion is the residue of an estate left in the Estates la i«Ter- grantor, to commence in possession after the determination of some ^*°'*- particular estate granted out by him. Sir Edward Coke describes a reversion to be the returning of land to the grantor or his heirs < after the grant is over. As, if there be a grant in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law : and so also the reversion, after an estate for life, years, or at will, continues in the lessor. For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, what- ever is not so granted remains in him. A reversion is never there- fore created by deed or writing, but arises from construction of law ; a remainder can never be limited, unless by either deed or devise. The doctrine of reversions is plainly derived from the feodal con- of the origin and stitution (g); for when a feud was granted to a man for life, or tOgj*|,"g™**'"'*'^' him and his isssue male, rendering either rent or other services, then, on bis death, or the failure of issue male, the feud was determined, and resulted back to the * lord or proprietor, to be again disposed • s. i7o. of at his pleasure. And hence the usual incidents to reversions are said to be fealti/ and rent. When no rent is reserved on the par- ticular estate, fealty however results of course, as an incident quite inseparable, and may be demanded as a badge of tenure, or acknow- ledgment of superiority ; being frequently the only evidence that the lands are holden at all, "Where rent is reserved, it is also inci- dent, though not inseparably so, to the reversion. The rent may be granted away, reserving the reversion ; and the reversion may be granted away, reserving the rent, by special words, but by a general ' grant of the reversion the rent will pass with it, as incident there- unto; though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but (a) S. 290. (6) 10 Rep. 48 a. b.; Wms. Rl. Prop. 210. (c) Roe dem. Perry v. Jones, 1 H. Bl. 30. (t?) Shelford's Statutes, 315. («) Smith Rl. and Pers. Prop. 697. (/) Post s. 290. (g) Ante s. 46, 56. 118 OF ESTATES IN POSSESSION, REMAINDER AND REVERSION. i;^ a reversion. Con. Stat. c. 82. • S. 177. not e converso : for the maxim of law is, " accessortum non ducit " sed gequitur, suum ptinctpale." ' What coBBtJtutM These incidental rights of the reversioner, and the respective modes of descent in which remainders very freauently differ fVoo) reversions, have occasioned the law to be oarefui in distingaisbint the one from the other, however inaccurately the parties themseWeB may describe them. For [prior to the statute 4 Wm. IV. o. 1] if one, seised of a paternal estate in fee, made a lease for life, with remainder to himself and his heirs, this is properly a mere reversion, to which rent and fealty [were] incident, and which only descended to the heirs of his father s blood, and not to his heirs in general, at a remainder limited to him by a third person would have done ; for it is the old estate, which was originally in him, and never yet was out of him (a). [But now by the statute above named. Con. Stat. c. 82, s. 5, " When any land ohall have been limited by any assurance " executed after 1st July, 1884, to the person, or to the heirs of tbe " person who shall thereby have conveyed the same land, such per- " son shall be considered to have acquired the same as a purchaser, by " virtue of such assurance, and shall not be considered to be entitled " thereto as of his former estate, or part thereof (&)]. And so like- wise, if a man grants a lease for life to A., reserving rent, with reversion to B. and his heirs, B. hath a remainder descendible to his heirs general, and not a reversion to which the rent is incident ; but the grantor shall be entitled to the rent during the continuance of A/s estate *In order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudn- lent concealments of their deaths, it is enacted by the statute 6 Ann. c. 18, that all persons on whose lives any lands or tenements are holden, shall (upon application to the Court of Chancery and order made thereupon) once in every year, if required, be produced to the court, or its commissioners ; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements till the party shall appear to be living. Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any inter- mediate estate, the less is immediately annihilated ; or, in tbe law Merger of less phrase, is Said to be merged, that is, sunk or drowned, in the greater. *"*^"**'Thus, if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, for in case he surrender his term to the reversioner; in ei^er case], the term of years is merged in the inheritance, and shall never exist any more (c). But they must come to one and the same person in one and tbe same right; Must meet In the else, if the freehold be in his own right, and he has a term in right same right. Qf another (en aufer droit) there is no merger. Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge ; for he hath the fee in his own right, and the term (a) Post 8. aw. (b) See post ch. 14. (c) Ante s. 42, as to the rent reserved on a sab-lease, iind the effect of the merger as regards the sab-lessee in suoh case. or ESTATES IN P08SISSI0N, EIHAINDER AND RXYIRSION. 119 • 8. 178. of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the teoant for years, there is no merger ; for he hath the inheritance in his own right, the lease in the right of his wife. An estate-tail isExeeptionuto an exception to this rule : for a man may have in his own right both JJuStiS'iSd an estate-tail and a reversion in fee; and the estate-tail, though areTentoninCw less estate, shall not merge in the fee. For estates-tail are protected ™'**' and preserved from merger by the operation and construction, though not by the express words, of the statute de donis : which deration and construction have* probably arisen upon this consi- deration ; that, in the common oases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion ; there- fore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate. Bat, in an estate-tail, the case is otherwise : the tenant for a long time had no power at all over it, so as to bar or to destroy it ; and DOW can only do it b^ certain special modes (a) : it would therefore have been strangely improvident, to have permitted the tenant in tail, by parchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue : and hence it has become a maxim, that a tenancy in tail, which cannot be surren- dered, cannot also be merged in the fee. [The result of a merger in oases of mortgage, when the owner of the legal estate acquires the equity of redemption, and the effect of Cods. Stat. o. 21, is considered hereafter.] [There is a matter of considerable practical importance which reqoires attention, on purchase of reversionary interests and on dealings with expectant heirs; for a court of equity will relieve Purchaser of re- reversiouers and expectant heirs from a disadvantageous bargain ; rea»onaw"Tahi^e^ on the principle that persons standing in that position need protec-°>^8^e«iii^B«t tion 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 pres- sure, and in difficulties. The principle and policy of the rule have been questioned : but without stopping to enquire how far, merely by reason of the interest sold being in reversion, it may be reason- able to allow an exception to be made in favor of the vendor (not being an expectant heir) in any case where under the same circum- stances he would be held to his bargain if the interest he had sold had been one in possession ; the general rule seems to be settled that it is incumbent on the purchaser to shew on bill filed to rescind the transaction, that it was reasonable, or the price given adequate or reasonable, if not the full value : I cannot here enter into the question as to what would be considered a reasonable transaction or adequate price, and moreover each case must depend much on its own circumstances : the subject is also fully discussed elsewhere (6). The rule under consideration applies in Canada (c)]. (a) Ch. 22. (6) Earl of Chetter field v. Jannsen, I W. &T., Lg. Gases, 428. (c) Morey v. Totten, 6 Grant, 176. 'iH 120 or K8TATES IN SEVERALTY JOINT-TENANCY, CHAPTER XII. OF ESTATES IN SEVERALTY", JOINT- TENANCY, COPARCENARY, AND COMMON. ♦ 8. 179. I. Of MtatM In MToraltf. I-I By Con. Stat. c. 82, 8. 10, two or * more f^vntees, Ac, iaken as tea ante in common. IT. Of estates In Join^tenancy. • S. 180. ii'- '( *We now come to treat of estates, with respect to the number and connexions of their owners, the tenants who oooupj and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or oxpectaDoy, may be held in four different ways : in severalty, in joint-tenancy, in coparcenary, and in common. I. He that holds lands or tenements in Mveralti/, or is sole tenant thereof, is he that holds them in his own right only, without anj 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 we may make the same obsent* tions here, that we did upon estates in possession, as oontradistic guished from those in expectancy, in the preceding chapter; that there is little or nothing peculiar to be remark'^d concerning it, since all estates are supposed to be of this sort, unless where they an expressly declared to be otherwise ; and that in laying down genenl rules and doctrines, we usually apply them to such estates as are held in severalty. 1 shall therefore proceed to consider the oth«i three species of estates, in which there is always a plurality of tenants. [I may mention at the outset, that with us, so far as regards the creation of estates in joint tenancy and tenancy in common, in one respect a different rule prevails from that existing at common law, of which Mr. Justice Blackstone speaks ; for since the Ist July, 1834, two or more grantees or devisees taking together, will be deemed to take as tenants in common, and not as joint tenants, unless an intention sufficiently appear on the face of the instrument under which they take, that they shall take as joint tenants (Con. Stat c. 82, s. 10) ; 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 office, that the estates should vest in the survivor only]. *II. An estate in joint-tenancy is whore lands or tenements are granted to two or more persons [as joint tenants], 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 some- times an estate m jointure, which word, as well as the other, signifies a union or conjunction of interest ; though in common speech the iQvm jointure is now usually connned to that joint estate, which, by virtue of the statute 27 Hen. VIII. c. 10, [may be] vested in the COPAB0XNAB7| AMD COMMON. 121 bosband and wife before marriage, as a full satisfaction and bar of the woman's dower (a). Id onfoldinff this title, and the two remaining ones, in the presoLt chapter, we will first enquire how these estates may be created ; next, iheit properliea and respective incidtnU; and lastly, how they may be ttvered or deatroyed. 1, The creation of an estate in joint'tenanoy, depends on the i. The creation wording of the deed or devise, by which the tenants claim title : for J^'^ndJ^^Ji,, thU estate can only arise by purchase or crant, that is, by the act of wording of the the parties, and never by the mere act of Taw. Now, if [prior to the *"*™^'' • proTiDoial statute referred to] an estate [werel ^ven to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate [were] sranted 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 creating an eaual 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, 2- its prapertiM which is fourfold ; the unity of intere$t, the unity of title, the unity ?rom— '"*^ oUime, and the unity of poaaeasion j or, in other words, joint tenants hare one and the same interest, accruing by one and the same ooDTeyance, commencing at one and the same time, and held by one and the same undivided possession. *First, they must have one and the same interest. One joint- * s. isi. tenant cannot be entitled to one period of duration or quantity oivaitj of intenti; interest in lands, and the other to a different; one cannot be tenant for life, and the other for years ; one cannot be tenant in fee, and the othar in tail. But if land [was] limited to A. and B. for thoir lives, this [|made] them joint tenants of the freehold ; if to A. and B. and their heirs, joint-tenants of the inheritance. If land [was] granted to A. and B. for their lives, and to the heirs of A., here A. and B. [were] joint-tenants of the freehold during their respective ives, and A. [had] the remainder of the fee in severalty : or if land werel given to A. and B., and the heirs of the body of A. ; here ioth [had] a joint estate for I'fe, and A. a several remainder in tail. Secondly, joint-tenants must also have a unity of ^tWe; their estate unity of »u«; must be created by one and the same act, whether legal or illegal ; as by one and the same grant, or by one and the same disseisin. Joint-tenancy 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 destroy the jointure. Thirdly, there unity of «»««; must also be an unity of time; their estates must be vested at one ^^^ and the same period, 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 remainder. But if, after a lease for life, the remainder be limited to the heirs of A. 1 (a) See S. 187. 139 or ESTATES IN SEVERALTY, JOINT-TENANCY, Unity of jMUW- tion. and B. ; and during the continuance of the particular estate A. dim, which vests the remainder of one moiety in his hoir : 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 remainder, but tenants in common ; for one moiety vested at one time, and the * s. 183. other moiety vested at another. "* Yet where a feoffment was made to the use of a man, and such wife as he should afterwards marn, for term of their lives, 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 u:ie of the wife's estate was in abeyance and dormant till the intermarriage; and, being then awakened, had relation back, and took effect from the original time of creation. [The doctrine as to unity of time seems to be confined to limitations at common law, for under the Statute of Uses, as in the case lost above, and under wills, by analogj to the decisions under the Statute of Uses, persons may take u joint tenants, though at different times (a).] Lastly, in joint-tenancy there must be a unity of possession. Joint-tenants are said to be seised per my et per tout, oy the half or moiety, and by all : that is, they each of tnem have the entire possession, as well of ever; parcel as of the whole. They have not, one of them, a seisin of one naif or moiety, and the other of the other moiety ; neither san one be cxclusivr'jT seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety. And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common; for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout et non per my : the consequence of which is, that neither the hi'"band nor the wife can dispose of any part without the assent of the oiner, but the whole must remain to the survivor. Upon these principles, of a thorough and intimate union of interest and possession, depend many other consequences and inci> dents to the joint tenant's-estate. If two joint-tenants let a verbal lease of their land, res<^rving rent to be paid to one of them, it shall enure to both, in respect of the joint-reversion. If their lessee surrenders his lease 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- tenant cannot sue or be sued without joining the other. But if two or more joint-tenants be seised of an advowson, and they present different clerks, the bishop may refuse to admit either : because neither joint-tenant hath a several right of patronage, but each is * s. 183 seised of *the whole ; and if they do not both agree within six months, the right of presentation shall lapse. But the ordinary may, if he pleases, admit a clerk presented by either, for the good of the church, that divine service may be regularly performed ; which is no more than he otherwise would be entitled to do, in case their (a) Morley v. Bird, Tad. Lg. Cases, 788. ConrnqnenoM of and Incidents. Mi OOPAROENARY, AND COMMON. 128 disagreement continued, bo ci to incur a lapse : and, if the dork of one joint tenant bo so admitted, this shall keep up tho titlo in both of them ; in respect of the privity and union of their estate. Upon the same ground it is held, that one joint-tenant cannot have an action against another for trespass, in respect of his Innd ; for each baa an equal right to enter on any part of it (a). But one joint- tenant is not capable by himself to do any act, which may tend to defeat or injure tho estate of the other (b), as to let leases (c) : and if gov waste bo done, which tends to the aestruotion of the inheritance, one joint-tenant may have an action of waste against tho other, by construction of the statute Westm. 2, c. 22. So, too, though at common law no action of account luy for one joint-tenant against another, unless he had constituted nim his bailiff or receiver, yet Qow by the statute 4 Ann. o. 16, 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 (d) ; [and a court of equity also has jurisdiction to compel an account. Again Xcoonnt and in cases of ouster by one joint-tenant of the other, the tenant ousted ^•**"'*''* "•" QiaT bring ejectment ; and the same in oases equivalent to ouster, as by denial of right of entry (e).] From the same principle also arises the remaining grand incident of joint estates ; viz. the doctrine of survivorship : by which when Right of 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 I remains to the survivors, and at length to the last survivor ; 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 joint-tenants *is not only equal I or similar, but also is one and the same. One has not originally a ! distinct moiety from the other ; but, if by any subsequent act (as (a) Sed queer e in cases of actual ouster, Murray t. Uall, 7 C. B. 441. (6) Iq consequence of the right of sarviTorship among joint-tenants, all cbargea made by a joint-tenant on the estate determine by bis death, and do not affect the surviTor. For, it is a maxim of law, that jus accrcacendi prce- \ fertur oneribua. But, if the grantor of the charge Burvives, of course it is good. So, if one joint-tenant suffers a judgment in an action of debt to be entered up against him, and dies before execution had, it will not be execated afterwards ; but if execution be sued in the life of the cognizor, it ' will bind the survivor. {Lord Abergavenrty'a eate, 6 Rep. 79. 1 Inst. 184 a). There is, however, one exception to the rule, that joint- tenants cannot charge the estate in any way, so as to affect the interests of the survivors ; i for instance, if there are two joint-tenants in fee, and one of them makes a I lease for years to a stranger, it will be good against the survivor, even though such lease is not made to commence till after the death of the joint- tenant who executed it ; because, the grant of a lease is a disposition of the land, made at the time of such grant, though possession is not then given. (Co. Litt. 185 a, Litt. s. 280.) Note by Hovenden. (c) The statement in the text that one joint-tenant cannot let leases must be understood as referring to leases of the whole, for a lease of the tenant's I share, is good. (i) Oreffori/ v. Conolly, 7 Q. B. U. C. 500; Thomaty. Thomas, 19 L. J. Ex. 176. (e) Murray T. Ball, 7 C. B., 454. * S. 184. 124 or ESTATES IN SEVERALTY, JOINT-TENANOY, id^^^ by alienation or forfeiture of either) the interest becomes separate and distinct, the joint-tenancy instantly ceases. But, while it ooq. tinues, each of the two joint-tenants has a concurrent interest ia the whole ; and therefore, on the death of his companion, the sole interest in the whole remains to the survivor. For the interest which the survivor originally had is clearly not divested by the death of his companion ; and no other person can now claim to have a Joint estate with him, for no one can now have an interest in the whole, accruing by the same title, and taking effect at the same time with his own ; neither can any one claim a separak interest in any part of the tenements ; for that would be to deprive the survivor of the right which he has in all, and every part. As therefore the survivor's original interest in the whole still remaing; and as no one can now be admitted, either jointly or severally, to any share with him therein ; it follows, that his own interest must now be entire and several, and that he shall alone be entitled to the whole estate (whatever it be) that was created by the original grant This right of survivorship is called by our antient authors the;ui accrescendi, because the right upon the death of one joint-tenant accumulates and increases to the survivors : or, as they themselves express it, "part ilia communis accresit super ititihuaf de persomh " personam, usque ad uUimam superstitem." And this Jus accrt- scendi ought to be mutual; which I apprehend to be one reasoa why neither the king, nor any corporation, can be a joint-tenant with a private person. For here is no mutuality : the private per< son has not even the remotest chance of being seised of the entirety, by benefit of survivorship ; for the king and the corporation can nevev die. ♦ B. 186. * 3. We are, lastly, to inquire how an estate in joint-tenancy may ModM by which be severed and destroyed And this may be done by destroying any ajoint-^ancy of j^s constituent Unities. 1. That of 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 possession. For joint-tenants being seised per my et per tout, everything that tends to narrow that interest, so that they shall not be sf :sed throughout the whole and throughout every part, is a severance or destruction of the jointure. And there- fore, if two joint-tenants agree to 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 survivorship By partition, is by such separation destroyed. 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 origi- nally 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. By the statutes 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32, joint-tenants, either of inheritances Entorcabiein or Other Icss cstatcs, [^wcre before 4 Wm. IV. o. 1] compellable by l^'^^y ^y *^°- writ of partition to divide their lands [and now partition can either be enforced by the court of chancery or at law under Con. Stat] OOPARCENART, AND COMMON. 126 I' • 8. 186. (J. 86, as explained hereafter (s. 194) in regard to tenants in common.] J. The jointure may be destroyed by destroying the unity of title. By eonTeyanoe. As if ono joint-tenant alienes and conveys his estate to a third per- son : 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 derived from the original, the other from the Bubsequent, grantor,) though, till partition made, the unity of pos- session 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 the estate, and has therefore a priority to the other, is already vested. 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 purchased by or de- scends 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 Id the inhevitance ; 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 de- feats 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 three joint tenants alienes his share, the two remaining tenants still hold their parts by joint-ten- dDcy and survivorship ; and, if one of three joint-tenants releases bis share to one of his companions, though the joint-tenancy is destroyed 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, different interests are created in the several parts of the estate, or they are held by dif- ferent titles, or if merely the possession is separated, so that the tenants have no longer these four indispensable properties, a same- ness of interest, and undivided possession, a title vesting at one and the same time, and by one and the same act or grant, the jointure is instantly dissolved. * In general, it is advantageous for the joint-tenants to dissolve the jointure j since thereby the right of survivorship is taken away, , and each may transmit his own part to his own heirs. Son' 'imes, quenceliTf dis- however, it is disadvantageous to dissolve the joint estate: as, if|g{gte.*'*^*^°'°* there bo joint-tenants for life, and they make partition, this aissolves 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 ilierely j and, on the death of either, the reversioner shall enter on his moiety. III. An estate held in coparcenary is where lands of inheritance Estates in <»far- descend from the ancestor to two or more persons. It arises either """'T- by common law or particular custom [and it would seem that now law, where a person next heirs were two ♦ S. 187. ' Theconse- no such estate can arise (sec. 191)] ; at common seised in fee-simple, or in fee-tr!, died, and his i 126 OF ESTATES IN SEVERALTY, JOINT-TENANOT, « 8. 188. or the nature and propertiM. t ' *8. OfmaUrgparti* tlon. or more females, his daagbters, 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, parcenen only. I'uroeners by particular custom are where lands descend, n in gavelkind, to all tne males in equal degree, as sons, brothen, uncles, &o. And, in either of these cases, all the parceners m together make but one heir, and have but one estate among them. * The properties of parceners are in some respects like those of I joint-tenants ; they have the same unities of interest, title, and poi- session. 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. They cannot have an action of | trespass against each other : but herein they differ from j int-tenanU, that they are also excluded from maintaining an action of waste ; for co-parceners could at all times put a stop to any waste by writ of | partition, but till the statute of Henry YIU. joint-tenants had do such power. Parceners also differ materially from joint-tenants io four other points : 1. They always claim by descent, whereas joint- tenants always claim by purchase. Therefore, if two sisters pm. chase lands, to huld to the*^ and their heirs, they are not parcenen, but joint-tenants : and heuoe it likewiso follows, that no lands cat be held in cc^>arcenary, but estates of inheritance, which are of i descendible nature ; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no nnitj of time necessary to an estate in coparcenary ; for if a man hatl ' two daughters, to whom his estate descends in coparcenary, and one dies beforo 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. 8. Par- ceners, though they have a unity, have not an entirety of interest They are properly entitled each to the whole of a distinct moiet;; and of course there is no Jus accrescendi, or survivorship between them ; for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent, and united in possession, so long are the tenants therein, whether male or female, called parcenen. But if * the possession be once severed by partition, they are no longer parceners, but tenants in severalty; or if one parcener alienei her share, though no partition be made, then are the lands no longer held in coparcenary, out in common. Parceners are so called, saith Littleton, because they may be oon< strained to make partition. And he mentions many methods of I making it ; four of which are by consent, and one by compulsion. The first is, where they agree to divide the lands into equal parts in 1 severalty, and that each shall have such a determinate part. The second is, when they agree to choose some friend to make partition for them, and then the sisters shall choose each of them her part, according to seniority of age, or otherwise, as shall be agreed. The I Erivilcge of seniority is in this case personal; for if the elder sister e dead, her issue shall not choose first, but the next sbter. But, ISuJj GOPAROENABT, AND COMMON. 127 if an advowsoQ descend in ooparoenary, and the sisters cannot agree in the presentation, the eldest and ner issue, nay, her husband, or her assigns, shall present alone, before the younger. And the reason mren is, that the former privilege of priority in choice upon a divi- gioD, arises from an act of her own, the agreement to make parti- tion; and therefore is merely personal: the latter, of presenting to the living, arises from the act of the law, and is annexed not only to her person, but to her estate also. A third method of partition is, where the eldest divides, and then she shall choose last; for the rale of law is, cujm eat divisio, aUeriua est electio. The fourth method is, where the sisters agree to oast lots for their shares. And these are the methods by consent [at common law. By Con. Stat, a Common law 86,8. 3, every voluntary partition shall be by deed. The oompul-SSonabcSgh^'" gory mode of partition existing at common law, was abolished by*y^°-^^*-«- 4 Wm. IV. c. 1, Con. Stat. c. 27, s. 78 ; and the present mode of substttuted. compulsory partition is as mentioned hereafter in regard to tenants iD common (a).] But there are some things ""which are in their • s. 190. nature impartible. The mansion-house, common of estovers, com- mon of piscary uncertain, or any other common without stint, shall I not be divided ; but the eldest sister, if she pleases, shall have them, and make the others a reasonable {>:itlsfaction in other parts of the inheritance : or, if that cannot he, then they shall have the profits of the thing by turns, in the same manner as they take the advow- goD. [Under the present Con. Stat. c. 86, the court acting in the proceedings in partition can direct a sale.] There is yet another consideration attending the estate in copar-incaseaof/ranX;- cenary: that if one of the daughters has had an estate given with '^"^^'' her in franJe-marriage by her ancestor (which we may remember was a species of estates-tail, freely given by a relation for advance- ment of his kinswoman in marriage) (i), in this case, if the lands I descend from the same ancestor to her and her sisters in fee- I simple, she or her heirs shall have no share of them, unless they I will agree to divide the lands so given in frankmarriage in equal [proportion with the rest of the lands descending. This mode of division was known in the law of the Lombards ) which directs the I woman so preferred in marriage, and claiming her share of the [inheritance, mittere in confusum cum sororihus, quantum pater aut JroJUr ei dederit, quando ambulaverit ad maritum. With us, it is [denominated biinging those lands into hotch-pot, which word I shall Hotch-pot. lexplain by using the very words of Littleton : " It seemeth that I" this word hotch-pot^ is in English a pudding ; for in a pudding is I'- not commonly put one thing alone, but one thing with other things I" together." By this housewifely metaphor our ancestors meant to liDform us, that the lands, both those given in frank-marriage and Ithose descending in fee-simple, should be mixed and blended Itogether, and then divided in equal portions among all the I daughters. But this was left to the choice of the donee in frank- I marriage : and if she did not chuse to put her lands into hotch-pot, was presumed to be sufficiently ^provided for, and the rest of * 8. idi. [the inheritance was divided among her other sisters. The law of (a) S. 194. {b) See S. 116. 128 OP ESTATES IN SEVERALTT, JOINT TEN ANCY, i!!^' -ri: !•* hotcb-pot took place then only, wlien the other lands descending from the ancestor were fee-simple ; for if they descended in tail, the donee in frank-marriage was entitled to her share, T7ithout bringing l^^ lands so given into hotch-pot. And the reason is, because lanji descending in fee-simple are distributed by the policy of law, for the maintenance of all the daughters ; and if one has a sufficient provj. sion out of the same inheritance, equal to the rest, it is not reason- able that she should have more : but lands descending in tail are not distributed by the operation of the law, but by the designation of the giver, per/ormam doni: it matters not, therefore, how unequal this distribution may be. Also no lands, but such as are given ig frank-marriage, shall be brought into hotch-pot ; for no others are looked upon in law as given for the advancement of the woman, ot | by way of marriage portion. And, therefore, as gifts in frank, marriage are fallen into disuse, I should hardly have mentioned the I Hotchpot Intro- ja^ of hotch-pot had not this method of division been revived and Stat. e. 82, s. 42. copied by the statute for the distribution of personal estates [anij introduced in principle under the last statute as to descent], which we shall hereafter consider at large. The estate in coparcenary may be dissolved, either by partitioa, I which disunites the possession ; by alienation of one parcener, whici disunites the title, and may disunite the interest ; or* by the whole at last descending to and vesting in one single person, which brings it to an estate in severalty. [And here I may remark, that it may be doubtful whether, since 14 & 15 Vic. c. 6, Con. Stat. c. 82, s, 38, an estate can descend in coparcenary, since that statute enacts that when an inheritance or share of inheritance shall descend to severtl persons under the provisions of the act, they shall take as tenants io common. The change effected by the statute is of no great practicti importance, unless, perhaps, as regards the action of account givet by statute, as will presently appear, to one tenant in conmiHi against the other, whilst it is doubtful whether it extended to I coparceners (a)."] lY. Tenants in common are such as hold by several and distinct I titles, but by unity of possession ; because none knoweth hii own severalty, and therefore they all occupy promiscuously. Thii 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 n»j hold his part in fee-simple, the other in tail, or for life; so thit| there is no *necessary unity of interest : one may hold by descent, the other by purchase; or the one by purchase from A., the otheil by purchase from B. ; so that there is no unity of title: one'i estate may have been vested fifty years, the other^s but 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 i man can certainly tell which part is his own : otherwise even this! would be soon destroyed. Tenancy in common may be created, either by the destruction of I the two other estates, in joint-tenancy and co-parcenary, or hyl Co-parcenary abolished, by Con. SUt c 82. Tenancy in commcn. ♦ S. 192. How created. (a) Oreffory v. Cimolljf, 7 Q. B. U. C. 600. CORPAOENARTy AND COMMON. 129 rdevise, conveyance, or descent by force of Con. Stat. 82, s. 88]. j 3y the destruction of the two other estates, I mean such destruction L/does not sever the unity of possession, but only the unity of title or interest: as, if one of two joint-tenants in fee alienes his estate for the life of the alienee, the alienee and the other joint-tenant are I tenarts in common ; for they have now several 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 B. id tail, the donees are tenants in common, as holding by different titles and conveyances. I If one of two parceners alienes, the alienee and the remaining par- cener are tenants in common ; because they hold by different titles, I 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 partition made, but the unity of pos- leession continues, it is turned into ft tenancy in common. * [A tenancy in common may be created by devise or conveyance; • g, igg. for, since the statute 4 Wm. IV. o. 1, Con. Stat. o. 82, s. 10, all . I grantees and devisees, other than executors and trustees, shall, con- T«yanM;*Coii!°° trary to the common-law rule, take as tenants in common, and not as ^''*- '* *^ "• ^*' Ijoint-tenants, unless an intention to the contrary sufficiently appear I on the face of the instrument under which they take. This tenancy By deaoent, by may arise also by descent; for the 38th section of Con. Stat. o. 82,8^t^c.8M-38> provides that since the 1st January, IS^, the parties shall take as^eenwy. tenants in common; a provision which, I apprehend, has abolished [the estate in coparcenary, unless such as existed prior to 1852.] I As to the incidents attending a tenancy in common : [Prior to the , g j^i Istatate 4 Wm. lY. c. 1, Con. Stat. o. 27, s. 78, which aoolished the inddenti. Iwrit of partition,] tenants in common, like joint-tenants, were com- Ipellable, by the statutes of Henry YIII. and Wm. III., before I named, to make partition of their lands; which they were not at partition by con. Icommon law, as parceners were. [Partition may now be had under st«t c. 8«, and in jCon. Stat. c. 86. The right of partition also existed, and might ^ ^' [have been enforced, in equity (a) ; so may it yet : in fact, as regards I equitable fees-simple, such court, under the Provincial statute, jhas exclusive jurisdiction (b). Singular questions sometimes arise [under proceedings for partition, from the impartible nature of the impartible pro- [property, to which allusion has been made before, in the case of ^'*^' IparceDers, and the course adopted referred to. A reference to the [valuable notes of White & Tudor to the case of Agar v. Fair/ax, 2 [Lg. Cases, Chan., will afford information in oases of difficulty (c).] (a) White & Tudor, Ld. Cases, Chano. 874. (b) Con. Stat. o. 86, ss. 88, 40. (ej In Turner t. Morgan, 8 Ves. 148, there was a decree in a partition of a [ tingle house; and Sir Samuel Romilly, in his argument, mentioned a case [where a partition was carried out by building up a wall in the middle of a [honae. After the eommission was executed in Turner v. Morgan, the defen- [dant excepted, on the ground that the commissioners allotted to the plaintiff ■the whole of the chimneys, all the fire-plaoes, and all the oonvenienoes in [the yard. The Lord Chancellor overruled the exception, saying he did not [know how to make a better partition ; that he granted the commission with great reluctance, and it must be a strong case to induce the court to inter- [pose, as the parties ought to buy and sell. M 1! 180 Sale under Oon. SUts. Account. EjMtment uid trMpua. Of the model by which estateu in common may be diiiolTad. r PoflMRiioD of one not that of the other, to prerent Stat, of Limita- tions from run- ning, by Con. But. c. 8S, a. 13. Of ESTATES IN SSVERALTT, JOINT-TENANCY, &0. [Difficulties, however, arising from the nature of the property, can i now be overcome by the court directing a sale, under Con. 8tat. (, 86 ; and by acting under Con. Stat. o. 82, ss. 46, 47, 48, 49 (o),] Tenants in common properly take by distinct moieties, igj have no entirety of interest, and therefore there is no suryivor. ship between them : their other incidents are such as ariie merely from the unity of possession, and are therefore the same as appertain to joint-tenants merely on that account, each aj being liable to reciprocal actions of account by the Stat. 4 Anne 0. 16, s. 27 (b) ; for by the common law, no tenant in commoD was liable to account with his companion for embezzling tie profits of the estate. [An account is more conveniently had is equity than at law, but as the statute of Anne alone gives the remedy, it would seem no account can be had in equity, unless when an action would also lie at law under that act (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 He((^. Ejectment and trespass will also lie under circumstances equivaleot to actual ouster, as by denial of the right of entry of the cotenast, and adverse continuance in possession of the other.] But as for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined in actions, unless in the case where some entire ot indivisible thing is to be recovered), these are not applicable to tenants in common whose interests are distinct, and whose titles | are not joint but several. Estates in common can only be dissolved two ways : 1. Bjnoit'l ing all the titles and interests in one tenant, by purchase or otliet.| wise ; which brings the whole to ono severalty : 2. By ma partition between the several tenants [as before explained in reg to joint-tenants] which gives them all respective severalties. Foil indeed tenancies in common differ in nothing from sole estates, k merely in the blending and unity of possession. And this finishes our inquiries with respect to the nature ol| estates, [but before dismissing this last division of them, I mention that it has been said before, that the entry of one joint- 1 tenant was the entiy of all ; and it is laid down also that at common I law the possession of one parcener, joint-tenant, or tenant in ooii| mon, was tae possession of all; so that short of actual ouster, cr( what was equivalent thereto, the Statute of Limitations before i\ Wm. IV. did not begin to run in favour of the tenant in sole session against the co-tenant or*co-parcener; this is altered as \ieK-\ after explained ; Con. Stat. c. 88, s. 13]. (a) In re Dennie 10 Q. B. U. C. 104. See St. in appendix, ind post t. \i\ (6) Ortgory v. Connolly, 7 Q. B. U. C., 500; Thoma$ t. Thomat, 19 L. J.«t 176. (e) Henderton v. JSaaon, 2 Phill. C. G. 908. (rf) Murray v. Eall, 7 C. B. 441. OF THE TITLX TO THINGS REAL IN GENERAL. 131 CHAPTER XIII. OF THE TITLE TO THINGS EEAL, IN GENERAL. • S. 196. I come now to consider, lastly, the *tille to things real, with the manner of acquiring and losing it. A title is thus defined by Sir Edward Coke, titulus estjuaia causa possidendi id quod nostrum est ; or, it is the means whereby the ovrner of lands hath the just possession of his property. There were [formerly] several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order. 1. The lowest and most imperfect degree of title consists in the mere naked postesaion, or actual occupation of the estate ; without any apparent right, or any shadow or pretence of right, to hold and continue siTch 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 dissesin, being a deprivation of the actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of *the heir, or after the * s. i96. 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. In all which cases, and many others that might be here suggested, the wrong- doer has only a mere naked possession, which the rightful owner may 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 dij^vest this possession and assert his / title, such actual possession ia^rimd facie, evidence of a legal title in the possessor; and it may, oy length of time, and negligence of him who hath the right, by degrees ripen into a perfect and inde- feasible title. 2. The next step to a good and perfect title is the right of posses- The ri«hi of sion, which may reside in one man, while the actual possession is po»M«Mon- not in himself but in another. For if a man be disseised, or other- wise kept out of possession by any of the means before mentioned, though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper [till barred by time], by entering upon the disseisor, and turning him out of that occupancy which he has so illegally gained. [Sir W. Blackstone goes on to state, among other things, that the possession and right of possession may be gone, and still the owner retain the right of property, whereon he might in a real action] \i 132 or THI TITLE TO THINQB REAL IN GENERAL. • 8. 198. * S. 199. [recover the lands, and he says], '''if a disseisor turns me out of pot. session of my lands, he thereby gains a mere naked poaaeasiorif aoj I still retain the right of possession and right of property. If ^^ disseisor dies, and the lands descend to his son, the son gains as apparent right of possession, but I still retain the actual 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 mttt right 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 y^rs : and one man may have the possession, another the right of possession, and a third the rigJU of property. [The law, as stated by the learned commentator in the thirteenth chapter, is so changed by modern legislation that I will here bat briefly allude to it, especially as I shall hereafter consider it at length. The following will suffice to shew how complete is the change : thus, in the case above put, at prenent the descent to the son would give him no better right than his ancestor tne disseigoi had, for by Con. Stat. o. 27, s. 80, no descent oast defeats or toUa a right of entry or action, and I am in no worse position than befoie the death of the ancestor : if also I acquiesce for even twenty yean, I am barred entirely, and retain no rignt of property distinct from my right of possession ; for by Con. Stat. c. 88, s. 16, when n; right of possession against the disseisor or his son claiming under him is gone, all other right and title is extingu'sled. Formerlj, certain actions founded on the right of possession might have been brought within thirty years ', after which period such actions wen barred, but the owner could still resort to a real action droiturd, founded on the right of property, at any time within sixty years. A right of property cannot now exist as a mere right as formerly, not be of avail unless accompanied with an existing tight to possessioD, present or future (a)]. (a) Hsy'a Con. 268. DESCENT Of VRKIHOLD ISTATES OF INHEBITANOE. 188 CHAPTER XIV. DESCENT OF FREEHOLD ESTATES OF INHERITANCE. I now propose to consider the law of descent as applicable to freeMeentof frM- The descent of estates less than freehold Jj^i^rtuJ^"' * 8. 200. hold estates of inheritance. as for years, has always been subject to laws of descent different I from those applicable to freehold estates, they being mere chattel interests, and devolving, in cases of intestacy, on the personal repre- sentatives. As will however be seen in the sequel, the statute 14 & 15 Vio. c. 6, has much lessened the wide distinction theretofore ezisting as to the descent of the two classes of estates, and assimi- lated to some extent the descent of freehold estates to that of chattel I interests. [The subject may be discussed, 1st. As regards the various kinda i. The vuioui |of freehold estates, inasmuch as each kind is subject under certain ^^ingtTthe* I circumstances to a different law of descent from the others. ^*^i Wnom our English annals), RjQ. Henry the seventh, who slew Richard the Third in the battle of Bosworth, was related to that prince in the fifth degree. L«t tbe propoaitu$, therefore, in the table of oonsanguinitv, represent Km Biobard the Third, and the class marked (e) King Henry % Seventh. Now their common stock or ancestor was King Edward tlie Third, the ahavu* in the same table : from him to Edmond, Duke of York, the proavut, is one degree ; to Richard, Earl of Cambridge, the a VIM, two; to Richard, Duke of York, thepattr, three; to King Richard the Third, thepropo$itui, four; and from King Edward the Third to John of Gaunt (a) is one degree ; to John, Earl of Somerset, (b) two ; to John, Duke of Somerset, (c) three; to Margaret, Gountete of Richmond, (h) four; to King Henry the Seventh, ^e) five; which last-mentioned prince, being the farthest removed from the common stock, gives the denomination to the degree of kindred in B/thaciTiiuw. the canon and municipal law. Though, according to the computa- tion of the civilians, (who count upwards, from either of the persona related, to the common stock, and then downwards again to the other, reckoning a degree for each person both ascending and descending,) these two princes were related in the ninth degree; for from King Richard the Third to Richard, Duke of York, is one degree ; to Richard, Earl of Cambridge, two ; to Edmond, Duke of York, three; to King Edward the Third, the common ancestor, four ; to John of Gaunt, five ; to John, Earl of Somerset, six ; to John, Duke of Somerset, seven; to Margaret, Countess of Rich- mond, eight ; to King Henry the Seventh, nine. [The mode of calculating degrees of proximity in the collateral A«top«"on«Uy line, for the purpose of determining what parties are entitled, under uwf " * the statute of distributions, (22 & 28 Car. II., o. 10,) to shares of the personal estate of an intestate, is not the mode of the canonists adopted by the common law in the descent of real estates; but (with one qualification noticed infra,) conforms to that of the civilians, as stated in the text ; or, in other words, the rule is, to take the sum of the degrees, in both lines, to the common ancestor (a).] [The instance of exception noticed above is this : according to the With oLb exoep- civil law, the brother and the grandmother of an intestate stand in ^^B- equal degrees of affinity to kim ; and the grandmother, as being in the lineal ascending line, was, by that law, preferred to the brother or any other in the collateral line ; but, according to the construction put by our courts upon the statute of distributions, (in this instance conforming to the canon law,) the brother, as making title immedi- ately from his deceased brother, ia preferred to the grandmother, who could only claim mediately through the father of the deceased. DMMBt nnder [It will be Seen in the sequel that the right of inheritance under ernodb/uudru the Statute 14 & 15 Vie. is, with reference to proximity of relationship, i*w. more in accordance with the civil than the canon law mode of com- putation.] ml ilft (a) See post s. 224»f . 115. /Ml flie di'6r<'es «)f rollattTal kniclrrtl tn {hojtnyjm/u.r are coniputo*! , no fai' a.stlie i«illi ol' tilt' civilians tmd the .seventh of Ike cunoiiisLs inriusivei the foniier Ixmii^ distinguwUed bytho munerol letters^ the Litter hythe cunnnuii cyiilier.S. IftBi [See the! of col ,r"? ^ the tentJ give; the fd latter by thj * The naij explained, canons of inj law,]accorc red to] tranl explanatory! reasons upofl ment with t^ I. Thefi? issue of the I shdl never I To explaii must first be any person 1 is previously person who rent, or heir inheritance the eldest or be heir to th tive are sucb the present c inheritance i being born ; may be desi present hope even if the < such brothei estate shall t child; and, birth of a p( ♦ We mus tlhcestor, as i from him ud by his own ( lessee for y( ornnless he ditaments t1 sentation to he shall nol right or title cases [relati present cba] inheritance of. For tb< (a) 8. 8. 1! under a conyi DESCENT OF VBEEHOLO ESTATES OF INBXRITANOB. 137 [See the table of oonsaDgninity annexed; wherein all the de- crrees of collateral kindred to the propoaitua are computed, so far u the tenth of the civilians and the seventh of the canonists inolu- gire; the former being distinguished by the numeral letters, the latter by the common cyphers. J * The nature and degrees of kindred being thus in some measure • s. aos. ptnlained, I shall next proceed to lay down a series of rules or?*?L/°**"r canons of inheritance, [oi which there are seven prevailing at common oom. uw. law,] according to which estates [were during the first period refer- red to] transmitted from the ancestor to the heir; together with an explanatory comment, remarking their original and progress, the reasons upon which they are founded, and in some cases their agree- ment with the laws of other nations. I. Ihe first rule is; that inheritancea shall lineally descend to thei. EitatMsbaii issue of the person who last died actually seised, in infinitum; buttotiSefMneo?* shall never lineally ascend. th« penon Uwt To explain the more clearly both this and the subsequent rules, it L^tcoiy 2^!^ most first be observed, that by law no inheritance can vest, nor can any person be the actual complete heir of another, till the ancestor is previously dead. Nemo est hseres viventis. Botbre that time the person who is next in the line of succession is called an heir appa- rent, or heir presumptive. Heirs apparent are such whose right of Haj„ appw^nt inheritance is indefeasible, provided they outlive the ancestor ; as the eldest or his issue, who must bv the course of the common law be heir to the father whenever he happens to die. Heirs presump-preromptire. tive are such who, if the ancestor should die immediately, would in the present circumstances of things be his heirs, but whose right of inheritance may be defeated by the contingency of some nearer heir being born ; as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child; or a father, whose present hopes may be hereafter cut off by the birth of a son. Nay, even if the estate hath descended, by the death of the owner, to such brother, or nephew, or father; in the former cases, the estate shall be devested and taken away by the birth of a posthumous child; and, in the latter, it shall also be totally devested by the birth of a posthumous son. * We must also remember that no person can be properly such an • s. soa. Acestor, as that an inheritance of lands or tenements can be derived J^tSwe had from him unless he hath had actual seisin (a) of such lands, either aotuaisddn. by bis own entry, or by the possession of his own or his ancestors's lessee for years, or by receiving rent from a lessee of the freehold ; or unless he hath had what is equivalent to corporal seisin in here- ditaments that are incorporeal, such as the receipt of rent, a pre- sentation to the church in case of an advowson, and the like. But he shall not be accounted an ancestor, who hath had only a bare right or title to enter or be otherwise seised. And therefore all the cases [relating to the first period] which will be mentioned in the present chapter, are upon the supposition that the deceased (whose inheritance is now claimed) was the last person actually seised there- of. For the [common] law requires this notoriety of possession, as (a) 8. 8. 127-128, and see p. 140 n. B. the effeot of possession in law under a oonveyanee under the Statute of Uses. :< HMI^ Mr '■ ''^■"''•■t^'il- '.' :.\: |l"i^''i' IP' '^ ' i;: »■. ■ ' 188 DKHOENT OF FREEHOLD ESTATES OF INHERITAMOB. evidence that the ancestor had that property in himself, which U now to be transmitted to his heir ; which notoriety had succeeded in the place of the ancient feodal investiture, whereby, while feujj were precarious, the vassal on the descent of lands was formerlT admitted in the lord's court, and there received his seisin, ia the nature of a renewal of his ancestor's grant, in the presence of the feodal peers; till at length, when the right of suooesaion became indefeasible, an antry on any part of the lands within the county (which if disputed was afterwards to be tried by those peers), or other notorious possession, was admitted as equivalent to the (ormal grant of seisin, and made the tenant capable of transmit- ting his estate by descent. The seisin, therefore, of any person, thus understood, makes him the root or stock, from which all future inheritance by right of blood must be derived ; which is briefly • s. no. expressed in this maxim, seisina facit stipitetn. wb*rtv.oa»(ma * When, therefore, a person dies so seised, the inheritance first tbau&dM^ta. goes to his issue : as, if there be Geoffrey, John, and Matthew, grand- father, father, and son ; and John purchases lands, and dies ; his son Metthew shall succeed him as heir, and not the grandfather Geoffrey, to whom the land shall never ascend, but shall rather escheat to the lord. [And thus if a man died seised in fee, leaving no issue or brothers or sisters, but leaving his father and an uncle, the brother of his father, the uncle tr ok ; the father being prohibited from taking, as his doing so would have been a lineal ascension, he was passed by, and gave place to the collateral and more distant relative, the uncle ', but upon the death without issue of the uncle, (he having acquired actual seisin,) the estate then vested in the father ; he thus taking as heir, not to his son, but to his brother, the uncle of the original purchaser. This harsh and unreasonable rule, excluding the lineal ancestor, you will see hereafter vas abolished by the statute 4 Wm. IV.] [I will now briefly illustrate the distinction between tracing from difference the persou last seised, and from the person last entitled. The difier- !w)m pOTwSlwt ^^^^ ^^ sometimes important ; and it will be seen in the case put (eitedand person below, if the persou last entitled did not acquire seisin, the inheri- '""* "''"'' tance sometimes descended to a person different from him, who would have taken if seisin had been acquired. Thus, if (see Ist Table of Descents) Geoffry had been the person last seised, and diei intestate, and his sons, John, Francis, and Oliver, on his death, become successively entitled, as issue by the first wife, and died without becoming seised, and without issue ; here the son of Geoffry by the second wife, of the half blood to Oliver, the person last enti- tled, would have taken as next heir to Geoffry, the person last seised, in preference to Bridget aud Alice, the sisters of the whole blood of the person last entitled : for descent has to be traced from Geoffry as last seised, not from Oliver as last entitled ; and by force of the 2nd rule, the son of Geoffry shall be preferred to his daughters; but if either John, Francis, or Oliver had obtained seisin, then descent must have been traced from him who was last seised, and his sisters of his whole blood would have taken in preference to hi: brother of the half blood. Indeed, as afterwards explained, in such case the half-brother, under no circumstances could ever have taken; and if other heirs were wanting, the estate would escheat.] last entUUd. DESCENT OV VRZEHOLD ESTATES Of INHERITANCE. 139 rjn the case of a remainder or reversion in fee, subject to andcaBeiofdeac«nt preceded by a life estate, as the seisin was in tbe tenant of the free- °' '*,",*n5J^'*J^. hold, and not in the remainder-man or reversioner, it followed that «!»»<«» '»/«e«ute. on death of such remainder-man or reversioner, and consequent descent of his estate to his heir, the party claiming the estate on death of such heir, pending the life estate, could not take such intermediate heir as the itirjit of descent, as such heir never acquired smcent to i^ seisin j but tbe itirjpi would have been, in case of a remainder, the *''*««^ ^^^ purchaser of such estate, or, in other words, the person to whom it **"'" ***'" was first granted; and in case of a reversion, the person by whom it vas first created by grant of the particular estate preceding it (a). But if the reversion or remainder were not dependent on an estate On an wute for of freehold, but for years ; here, as before explained (i), the posses-'"*" ^""" sioD of tbe tenant being that of the remainder-man or reversioner, and the interests of both -but one estate in law, the intermediate heir vould be considered as having acquired actual seisin by the possession of his tenant for years, and so would constitute a new stock, from whom descent would be traced, instead of from his ancestor ; and ™?" **•• '^^JJ the rule would be the same even though the particular estate were acuofoiraenbip. for life ; if the intermediate heir in remainder or reversion, in his lifetime exercised acts of ownership over his estate, as by making a lease for life, or by conveying to another in fee to the use of the grantor and his heirs. Any such act of ownership was deemed equivalent to acquiring seisin (and in fact was such, as nearly as the nature of the ease would admit of), and constituted the agent a new stock of descent, as seised within the scope of this first canon. The case I have put above shows the importance of these acts, and the acquisition of seisin thereby, and that, according as it was or was not acquired by the intermediate heir, would his brother of the half blood take or be rejected as his heir. You will observe, that when I say the acts of ownership above instanced would constitute the agent a new stirps of descent, I confine my remark expressly to the operation of the first canon ;' that is, he will be considered as having become seised for all purposes of application of that canon, but he will not be considered as having become a purchaser within the meaning of the 5th and 7th canons, hereafter referred to; for (as subsequently explained in considering ss. 5 & 6 of the Consolidated Statute, which alter this common-law doctrine) (c) a mere convey- ance to uses, whereby the estate revested, as beiore, in the convey- ing party and his heirs, was wholly nugatory at common law, so far .\s regarded the making such party and his right heirs take by purchase. The right heirs at common law would be deemed as in or instanc*. their old or former estate (d) ; and thus if in the table of descent at common law, Lucy Baker, being seised in fee, had demised for life, leaving a reversion in herself in fee, which descends on her death to her eldest son John by her first husband, and after on his dying without issue to his brother Francis, and afler on his dying without issue to his brother Oliver ; now, if Oliver, being so entitled, should, by conveyance to uses, convey to another in fee, to] W'^: M':i| tow """ It M (a) Hajes, Convog. p. 318. (e) FoBt p. 166. (b) Sa. 165, 166. {d) Ante a. 176. M 140 DXSOXNT or TREEHOLD ESTATES OF INHERITANCE. Differenee m to persona who would take. EffMt of aeqnlr- Ing an eatate bj purchaie; definition of such mode of acquiii- tion. i;i 2nd canon; that ntale Inue be preferred to fSunala. [the use of himself and his heirs; although the effect would be, as above stated, to constitute a $ei$in in him, so as to cause him to be a new stock of descent, and thus admit as next heirs, on his death without issue, his sisters of the whole blood, Bridget and Alice, in preference to his half-brother, son of Lucy by her second husband- still the effect of the conveyance would not be to constitute Oliver or his rightlieirs Bridget and AWoe purchasers: and so, on the death of Alice and Bridget, and the next taker, their half-brother, son of Lucy, without issue ; the reversion would go, by the dth and 7th canons, to the collateral heir of Lucy the mother, No. 14, instead of to that of the father Geoffry, No. 7 : whereas if, by the conveyance, Oliver or his sisters were to be considered as taking as purchaurf^ then, under the above state of facts, all consideration of descent to them was out of the question, and on their death without issue the reversion would have gone, by the 5th and 7 th canons, to their next collateral heir on the paternal side. If Oliver, instead of conveying to uses, as above supposed, had conveyed so as to vest the fee abso- lutely in a stranger, and then have taken a reconveyance of the fee, this would have constituted him a purchaser. In all I have said it is presupposed, of course, that the estate descended is throughout strictly a reversion, i. e., that the life estate is existing during the supposed devolutions of the estate, for otherwise it would be an estate in possession.] [I may here, in connexion with this first canon, which required actual seisin in the person from whom descent was to be traced, refer to the effect of acquiring an eatate by purchase, or as purchaser. The learned commentator defines a purchaser as, " he who first " acquirad the estate to hb family, whether the same was transferred " to him by sale, or by gift, or by any other method, except only that " of descent " (a). Now, where the last owner (or person on whose death the succession became vacant), happened to have been in fact the purchaser of the estate, he would also be the person last actually seised ; for, if it were an estate in possession acquired by feoffment, this implied (as elsewhere shewn) a real delivery of the actual seisin; and if it were acquired by devise (under the Statute of Wills), or by conveyance under the Statute of Uses (of the nature of which we will speak hereafter), the effect would be the same, for the actual seisin, (so far, at least as would suffice to make him a root of descent within the first canon), would be here transfered to him without entry by construction of law (b) ; so that the purchaser, though without actual entry, waj deemed as having been actually seised, for the purposes of the first canon ; but of course the converse did not hold that a person actually seised was always at common law deemed to have been the purchaser ; although as shown hereafter, by the Statute of William a presumption is created that the person last entitled is to be deemed to be the purchaser]. [11. The second ruht was that the male issue should be admitted before the female. This rule was so simple in its application as to require no comment. It may be illustrated by a single example : A. dying, left two sons and two daughters : by force of a rule] (a) Pott, 8. 220. (b) Stephen Com., 896, vol. I. DESCENT or VBEEBOLD ESTATES OF INHERITANOB. 141 fvhich we have not yet reached in its order, the eldest son would gi^t have taken ; and upon hb death without issue, his heir would hare been his brother, to the exclusion of his sisters, although the latter may have been older in ^ears than both the brothers]. «Tbe true reason of prefemng the males must be deduced from 'S. 214. feodal principles; for, D7 the genuine and original policy of that constitution, no female could ever succeed to a proper feud, inas- much as they were incapable of performinc those military services, for the sake of which that system was established. But our [common] law does not extend to a total exclusion of females, as the Salic law, and others, where feuds were most strictly retained : it only post- pones them to males ; for, though daughters are excluded by sons, yet they succeed before any collateral relations. Our law, like that of the Saxon feudists before mentioned, thus steering a middle course between the absolute rejection of females and the putting them on a footing with males. [III. The third rule was, that when there were two or more males srd canon: in, equal degree, the eldest only should inherit, hut the females alto- l^^^j^*. gdher. It was upon this canon that the law of primogeniture de. eqaaiity among pended, the eldest son taking, to the total exclusion of his brothers ''°'*^ and sisters. By the last change in the law of inheritance (that vroaght by the statute of 1852), this right, which was thought unjust, was, as well as the preference of the male sex to the female, wholly abolished and the equal dbtribution, which always prevailed by force of the latter part of this rule amongst females, applied to males and females indiscriminately. The latter part of the rule excluded primogeniture among females, and gave the estate among them altogether, in wMch they were said to take as coparceners, of which more hereafter]. * However, the succession by primogeniture, even among females, • s. 216. to'^k place af) to the inheritance of the crown, wherein the necessity Ci i sole and determinate succession is as great in the one sex as the other. And the right of sole succession, though not of primogeni- ture, was also established with respect to female dignities and titles of honour. For if a man holds an earldom to him and the heirs of his body, tind dies, leaving only daughters, the eldest shall not of course, be countess, but the dignity is in suspense or abeyance till the king shall declare his pleasure; for he, being the fountain of honour, may confer it on which of them he pleases. IV. A fourth rule, or canon of descents, is this : that the lineal rr, Tbeiineai i^etcendants, in infinitum, of any person deceased * shall r^resent^^^^^** their ancestor : that is, shall stand in the same place as the person repreaent'tbe himself would have done, had he been living. '"''^.■an. Thus, the child, grandchild, or great-grandchild, either male orD^^g^^ „, female, of the eldest son, succeeds before the younger son, and sotheaidMtion in infinitum. And these representatives shall ti^e neither more nor^nge/^,^ ° less, but just so much as their principals would have done. As, if there be two sisters, Margaret and Charlotte; a^d Margaret dies, leaving six daughters ; and then John Stiles, tne father of the two sisters, dies, without other issue : these six daughters shall take among them exactly the same as their mother Margaret would have done, had she been living ; that is, a moiety of the lands of John 142 DESCENT OF VREEHOLD ESTATES OV INHEBITANCE. il Ptr itirpa, each branch tahing the mine share tbst the person they represent would have had. • 8. 218. Stiles in coparcenary : so that, upon partition made, if the land be divided into twelve parta, thereof Charlotte, the surviving sister shall have six, and her six nieces, the daughters of Margaret, one a piece. This taking by representation is called succession per stirpu according to the roots; since all the branches inherit the same share that their root, whom they represent, would have done. And in this manner also was the Jewish succession directed; but the Roman somewhat differed from it. In the descending line, the right of representation continued in infinitum, and the inheritance still descended in stirpet : as, if one of three daughters died, leavio» ten children, and then the father died; the two surviving daughter) had each one third of his effects, and the ten grandchildren had the remaining third divided between them. And so among collaterals, if any person of equal degree with the persons represented were still subsisting (as, if the deceased left one brother, and two nephews, the sons of another brother), the succession was still guided by the roots : but, if both the brethren were dead leaving issue, then, I apprehend, their representatives in equal degree became themselves principals, *and shared the inheritance per capita, that is, share and share alike ; they being themselves now the next in degree to the ancestor, in their own right, and by right of representation, So, if the next heirs of Titius be six nieces, three by one sister, two by another, and one by a third ; his inheritance, by the Roman law, was divided into six parts, and one given to each of the nieces: whereas the law of England in this case would still divide it only into three parts, and distribute it per stirpes, thus : one third to the three children who represent one sister, another third to the two who represent the second, and the remaining third to the one child who is the sole representative of her mother. This mode of representation is a necessary consequence of the double preference given by our law, first to the male issue, and next to the first-born among the males, to both which the Roman law it a stranger. For, if all the children of three sisters were in England to claim per capita, in their own right as next of kin to the ances- tor, without any respect to the stocks from whence they sprung, and those children were partly male and partly female ; then the eldest male among them would exclude not only his owe brethren and sisters, but all the issue of the other two daughters; or else the law in this instance must be inconsistent with itself, and depart from the preference which it constantly gives to the males, and the first- born, among persons in equal degree. Whereas, by dividing the inheritance according to the roots, or stirpes, the rule of descent is kept uniform and steady : the issue of the eldest son excludes all other pretenders, as the son himself (if living) would have done; but the issue of two daughters divide the inheritance between them, provided their mothers (if living) would have done the same : and among these several issues, or representatives of the respective roots, the same preference to males and the same right of primogeniture obtain, as would have obtained at the first among the roots them- selves, the sons or daughters of the deceased. As, if a man hath • S.319. two SODS, A. and B., and A. dies leaving two *sons, and then the Which la a neces- •ary consequence of the preference giran by onr law to males, and to the first-born among males. DESCENT OF FREEHOLD ESTATES OF INHERITANCE. 143 grandfather dies; now the eldest son of A. shall succeed to the whole of his grandfather's estate : and if A. had left only two daaghters, they should have succeeded also to equal moieties of the whole, in exclusion of B. and his issue. But, if a man hath only three daughters, C, D., and E. j and C. dies leaving two sons, D. leaving two daughters, and E. leaving a daughter and a son who is younger than his sister : here, when the grandftither dies, the eldest son of C. shall succeed to one third, in exclusion of the younger j the two daughters of D. to another third in partnership ; and the SOD of E. to the remaining third, in exclusion of his elder sister. And the same right of representation, guided and restrained by the game rules of descent, prevails downwards in infinitum, [It will be seen hereafter that the above common law doctrine of descent per stirpes, is broken in upon by the statute of Victoria ; and the principle of the Roman law, above mentioned, is adopted ; and descent per stirpeit or per capita takes place according as the heirs are in equal or unequal degrees of consanguinity]. *V. A fifth rule is, that on failure of lineal descendants, or issue, ot the person last seisied, the inheritance shall descend to his col- lateral relations, being of the blood of the first purchaser ; subject to the three preceding rules. Thus, if Geoffrey Stiles purchases land, and it descends to John Stiles, his son, and John dies seised thereof without issue j whoever succeeds to this inheritance must be of the blood of Geoffrey the first purchaser of this family. The first purchasor, perquisitor, is he who first acquired the estate to his family, whether the same was transferred to him by sale or by gift, or by any other method, except only that of descent (a). When feuds first began to be hereditary, it was made a necessary qnalification of the heir, who would succeed to a feud, that he should be of the blood of, that is, lineally de*scended from, the first feuda- tory or purchasor. In consequence whereof if a vassal died seised of a feud of his own acquiring, or feudum novum, it could not descend to any but his own offspring ; no, not even to his brother, because he was not descended, nor derived his blood, from the first acquirer. But if it was /c«^Mm antiquum, that is, one descended to the vassal from his ancestors, then his brother, or such other col- lateral relation as was descended and derived his blood from the first feudatory, might succeed to such inheritance. To this purpose speaks the following rule : "f rater fratri, sine legitimo hserede ' defuncto, in beneficio quod eorum patris fuit, succedai : sin " autem unus efratribus a domino feudum acceperit, eo defuncto " sine legitimo hserede, f rater ejus in feudum non succedit." The true feodal reason for which rule was this : that what was given to a man, for his personal service and personal merit, ought not to descend to any but the heirs of his person. And, therefore, as in estates-tail, (which a proper feud very much resembled), so in the feodal donation, " nomen hseredis, in prima investitura expressum, " tantum ad descendentes ex corpore primi vassalli extenditur ; et " non ad coUaterales, nisi ex corpore primi vasalli sive stipitis (a) Ante p. 140, and under s. 62 of stat. of Yiotoria, the sense of "taking bj purchase" is somewhat varied for the purposes of that aot. Altered by stat. of Victoria, which conforms to Koman law. • S. 220. V. On failure of lineal descend- ants of the person last »eiaed, the inheritance shall descend to colla- teral relatives, of the blood of the txiXpurchator. Origin of thia rule. • 8. 221. i 144 DISOKNT OF FREEHOLD ESTATES OF INHERITANCE. I i ?l ft- feudumanti- •8.222. " detcendant :" the will of the donor, or original lord, (when feudg were turned from life estates into inheritances), not being to make them absolutely hereditary, like the Roman allodium, but hereditan only 8ub modo ; not hereditary to the collateral relations, or lineal ancestors, or husband, or wife of the feudatory, but to the imi descended firom his body only. Howeyer, in process of time, when the feodal rigour was h part abated, a method was invented to let in the collateral relations of the grantee to the inheritance, by granting him a/eudum novum ia fntdumnommuthold tU /eudum antiquum; that is, with all the qualities annexed of a feud derived from his ancestors ; and then the collateral relatiooa were admitted to sc^ceed even in infinitum, because they might have been ot the blood of, thrt is descended from, the first imagi- na.7 purchasor. For, *since it is not ascertained in such general grauid, whether this feud shall be held ut fendum paternum, ot /eudum avitum, but ut /eudum antiquum merely ; as a feud of indefinite antiquity ; that is, since it is not ascertained from which of the ancestors of the grantee this feud shall be supposed to hare descended ; the l<,w will not ascertain it, but will suppose any of hia ancestOT^i, pro re nata, to have been the first purchasor : and there- fore it admits ani/ of his collateral kindred (who have the other necessary requisites) to the inheritance, because every collateral kinsman must be descended from some one of his lineal ancestors. Of this nature are all the grant4 of fee-simple estates of this ^1*^1011101^^ kingdom ; for there is now in the law of England no such thing as •iiapieMtatM. a grant of a /eudum novum, to be held ut novum ; unless in the case of a fee tail, and there we see that this rule is strictly observed, and none but the lineal descendants of the first donee (or purchaser) are admitted, but every grant of lands in fee simple is with us 1 /eudum novum to be held ut antiquum, as a feud whose antiquity is indefinite : and therefore the collateral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might have possibly been purchased, are capable of being called to the inheritance, whenanesute Yet [at common law], when an estate bath really descended in a • TOwJSonilirCO^rae of inheritance to the person last seised, the strict rule of the lunoe to tho feodal law is still obser /ed ; and none are admitted, but the heirs of the^et raieof' those througL whcm the inheritance hath passed ; for all others have •u'l'dbBwredT *" 'y ^one of the blood of the first purchasor in them, and therefore shall never succeed. As, if lands come to John Stiles b; descent from his mother, Lusy Baker, no relation of his father (as such) shall ever be his heir of these lands ; and- vi.s versa, if they descf^nded from his father GeoHrey Stiles, no relation of his mother (as such) shall ever be admitteu thereto ; for his father's kindred have none of his mother'a blood, nor have his mother's relations any share of his father's blood. And so, if the estate descended from his father's father, George Stiles, the relations of *his father's mother, Cecelia Kemp, shal? for the same reason never be admitted, but only those of his Other's father (a) (a) Mr. CbriBtiao observes, that <* henee tho expression heir at lata, mnst always be used with reference to a specific estate ; for if au only ohild has •8.223. DESCENT or rSlIHOLD ESTATES OF INHERITANCE. 146 gero we may observe, that so far as the fead is really antiquum, the law traces it back, and will not suflFer any to inherit but t^« JSS *i*Jr* blood of those ancestors, from whom the feud was conveyed to the*t« proprietor grantee, and so took it (by the general law) as a feud of indefinite antiquity ; in either of these oases, the law admits the descendants of any ancestor of Qeorge Stiles, either paternal or maternal, to be jQ their due order the heirs to John Stiles of this estate : because, in the first case, it is really uncertain, and, in the second case, it is sapposed to be uncertain, whether the grandfather derived his title from the part of his hihet or his mother. This, then is ths great and general princ'ple upon which the law_. of collateral inheritances depends ; that, upon failure of issue in the cipie'npon which last proprietor, the estate shall descend to the blood of the first ^J^^JheriSw purcnasor; or, that it shall result back to the heirs of the body ofd^nds. that ancestor from whom it either really has, or is supposed by a fiction of law to have originally descended : according to the rule laid down in the year books, Fitzherbert, Brook, and Hale, " that '< he who would have been heir to the father of the deceased " (and of course, to the mother, or any other real or supposed purchasing ancestor) *' shall also be heir to the son ;" a maxim that will hold universally, except in the case of a brother or sister of the half-blood, which exception (as we shall see hereafter) depends upon very special grounds. The rules of inheritance that remain are only rules of evidence, calculated to investigate who the purchasing ancestor was ; which *jn feudis vere antiquL has in process of time been forgotten, * s. 224. and is supposed' so to be in feuds tnat are held %U antiguis. VI. A oixt/i. rule or canon therefore is, that the collateral heir of'vx.xh* collateral ih person last seised must be hi$ next collateral kinsman, 0^ <%«ii^Miiedmu8t° wJiJe blood. ut^rt wSlSui Fir^^ he must be his next collateral kinsman, either personally or or the whole ' jofe reptesentationis; which proximity is reckoned according to the^'JJ^^j^J canonical degrees of consanguinity before mentioned. Therefore, jure reprewnta- the brother being in the first degree, he and his descendants shall '^''^' exclude the uncle and his issue, who is only in the second. And By the canonical herein consists the true reason of the different methods of comput- p^^^^. ing the degrees of consanguinity (&), in the civil law on the one hand, and in the canon ana common laws on the other. The civil law regards oonsangxiinity principally with respect to successions, and therein very naturally considers only the person deceased, to whom the relation is claimed : it therefore counts the degrees of kindred takea by deaoent an estate from his father, and another from bis mother, upon his death irithoat issue, these estates will descend to two different persons : so also, if bia two grandfathers and two grandmothers had eaoh an estate, which descended to his father or mother, whcm I suppose also to be only children, then, as before, these four estates will descend to four different heirs." (h) Ante 8. 207, p. 186. 10 "Ilfcif 'if,ii 140 if' * S. 226. On (ailara of inane of the per- aon iMt MlMd, Uie inheritance ■hall deeeend to the issue of his next immediate ancestor. * 8. 226. The lineal ances- tors, though ineaiMbleihem- ■elTsa of inherit- ing, are yet the DESCENT or rBEEIIOLD ESTATES Of INUIRITANOE. according to the number of persons through whom the claim rnrai bo derived fVom him ; and makes not only his groat nephew but also his first cousin to be both related to him in the fourth degree • because there are three persons between him and each of thoia[ The canon law regards consanguinity principally with a view to pre. vent inoofltttotts marriages between those who have a large portion of the same blood running in their respective veins ; and therefore looki up to the author of that blood, or the common ancestor, reckomng the degrees from him : so that the great nephew is related in the third canonical decree to the person proposed, and the first-cousin ig the second ; the former being distant three degrees fVx)m the commoQ ancestor (the father of the propoaitna), and therefore deriving oolj one fourtn of his blood from the same fountain ; the latter, and alio the propoaitua himself, being each of them distant only two degroeg from the common ancestor (the grandfather of each]), and therefore having one half of each of their oloods the same. The common law regards consanguinity principally with respect to descents; and, having therein the same object in view a- the civil, it may seem as if it ought * to proceed according to the civil computation. Bat, as it also respects the purchasing ancestor, from whom the estate wu derived, it therein resembles the canon law, and therefore counts its degrees in the same manner. Indeed, the designation of person (ia seeking for the next of kin,) will come to exactly the same end, (though the degrees will be differently numbered), whichever method of computation we suppose the law of England to use ; since the right of representation of the parent by the issue is allowed to prevail in infinitum. This allowance was absolutely necessary, else there would have frequently been many claimants in exactly the same degree of kindred; as, for instance, uncles and nephews of the de- ceased ; which multiplicity, though no material inconvenience in the Roman law of partible inheritances, yet would have been pro- ductive of endless confusion where the right of sole succession, aa with us, was established. The issue or descendants therefore of John Stiles's brother are all of them in the first degree of kindred with respect to inheritances, those of his uncle in the second, and those of his great uncle in the third ; as their respective ancestors, if liv- ing, would have been ; and are severally oallod to the succession in right of such their representative proximity. The right of representation being thus established, the former part of the present rule amounts to this : that, on failure of issue of the person last seised, the inheritance nhall descend to the other subsisting issue of his next immediate ancestor. Thus, if John Stiles dies without issue, his estate shall descend to Francis his brother, or his representatives ; he being lineally descended from Geoffrey Stiles, John's next immediate ancestor, or father. On failure of brethren or sisters, and their issue, it shall descend to the uncle of John Stiles, the lineal descendant of his grandfather Geoi^, and so on in infinitum. * Now here it must be observed that the lineal ancestors, though (according to the first rule,) incapable themselves of succeeding to the estate, because it is supposed to have already passed them, are yet the common stocks from which the next successor must spring. DESCENT or VREEROID ESTATES OF INHERITAMOE. 147 gat, tliough the common ancestor be thus the root of the inherit- common Htoek BDce, yet with us it is not necessary to name him in making out the ^"'^t rnwrtor*" pedigroo or descent. For the descent between two brothers is hel'^ mu«t spring, to be an immediate descent, and therefore title may be made by one brother or his representatives to or through another, without men- tioning their common father. If Oeoffrey Stilos hath two sons, John and Francis, Francis may claim as heir to John without naming their fiitber Geoffrey ; and so the son of Francis may claim as cousin and heir to Matthew the son of John, without naming the grand- father; viz. as son of Francis, who was the brother of John, who fras the father of Matthew. But though the common ancestors are Dot named in deducing the pedigree, vet the law still respects them as the fountains of inheritable blood : and therefore, in order to ascertain the collateral heir of John Stiles, it is first necessary to recur to his ancestors in the first degree ; and, if they have left any other issue besides John, that issue will be his heir. On default of snob, we must ascend one step higher, to the ancestors in the second degree, and then to those in the third, and fourth, and so up- wards, in infinitum, till some couple of ancestors be found, who have other issue descending from them besides the deceased, in a parallel or collateral line. From these ancestors the heir of John Stiles must derive his descant, and in such derivation the same rules must be observed with regard to sex, '"primogeniture, and *s.22r. representation, that have before been laid down with regard to lineal descents from the person of the last proprietor. But, secondly, the heir need lot be the nearest ki isman abso- The heir noat b« lately, but only «m6 m^do ; that is, lie mast be the nearest kinsman k^^J^Snof the of the whole blood ; for if there be a much nearer kinsman of the wt^u blood— half blood, a distant kinsman of the whole blood shall be admitted, and the other entirely excluded ; nav, the estate shall escheat to the lord, sooner than the half blood shall inherit. A kinsman of the whloe blood is he that is derived, not only from that ik, one the same ancestor, but from the same couple of ancestors. For, as t^^^^^^^^^ every man's own blood is compounded of the bloods of his respec af anceitors: tive ancestors, he only is properly of the whole or entire blood with another, who hath, so far as the distance of degrees will permit, aii the same ingredients in the composition of his blood that the other hath. Thus, the blood of John Stiles being composed of those of Geofifrey Stiles his father, and Lucv Baker his mother, therefore his brother Francis, being descended ^om both the same parents, hath entirely the same blood with John Stiles ; or he is his brother of the whole blood. But if, after the death of Geoffrey, Luey Baker J>ntwnraien of the mother marries a secpnd husband, Lewis Gay, and hath issue by cannot inhwit him, the blood of this issue, being compounded of the blood of *° '"^'» °*^«'"- Lucy Baker, (it is true,) on the one part, but that of Lewis Gay, (instead of Geoffrey Stiles,) on the other part, it hath therefore only half the same ingredients with that of John Stiles ; so that he is only his brother of the half blood, and for that reason they shall never inherit to each other. So also, if the father has two nous, A. and B., by different venters or wives : now these two brethren are not brethren of the whole blood, and therefore shall never inherit to each other, but the estate shall rather escheat to the lord. Nay, •4/1 1 ']< iJ 148 DI80ENT or FBCEnOLD I8TATI8 Of INHERITANCE. \i evoD if the father dies, and his lands descend to his eldest ion A. who enters thereon, and dies seised without issue, still B. shall not be heir to this estate, because he is only of the half blood to A., the person last seised; but it shall descend to a sister (if any) of the whole blood to A.; for, in such oases, the maxim is, that the seiaJQ or poueasio /ratrt'a facit tororem eui hairedem. Yet, had A. died without entry, then B. [by force of the first rule] might have in. • 8. 228. herited ; not as '*' heir to A. his half brother, but as hoir to their common father, who was the person last actually seised, [it will be shown hereafter that the common law infirmity of the half blood was partially removed by the statute of Wm. ; who, under it, ti^e after the whole blood in the same deeree ; and was almost entirelj removed by the statute of Victoria, by which they are, except in certain cases, placed on the same footing as the whole blood]. VII. In collateral YH. The seven /A and last rule or canon is, that in collateral *^e!Ju»iM ihau tM^fi^'^awcM the male »tocks thall be preferred to the female, (that th/fc ''"i*^ *** "■» ^iD^ro*! derived from the Mood of the male ancestors, however i«u the unda rcmotc, shall be admitted before those from the blood of the female, J^*^^ '^" * however near,) — unless where the lands have, in fact, descended from a female. The reiaUona on Thus the relations on the father's side are admitted in infnitum, ^mutedA^in^^ before those on the mother's side are admitted at all ; and the rela> ii!ttm.beibre those tions of the father's father before those of the father's mother, and on the mother'a ' ■Ida are admitted SO On. ataiM^an^on. ♦Whenever the lands have notoriously descended to a man from Where ianda his mother's sido, this rule is totally reversed ; and no relation of his ^tibe^a'aide.^no ^7 ^^^ father's side, as such, can ever be admitted to them ; became fath^»iiS[ ***' ^® cannot possibly be of the blood of the first pui'ohaser. And so, eueb, can ever'be c converso, if the lands descended from the father's side, no relation admitted. gf ^\j^q mother, as such, shall ever inherit. So also, if they in fact descended to John Stiles from his father's mother Cecilia Kempe ; here not only the blood of Lucv Baker his mother, but also of George Stiles his father's father, is perpetually excluded. And, in like manner, if they be known to have descended from Frances Holland, the mother of Cecilia Kempe, the line not only of Lucy Baker and of George Stiles, but also of Luke Kempe the father of Cecilia, is excluded. Whereas, when the side from which they descended is forgotten, or never known, (as in the case of an estate newly purchased to be holden ut feudum antiquum) here the right of inheritance first runs up all the father's side, with a preference to the male stocks in every instancy ; and, if it finds no heirs there, it then, and then only, resorts to the mother's side ; leaving no place untried, in order to find heirs that may by possibility be derived from the original purchaser. The greatest probability of finding such was among those descended from ths male ancestors ; but upon failure of issue there, they may possibly be found among those derived from the females. This I take to bo the true reason of the constant preference of the agnatic succession, or issue derived from the male ancestors, through all the stages of collateral inheritance; as the ability for personal service vros the reason for preferring the males at fint in (he direct lineal succession. We see clearly, that if males had been DESCENT or FREEHOLD ESTATES OT INHERITANCE. 149 perpetually admitted, in utter exclusion of females, the tracing the loheritanoe back through the male line of ancestors must at last bsre inevitably brought us up to the first purohasor : but as males have not been ^perpetually admitted, but only generally preferred ; • s. mt. ig females have not boon utterly excluded, but only generally post- poned to males ; the tracing the inheritance up through the male stocks will not give us absolute demonstration, but only a strong probability, of arriving at the first purchasor ; which, joined with the other probability, of the wholeness or entirety of blood, will fall little short of a certainty. Before we conclude this branch of our inquiries, it may not be Ri«mpiiflc«tion amiss to exemplify these rules by a short sketch of the manner in "'*'"" '"•••• which we must search for the heir of a person, as John Stilts, who dies seised of land which he acquired, and which therefore he held u a feud of indefinite antiauity (a). In the first plice succeeas the eldest son, Matthew Stiles, or his issue: (No. 1.) — if his line be extinct, then Gilbert Stiles and tho other sons, respectively, in order of birth, or their issue : (No. 2.) ^in default of these all the daughters together, Margaret and Charlotte Stiles, or their issue : (No. 3.) — On failure of the descen- dauts oi John Stiles himself, the issue of Geoffrey and Lucy Stiles, his parents, is called in : viz. first, Francis Stiles, the eldest brother of tne whole blood, or his issue : ^No. 4.) — then Oliver Stiles, and the other whole brothers, respectively, in order of birth, or their issne: (No. 5.) — then the sisters of the whole blood all together, Bridget and Alice Stiles, or their issue : (No. 6.) — In defect of these, the issue of George and Cecilia Stiles, his father's parents ; respect being being still had to their age and sex : (No. 7.) — then the issue of Walter and Christian Stiles, the parents of his paternal grandfather : (No. 8.) — then the issue of Richard and Anne Stiles, the parents of his paternal grandfather's father, (No. 9.) — and so OD in the paternal grandfathers paternal line, or blood of Walter Stiles, in infinitum. In defect of these, the issue of William and Jane Smith, the parents of his paternal grandfather's mother : (No. 10.) — and 80 on in the paternal grandfather's maternal line, or blood of Christian Smith, in infinitum : till both the "'immediate bloods of * s. 238. George Stiles, the paternal grandfather, are spent. — Then we must resort to the issue of Luke and Frances Kempe, the parents of John Slika's paternal grandmother : (No. 11.) — then to the issue of Thomas and Sarah Kempe, the parents of his paternal grandmother's father: (No. 12.) — and so on in the paternal grandmother's paternal line, or blood of Luke Kempe, in infinitum. — In default of which we must call in the issue of Charles and Mary Holland, the parents of his paternal grandmother^s mother : (No. 13.) — and so on in the paternal grandmother's maternal line, or blood of Frances Holland, m infinitum ; till both the immediate bloods of Cecilia Kempe, the paternal grandmother, are also spent. — Whereby the paternal blood of John Stiles entirely failing, recourse must then, and not before, be had to his maternal relations ; or the blood of the Bakers, (Nos. 14, 15, 16.) Willis's, (No. 17.) Thorpe's, (Nos. 18, 19.) and (a) See the table of descents annexed. 150 DESCENT UNDER THE STATUTB OF WIJLLTAM. •S.240. If the person last seised took by inheritance, the blood of that inherit. Explanation of the table. Descent under Stat. 4 Wm. IV. c. 1. Con. Stat. c. B8. 3, 16. 82, White's, (No. 20.) in the same regular successive order as in ihe paternal line. *In case John Stiles was not himself the purchaser, but the estate in fact came to him by descent from his father, mother, or anv higher ancestor, there is this difference ; that the blood of that line liM ofanc^stors* of anccstors, from which it did not descend, can never inherit: [anddid not***^ as WBs formerly fully explained. And the like rule, as is there | dweeDdoanneTer exemplified, wUl hold upou desccuts from any other ancestors. <.h.rif rpj^^ student should also bear in mind, that, during this whole process, <7b^n Stilea is the person supposed to have been last actually seised of the estate. For if ever it comes to vest in any other per- son, as heir to John Stiles, a new order of scjoession must be observed upon the death of such heir ; since he, by hia own seisin, now becomes himself an ancestor or atipef, and must be put in the place of John Stiles. The figures therefore denote the order in which the several classes would succeed to John Stiles, and not to each other : and before we searcb for an heir in any of the higher figures, (as No. 8) we must be first assured that all the lower classes (from No. 1 to No. 7) were extinct, at John Stiles^a decease. [Such were the seven canons referred to by Blackstone as regn. latmg descent at common law : and we now come to consider the j changes introduced by Stat 4 Wm. IV., c. 1, which came into fori on 1st July, 1834 : — And here I may briefly mention as to the Srd j and 15th sections of the Con. Stat., regarding the time when the various provisions of the Act are to t^ effect, that they will be j best understood by reading them in conjunction with the following, viz., that the original Stat. 4 Wm. JV., o. 1, was passed on 6th { March 1834, and that it is for that reason that day is referred to in the Con. Stat., and also that some of the provisions of the original Act were not to take effect till 1st July, 1834. Sec. 4, by reauiring descent to be traced from the purchaser a,e]nw^IrT^ instead of from me person last actually seised, makes a most impor- tant change in the first canon of descent; the first part of which! was that <* the inheritance should descend to the issue of the person who last died actually wised ;" so that though such person were actually entitled, yet if he did not die actually seised, he was passed j by in the order of descent, and inheritance had to be traced firom | some other actually seised ; from whom then the person claiming as heir was taken to inherit directly : what constituted actual seisin has been above explained (a). By sec. 14 the word " purchaser " is declared to mean " the per- " son who last acquired the land otherwise than by descent, or than " by any partition, by the effect of which the land shall have become j " part of or descendible in the same manner as other land acquired "'by descent.'' These latter words as to partition refer to such a case as a partition by parceners to whom lands ha^e descended ; on partition by them they shall not be considered as taking as purohas* ers, by reason of such partition. By the effect of the statute, there- fore, the word " purchaser " bas a much larger scope than in its ordinary acceptation, and would include all persous who take not] (a) Page 187. Sec. 4. Descent the person last entitled to be deemed the pur- chaser, unless proved that he inherited, in which case the person fh>m whom he inher- ited to be deemed the purchaser ; and soon, ad iitfltUtutii. Sec. 14 defines word purchaser. J ) alio "the iMt ioa1i»- nwing I inon Taat 1 1, and the from leimher- !»•. 151 '"' '^ I'm '■? '" 1 9 .•t>; pi* if.-i \ j w Ibnce in g descent rvnsm last and from I last enti- ot wiBel. ieriu- 0. '^y4^i^y^yia/^^Iu^iej^ 150 If the persoi laat 80iaed t« by intaerltMli the blood of ~ lineofanoeil from which I land did not deaoeDdeani inherit. Explanation the table. Descent Ttnd4 8tat.4Wm t c. 1. Con. Stat. c. SS 8« 3,15. Sec. 4. DeMeni to be traced fr( the purcluuer ; the person last etUiued to be deemed the poi chaser, unless proved that ht inherited, in which case thf person flrom | whom he Inhfi ited to be deenk the purchaser } and so on, ad infinitum. Sec. 14 defines word purchaser ■^ Luc JI9 151 » Aim "the ijut r mdng tenon bit M, anil the (from lie inher- >noe in g deioent (tenon last ; and from n last enti- otwiaei. kerln- tl a CzM^/ur/^ <^2^-^ TABIiE oi HE S C E under tlie Statute of William. JOHN STILES llie mmcKisoR. TIE SCI] NT Statute of William. %^^^j^ JOHN STILES the 150 • S. 24d, If the persQt last wlaed if by inherital the blood of ' llnaofaneel from wtalchi land did nof deMMDd oaa i Inherit. TxptanaH rt tue tabl< Descent nnd* J Stat. 4 Wm. | 0. 1. Coo. Stat. c. i ea. 3, 15. Sec. 4. Descen to be traced fi the purdiaser the person lag eniiUed to be deemed the pi chaser, nnlesf proTed that h inherited, in which cose tlu person from whom he inlii Ited tobede^B the purchas* and 80 on, a« infinitum. ; Sec. 14 defin^ word purchai DESOSNT UNDER THE STATUTE OF WILLI4M. 161 Ifonly in ^^^ ntnot leose of the word, but by gift, devise, &c., in Ighort in every otbor way than by descent or partition as named in [the statute (.i). By the same section also the words '' the person last entitlec* toDeflneRaiM"the h'land," Bhall "extend to th<» last person who had a right thereto, SSd"* ««uether he did or did not oV.ain the possession or the receipt of |«thd rents and pTofitK thereof." In oonsidoring sec. 1, the question may suggest itself to you, viz., Ditrerei oeb»- hW diff" Qoe does it make whether descent be traced from the {^u^p^r^nfast person last entitled, or from the person from whom'he inherited ? *°JUJj*Ji^"* **" You will best understand this by considering the following cases in ^hom he inhei^ illustration of the question ; and you will see there is sometimes a^'^' I most material difference. Assume Gleoffrey (in the second table of inatancM. desoenta) to have been the purchaser, and to have died intestate, leaving only Francis, his eldest son, and a daughter, Br' '?et, by lone wife, and another son. No. 8, bv another wife; tl a y'' •. o would be brother of the half blood to Francis and Bridgr t . sn )se iiirther that Francis, as heir at law to Geoffrey, enten '\Fa ..ad intestate, without issue ! the question is, to whom d*- tL estate desoend? Bridget claims, as sister of the whole blood, ' prefer- ' enoe to No. 8, brother of the half blood to Francis, and sue iusists that descent, under this section, has to be traced fr F" ncis, as I purchaser, on the presumption that as being last eL..itiod, he was the purchaser. No. 8, on the other hand, displaces this presump- tion, by shewing that Francis inherited from Geoffrey, and conse- quently that Geoffrey is to be taken to be the purchaser, and as such, descent is to be traced from him ; in which case by force of the second common law canon (that the male shall be admitted before the female, which is not interfered with by the statute), he. No. 8, would be entitled to take as son of Geoffrey, in preference to Bridget the daughter ; and this would be so : but if descent were to be traced from Francis, the person last seised and entitled, as being the purchaser, and not from Geoffrey j then of course Bridget would take as of the whole blood to him, in preference to the brother of the half blood ; and the 2l8t section (subsequently explained) in such latter case, expressly postpones the half blood. The above case will also serve to exemplify the different effect Pifrerence in introduced by the statute in abolishing the tracing descent from the from°Mr8oTiMt person last seised, and introducing the purchaser or person last seisei^and from entitled as the stock of descent, without regard to seisin ; for at [fed not wiBei. common law as Francis was the person last seised, and so descent had to be traced from him j No. 8, his brother of the half blood, not only would have been postponed by force of the 6th canon, as being a collateral relative not of the whole blood, but, as before explained, he never could have taken under any circumstances, and the land would have escheated, as on failure of heirs, rather than that he should have taken : but in the same case under the statute, he not only takes as heir to Geoffrey, the purchaser, but in priority to Bridget the sister of the whole blood to Francis, the person last seised. In further exemplification, as well of the distinction between tracing from the person last seised, and from the purchaser ; as also] Further in- . stance. (a) See further, ch. 15, as to taking by purchase. 2'^ 1(2 DXSOKMT UNDKB TBI STATUTl OF WILLIAM. I I m ■ h*r* I K # m 2l [of the diatiootion between tracioK fVom the person last entitled, mj from the person from whom he innerited, I may put a case of gr«it hardship. Assume Geoffrey to be illegitimate, to acquire an estite by purchase, and die, leaving Francis his eldest son and heir at law who enters, and dies intestate, without issue : here the land mnii escheat for want of heirs ; for as descent has to be traced, not froni Francis, the person last seised and last entitled, but from Geoff^i (as Francis inherited from him), and as Geoffrey was illegilimate, there can be no heirs ; and thus the mother of Francis (wife of Geoffrey) and'all claiming through her, are excluded, as not being of the blood of the purchaser. Take this further case, suppose No. 11, and Geoffrey in the 2n(| table of descents, brothers of the whole blood ; Geoffrey has tvo sons, John and No. 8, by different wives, therefore half brothers: John purchases an estate and dies intestate, seised, without \mt Now before the statute No. 11, the uncle of John, would be hii heir, and not No. 8, his half brother; since No. 11 would be next collateral heir of the whole blood to John, the person last seised, Let us now go a little further, and assume that No. 11 entered aud died after the passing of the statute, intestate, leaving A. his onlj son : now here, as descent has to be traced from John the pnr< chaser, the heir will be, not A., the son of No. 11 ; but Geoffrey,if living, or if dead. No. 8, the half brother of John. If the descent had to be traced from the person last entitled simply, without regard to his having inherited, of course A., the son of No. 11, would have taken. The case Inst put has the sanction of a note to Mr. WatkiDs's work on conveyancing, p. 445. You will observe the son of the TTk— «... ^^^ person last entitled is excluded by a collateral relative of such per. When tne pemon t^ .."^i •» . ' , i last entiued who son; a proposition which as being law is by no means clear, and iM^ng^dran, ^^^^^ ^ the consideration of the celebrated case of Cooper y. France, doMB.4appiy,to(a) and other cases involving the same question, which is substan- um chUdnrnV ° tially this : whether, where the person last entitled, who has in- herited the estate, dies, leaving children living, the statute is to be considered as applying so as to compel the descent to be traced, not from the parent, but from some prior purchaser, to the detriment of the children ; who would thus, as in the circumstances of the two cases last above, not take the property as enjoyed by their parent This question led to a controversy more widely spread and almost as famous in the profession as that which existed under the old lav, wherein Lord Bacon, Sir Matthew Hale, Blackstone, and other authorities, differed ; (5) and the authorities in cases wherein the question is involved have differed in England, Canada, (c) and Australia (d). Cooper r.fvancis. In Qooper V. France the case shortly in effect may be stated thus : A. was purchaser and died intestate, leaving two daughten, who took as coparceners. One of the daughters died leaving a son, her heir at law. The question was whether, as the mother inherited, descent was to be traced from the purchaser A., quoad her share; in] (a) 14 Jurist. (b) Post p. 157. (c) WiffU V. Merrick, 8 C. P. U. C. (d) Badham v. Shieldt, 7 Jur. N. S., 609. DESOXNr UNDIB TBI 8TATT7TS Of WILLIAM. 168 [which case, bjr a literal oonstniotion of the statute, raoh share would Igaio descend in ooparoenary, and be divided equally between the gorviving sister and the son of the deceased ; so that the son would not get his mother's ori^nal share, one half, but only one half of one naif, aad the surviving sister his aunt the whole residue. Mr. Williams at one time stronglv contended for this view, and so have other writers (a). V. 0. Shadwell decided, however, that in such case the son would take his mother^s whole share; such seems to be also the opinion of Lord St. Leonards in his essay on the Real Pro- perty Statutes, p. 280, «t ieq., and of the present learned Chief Jus- tice of the Common Pleas, in Wigel v. Merrick, 8 0. P. U. C, hereafter referred to. V. 0. Shadwell thought in so plain a oase the act did not apply, sod Mr. Smith, in his work on Real and Personal Property, p. 87, gays, as to descent being traced from the purchaser : « Except that « it would seem that where the person who died last entitled left « issue, the descent is to be traced from Am, even though he in- « herited the same.'' In the oase in Australia of Badham v. Shieh, BaMam r. 7 Jurist, N. S., 509, one Mary Cannon became indebted to the^^- plaintiff in a specialty debt. She had inherited land from her father, the purcnaser, and died intestate, leaving a son, her heir at law, who died, leaving the defendant his heir at law. The defendant was sued as having assets by descent from Mary Cannon ; and his defence was that as Mary Cannon inherited from her father, the purchaser, and descent therefore had to be traced from him, the estate was not assets (b) in his, the defendant's, hands by descent from Mary Cannon, to satisfy her specialty debts. Two judges held that they were ; another held that they were not. We need not dwell long on the second branch of the fourth seo- <' tion, which is that ** the person last entitled to the land shall be " considered to have been the purchaser thereof, unless it be proved « that be inherited the same, in which oase the person from whom « he inherited the same shall be considered to have been the pur- " chaser, unless it be proved that he inherited the same," and so ad infinitum. This needs little explanation. As before explained, it shifts the descent sometimes materially, according to whether the person last entitled did or did not take in any other manner than by descent or partition, as named in seo. 14. The presumption created, that the person last entitled is the purchaser, is to avoid difficulties in the evidence, which would be great if the statute provided simply that descent should be traced from the purchaser. Of course, when so important a change was made as requiring s. 8. BeMona for descent to be traced from the purchaser, instead of from the person*"**'"'*'*'"* last actually seised, it became requisite to provide for many cases in which, by the common law persons were considered as taking by descent, altough the facts were such as shewed an apparent intent that they should not so take ; as in the oase, for instance, of the heir at law taking by devise from his ancestor: here if the devise ^^^^^lu^y'' were to take effect in the same way as the estate would havelre alluded to the law on this point, as it existed at common law, and given there an instance of the practical effect of the altera- tion by the statute, to which I refer you (a). Before concluding con- sideration of these sections, I may observe that there is an apparent anomaly as regards the hereditary quality of an estate affected bv section 6 ; thus if lands be limited by a stranger to A lor life, with remainder to the heirs of B, and B die during the particular estate, his heir will take as purchaser ; but for the purpose of tracing descent, the ancestor B is to be deemed the purchaser (b) ; and it makes no difference that the ancestor, who for the purpose of tracing descent from him ia to be treated as the purchaser, takes no interest Id the land (c). Ss. 17 & 18 may be considered together. It must be borne in s«. n, is, estab- mind that at common law the inheritance never /Vn^a^^^ a«cen{fec?,ii^Maaneeitor but only collaterally. Thus on the death of the person last soiled J^jg^^"^*"**^^ without issue, the estate would go, not to the ftther in direct line of lineal ascent, but to his brothers or sisters in preference ; and if DO brothers or sisters or issue of them, then, rather than go to his father, it would go to his uncle the father's brother and his issue, and so on collaterally (d). These sections alter the common law rule of es lading the lineal ancestors ; and by them the father of the purchu. 'r will take before his children, the brothers and sisters of the purchaser; and the grandfather before At> children, the uncles and aunts of ^he purchaser, and so on in the ascending scale ad infinitum, contrary to the common law. S. 19 : for the consideration of this, it is necessary that there s^; i^ ^«'« ""»» should be a proper appreciation of the words, paternal ancobtor, fyr^to'umaio. maternal ancestor, male paternal ancestor, female paternal ancestor, male maternal ancestor, female maternal ancestor. In one sense, paternal ancestor, and male paternal ancestor, tnean DrflniHoD uf v> one and the same class of persons; thus by examining the table of] {^lie'paternaii^*** (a) Ante p. 139. (e) Sngden's Statutes. (b) Stephens Coin. 480. {d) Ante p. 188. 156 DESCENT UNDER TBI STATUTE OF WILLIAM. I female paternal, [desoents it Will be Seen that Geoffrey, George, Walter, and Riohari] ance»tor«,4c. Qtiles, answer the description of patcmal, as wcll as male paternal ancestor ; it is when the term male paternal ancestor is used io connection with and in oontra-distinction to female paternal ancet^r that it bears a different signification from paternal ancestor. Thus' in speaking of the paternal ancestor George Stiles, (No. 10) in coq'. nection with his wife, Cecilia Kempe, (No. 24) he would be termed the male paternal ancestor, and she the female paternal aitcestor • and so in reference to Walter and Richard Stiles and Cecilia Kempe- or Walter or Richard Stiles and Christian Smith, (No. 19) ; and it is to convey this distinction that the terms male paternal and female paternal ancestors are used in the statute. Every mother of a lineal paternal ancestor of a purchaser, is a female paternal ancestor. The converse of the above holds in reference to female maternal ancettm and male maternal ance^*or8 ; thus Lucy Baker^ (No. 37) Esther Thorpe, (No. 54) Emma White, (No. 62) and Catherine Ward, (No. 66) are maternal ancestors in direct line of lineal ascent ; but spoken of in connection with other ancestors of the purchaser on the mother's side, they would be termed female maternal ancestors. Thus, Esther Thorpe, 54, the grandmother of the purchaser, spokeu of in connexion with Andrew, 40, Herbert, 43, or Henry Baker, 46, would be termed the female maternal ancestors, and they, the male maternal ancestors. Every mother of a lineal maternal ancestor is a female maternal ancestor. Both male maternal and female maternal ancestors, trace and ascend through the mother of the purchaser ; whilst the male paternal and female paternal trace and ascend through the father of the purchaser. The subject might be more fully elucidated, for instance, as between William Smith, 21, and Mary Wilson, 36; but it is hoped the above will suffice to explain the terms used in the statute, and that as between William Smith and Mary Wilson and others in the table of descent, the student will be enabled to correctly distinguish ^ as to the order of descent. The first clause of sec. 19 provides that maternal ancestors shall be postponed to paternal ancestors and their descendants : thus, before the mother of the purchaser, Lucy Baker, or any one claim- ing through her, can take, the paternal ancestors in direct line of lineal ascent, and the descendants of each must fail. The second clause provides that no female paternal ancestor, or her descendants, shall take until the male paternal ancestors and their descendants shall have failed. The first clause only postponed the maternal ancestors, this postpones the female paternal. Thus the mother of the purchaser's father is postponed, and those claim- ing through her, (tnough perhaps of nearer consanguinity), to the male paternal ancestors and their descendants ; thus Richard Stiles, No. 16, and his descendants, will be preferred to the mother of the father of the purchaser, Cecil'a Kempe, No. 24. The last clause of sec. 19 provides that no female maternal ancestor, or her descendants, shall inherit till all the male maternal ancestors and their descendants have failed ; thus the mother of the mother of the purchaser, Esther Thorpe, No. 54, is postponed till the father of the mother of the purchaser, Andrew Baker, No, 40,] DESCENT UNDER THE STATUTE OP WILLIAM. 157 his descendants, and his paternal ancestors and tbeir descend- ants shall have failed. Under this 19th sec, the same preference is given to males among the purchaser's ancestors, as among his jescendant I. It will be observed that this and the following section proceed oi much the same j^rinoiples as prevailed under like cir- camstBDces ;it common law, with the variation of allowing the lineal jDcestors to take. Sec. 20 provides for cases, which it will be seen are not touched s. 20. Mother of by the sec. 19, viz., who shall take on failure of the male paternal SS?,^°efe^ ancestors and their descendants; and who on failure of the male «nce to mother of linaternal ancestors and their descendants — thus, suppose the male ^toraiaam^tor paternal ancestors, Geoffrey, George, Walter, and Richard Stiles, id their descendants to have failed ; who now would take ? Would it be Anne Godfrey, No. 18, the mother of Walter Stiles, the most remote male paternal ancestor ; or would it be Cecilia Kempe, No. {24, the mother of the least remote male paternal ancestor ? Refer- ence to sec. 19 will shew that it does not apply to claims between female paternal ancestors as among themseheSf nor to male maternal Dcestors, among themselves. The question settled by the 20th sec, was a very celebrated one, ind one on which the most learned writers differed, as Lord Bacon, ir Matthew Hale, Blackstone, Watkins, and others. The 20th lec. now settles the point, and under it, Anne Godfrey would take iriority over Cecilia Kempe, so also would Christian Smith, 19, for the same reason ; and all claiming through Christian Smith, as er children, father, or mother, tracing »heir descent from her as ntitled before Cecilia Kempe, would also be so entitled. In the second clause of the 20th section there is a very singular s. 20, latter part. nistake, and the same mistake occurs in the original statute 4 Wm. remote miOe*"* IT. The wording is " failure of male paternal ancestors," whereas mafenurfancestor should be "male maternal ancestors.'' It is manifest it should ^ra to moluher'' ^^ maternal," because the intention was, and the necessity was, to^''®""""**- (roTlde for a similar case among the male maternal ancestors as was above provided for among the male paternal ancestors ; which Bse among the male maternal ancestors, as between themselves, was ^ft untouched by the 19th Bection. Thus, on failure of the male maternal ancestors Andrew, 40, Her- ert, 43, and Henry Baker, 46, and their descendants, who would kke? Would it be Susan Bates, 48, the mother of the most remote, ' Hauuah Willis, 49, the mother of the less remote male maternal pcestor? This, again, was the same question on which the learned iters above referred to had differed, and the manifest intention and ecessity was to provide for this case, and the statute as printed Bs no sense. S. 21. We now come to relationship and descent of tha half-blood, s. 21.^ iwpwood. U before mentioned, (a) the half-blood could never succeed by com^uw from lescent to each other. The land would escheat rather, if there were ^'^^ °"*""' other heirs. Thus, if Geoffrey purchased and died intestate, )ised in fee, leaving John his eldest son and heir at law by one |ife, and No. 8, his second son by another wife ; and John entered] (a) Ante 147. ii t-^'M !i 1 : 158 Instances of application and non-application ofs. 21aatothe hal^blood. Where tli» half- blood are related not through the tether but the mother. S. 7. And Con. SUt. lie, attaint; and corruption of blood. DESCENT tNDEB THE STATUTE OF WTLLIAM. {'and died seised, without issue ; No. 8 oould never inheri' atcomiaot] aw to his half brother, noroouM John to him, No. 8. But if Jq],, had not died seised ; then, as descent at common law was tracej from the person last actually seised, who was Geoffrey ; No. 8 nM\ have inherited, not as heir to John, but as son and heir to Geoffrey, Such a case as this is remedied by the operation of the 4th section alone, without reference to the 21st, which in fact does not appiv to such a case ; for that section only applies to the case of a person related by the half-blood to the person from whom descent is to jj traced; but, in the above case. No. 8, in tracing his descent, is not related by the half blood but by the :'iole blood to Geoffrey, ijj father (the purchaser), Arom whom descent is to be traced : and con- sequently s. 21 does not, and s. 4 alone does apply; and the lattet gives No. 8 the estate, and that in preference even to Bridget, the sister of John, the person last entitled. What s. 21 provides forjj not such a case as above, but such as follows : Assume, in the above case, John to have been the purchaser, instead of having inherited from Geoffrey as the purchaser, and to have died seised withont issue. Now in this case also at common law No. 8 could never inherit ; but under the statute, on John's death, the estate would go to the father, Geoffrey, and on his death, since he inherited, desceot would be traced, not from him, (in which case it would go to jfa 8,) but from John ; and therefore Bridget, his sister of the vhole blood, would take in preference to No. 8, the brother of the half blood. Now, on Bridget's death after entry, without issue, an heir would be wanted ; and at common law this heir would not be No. 8^ who could not inherit (being of the half blood), but would be Bridget') uncle, the brother of Geoffrey, or other collateral ancestors: but under s. 4, on Bridget's death, descent would have to be traced again from John, the purchaser, and No. 8 would be within the exact words of section 21, via., a "person related to the person " from whom the descent is to be traced, by the half blood,'" anil therefore he would be capable of inheriting, and he would be, in the words of that section, " a brother of the half blood on the part " of the father " inheriting " next after the sister of the whole " blood on the part of the father." Thus again, in the table of descent, Nos. 8, 9, and 9, the issne Geoffrey Stiles, and of the half blood to John the purchaser, would at] common law never inherit, at least by tracing descent fiom him; but under section 21 they take next after the sisters of the whole blood on the part of the father, Bridget and Alice Stiles. Where the common ancettor is a female, as where the half blood is related through a mother on a second marriage, instead of tbrougli a father; here the half blood take immediately after the mother, the common ancestor, since such mother does not take herself i| all the paternal ancestors and their descendants are exhausted. There remains in the law of descent under 4 Wm. IV., only toW considered the change made by the 7th section, in connexion witi] which should be considered ch. 116; the effect, except in cases ofl high treason, is to do away with that corruption of blood consequenU on attainder, which at common law prevented the tracing descent] DESCENT UNDEB THE STATUTE 01* YIOTOBIA. 159 an. rfroo or through the person attainted, as more fully hereafter ex- plained in treating; of the hrw of escheat (a). H the student desires mere fully to consider the objects of tiie gtata^e of William, and the grounds for the changes effected by it, reference should be had to the report of the commissioners as to the law of real property, on which report chiefly the Imperial Parlia- ment proceeded in passing the Imperial act from ^ich ours is taken. THE PRESENT LAW OP DESCENT. [I must say I approach the Statute of Victoria with great hesita- st. u a 15 vie. tioD, since it has not been in force a sufficient length of time to have"*"'"®^''***''' received judicial construction in our courts ; and the system intro- duced being wholly foreign to English law, no English text-writers can be referred to. The statute came into force on 1st Jan., 1852, which fact explains s. 22. stat. opei the 22nd section. atMfromistJai In regard to the 23rd sec, I will merely call your attention to the g 23 gt«t. in- ftet that it expressly includes estates pur outer vie, and does not -ludes MtBtes in include estates-tail; the descent of the latter are governed therefore, aut^^%atnot as presently explained, per formam doni, and the common law J^jj^j^t*^**** rules as modified by the statute of William. onder st. de Next remark, thatdescent is no longer as under the statute of Wil- ^j*' liam to be traced from the purchaser, or person last entitled; but the faoafpSrohsMr. language of sec. 23 is, that the real estate of any person who shall ^^''i^^^ot die intestate, seise J in fee-simple, or for the life of another, shall tracing from per- descend, &c. : the first question which suggests itself on the lan-^*"j*'*^^^^ guage of this section is, whether we are again referred to the rigor- ous common law rule, which was, you may remember, 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, Tvas requisite ; thus, in According as I a case I put before, of A., a bastard dying seised, leaving his wife from^^rMn law and wife's brother, and B. his son and heir at law, him surviving : r*?«* ?f,P*/**JJ, I ,1 , T» '5 1 ». 1 • / 1 A 1 ° ' last entitled will I assume that H. never was seised, and died intestate; here, asthepenonwhois descent had to be traced from A., as last seised at common law, the^^J^_^*'' [wife's relations could never take, and the estate would escheat ; but instanoea. id B, entered, then his mother's collateral relative might have I taken as heir to her son : Under the statnte of William, in such I case there must always be an escheat. In such a case, under the statute of Victoria, the question would I be whether the mothe? could take under the latter part of s. 28 as Iheir to B ; or whether, as B. never acquired seisin, descent would " Ihave to be traced from A. as the stirps, and so escheat ; for I appre- Ihend in such a case the mother could noc take under s. 87, as next |of kin to A. under the Statute of Distributions. Again, suppose A., the purchaser, seised in fee, to grant a life estate land die seised of the reversion in fee, leaving his son B., his father JC, and wife D. him surviving : here the reversion would descend Ito^the son B.; but if he, B., died pending the life estate, (in which [case, as before explained, (b) he would not at common law, for the] (a) Pott, S. 252 and following seotioos. (b) Ante 189. 160 DESCENT UNDER THE STATUTE OT YIOTORIA. New York Stat mncb as this. Decision on. ^1 The word Mtsed identical witli mtitled to for parposes of de- scent under St. of Vic. #M ,f *^ :r [purposes of descent, have acquired actual seisin,) the question would be, under the statute of Victoria, whether, when the estate in rever. sion became one in possession on the death of the life tenant, the parties claiming must take A. or B. U6 the stirps of descent ; if ^ be taken, then the estate will go to A.'s father, under the first part of s. 27 ; if B. be taken, it will go to the mother of B. under s. 28 and not to his grandfather. A consideration of the above, and other cases I have put before will shew the importance of the question; s. 23, as regards this point, appears to be worded much as the statute of the State of New York of 1786. Mr. Chancellor Kent, in reference to that statute, says (a): " The rule of the common law existed in New " York under the statute of descents 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 fratrh " or the stirjps of descent if he die pending the life estate, and the " pei»3n claiming as heir, must claim from a person last actuallv " seised. If the estate in fee had been acquired by descent, it was ^ " necessary that there should have been an entry to gain a seisin in *' deed to enable the owner to transmit to his hetr; and therefore, " if the heir on whom the inheritance bad 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 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 (s. 50), by which the term " real " estate " is to include every estate, interest, and right, legal and equitable, held in fee simple, or for the life of another. We have, however, still retained the word seised in s. 32, which is struck out in the revised statute of New York. I have little doubt that by virtue of the comprehensive meaning given to the words " real estate," that actual seisin is not requisite, and that the word seised in s. 32 will be construed as entitled to; 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 rights : woreover by s. 8 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 moreover, that is sometimes taken as law in the conrts of the various States which would not be so taken here. Thus Mr. Washburn (6), after stating the rule at common law as to descent of an estate iu I'emainder or reversion to be as I have before expressed it, (c) says in reference to such an estate, " the] (a) Vol. 4, Ed. 6, p. 888. (J) Washburn Beal Property, toI. 2, p. 410. (c) Ante, p. 130. DESCENT UNDER THE STATUTE OF YIOTOBIA. 161 [-'( law is Ranged ip several, if not all the United States, and the (( heirs of a reversioner or remainder-man take as absolutely as if If their ancestors were actually seised of a freehold in possession, i( the word seized being equivalent to owning when applied to srch li ao interest ; a remainder or reversion, therefore, becomes a proper " stock of descent, &o.;'' and he refers to cases in support of this, decided under the statute of 1786 above-named. In the courts of the United States also, there is little hesitation in moulding the lav according to the peculiar circumstanc^b and requirements of the of the country; thus in cases of wild 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 capita that prevails, and descent per stirpes only takes place a& an exceptional case, as will be seen in the sequel. Sec. 2J: expressly introduces descent per capita to the exclusion s. 24, expressly of the former system of descent per stirjpes; thus A. dies seised, g°eu°t'^tr*ca^<(r having had two daughters, both dead, in A's. lifetime; one of ^i^en degiees of which daughters left one son, and the other eleven sons; here^u^*^^"^ instead of the one grandson taking one half, as would be the case tracing descent per stirpes (by force of the 4th canon), hf U only take equally with the others, viz. , one-twelfth ; but it will \ jserved this rule only applies when all taking are of equal degi of con- sanguinity; otherwise, under sec. 25, if in the abov. oaae, the|«";?5. mother of the one son had been alive, on the death of ' , and the be la equal and' mother of the eleven sons dead; here as the descendancs of A. are 2]^^^'*^^°^"'^ in unequal degrees of consanguinity, the mother li v.-j; will take under s'. 26 th 9 one half, and the eleven sons of the mother dead t other half^^^v^^^^jt^y between them all : thus here the descent is partially per stirpes and p«" capita. partially per capita ; it is per stirpes as between the daughter liv- ing and the eleven sons of the daughter dead, but it is per capita as between such eleven sons among themselves. Take the following case in further illustration of this 25th sec. ; illustration of assume that A. has three children, B., C, and D. ; that 0. and D. '■^^" die in the lifetime of A., C. leaving two children ui \ D. four children, and then A. dies seised, intestate : here B., the surviv- ing child, will take one-third, being " such share as would have " descended to him (by sec. 24) if all the children of the intestate " who have died leavbg issue, had been living ;" the two grand-] 11 m ■>:^l • • 162 S. 26. A2)ent, as above mentioned, is the same as the rule of succession to personal property prescribed by the Statute of Distributions of Charles, under like circumstances, i. e., where an intestate dies leaving lineal descendants and no widow j and even if there be a widcw, the Stat, of Vic, s. 41, expressly reserves the widow's right to dower, which would be one-third for life, whilst tho Statute of Distributions gives her one-third absolutely. Sec 27. The first clause provides that if intestate die without descendants, the inheritance shall go to the father, if living, unless the inheritance came to 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 See. 28. ^ First, however, let me explain what is meant by the expression in this section as to the inheritance coming to the intestate on the part of his mother, and the mother being living ; taking the word inheritance in the sense in which in reference to descents it is frequently used (as in the 7th common law canon), as referring to or as synonymous with, course of descent, or the descent itself, instead of the subject matter thereof, it is difficult to uuderstand how an inheritance as such can come to a child as from a living mother. Mr. Justice Blackstone and others express the 7th -common law canon thus : " In collateral inheritances, the male stocks shall be " preferred to the female, unless the lands have descended from a " female ;" in Sec 27, the word inheritance 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 50th section declares that the word inheritance shall be understood to mean in the prior twen-] DESCENT UNDER THE STATUTE OP VICTORIA. 168 Jestor, '} Viz.. d-children,' f ancestors JopiVo, and ause "the II be dead, ent would if any one not where grees : the iscribed bj '» entitled in the case of children ve applied have been i action of It will be ered 93 in [ually with has been ment into me as the Statute of j where an I nd even if ■serves the fe, whilst e without ag, unless r, and the event, if It by Sec. xpression be on the the word ints it is erring to Qt itself, :aDd how mother, mon law shall be 1 from a he sense lich the ires that r twen-] r{y.geven sections, *^ real estate ;" and the 52nd section declares, that the words " where Ae estate shall have come to the intestate on the « part of the father or mother," shall be construed to include every i^e in which the inheritance shall have come to the intestate by devise, gift, or descent, from the parent referred to, or any relation of the blood of the parent. Ton will observe the 52nd section consi- s. 52. Alters and derably alters and enlarges the mode by which under the statute of ?.frmM m^'e and WilHani) a person was considered as taking an estate ex parte matcrna, "<"»•« of taking otpaterna, as the case might be; he was before considered as so tak- ^P"""*"*" ing, 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 devise from such ancestor, then the estate was not considered as descending to him at all, but he took as purchaser (a) ; 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 net, the estate would escheat. The change effected by the statute of Victoria is very great, as will be seen by considering one simple and common case : suppose that in the second table of instanceH of descents, the estate had been either devised, or given to John StileSauS to°M to by his mother, or any relative of hers; here under the statute of*»i''n8 6yi»«'-- William, John Stiles would have been considered not as taking earstat^vir ^ parte materna at all, but as a purchaser ; and the result was that all the paternal ancestors and their descendants, however remote, must have failed before any maternal ancestor, or any ot.»- fUiming through such, could have taken : now, however, in such a case, 'he estate is to be consi^^ered 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 pater- instance of oper- nal postponed to maternal uncles and aunts. The 27th section may ■**'"' °'*- ^• perhaps be best explained by illustrating it by the table of descents. . Thus, assume John Stiles to be actually a purchaser for money ; (I say purchaser for money, because the 52nd section, as above explained, has altered tho meaning and 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 under the first clause. The case of the inheritance coming ex parte materna, and the mother being living, is provided for in the 28th section, and I pass that, therefore, for the present, and proceed to the next clause, 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 father would take a life estate, and the reversion (so called in the statute, though, perhaps, according to former definitions of this interest, it is more strictly in the nature of a remainder), would go equally among the brothers and sisters ; if also at the time of death] ■ » (a) See former remarks on as. 5 & 6 of the statute, p. 163L; and oh. 15. 164 DESCENT UNDER THE STATUTE OP VICTORIA. S. 27, last clau=o, if estate came cs parte iwikrna, and mother, brother?, and lis- ters and dertoeml- ants dead, tha father takes. m S. 28. If no descend- ants, and no father who can take, but a moth- er and brother .^nd Bister. [of John, his half-brotbors and sisters ex parte materna had been alivo, Nos. 38 and 39, and also his half brothers {ind sisters ex park paferna, Nos. 8, 9 and 9 ; then, under the SCth section, tbo 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 u maternal ancestor : descendants of any brothers and siater.s decefised would have taken per capita and p^ stirpes, as the case might be as explained in the 80th section. Under the last clause of the 27th section, if the estate came on the part of the mother, and the mother, brothers and sisters of John, and the descendants of such brothers and sisters \?ere dead, then the estate would go to the father, Geoffrey : and this latter again, varies fromthe Stat. 4 Wm. IV., under which iu 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 Luoy, John Stilea' mother, subject to the tenancy by the curtesy of John's father, GeoflFrey. This 27th section varies frcn the Statute of Distribu- tions in this ; that failing lineal descendants, personalty goes, one- half absolutely to the widow, an " the other half to the father; whereas, under this statute, the father takes all absolutely, subject to the widow's right to one-third for life, as dowress ; and if there be no widow, the father, as being 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. Sec. 28 is somewhat explained by what has been said in rd'crence to the 27th. This section provides for the case of the lather being dead, who otherwise would be entitled to take the inheritance ; md also for the case of his being alive, and yet not entitled to take un- der s. 27, by reason of the ostate coming ex parte materna.^ and tlip mother or collateral relatives being alive. Thus, assume that on John's death his father Geoffrey was either dead, or not entitled to take as above mentioned, and that 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 30th section: if the brothers and sisters, and their descendants, were dead, then the estate would go to the mother. I should here mention that all the brothers and sisters of the half blood would take equally with those of the whole blood under the 36th section ; that is, if John were purchaser for money, all the half blood ex parte paterna and materna, viz. Nos. 8, 9, and 9, and 38, 39, 89, would take equally with the brothers and sisters of the whole blood ; but if John got the estate ex p>arte paterna or materna, then the half blood only on that side would take. Under the Stut. 1 James II., c. 17, s. 7, the personalty of an intestate who leaves no father, wife, or children, will go in equal shares between his mother and I thers and sisters; the above section is on much the same princ° except that the mother takes only a life estate in all.] DESCENT UNDER THE STATUTE OP VICTORIA. 1(16 31. where nu arenti [Sees. 29, flO, 81. assume thero are no lineal deacendants, father, pacb. 29, 30, or mother, and provile for cases of descent to collateral relatives, tifi]^^^^^atmt brotliers, sisters, and their descendants, as next entitled, and the'ivinjr, thrtcoi- iDode in wliich they shall take j the mode of taking hereby presented '"'"*'* '*''"■ as regards taking per stirpes or per capita is somewhat similar to that prcBcnted under sections 24, 25, and 20 in reference to children of iutcstnte and their descendants. An illustration of the mode of descent under these sections may be made thus: Assume John toinstancei. have died, leaving him surviving only his brother Francis; and A., and B., two sons of his brother Oliver; and D., and E.; two grand- sons of Oliver by a deceased son of hia, : hero all tho claimants are collateral relatives of unequal degrees of consanguinity to intes- tate, being one brother, two nephews, and two grand-nephews ; and a mixed descent, per stirpes and per capita takes place j ^)cr stirpes in dividing between the unequal degrees, per capita between tho equal degrees ; thus A. and B. between themselv s shall take equally, 80 also shall D. and E.j but taking A. and li. together as of one class, and D. and E. together as of another class, thoy take unequally as being of unequal degrees of consanguinity to intestate : the result of above is that Francis takes one-half j A. and B. two- thirds, or each one-third of another half; and D. and E. one-third, or each one-sixth of such half; in other words, Francis six-twelfths, A. and B. each Iwo-twelflhs, and D. and E. each one-twelfth. The mode of descent prescribed by these sections agrees somewhat with the prior law, except that under the latter the eldest brother and his lineal descend- ants took by the law of primogeniture to the excltision of younger brothers and their descendants, and it was only among females that equal division took place ; and the half blood were not admitted as favorably as now by s. 36 : it agrees also with the Statute of Distri- butions with these exceptions ; 1st. That as to personalty, the widow, if any, will take a moiety absolutely, and the residue go to the brothers and sisters ; whilst, as to realty, the brothers and sisters now take all, subject to the right of dower of the widow, viz., one- thiHl for life ; 2ltid. Under the statute of Charles the right of repre- jentatiion u confined to children, and under the statute of Victoria extenu-t^d to descendants of the brothers and sisters deceased, of the lutes tati' Sec. 3- provides for cases previously unprovided for, viz., cases in which the intestate leaves ,iO issue, or father, mother, brother or sister, or their desceodfliiCs, and assumo^ *he estate to have come ex parte p^4fc>. 1.0 I.I i:^ 12.8 |50 ™^ 2.5 »" Dig III 1.8 1.25 1.4 lA M 6" ► Photographic Sciences Corporation ^ ■1? \ s :\ v \ ^9> .V \ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716)872-4503 ) :\ \ \ |i; P%'| 168 DESCENT UNDER THE STATUTE OF VIOTOaiA. li If •It ■i ! r\i i In : :Ul adranoed. Sec. 45. What la not an advance- ment. [sity does not exint under the Statate of Distributions. KeiUier statute takes away from a child anything advanced him, but excludes him from sharing in the estate wholly or partially, according to whether the advancement be or be not equal to his share ; if the Sees. 42*44. Vab advancement be only partial, and the child desire to participate, the iwtion ol share yalue of the advancement must be brought into hotch-pot j the vdu. ation is provided for in sections 44 and 42. By section 45 the maintaining and educating a child is not to be deemed an advancement, nor is the giving of money, without a viev to a portion or settlement in life : the Statute of Dbtributions in this respect is not so express, but nevertheless maintenance and education are not considered advancement within that statute. Sir W. Blackstone, after alluding to the resemblance between the Statute of Distributions, as regards the succession of widow and children, and the law before the conquest, de raUonabiU paru bonorum (a), says in reference to the law of hotch-pot] : " So like- « wise there is another part of the Statute of Distributions, where " directions are given that no child of the intestate, (except his heii *' at law,) on whom he settled in his lifetime any estate in lands, or " pecuniary portion, equal to the distributive shares of the oUier " children, shall have any part of the surplusage with their brothers " and sisters J but if the estates so given them, by way of advance- " ment, are not quite equivalent to the other shares, the children " so advanced shall now have so much as will make them equal. <' This just and equitable provision hath been also said to be derived " from the collatio bonorum of the imperial law, which it certainly " resembles in some points, though it differs 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 pro- " vince of York, and of our sister kingdom of Scotland : and, with (( Sees. 46, 47, 48, 49. Partition among oo-heira, Descent of es- Utestall. regard to lands descending in coparcenary, that it hath always " been, and still is, the common law of England, under the name " of hotchpot" (b) Sees. 46, 47, 48, 49, provide for partition among co-heirs and sale. It will be seen that the right of preemption given to those "^'m°tionito**''^^° successively would have taken as heirs at law under the former heir at law under law, inseparably links this statute with that of William, and with old uw. ^jjg common law. The statute does not apply to estates tail, the 28rd section expressly confining it to persons who shall die " seised in fee or for the life " of another :" the descent of estates tail is therefore subject to rules peculiar to such estates, and still regulated by the old law as modified by the statute of 1834. The class of persons who take under a limitation in tail comprises those onlv to whom the estate is originally limited, and who must be either the lineal posterity of a particular person, or of a man and his wife ; or the male issue only, or female issue only, of such person or persons : in selecting the heirs from this limited class of persons, the rules of descent existing ^^"J«™*2^*'" *'y before the statute of Victoria are applicable; and therefore primo- geniture and the preference of males to females prevail still in the] (a) Vol. 2, p. 617. (6) Ante, sees. 190, 191. DESOfiNT UNDER THE STATUTE 07 VIOTOBIA. 169 [case of a descent of an estate tail general : when, however, the fimitation is to the heirs male, or heirs female of the donee, the descent can only be traced through males in the first case, and throTigh females in the second; so that if an estate is limited to a man and the heirs male of his body, and he dies leaving two sons, and the eldest son enters and dies leaving a daughter his heiress at law; here the estate will go to the second son rather than to the dangbter of the elder. The descent of an estate tail rarely occurs in practice, such estates being capable now by a simple process of being converted into estates in fee (a). Estates pur auter vie being expressly included in the statute of ^^j?^/^ \^otoria (sections 50 and 23), are consequently now descendible pre-^ndauairee cisely in the same manner as estates in fee simple : the devolution '^p^^- of such an estate he/ore the statute of Victoria is explained here* after (b). Sec. 50. The descent of equitable is governed by the same rules s. so. Eqattabu as legal estates. e'sX'"^ I will now give a summary of what I have endeavoured to explain summary of as to the present law of descent. Assume the intestate to be the J£JSiteo?°^*' purchaser, or that the estate came on neither the paternal or maternal Victoria, side : the estate will descend, first, to the lineal descendants of the intestate, and those claiming under them per stirpes or per capita according to whether the claimants are in equal or unequal degrees of consanguinity, as before explained; and subject to the law of hotch-pot, and dower, or curtesy : failing descendants, it will go to the father : if there be no father, but a mother, and brothers or sisters, or descendants of brothers or sisters ; it goes to the mother for life, and the remainder to the brothers and sisters (including the half blood) and descendants of such as may be dead, per stirpes or per capita according to the degrees : 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 82, 52,) it will still go as above, but 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 ma^ema^ side would be entirely excluded ; s. 36. If the estate come to the intestate on the part of the mother^ t. «., by descent, devise, or gift, from her, or from some relative of her blood (s. 52), there is more variance: thus, in such case, failing lineal descendants, if father, mother, brothers and sisters,] (a) Bee mode post, oh. 22. (6) S. 260. •', f 170 DESCENT UNDER THE STATUTE OV YIOTOBTA. SI I'f Right of Bucces- ■ion to pergonal estate under Statntee of DistributioDfl. f I : V) [(including half blood,) or descendants of brothers or sisters be living the mother will take for life, and the remainder go to the brothen and sisters, (including those of half blood,) and their descendants • 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 Iq the event of there being no mother, brothers or sisters, or descend- ants, that the father would take absolutely : if there were a mother and father, and no brothers or sisters, or descendants, the mother would t&ke in preference to the father: failing father, mother brothers, sisters, and descendants of brothers and sisters; the mater- nal uncles and aunts and their descendants will take in preference to those on the paternal side, who only take on all others entitled as above being exhausted ; and failing these, the Statute of Distn- butions again governs. The above presupposes that the estate came from some relative of the blood of 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. 36). In any event, the right to dower and tenancy by the curtesy attaches according as permissible before the statute, which gives the descent subject to those claims. The right of succession to personal estate under the Statute of Distributions is thus given by Mr. Justice Blackstone (a)] : « By 22 & 23 Car. 11. c. 10, explained by 29 Car. II. o. 30, it is enacted that the surplusage of intestates' estates, ^except of femes covert, which are left as at common law) (&), shall, after the expiry of one full year from the death of the intestate, be distributed in the following manner : One third shall go 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 : if there are no children or legal representatives subsisting, then a moiety shall go 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 dis- tributed among the next of kin in equal degree and their represen- tatives: but no representatives are admitted, among collaterals, farther than the children of the intestate's brothers and sisters. The next of kin here referred to are to be investigated by the same rules of consanguinity as prevailed, as before explained (c), accord- ing to the computation of the civilians, and not of the canonists, which the law of England adopts in the descent of real estates: because, in the civil computation, the intestate himself is the termi- nus, a quo the several degrees arc numbered ; and not the cpmmon ancestor, according to the rule of the canonists. And therefore by this statute 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 other sons and daughters, the brothers and sisters of the deceased. And so the law still remains with respect to the father ; but by statute 1 Jao. II. o. 17, if the father be dead, and any of the children die intestate without wife (a) p. 616, vol. 2. (&) See post, p. 171 as to Con. Stat. 73. (c) pp. 186, 146. DESCENT UNDEB THE STATUTE OP VICTORIA. 171 or issue, in the lifetime of the mother, she and each of the remain- iog children, or their representatives, shall divide his effects in equal portions/' [The ahove is suhjeot to an exception as regards the separate per-Oon- st78.^o 8onal property of a married vroman, under Con. Stat. c. 73, by s. 17 ^^SmiS^^"^ of which, such property, on death of the married woman intestate, ***"»•"• leaving a husband and children, will go as to one third to the hus- band, and the residue to the children; and if there be no children, then it will go as if the act had not been passed. It will have been seen, as I have pointed out, in considering the Oompwiton of various sections of the statute of Victoria, that the whole course of ^^"VnooSdMi descent does not differ widely from the rules of succession to per- to personalty, gonalty under the Statutes of Distributions ; that the former as well as the latter are based on the civil law, and the claimants take much in tbe same order and computation of degrees; and where claimants do not take under the Statutes of Distributions equally with those in the same degree, the saiae 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 exception to the rule that all in equal degrees share equally, exists both as to personalty and realty in favor of the children, who who take priority, without any distinction as to the half blood, (unless in case of real estate come from a lineal ancestor, seo. 36); 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 descenddnts; the mother being the only remaining person in the first degree, would have taken all, bnt 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 remainder 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 personalty or realty will one* or more surviving brothers or sisters, as nearest in degree, exclude the children of a deceased brother or sister, as more remote in consanguinity — no distinction is made by reason of age, sex or blood, (unless, indeed, as to the latter in case of an ancestral estate); and the peculiar mode of taking, sometimes pet stirpes and some- times per capita, pervades both systems, and applies in like cases ; there is also the same law of hotch-pot with but trifling variation. The rights as to realty of the widow or husband 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 express reservation of her right in the statute of Victoria, takes her dower or one-third for life in realty ; and in personalty she takes the same proportion absolutely/ if there are lineal descendants, and if none, then one-half absolutely : so the husband may take under] } ll B*^' m li l„ f f V ,ri I J'' 172 DESCENT UNDER THE STATUTE OF VIOTORIA. [similar reservation aa tenant by the curtesy (issue being born yt\^ might inherit,) the whole of the realty for life ; whilst, as to p«^ sonulty, the separate property of the wife, he will under Con. j^t. 0. 73 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 viU take all absolutely. Varkuio*: The Variance seems chiefly to consist in this : that the statute of Victoria, when the inheritance is derived by the intestate from « relative, gives preference in certain instances to the blood of bucIi relative, as may be exemplified by its excluding the half blood, (if the estate have been derived from an ancestor,') and postponing tLe uncles and aunts, (if derived from a relative,) on the side on which the inheritance is not derived ; and in giving also the father only a life estate, if the property came on the maternal side, where he • would otherwise take the fee; 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 undei 8. 27 ; whilst as to personalty they are only postponed to those in the same degree, viz., brothers and sisters, and share in the same cla£3 with those of the third degree, viz., uncles and aunts : further- more, as to realty, the right of representation is extended to descend- ants of collaterals, as of brothers and sisters, uncles and aants; whilst as to personalty, it extends only to children of one class of collaterals, viz., of the brothers and sisters of the intestate. Sometimes a 2(/e It will be seen that sometimes the statute of Victoria gives a lift wilSte riven^s to 6^^*^*® ^° '^^ tohole and remainder over j whilst the Statutes of Dig. realty, when in tributious in liko circumstauces give only a proportion or share of !!taocegMtoper-*^6 wholc, but alsoluteli/ : the principle still is the same; the same sonaitya«ftarei8 parties take, and are perhaps equally benefitted, though in a different g Ten u y. j^q jg^ f^j. jj^g absolute right to a proportion may be worth neither more nor less than a life estate in the whole : the Statutes of Distriba- tions dealing only with personalty, could give no life estates, that is, consistently with the interests and safety of those to take in remain- der; for you can understand that a right in remainder to chattels or to £1000, after a right given to another to use the same for life, might perhaps (if such an interest in chattels could exist,) theoreti- cally be regarded as a remaindery but in certain cases never practi- cally be entitled even to the name ; independently of which consid- eration, such a dealing with personalty would be foreign to its nature and the laws which govern it; whereas no such difficulties present themselves in giving a life estate in realty; and such'a course has the advantage over giving a share absolutely, that the estate is ulti- , mately preserved more entire : the 28th section affords an illustration of this ; it gives the mother an estate for life in all, whilst the statute of James gives her, in Uke circumstances, (and there being no widow), a moiety absolucely in personalty, the other moiety going to brothers and sisters of the intestate. You will have observed how the principles of the feudal system governed during the whole of the first epoch, viz., down to 1834. It was the person last actually/ seised, and not the person last enti- tled, from whom descent was to be traced ; thus illustrating that] DESOEMT UNDER THE (STATUTE OF VIOTOBIA. 178 erenoe for the notoriety of possession which the common law so 3U:oDglj favored. Again: the lineal ancestor never took; a rnle foandea probably on the feudal principles that the ancestor would te unfit for the military service, on the condition of which the estate vas granted : it was only by a fiction of law that collateral ances- tors were allowed to take. So also the strict feudal rule, which squired the collateral heir to be of the whole blood of the purchaser, excluded entirely the collateral kinsman of the half blood as heir to the person last seised. Again : attainder so far corrupte'l the blood, that descent could not be traced from or through the perscn attainted : nor was this, perhaps, unnecessarily harsh, in the troubled times of the middle ages, when fealty and allegiance were all-important. In coarse of time, however, the necessity of many of the rules founded 00 the feudal system had ceased to exist; and such rules were not only unnecessarily harsh and unjust, bat unsuited to modern times ; hence the change effected by the statute of William. The implied condition, dum bene ae geaserit, on grant to the vassal, had no longer the importance it had in feudal times; and so the corruption of blood consequent on attainder was abolished, except in cases of treason. The importance which the common law attached to actual possession had passed away, and hence the more just rule was intro- duced, of not excluding, as the stock of descent, the person last entitled, merely because he did not acquire actu^ seisin ; and the mere fact of his being the person last entitled, was sufficient to descent to be traced from him as & stirps, unless indeed he inherited. Military service had ceased to exist as the condition of I tenure of an estate, and with it consequently was abolished the rule I excluding the lineal ancestor. So again, on principles of natural justice and equity, the half-blood were not excluded, and the land I not escheated rather than the half-blood should take, as not being of the blood of the purchaser, but such half-blood were favorably I admitted to the inheritance. While changes, however, were effected by the statute of William, I it will be seen that they were by no means so radical as those effected I by the statute of Victoria : in fact most of the common law rules continued. Thus, the law of primogeniture continued among the preference also of males to females ; the law of copar- iceuary; the representation by lineal descendants ad infinitum of their ancestor, or descent ^er stirpes; and the preference, to a cer- tala extent, given to the blood of the first purchaser, since, if the person last entitled inherited, though from his mother (the pur- chaser), the heir would be sought for on failure of lineal descendants among the maternal in preference to the paternal line of the person ISO last entitled. During the third period, governed by the statute of Victoria, from I the Ist January 1852, an entirely different system will be found to prevail ; a system based on the civil, instead of the feudal law. Every trace of the latter ceases to exist (except a partial relic of the preference given to the blood of the purchaser in cases of the half- blood, and, uncles and aunts), and lands, as regards their descent, are placed on somewhat the same footing as chattels; primogeniture is abolishtd ; females take equally with males in the same degree ;] I' I t! 174 DESCENT UNDER THE STATUTE OT VICTORIA. Il rh- r. I 1 jUf ; : rdesoent »er capita prevails in the place of descent per stirpes; the half-blood are admitted equally with the whole blood in the same degree (unless in case of an ancestral estate, and the half-blood tiot being of the blood of the ancestor) ; and, as though the more h\h to sweep away the former law, the Statutes of Distributions are to govern m cases not specifically provided for. The existence of each particular system dunng the three epochs into which I have divided the subject, may be referred to the requirements of the countiyand of the age in wnich such system existed or exists, though perhaps in that respect both the statutes of William and Victoria mignt have been passed at earlier periods. Whatever inconveniences the pre. sent law of partible inheritances, as compared with primogeniture may occasion in making a title or tracing descent, and however mncll it may be urged that such law tends, by subdivision into small tenures, to prevent improved modes of agriculture (as indeed hai been found to be the case in France and other countries) ; still the latter objection, for some time to come at least, is not likely to be of much weight with us ; and there can be no doubt that our present system is more consonant to natural justice and equity. In England, where the form of constitution is so much less democratic than here and under which England has attained her present position among nations, grounds of public policy may require a different system, and the rights of primogeniture, for the support of hereditary titles and dignities, and the maintenance of the existing power in tne hands of the nobility and landed gentry; no such considerations, under our constitution and circumstances, preclude the more just and equitable system which we enjoy.] If'^!^'- Isense, is thus or TITLE BT PUROHABE, AND HRST, BT EBOBEAT. 175 CHAPTER XV. OF TITLE BY PURCHASE, AND FIRST, BY ESCHEAT. [The following observations of the learned oommentator as to the Definition of MDse and meaning of the word purchase, apply more particularly^*''**"** { and are of most practical value in questions of descent prior to the statute 14 & 15 Yic, o. 6 ; for that statute particularly specifies how, under the different circumstances named therein, the estate to de- scend shall go : it provides for those cases in which the estate came to the intestate on the part of the father or of the mother, which is made to include, contrary to the former law, not only descent, but also a gift or deviee from the father or mother, or from one of the I blood of one of them ', and lastly, that in cases not provided for I specifically, the statute of Distributions shall be the guide : the consequence is, that the peculiar distinctions and niceties formerly attending the question as to whether an ancestor from whom descent WAS to be traced was to be considered as having taken by purchase or not, ctnse to be of much practical importance when the statute of Victoria governs the descent. The other remaining question on the effect wherein oonsbts principally, says Sir W. Blackstone, the dif- ference between acquisition by purchase and by descent, viz., the liability of the heir for the specialty debts of the ancestor from whom he inherits as having assets by descent, is, in actual practice at least, of no great importance with us ; as such liability is seldom I enforced against the heir, the lands descended to him being usually (reached by process against the personal representatives of the ances- tor; for though they are not, strictly speaking, assets in their hands las chattels are, still they are subject under the Statute 5, Geo. II. c. |7, oon&rmed by 27 Vie. c. 15 (a) to the like remedies, proceedings, land process for seizing, extending, or selling for satisfaction of debts, [as personal estate]. VxttchaBe, perquisitto, taken in its largest and most extensive isense, is thus defined by Littleton : the possession of lands and ■tenements, which a man hath by his own act or agreement, and not Iby descent from any of his ancestors or kindred. In this sense it is [contradistinguished from acquisition by right of blood, and includes levery other method of coming to an estate, but merely that by linheritance : wherein the title is vested in a person, not by his own fact or agreement, but by the single operation of law. Purchase, indeed, in its vulgar and confined acceptation, is applied ^j'^u^'L lonlv to such acquisitions of land, as are obtained by way of bargain pwnhau, and [and sale, for money, or some other valuable consideration. But this **** ^ ***'^' (a) See title by ezeoation, pott, c. 21. i«, m: 176 or TITLI BT FUBOHASK, AND FIRST, BY ESOnEAT. i^'' • m' : W ; sa i : J*'y ' " falls far short of the legal idea of purchase : for, if I f/ive land frcolv to another, he is in the eye of the law a purohasor ; and falls Tvithio Littleton's definition, for he comes to the estate by his own agree. luent, that is, he consents to the eifl. A man who has his father's estate settled upon him in tail, before he was born, is also a pur- chaser ; for he takes quite another estate than the law of descents would have given him. Nay, even if the ancestor devises his Estate to his heir at law by will, such heir shall take [as a devisee and not by descent (o).] * s. 242. "'If a remainder be limited to the heira of Sempronius, here Sea. pronius himself takes nothing ; but if he dies during the continuance of the particular estate, hils heirs shall take as purchasers (l), Kuiein SheUey'iBut if an estate be made to A. for 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 heit cannot by the same conveyance take an estate in fee by purchast, but only by descent. And, if A. dies before entry, still his heir shall take by descent, and not by purchase; for, where the heii takes anything that might have vested in the ancestor, he takes b; way of desoeut. The ancestor, during his life, beareth in himself I all his heirs ; and therefore, when once ho is or might have been seised of the lands, the inheritance so limited to his heirs vests in the ancestor himself: and the word "heirs" in this case is not esteemed a word of purchase, 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 uncer- tain till the death of the ancestor) been allowed to take as a pur- chaser 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 feodal tenure, the lord would { have been defrauded by such a limitation of the fruits of his seig- niory, arising from a descent to the heir. [The effect of such a limitation in a conveyance or will as above, I 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 an estate ; this is under the | well-known rule in Shelley* s case, (c) which rule is thus expressed, viz., that where the ancestor by any gift or conveyance takes an I estate of freehold, and in the same gift or conveyance an estate is limited either mediately or immediately to his heirs in fee or in tail, | in such cases " the heirs " are words of limitation, and not of pur- chase ; 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 I as heirs of their ancestor by descent. If the estate limited to the heirs be not immediate but mediate, as to A. for life, remainder to B. for life, remainder to the heirs of A. in fee, still the rule will] | (a) Con. Stat. o. 82, s. 5, ante, p. 161. (i) But for the parposeB of tracing desoeot under stat 4 Wm. IV. the ancestor I bball be deemed the purchaser ; Con. Stat. o. 82 s. 6, p. 155. (c) 1 Co. 98, b. ; Tad. Lg. cases, 607. i. EAT. land freely [falls withia I own agree. I his father's p also a pur. of descents les his estate poo and not :, here Sem. continuance chasors (J), [8 right heirs iient rule of ife, the heir )y purchase, itill his heir ere the heir he takes by h in himself | it have been leirs vests in case is not , enuring so for life to a tyho is uncer- ke as a pur- been the case N or Thomas e lord would | i of his sm. \ vill as above, is in fact to | of alienation j is under tlie f IS Dce takes aa i an estate is I 'ee or in tail, . not of pur- a the secoDil I lis death his ^ejance, but nited to tbe emainder tof ie rule will] the ancestor I 155. OF TITLE BT PUROIIASE, ii*»D FIRST, BY ESCHEAT. 177 rapply> <^°^ 4' ^^'^ ^^^ '^^ estate for life, with a vested remainder ID fee. It will be observod the limitations must be by the same inawniment ; for if a person by deed give an estate to bis son for • life, and by his will devise the same estate to the heirs male of his (the son's) bodjr, the son will only take an estate for life, and the beirs male of his body take a remainder in tail by purchase. The rule is not confined to cases in which the word " heirs " b made use of, but is frequently applied in oases where the word " issue," " son," or "child" is used ; if it can be gathered that such word is used as synonymous with " heir," as notnen collectivum, and not as desiy- nalio personsB. On this latter point the cases are somewhat abstruse and difficult, and I therefore will not trouble the student with the law on the subject, contenting myself with calling his attention to the fact that the rule is not confined to oases where the ordinary strict word of limitation as " heirs " is made use of. I mav also caution the student 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 gathered that they are not used as words of limitation, but as words of purchase, they will be construed in the latter sense (a).] What we call purchase, perqmtitio, the feudists called conr; such a iove allud- the estate •nlyofthe the estate purchase, te patema therofA 5 paternal ! paternal Qer sense excluded »n of the qualities 4. or TITLE BT PUB0HA81, AMD VIBST, BT ISOHXAT. 179 w Xbis is the legal signifioation of the word perquuitio, or purchaco ; lod ia this r )n8e it iocludes the five following methods of acquiring J title to estetes : 1. Escheat: 2. Oooupanoy ; 8. Prescription ; 4. ^'"•*' forfeiture ; 6. Alienation. Of all these in their order. 1. Escheat, we may remember, was one of the fruits and oonse- Jaenocs of foodal tenure. The word itself is originally French or [orman, in which language it signifies chance or accident ; and with 08 it denotes an obstruction of the course of descent, and a conse- quent determination of the tenure, by some unforeseen contingency : * in which case the land naturally 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 ancestor had granted the tenure prior to the statute quia emptoret, to bold of him and his heirs, thus by a process of subinfeudation creating a manorial estate which was before explained (a)]. I* Escheats, therefore, arising merely upon the deficiency of the * s. 246. blood, whereby the descent is impeded, their doctrine will be better mnatration of illustrated b^ considering the several cases wherein hereditary blood ^IS,*'^'*'*® °' may be deficient, than by any other method whatsoever. ** 1, 2, 8. The first three cases, wherein inheritable blood is wanting, may be collected from the rules of descent laid down and explained in the preceding chapter, and therefore will need very little illus- tration or comment. First, when the tenant dies without any [descendants, or any ancestors or] relations on the part of any of his ancestors ; secondly, when he died [prior to the statute of Victoria] without any relations on the part or those ancestors from whom his estate descended ; thirdly, when he died [prior to the statute of William] without any relations of the whole blood. In two of these cases the blood of the first purchaser is certainly, in the other it is probably, at an end ; and, therefore, in all of them, the law directs that the land escheat to the lord of the fee ; for the lord would be manifestly prejudiced, if, contrary to the inherent condition tacitly annexed to all feuds, any person should be suffered to succeed to the lands, who is not of the blood of the first feudatory, to whom, for bis personal merit, the estate is supposed to have been granted. '*'The law of escheats is founded upon this single principle, that the • s. 245. blood of the person last seised in fee-simple is, by some means or ^^i^^ or '^^^ °' other, utterly extinct and gone: and, since none can inherit hisescheata. estate but such as are of his blood and consanguinity, it follows as a regular consequence, that when such blood is extinct, the inheri- tance itself must fail ; the land must become what the feodal writers denominate fevdum apertum, 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 frequently divided into those propter defectum san- Escheats are of guiniSf and those propter delictum tenentis : the one sort, if the one, wSj^thi' tenant dies without heirs ; the other, if his blood be attainted [in tenant dits with- cases of treason]. But both these species [might formerly] well be o?her*S"h'eSiii« * comprehended under the first denomination only j for he that [was] ^^^* "*" attainted [for felony or treason] suffered en extinction of his blood, as well as he ihat died without relations. The inheritable quality ^«l • S. 246. (a) S. 8. 91, 92. 180 p. h ' * S. 247. 5. Battard* are iuMpable of be- ing heirs. I'i'^ ♦ S. 248. OF TITLE BT PURCHASE, AND FIRST, BT ESCHEAT. [was] expunged in one instance, and expired in the other ; or, as the doctrine of escheats is very fully expressed in Fleta, " dotninus " capitalii feodi loco hseredia Jiaoetur, quotiea per defectum vel " delictum extinguitur sanguis tenentis." [As presently explained the common law rule of escheat on attainder is much modified by modern statutes (a). [The student will bear in mind what was before explained k 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 accord- ing 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 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 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 bo brought forth in marriage; but, although it hath deformity in any part of its body, yet if it hath human shape, it may be heir. This is a veiy ancient rule in the law of England, and its reason is too obvions and too shocking to bear a minute discussion. The Roman law agrees with our own in excluding such births from succession ; yet accounts them, however, children in some respects, where the parents, or at least the father, could reap any advantage thereby (as the ju^ trium liherorum, and the like), esteeming them the misfortune, rather than the fault of that parent. But our law will not admit a birth of this kind to be such an issue as shall entitle the husbtind to be tenant by the curtesy, because it is not capable of inheriting ; and therefore, 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 our law, are such children as are not born either in lawful wedlock, or within a competent time after its dotermii>2tion. Such are held to be millm Jilii, the sons of nobody ; for the maxim of law is, qui ex dammto coitu 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 chil- dren, the land shall escheat to the lord. The civil law differs from ours in this point, and allows a bastard to succeed to an inheritance, if after its birth the mother was married to the father : and also, if the father had no lawful wife or child, then, even if the concubine was never married to the father, yet she and her bastard son were admitted each to one-twelfth of the inheritance : and a bastard was likewise ^capable of succeeding to the whole of bis mother's estate, although she was never married ; the mother being sufficiently cer- (a) 8. 252. OP TITU Lin, though the L much less ind There is, inde Lome little regar I ^{gni and muliet a. and afterwa I crown of Engl I of the kingdo |[lefl] no othei I As aliens [ I bastards; but 1 against the c: OF TITLE BT PURCHASE, AND FIRST, BY ESCHEAT. 181 (jin, though the father is not. But our law, in favour of marriage, is mttch less indulgent to bastards. There is, indeed, one instance in whioh our law has shewn them Ezcepua case. I some little regard ; and that is usually termed the case of bastard jnl and mulier puimh This happens when a man has a bastard I son, and afterwards marries the mother, and by her has a legitimate SOD, who, in the language of the law, is called a miilier, or as Glanvil expresses it in his Latin Jilius muUeratus ; the woman before mar- riage being concubinaf and afterwards mulier. Now here the eldest in is bastard, or bastard eigni ; and the younger son is legitimate, I or imlier puisnh. If then the father dies, and the bastard eignh enters upon his land, and enjoys it to his death, and dies seised I thereof, whereby the inheritance descends to his issue; in this case \i mulier puisrtl and all other heirs, (though minors, feme-coverts, I or under any incapacity whatsoever) are totally barrod of their right. And this, 1. ^s a punishment on the mulier for his negligence, in not entering during the bastard's life, and evicting him. 2. Because the law will not suffer a man to be bastardized after his death, who entered as heir and died seised, and so passed for legitimate in his life- time. 3. Because the canon law (following the civil) did allow such has jects. All persons born in a foreign country, which becomes by cooqaest part of the dominions of the crown, are to be deemed natural bom subjects. By various statutes foreigners who have served as seamen become naturalized. By Provincial Statute 54 Geo. III. c. 9, reciting that many per- Disabiine Act. sons, inhabitants of the United States, claiming to be subjects, and^**^ "^' '^ ^- binding their allegiance as such by oath, received grants of lands, or became seised by inheritance or otherwise, who since the declara- tion of war with the United States had withdrawn from their alle- giance and the defence of the Province ; it was enacted, that such persons who had so withdrawn, or should so withdraw, without license granted by the Governor, should be taken and considered to be aliens born and incapable of holding lanos in this Province; and on inquisition found the lands were to be forfeited to her Majesty (6). The disabilities under which aliens lay or were supposed to lie at common law, are also again modified; or can be so; for if an alien be made a denizen by the king's letters patent, and then purchases lands, his son, bom before his denization, shall not (by the common Denization and law) inherit those lands ; but a son born afterwards may, even though naturalization, his elder brother be living; for the father, before denization, had no inheritable blood to communicate to his eldest son ; but by deniza- tion it acquires an hereditary quality, which will be transmitted to his subsequent posterity. Yet, if he had been naturalized by act of parliament, such eldest son might then have inherited ; for that cancels all defects, and is allowed to have a retrospective energy, which simple denization has not. The Imperial acts 11 and 12 Wm. III. c. 6, and 25 Geo. c. 39, st«t«tt« for bear on the question of tracing descent through an alien. Various provincial statutes (c) have from time to time been passed giving aliens 'the same rights as natural born subjects. 9 Goo. IV., 0. 21, enacted that persons who had received grants of land from the Crown, or held public office under the Great Seal, or] I; I •'f.!l dem. Hay r C. 779; Loil irddl, 8 D, 4 { Eaapp, 13; (a) Kent v. Bufgett, 11 Simons, 3GB, arguendo. (6) See 59 Geo. III. o. 12 ; Wallace v. Adamson, 10 C. P. U. C, 346, per Draper, C. J.; Wallace v. HewitU 20 Q. B. U. C. 87. (c) 9 Geo. IV., 0. 21 ; 2 Wm. IV., c. 7 ; 4 & 5 Vic, o. 7 ; 8 Vic. o. 107 ; 12 Vie. c. 197 ; 18 Vic, c 6; 22 Vic, c. 1. 184 OI" TITLE BT PURCHASE, AND FIBST, B7 ESCHEAT. ha If I;' f 'jr r? • t [Privy Seal, or Sign Manual of the Governor, and all who had taken the Oath of Allegiance, and all who were resident before 1820 anj then still resident in the Province, should be admitted to the privileges of British birth ; and that children or remoter descendants of such persons, if they were dead, should be admitted to the sam privileges which their ancestors if living could have claimed under the Act ; the same privileges were also granted to all domiciled in the Province on 1 March, 1828 ; who had resided or should continue to reside for 7 years in Her Majesty's dominions : a condition was attached by the Act that the alien, under circumstances, should take the Oath of Allegiance within a stated time, which time was extended by subsequent statutes ; if death occurred before the time limited had expired, the absence of the oath was declared immaterial in reference to the right of transferring, holding, or devising real estate : by the same statute also it was declared that, thereafter no one should be disturbed in possession or precluded from recovery of lands, on the ground of being an alien, or of any, from or through whom he might claim, having been an alien, provided such alien, being female, was resident on 26th May, 1826, or being a male, was so resident and under 16 years old : the Act further provided that where any, claiming to hold as next entitled on account of any one nearer in the line of descent having been an alien, should, by virtue of such claim, have taken actual possession of any real estate before said 26th May, and made improvements ; and in all cases where any one, claiming to hold as next entitled on account of the person nearer in the line of descent having been an alien, had actually sold or departed with his real estate, or contracted so to do, before said 26th May, (no person then being in adverse possession) then the Act should not extend to render invalid any right or title to such estate. By 2 Wm. IV., c. 7 it was further enacted as in the prior statute, that thereafter no one should be disturbed in possession or precluded from recovery of lands, on the ground of the person from or through whom he might claim, by title acquired or derived before the Act, having been an alien. [This Statute, it will be seen, is wider in its application than the prior, as there is no proviso as to the residence or age of the alien ; there was also to this Act a similar proviso as in the former, limiting its application in like cases of adverse possession or sale. By 4 & 5 Vic, c. 7, similar privileges were granted as by 9 Geo. IV., c. 21, under somewhat similar conditions and restrictions; the time of residence named in the Act, however, was 10 February, 1841, and it did not extend to all who had received grants, held public office, or taken the Oath of Allegiance. Finally, by 12 Vic, c. 197, Con. Stat. Can. c. 8., it was enacted as ki^rLi estate that cvcry alien shall have the same capacity to take, hold, possess, convey, devise, or transmit, real estate, as natural born sub- by Con. Stat Ca. recovc c. 8, with proviso . . ..1 - • 1 . .1 ill i • . /Y. «9 to vested jects ; With a proviso that the act should not alter, impair, or affect. > rights. any right or title legally vested, in or acquired by, any person before its passing : and in regard to aliens resident in the Province before the 10th February, 1841, and who were so on the passing of the Act, and their descendants, provision for naturalization was made in much the same manner and on the same conditions as by the above-] OF TITLE BT PUROHASK, AND FIRST, BT X60HEAT. 185 [named Statutes of 9 Geo. IV. and2 Wm. IV. : the Statute 12 Vic. enacts further, that the privileges of naturalization granted therehy ^ere to be exercised within the Province according to the intent of the Imp- Statute 10 & 11 Vic. c. 83 j which Act after reciting jonbts as to the power of colonial legislatures to grant such privileges, confirmed their right to do so, and gave future power, conditionally OD such power being exercised by statute, passed as other colonial statutes, and the privileges granted being exercised within the Province. It has been held (a), where the plaintiff born in the United States and always resident there, and one of the army of that country in the war of 1812, claimed the land as son and heir at law of his father the patentee, who died in possession in 1826, since which time the plaintiff's mother and her family had been in possession ; that the Statute 12 Vic. did not operate retrospectively so as to enable the plaintiff to recover, and divest the estate vested in the party entitled on the death of the patentee, even though it was not shewn who was the party so entitled or that he ever was in possession. It has also been held (&), that where a woman, a British subject, to whom a grant of lands from the Crown had been made, afterwards married an American citizen, alien born, and had issue by him a son, the plaintiff, who was an alien born, and since his death had always resided in the United States ; that such son being an alien, could not take by descent from his mother ; and that he was not to be considered as qualified to take by virtue of the Statute 9 Geo. IV. by reason of being the son of a person to whom a grant from the Crown had issued ; as the Statute was held to apply in that respect to aliens who had received grants, or held office, &c., and the descendants of such aliens, not to British subjects or their descend- ants : and, consequently, that the plaintiff stood simply in the posi- tion of a non-resident alien, and the son of an alien father, claiming to recover as by inheritance from his mother a British subject ; and as such not entitled to recover either by virtue of the 9 Geo. IV. or 2 Wm. IV., 0. 7, or 4 & 5 Vic, c. 7, as those latter statutes were held to apply to persons claiming through aliens, not to aliens them- selves claiming lands by descent and bringing actions to recover : the plaintiff being also the ali^n son of an alien father though British mother, would not seem to come within the Imperial Acts before alluded to, the Statute of Ed. III. relating to the children alien born of British father and mother (c), and the others to chil- dren of British fathers. The Imp. Statute of 7 & 8 Vic. c. 12, has some provisions similar to the Provincial Acts, and the decisions on that Act may be useful in questions arising on the Provincial Acts. The right at common law of aliens and those claiming under Right at commm them to hold, and transmit by conveyance, devise, or descent, and tjan^l't"''* •""* enforce by real action their claim to real estate, is one on which authorities have differed, and on some points still differ much.] (a) Doe dem O'Connor ^ Rouse v. Maloney, 9 U. C. Q. B,, 251. \b) Doe dem Robinton v. Clarke 1 U. C. Q. B,, 87. (e) Doe Duroure v. Jonea, 4 T. B., 800. ^f f 186 .J, P I i or TTTLB BT PUROHASE, AND HBST, BY ESCHEAT. [I proceed now to consider the subject as it stood at common law having already considered it as affected by Statute, by Naturalization' and Grant of Letters of Denization. ' The question at common law may be considered with re^rd to the right to possess, the right to devise, and descent. Sir W. Blackstone says, p. 298, "An alien may purchase anything, but after purchase " he can hold nothing except a lease for years of a house for oonve- " nience of merchandise, in case he be an alien friend ; all other " purchases, wTien found hy inquest of officCy are immediately for. " feited to the king;'' till office found however on proceedings at the instance of the Crown, it seems to have been always generally admitted that an alien was on purchase entitled to hold, though t>at right even, as also his power to transfer such right by conveyance, so as to enable his grantee to hold, has been questioned. In one case here (a) the late Chief Justice of Upper Canada thus expressed himself: '' I consider that an alien can make a conveyance " of real estate which will be good against himself and strangers, " subject only to be questioned by the Crown ; there is in my " opinion abundant authority for this, both ancient and modern, and *' nothing that I have seen, certainly no adjudged case, to contradict '< it ; and although in Lord Coke and other text writers passages '< may be found which are in some partu so expressed, as apparently << to disaffirm the power of an alien to make a conveyance of his land <' which will enable his alienee to hold over against him or against << strangers ; yet in all I have seen or can find on the subject, the " meaning is clear when the expression is carefully considered, that " he cannot grant effectually, that is, not so as to assure an indefea- *' sihle title, but not that his grant will have no effect, while unques- " tioned by the Crown." McLean, J., in giving judgment, says: <' Though a deed executed by an alien maybe avoided, I cannot find " any authority which in my judgment is sufficient to enable me to " say such a deed must be absolutely void ; if an alien can take, I '' can see no reason why he cannot convey the fee, always subject to " be taken by the king on office found ; and when Lord Coke and << other text writers say that an alien has no ability to make a deed << or feoffment, they must be taken to mean, that he had no ability " to make such a deed as shall be indefeasible by the king; my <' present opinion b, that an alien may take and convey a fee, and " that none but the Crown can defeat the estate or prevent a reco- " very in ejectment." In a recent case in equity (6), Blake, C, expressed himself as having no doubt that a conveyance to a trustee for an alien, and a mortgage from such alien were valid conveyances at common law. In another case the language is (c), " It is said that an alien ca.inot " maintain a real action for recovery of lands, but even if so it does " not follow he may not defend his title against all except the Crown." Whatever may appear in Uie older authorities to the contrary, it may] (a) Doe Macdonald v. Cleveland, 6 Q. B. U. C. O. S. 117. (6) Murray v. Heron, 7 Grant, 77 ; see also Dumoncel v. Dutnoneel, 13 Irish Eq. Bep. 92. (c) Per Macaalay, J., Doe Richardton y. Dkkton, 2 Q. B. U. G. 0. S. 800. I;-) or TITLB BT FUROnASB, AND FIRST, BT ESCHEAT. 187 Immonlaw, •iralizatioD, ,ard to the ^lackstone ^r purchase I for conve. .; all other Idiately for. ■oeedings at |S generally Ibough that konveyance, Janada thus conveyance 18 in my lodern, and > contradict rs apparently > of his land I or against subject, the idered, that an inde/ea- lile unques- ment, says : cannot find lable me to can take, I 3 subject to 1 Coke and ake a deed i no ability I kingj my ' a fee, and ent a reco- bimself as lien, and a mmon law. ien ca.-inot r so it does le Crown." ry, it may] 7. 'el, 13 Irish 0. S. 300. lav ^e deemed settled by tbe abovo cases and others, that at common Jsvr an alien misht hold, &ad transmit by conveyance to his grantee the right to hold against all except the Crown. The power of an alien or his grantee having good title but for his Right at common alienage, to assert such a title against another in possession, and to S^toaSS"**'" recover possession himself by real action, has been much questioned ; decisions in the courts of Upper Canada have however recognized the right of an alien, and those claiming under him by conveyance, to maintain an action, where the defendant has conveyed to or received a conveyance from the alien ; on the principle apparently that the defendant is precluded from setting up the invalidity of a conveyance to which he is a party j thus in one case (a) the defendant had con- veyed to an alien with covenants for quiet possession and further assurance, and the alien had not taken possession, but conveyed to the plaintiff by deed of bargain and sale ; on ejectment brought against the defendant who had remained in possession, the majority of the court held that the alienage was no defence; Macaulay, J., dissenting, referring particularly to the fact that the conveyances to and from the alien were by way of bargain and sale, accompanied only by the fictitious possession derived from the Statute of Uses ; and in part of his judgment he says : <' It is laid down that though <' an alien has capacity to take, he has none to convey or devise, and « that the aid of courts of law or equity cannot be afforded to give " any effect to any such title." In another case (b) the widow of an alien who had conveyed to the tenant sued for dower, the defence was the alienage ; it was * said in giving judgment for the demandant : " The only title the <( tenant has was derived ¥com demandant's husband; on the « principle of the two oases referred to (cited las* above), and espe- " oially the latter, there is no doubt in my mind the defence fails." In another case (c) the plaintiff sought to foreclose on a mortgage given by an alien (to a trustee for whom the estate had been con- veyed), the defence was that the conveyance to the trustee (the defendant) and the mortgage, were invalid by reason of the alienage; tbe Chancellor in giving judgment said, " I have nc doubt the con- " veyances are valid at common law, subject to the right of the " Crown, on office found ; " and the court decreed a foreclosure. It will be observed these cases do not however go the length of deciding, that in no case would the defence of alienage be good to an action by an alien out of possession, against one not claiming under him or a party to a conveyance to him : the case of Doe dem Richardson v. Dixon was not the case of an alien seeking to recover possession, but of a plaintiff seeking to recover against a mortgagee (in possession) in trust for an alien : in Doe Macdonald v. Cleveland and Murray v. Heron, the question did not necessarily require deci- sion ; for in neither case was alienage proved ; and in the former case, as also in Davenport v. Davenport, the judgments appear to rest much on the privity of title and conveyance. It may perhaps therefore} (a) Doe dem Macdonald v. Cleveland, snpra. (6) Davenport v. Davenport, 7 C. P. U. C. 401. (c) Murray v. Heron, supra. m. 188 OF TITLE BT PURCHASE, AND FIRST, BT ESCHEAT. s I?? ^ 1*1 » Might take by devlw. Trangmlt by deTiM? a [yet arise for discussion, whether, where there is no direct privity of title or conveyance between the parties, or the existence of other circumstances so that the oases of Davenport v. Davenport and Dot Macdonald v. Cleveland shall not directly apply, an alien or big grantee out of possession can maintain an action to recover; it would seem on principle that he can, and that as a conveyanco both to and by an alien is to be deemed valid, it is so for all purposes whether to sustain an ejectment or otherwise (a). As an alien might take by purchase, subject to forfeiture to the Crown, so also it would seem that, so subject, he might take by devise (li). The power of an alien at common law to transmit by devise is open to more question, and in the conflicting state of the authorities I abstain from doing more than refer the reader to them. In one case (c) Sir J. B. Robinson, C. J., states, as to whether an alien can devise real estate : " The authorities are not perfectly " consistent; that grants by aliens are good against themselves, " though voidable by the Crown, is every where clearly stated;" and in reference to the death of an alien intestate, " it has been " constantly held that the estate becomes at once vested in the " Crown, without any oflSce found, because no one can inherit from " an alien ; " and again, after alluding to the conflict of authority on the subject, he says, " On the whole, if this case furnished " ground for no other question than that which we have been con- " sidering, namely, whether the devisee of real estate under a will " made by an alien, could until office found for the king be held to " have an interest, under which he could recover possession of the " land from a stranger, we should feel ourselves compelled to say, " that reason, and the language of the Statute of Wills, and the " weight of authority, especially of an older date, are against the " plaintiff''s right to recover on such a title, though modern autho- " rity certainly favors it, and we should therefore perhaps be safer " in holding the affirmative." In another case {d) the present Chief Justice of Upper Canada observes, in reference to a devise by an alien, '' Until the moment of his death no estate or seisin passes, " but at that same instant, if the alien die intestate, there is no " doubt the estate would vest in the Crown without office, for no one " can take by descent from an alien, and the freehold cannot be in " abeyance ; the title of the Crown and the devisee are thus con- '< flicting, both accruing at the same instant, and the only conse- " quence of giving priority to the devisee being that there must be " an office to entitle the Crown as against him ;" and again, "An '' alien born, may at common law hold lands conveyed to him against " any one but the Crown ; and he may convey and possibly (though " I think not), devise." The present Chief Justice of the Common Pleas, in the same case, remarks: "Although in several text " books it is declared that the devisee of lands under the will of an] (a) Against this right see Hansard on Aliens, p. 161. (6) Barrow v. Wadkin, 24 Bea. 1 ; Tudor Lg. Cases, p. 685. (c) Wallace v. Hewitt, 20 Q. B. U. C. p. 98. {d) Wallace v. Adamton, 10 C. P. U. C. 846. OF TITLE BY PUaOHASE, AND TIRST, BT ESCHEAT. 189 ['< alien or felon may take the same till office found, yet it appears to (' me tbat the better opinion is, that the T^ill cannot pass any interest II to the devisees as to lands held by the alien under a conveyance, II and which at the time of his death were not in his possession or II in the possession of any person under him ; I think on the death II of the alien the Crown would take, and would be in possession " ur/icr its prerogative rights without office found or formal entry." As to the right of an alien to inherit, and the right to inherit No descent to, or from an alien : in neither case is there at common law any such ^^^ *" *"®'' right, as will be seen by the above cases (a^ ; in one case this was referred to the principle " Lex nihil facit jmitra;" and whatever may be the case where the estate is transmitted hy act of the parties, still it will not go by act of the law. Bu' i natural born subject may by 11 & 12 Wm. III. o. 6, with some exceptions, (25 Geo. II. c. 89,) derive and trace title through an alien ancestor; and though an alien cannot have heirs, still his son born in England might suc- ceed to any real property to which his wife, being a natural subject capable of inheriting might have been entitled, the blood of the mother sufficing to make the son inheritable to her; had the son been alien horn, however, he could not inherit, and it would seem in such a case his incapacity would only be removed by the Prov. Stat. 12 Victoria (&). Under the head of transmission by descent maybe considered Rigbt to doircr also that class of cases where the party claiming does so, not*' *"'" strictly by descent as heir at law, but as entitled to dower, or tenancy by curtesy, or guardianship, out of the estate of an alien deceased ; it would seem that at common law such right could not bo asserted. The opinion of the late Chief Justice Macaulay appears to have been against such right : in Dumoncell y. Dumoncell, before referred to, such right is denied : in two cases (c) in our courts the sufficiency of pleas of alienage of the demandant's husband came up for decision, and it does not appear to have been denied at the bar or by the bench, that a properly drawn plea of alienage of the demandant's husband would have been a good defence in dower : in Davenport v. Davenport (supra) the widow of an alien who had I conveyed to the tenant, was held entitled to dower; but as above I explained, that case seems to have been decided, not on the ground that the defence of alienage was no defence, but only that it was not so in the circumstances of that particular case, where the demand- ant's husband had conveyed to the tenant, who was thus quasi estopped from setting up the incapacity of the husband. In regard to the right now under consideration, it must perhaps be restricted therefore, to those cases in which the principle whereon Davenport r. Davenport and Doe McDonald v. Cleveland are decided, can ■■I 'm . or curtesy. It seems also that an alien widow of a subject was not entitled to dower, nor an alien husband to tenancy by the curtesy.] (a) Co. Litt. 8. (&) See observations supra on Doe Robinson ▼. Clarke. \(e) Robinet v. Lewis, Dra. Bep. 46; Williams v. Lee, 2 C. P. U. G. 175 ; see also White v. Lah^, 2 C. P. U. C. 186. 190 OF TITUB BT PUROHASB, AND FIRST, BY ESOnEAT. li ♦ S. 261. Eicheat on attalDder. 1 DlBtlnction be- tween forfeiture to the king, and if; escheat to the f lord on attainder m' * a. 262. tir. i i I: [Although tho statutes above referred to, more especially that of 12 Victoria, remove in most coses the disabilities of aliens and pre. vent escheat or forfeiture to the crown, still, as will be noticed bv some of the cases referred to, questions yet occasionally arise in eases not within tho Provincial Statutes, wnioh are governed by the capacity of aliens to take or transmit, at common law ; and as the authorities on some points are conflicting, and the question haa been I much discussed in our own courts, I have thought it advisable not Escheat npon attainder consid- ered. to to pass over the subject.] *7. By attainder, also, for treason or other felony, tho blood of the person attainted [was] so corrupted as to be rendered no loDgcr inheritable, [but as presently explained this effect is removed b modern statutes. [In Canada, where there are no mesne lords between the orowo and the tenant, as in the case of manorial lands, (a) tho distinctioii hereafter pointed out between forfeiture and escheat is of litMe in. portance, for in either case the crown will take ; but in EDgland where the crown would be entitled on a forfeiture, and the lord (not being the king,) on an escheat, especially before the statutes above referred to,] great care must be taken to distinguish between for. feiture of lands to the king, and this species of escheat to the lord' which, by reason of their similitude in some circumstances, and because the crown is very frequently the immediate lord of the fee, and therefore entitled to both, have been often confounded together, Forfeiture of lands, and of whatever else the offender possessed, wm the doctrine of the old Saxon law as a part of punishniont for tlie offence ; * and does not at all relate to the feodal system, nor is tlie consequence of any signiory or lordship paramount: but, being a prerogative vested in the crown, was neither superseded nor dimin- ished by the introduction of the Norman tenures ; a fruit and conse- quence of which escheat must undoubtedly be reckoned. Escheat therefore operates in subordination to this more ancient and superior law of forfeiture. The doctrine of escheat upon attainder, taken singly, is t!iis : that the blood of the tenant, by the commission of any felony, (under which denomination all treasons were formerly comprised,) is car- rupted and stained, and the original donation of the feud is therel; determined, it being always granted to the vassal on tho implied condition of dum bene se gesserit. Upon the thorough detnonstra- tion of which guilt, by legal attainder, the feodal covenant mutual bond of fealty are held to be broken, the estate instantlj] falls back from the offender to the lord of the fee, and the iuheritabls qualitjjT of his blood is extinguished and blotted out for ever. In thii situation the law of feudal escheat was brought into England at tlf conquest; and in general superadded to the ancient law of forfeiture In consequence of which corruption and extinction of hereditarjj blood, the land of all felons would immediately revest in tho M but that the superior law of forfeiture intervenes, and intercepts it in its passage : in case of treason for ever (1) ; in case of other felony, for only a year and a day; after whicn time it goes to the (a) Ant', 8. 91. (6) But see note to S. 256. or TITLE BT PUBOHASK, AND fIBST, BY ESCHEAT. 191 lord in a regular course of escheat, as it would have done to the heir of the felon in cose the feodal tenures had never been intro- duced. "■As a consequence of this doctrine of escheat, all lands of •s.us. jDheritanoe immediately revestine in the lord, the wife of the felon vas liable to lose her dower, till the statute 1 Edw. VI., o. 12 eDactod, that albeit any person be attainted of misprision of treason, murder, or felony, yet his wife shall enjoy her dower. But she has Qot this indulgence where the ancient law of forfeiture operates ; for it ifl expressly provided by the statute 6 & 6 Edw. VI. c. 11, that the wife of one attaint of hi^h treason shall not bo endowed at all(a)- Hitherto we have only spoken of estates vested in the oflfender at The difrprent the time of his offence or attainder. And here the law of forfeiture ^*''^^' fj^ stops; but the law of escheat pursues 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 ho shall be incapable of inheriting any thing for tho future. This may farther illustrate the dbtinction between for- feiture and escheat. If therefore a father be seised in fee, and the eon commits treason and is attainted, and then the father dies : here the lands shall escheat to the lord ; because the son, by the corrup- tion 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 SOD never had any interest in the lands to forfeit. In this case the escheat operates, and not the forfeiture ; but in the following JDstance the forfeiture works, and not the escheat. As where a new felony is created by act of parliament, and it is provided (as is fre- quently 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 tho profits of them shall be forfeited to the king for a year and a day, aud so long afler as the offender lives. There is yet a farther consequence of tho corruption and extinc- Corruption of the tion of hereditary blood, which is this : that the person ^"attainted of a perwa** °*"* shall not only be incapable himself of inheriting or transmitting his '"**,? gj*264 own property by heirship, but shall also obstruct the descent of lands or tenements 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 totally dammed up and rendered impervious for the future. But by the law of England, a man's blood is so 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. Upon the whole, it appears that a person attainted [was] neither consequences of I allowed to retain his former estate, nor to inherit any future one, ****^**'"' I nor to transmit any inheritance to his issue, either immediately from himself, or mediately through himself from any remoter ancestor j for his inheritable blood, which is necessary either to hold to take, or to transmit any feodal property, [was] blotted out ' 1 (a) But see note to S. 266. i^H. 192 • 8. 260. Reitmlnod and qu«llfl«d by dtrUlu lUtutM. Con. Slat. e. 116 aboUshes fwfeii- ure on attainder beyond life of offender, except Incasesoftrtaion Con. Stat c. 82, abolishes corrup- tiotKif blooa on attainder. or TITLX B7 PUROHASX, AND FIRST, BY X80UXAT. corroptod, and extinguished forever: the consequence of whicli [was], that estates thus iuipedod in their descent, resulted back nod escheated to the lord. * This corruption of blood, thus arising from feodal principle but perhaps extended farther than even those principles will warnnt I had 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 oonie- quences; namely, that the children should not only oe reduced to present poverty, (which, however severe, is sufficiently justified opoo reasons of public policy), but also be laid under future difficulties of inheritance, on account of the guilt of their ancestors. And therefore, in most (if not all) of the new felonies created by parlia. ment since the reign of Henry VIII., it is declared, that they Bhali not extend to any corruption of blood : and by the statute 7 Anne, 0. 21, (the operation of which is postponed by the statute 17 Gea II. c. 89), it is enacted, that, after the death of the late Pretender and his sons, no attainder for treason shall extend to the disinheriting any heir, nor the prejudice of any person other than the offender himself : which provisions have, indeed, carried the remedy fartbet than was required by the hardship above complained of ; which ij only the future obstruction of descents, where the pedigree happens to be deduced through the blood of an attainted "noestor (a). [By 3 Wm. IV., o. 4, Con. Stat. o. 116, ' 'r';.pt in cases of '<< high treason, and of abetting, procuring, or oouuselling the same, « an attainder for felony ohall not extend to the disinheriting of anj " heir, nor to the prejudice of the right or title of any person, othei " than the right or title of the ofifender during his natural life only; « and every person to whom, afler the death of any such offender, '< the right or interest to or in any lands, tenements, or heredita- " ments, should or would have appertained, if no such attainder had " taken place, may enter into the same j" (6) and by 4 Wm. IV., c. 1, Con. Stat. 0. 82, s. 7, the effect of corruption of blood, which as above mentioned (c), prevented tracing descent throuyh an ancestor attainted, is abolished without exception even in cases of treason; thb latter statute would not apply to prevent an escheat where the] (a) These statutes have been repealed in England by 89 Geo. III., c. which repealing aot being passed subsequent to the grant of a oonBtitutiontnl Canada, and the introduction of the English law by Provincial Act 82 Qeo,[ III., c. 1 (see chapter on the constitution), is not in force and has no repeal'! ing effect here {Dunn ▼. O'Reilly, 11 C. P. U. G. 404) ; unless, indeed, it istol be deemed of sach general import as by its mere enactment to apply to alll British colonies though not expressly named {Brook y. Brook, 9 House ell Lords Cases, 1861, pp. 214, 222, 240) : assuming the repealing act doesiiot| apply ; then, Cardinal Yorke, the last surviTor of the sons of the PretenderJ having died in 1807, it would seem that in Canada, irrespective of proTinciill enactments, the Statute of Anne would have had the effect stated in the text,| and as stated by Blackstone, vol. 4 p. 884, in regard to it, hereditary pan ment and forfeitures for high treason, except for life of the offender, b«| abolished. See also Curwood's Hawkins' Pleas of the Crown, vol. 2, pp.f 637, 649, n. (i) Can the attainted felon devise ? the right of the heir being saved, I the capacity of the offender rot restored. By th wood Conv., vol. IV., p. 71. | (c) Sec. 264. or TITLI BT PUB0HA8C, AND riBIT, BT MOHEAT. ion on the oommittal of the offence, were Tested in the party litiinted ; in luoh case the former statute applies except in cases of treMon.] Before I conclude this head of escheat, I must mention one in um cm* of « jiowlar instance in which lands held in fee-simple are not liable to S^SSSSrSl "till etcheat to the lord, even when their owner iu no more, and hath left donor or bu\.ain 00 heirs to inherit them. And this is the case of a corporation : for £?" i^^^^a if that comes bj any accident to be dissoWed, the donor or his neirs !!! iV *J^! '""* ^ ihall have the land again in reversion, and not the lord by escheat ; ffbioh is, perhaps, toe only instance where • reversion can be expectant on a grant in fee-simple absolute. But the law, we are told, doth tacitly annex a oondition to every such gift or grant, that if the corporation be dissolved, the donor or grantor shall re-enter : for the cause of the gift or grant ^faileth. This is, indeed, founded opon the self-same principle as the law of escheat ; the heirs of the doDor being only substituted instead of the chief lord of the foe ; fbioh was formerlv very frequently the case in subinfeudations, or ilienations of lands by a vassal to be holden as of himself, till Uiat pnotice was restrained by the statute of quia emptore$, 18 Edw. I., it. 1, to which this very singular instance still, in some degree, remains an exception. These are the several deficiencies of hereditary blood, recognized by the law of England ; which, so often as they happen, occasion ' to escheat to the original proprietary or lord« 18 • S. 367. m 194 or TITLE BT OCCUPANCY. CHAPTER XVI. OF TITLE BY OCCUPANCY. Of title by oecu pancy. teDanciefl pur autervie. i ' 1 1 1 -J, * s. 268. * Occupancy is the taking possession of those things which before belonged to nobody. This, as we have seen (a), is the true ground and foundation of all property, or of holding those things in severalty which, by the law of nature, unqualified by that of society, were common to all mankind. But, when onoe it was agreed that ever; thing capable of ownership should have an owner, natural reason suggested, that he who could first declare hb intention of appropri. ating any thing to his own use, and, in consequence of such inten- tion, actually took it into possession, should thereby gain the absolute property of it ; according to that rule of the law of nations, recog. nized by the laws of Borne, quod nvilius est, id ratione naturali occupanti conceditur. This right of occupancy, so far as it concerns real property, (for of personal chattels I am not in this place to speak,) hath been con- fined by the laws of England within a very narrow? compass; and Occnrred only in 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 cestu^ que vie, or him by whose life it was holden : in this case, he that could first enter on the I&nd, migbt 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 revert to the grantor, though it formerly was supposed so to do ; for he had parted with all his interest, so long as cestuj/ qve vie lived : it did not escheat to the lord of the fee, for all escheats must be of the absolute entire fee, and not of any particular estate carved out of it : much less of so minute a remnant as this : it did not belong to the grantee ; for he was dead : it did not descend to his heirs ; for there were no words of inheritance in the grant : nor could it vest in his executors ; for no executors could succeed to a freehold. Belonging, therefore, to nobody, like the heereditas jacens of the Bomans, the law lefl it open to be seised and appropriated by the first person that could enter upon it, during the life of cestui/ que vie, under the name of an occupant. But there was no right of occupancy allowed, where the king had the reversion of the lands ; for the reversioner hath an equal right with any other man to enter upon the vacant possession, (a) See pp. 8 o&d 8. Of TITLE BY CXiUPANCY. 195 which before e true grom, j gsm severalty «0"ety, were ed that even latural reason > of appropri. r such inten. 1 the absolute ations, recog. ione naturali )roperty, (ft, ath been con- ^ompass; aLd re a man waa himself only aan, and died se life it was land, might vie lived, bj and calllDg id, when left ntor, though with all his cheat to the 3 entire fee, 'h less of so tee; for he re no words fcutors; for herefore, to law left it that could fie name of ved, where ler hath an possession, J where the king's title and a subject's concur, the king's shall I be always preferred: against the king, therefore, there could be no prior occupant, because nullum tempua occurrit regi (a). And, even in the case of a subject, had the estate pur auter vie been Uanted to a man and Ms heirs during the life of cestui/ que vie, there the heir might, and still may enter and hold possession, and is called in law a special occupant: as having a special exclusive jiffht, by the terms of the original grant, to enter upon and occupy ' this hsereditas jacens, during the residue of the estate granted ; though some have thought him so called with no very great pro- I priety, and that such estate is rather a descendible freehold. But the title of common occupancy [was] reduced almost to nothing by tffo statutes : the one 29 Car. II. o. 3, which enacted (according to the ancient rule of law,) that where there is no special occupant, JQ whom the estate may vest, the tenant pur auter vie may devise it by will, or it shall go to the executors or administrators, and be assets in their hands for payment of debts ; the other that of 14 Geo. II- 0. 20, which enacts, that the surplus of such estate pur auter vie, after payment of debts, shall go in a course of distribution like a chattel-interest, [and now by Cons. Stat. c. 82, s. 23, an estate ptir auter vie will descend as a fee simple, as provided by the act, and before explained (ch. 14)]. * This was the only instance [of title by occupancy to real estate] j • s. 26i. for I think there can be no other case devised, wherein there is not some owner of the land appointed by the law. In the case of a sole corporation, as a parson of a church, when he dies or resigns, though there is no actual owner of the land till a successor be appointed, yet there is n legal, potential ownership, subsisting in contemplation of law ; and when the successor is appointed, his appointment shall have a retrospect and relation backwards, so as to entitle him to all the profits from the instant that the vacancy commenced. And, in all other instances, when the tenant dies intestate, and no other owner of the lands is to be found in the common'course of descents, there the law vests an ownership in the king, or in the subordinate lord of the fee, by escheat. So also in some oases, where the laws of other nations give a right ai to unds ere- by occupancy, as in lands newly created, by the rising of an island onJunds'in*''^ io the sea or in a river, or by the alluvion or dereliction of theriTer«,orbyai. waters ; in these instances, the law of England assigns them an ^^^^ *"• immediate owner. For Bracton tells us that if an island arise in the middle of a river, it belongs in common to those who have lands on each side thereof; but if it be nearer to one bank than the other, it belongs only to him who is proprietor of the nearest shore : which is agreeable to, and probably copied from the civil law. Yet this seems only to be reasonable, where the soil of the river is equally divided between the owners of the opposite shores : for if the whole soil is the freehold of any one man, as it usually is whenever a several fishery is claimed, there it seems just (and so is the constant prac- tice), that the eyotts or little islands, arising in any part of the ^ river, shall be the property of him who owneth the piscary and the (a) But see 9 Qeo. III. c. 16 ; Beffina v. ifcCormiek, 18 Q. B. U. C. 181. 196 or TITLE BY OOOUPANOT. «8.262. I' * !l^ ^i: soil. However, ia case a new island rise in tbe sea, thougli thel civil law gives it to the first occupant, yet ours gives it to the kiov I '''And as to lands gained from the sea, either by alluvion, bjthj washing up of sand and earth, so as in time to make terra Jirrni] or by dereliction, as when the sea shrinks back below the usqiJ water-mark ; in these oases the law is held to be, that if this gain be by little and little, by small and imperceptible degrees, it it shall go to the owner of the land adjoining. For de minimis non ctirat lex'\ and, besides, these owners, being often losers by the breaking Iq M the sea, or at charges to keep it out, this possible gain is therefore a reciprocal consideration for such possible charge or loss. But if tbe alluvion or dereliction be sudden and considerable, in this case it belongs to the king ; for as the king is lord of the sea, and so owner of the soil while it is covered with water, it is but reasonable le should have the soil, when the water has left it dry. So tbat the I quantity of ground gained, and the time during which it is gaiainp are what mi^es it either the king's or the subject's property. ^ the same manner, if a river, running between two lordships, h degrees gains upon the one, and thereby leaves the other dry, the owner who loses his ground thus imperceptibly has no remedy : but if the course of the river be changed by a sudden and violent flood or other hasty means, and thereby a man loses his ground, it is said that he shall have vhat the river has left in any other place, as a recompense for this sudden loss. And this law of alluvions and derelictions, with regard to rivers, is nearly the same in the imperial law ; from whence indeed those our determinations seem to have been drawn and adopted : but we English, as islanders, have applied them to marine increases ; and have given our sovereign the prerogative he enjoys, as well upon the particular reasons before mentioned, as upon this other general ground of prerogative, which was formerly remarked, that whatever hath no other owner is vested by law in the king. .4 TITLE BY PRESOBIPTION AND BY NON-CLAIM, 40. 197 CHAPTER XVII. TITLE BY PRESCRIPTION, AND BY NON-CLAIM UNDER CON. STAT. C. 88. ♦ Ouster, or dispoBsession, is a wrong or injury that carries with it of ouster or I the amotion of possession ; for thereby the wrong-doer gets into the *^'**''s.*i67!" tetual occupation of the land or hereditament, and obliges him that I hath a right to seek his legal remedy, in order to gain possession, and damages for the injuries sustained. And such ouster, or disposses- sion, may either be of the freehold^ or of chattels real. Ouster ofOutteroi the \\it freehold was eflfected by one of the following methods : 1 . Abate- *I^m. ' ^**^ meat; 2. Intrusion; 3. Disseisin; 4. Discontinuance; 5. Deforce- , DieDt. 1. And, first, an abatement is where a person dies seised of an By aiMtement. Inheritance, and before the heir or devisee enters, a stranger* who • g. les. has DO right makes entry, and gets possession of the freehold. 2. Intrusion is the entry of a stranger, after a particular i^tf^o"- estate of freehold is determined, before him in remainder or rever- sion. And it happens where a tenant for term of life dieth seised of lands and tenements, and a stranger entereth thereon, before any entry of him in remainder or reversion. This entry differs from an abatement in this : that an abatement is always to the prejudice of the heir, or immediate devisee; an intrusion is always to the preju- dice of him in remainder or reversion. For example, if A. dies inBtances. seised of lands in fee simple, and before the entry of B. his heir, C. enters thereon, this is an abatement ; but if A. be tenant for life, with remainder to B. in fee simple, and after the death of A., C. enters, this is an intrusion. 8. Disseisin is a wrongful putting out of him that is seised of the Disseisin, freehold (c). The two former species of injury were by a wrongful entry where the possession was vacant; but this is an attack upon him who is in actual possession, and turning him out of it. Those were an ouster from a freehold in law; this is an ouster from a free- hold in deed. Disseisin may be effected either in corporeal inherit- ances,* or incorporeal. Disseisin of things corporeal, as of houses, • g ^o lands, &c., must be by entry and actual dispossession of the free- hold ; as if a man enters either by force or fraud into the house of another, and turns, or at least keeps, him or his servants out of pos- session. (a) See obsorvations on the meaning of the word, 2 Smith Lg. cases, 5 Ed. p. 661, note, and p. 583, and how far for the parpoaes of the Statutes of Limitation it included cases of abatement and intrusion, or cases other than on actual ouaUr in deed. 198 DiaoontimMnee. Deforcement. 'it • 8. 173. Instaaees. *ai74 TITLE BT FEESOBIPTION, AND BT NON-CLAIM, These three species of injury, ahaitrntni^ intrusion, and distekiri l are such wherein the enti^ of the tenant ab initio, as well as the continuance of his possession afterwards, is unlawful. But the two remaining species are where the entry was at first lawful, but the wrong consists in the detaining of possession afterwards. 4. Such [was], fourthly, the injury of discontinuance, which hap. {)ened when he who had an estate-tail [made] a larger estate of the and than by law entitled to do. As if tenant in tail made &feoff.\ ment 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 I lawful during the life of the feoffor, but if after his death possession I was retained it was an injury termed a discontinuance. [A feoff. ment formerly passed the estate professed to be granted, bi/ wrong though the feoffor had not in him the power to convey such estate- and this might be a further reason why the feoffee could not be dispossessed in a mere possessory action ; by 14 and 15 Vic, o. 7 Con. Stat c. 90, no feoffment has a tortious operation.] 5. The fifth injury by ouster, or privation of the freehold, where the entry of the present tenant or possessor was originally lawful, but his detaicer is now become unlawful, is that by deforcement. This is a much more comprehensive expression than any of the former, and includes as well an abatement, an intrusion, a disseisin, or a discontinuance, as any other species of wrong whatsoever, whereby he that hath right to the freehold is kept out of possessioD: but, as contra distinguished from the former, it is only such a detainer of the ^freehold, from him that hath the right of property, but never had any possession under that right, as falls within none of the injuries which we have before explained. As in case where a lord has a seignory, and lands escheat to him propter defectum san- guinis, but the seisin of the lands is withheld from him ; here the injury is not abatement, for the right vests not in the lord as heir or devisee ; nor is it intrusion, for it vests not in him who hath the remainder or reversion ; nor is it disseisin, for the lord was never seised ; nor does it at all bear the nature of any species of discon- tinuance; but, being neither of these four, it is therefore a deforcement. If a man marries a woman, and during the coverture is seised of lands, and alicnes, and dies; is disseised, and dies; or dies in possession ; and the alienee, dissesor, or heir, enters on the tenements and doth not assign the widow her dower; this is also a deforcement to the widow, by withholding lands to which she bath a right. In like manner, if a man lease lands to another for term of years, or for the life of a third person, and the term expires b; surrender, efflux of time, or death of the cestuy que vie ; and the lessee or any stranger, who was at the expiration of the term iu possession, holds over, and refuses to deliver the possession to him m remainder or reversion, this is likewise a deforcement. * Deforce- ment may also be grounded on the non-performance of a covenant real ; as if a man, seised of lands, covenants to convey them to another, and neglecta or refuses so to do, but continues possession against him ; this possession, being wrongful, is a deforcement. So that whatever injury (withholding the possession of a freehold; is UNDER CONSOLIDATED STATUTES, 0. 88. 199 • S. 175. got included under one of the four former heads, is comprised under tliig of deforcement. The several species of injury by ouster being thus defined, the next consideration is the remedy ; which is, universally, the restitu- tion or delivery of possettion to the right owner; and, in some gases, damages also for the unjust amotion. The methods whereby these remedies, or either of them, may be obtained [were before Stat 4 Wm. IV., c. 1] various. The first is that extrajudicial and summary one, of entry by the of the remedy legal owner, when another person, who hath no right, hath previ-j^^y'^g'^^i®"*"^ oobIj taken possession of lands or tenements. In this case the party owner, entitled may make a formal, but peaceable, entry (a) thereon, declar- ing that thereby he takes possession. * [Formerly] if the claimant [were] deterred from entering by menaces or bodily fear, he [might] make claim, as near to the estate as be [could], with the like forms and solemnities : which claim was Id force for only a year and a day. And this claim, i( it [were] oontiniui claim, repeated once i*^ the space of every year and day (which [was] called continual claim), had the same effect with, and in all respects amounted to, a legal entry. Such an entry [gave] a man seisin, or pat into immediate possession him that baa right of entry on the estate, and thereby made him complete owner, and capable of con- veying it from himself by either descent or purchase, [which other- wise, as regards conveyance 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, as explained at s. 290, transfer such right to another : — ^There was a further advantage attendant on entry as above or continual claim, viz. : that it prevented the right of entry from being tolled or taken away by a descent cast or discontinuance, or barred by the Statute of Limitations ; by Stat. 4 & 5 Anne, c. 16, DO entry however was to be of force to satisfy the Statute of Limi- tations, 21 Jac. I., 0. 16, unless an action were commenced within one year after entry and prosecuted effectually ; a person might therefore, just before the expiry of the twenty years limited by the statute of James, enter, and then before the expiry of the year bring ejectment, thus getting nearly twenty-one years; the student will now under- stand the object of the Con. Stat. c. 88, ss. 11 & 12, under the con. stat. c. 88, first of which no person is to be deemed in possession within the "'' ^^ ^ ^^' meaning of the Act merely by reason of having made an entry thereon ; and under s. 12, no continual claim on or near any land shall preserve any right of entry, or distress, or of bringing an action.] This remedy by entry takes place in three only of the five species Entry takes place of ouster, viz., abatement, intrusion, and disseisin; for, as in these mentllatra^Ton. the original entry of the wrong-doer was unlawful, they may there- *''<*^*"«^"»- fore be remedied by the mere entry of him who hath right. But, upon diicontinu- upon a discontinuance or deforcement, the owner of the estate ^J'^^^'g^jf^^"*' can not enter, but is driven to his action ; for herein the original necesUry entry being lawful, and thereby an apparent right of posses. (a) As to right to enter wiih as much force as necessary, so far as regards a civil action ; see pp. 97, 98. 200 But entry maj b« made upon tenant by Bofferanoe. • B. 1T«. TITLE BJT PRESOBIPTION, AND BT NON-CLAIM, sion being gained, the law will not suffer that right to be over, thrown by the mere act or entry of the claimant [Now, however a discontinuance will not take away right of entry (Con. Stat c! 27, 8. 80).] Yet a man may enter on his tenant by sufferance; foj such tenant hath no freehold, but only a bare possession ; which may be defeated, like a tenancy at will, by the mere entry of the owner, [or, without entry, an action of ejectment will lie, and the tenant at sufferance may be trtsated as a trespasser]. .,iil "'On the other hand, in case of abatement, intrusion, or disseisin ' where entries are generally lawful,?thi6 right of entry [might have been] tolled, that is, taken away, by descent. Descents, which [took] Right of entry ^ might be tolled or taken away. away entries, [were] when any one, seised by any meam whatsoever, of the inheritance of a corporeal hereditament, died, whereby the same descended to his heir : in this case, however feeble the right of the ancestor might be, the entry of rny other person who claimed title to the freehold [was] taken away; and he [could not] recover possession, against the heir by this summary method, but [was] driven to his action to gain a legal seisin of the estate. And this, [among other reasons], because the heir [came] to the estate by act of law, and not by his own act; the law, therefore, protected his title, and [would] not suffer his possession to be devested, till the claimant [bad] proved a better right [and now, by Con. Stat., o. 27, s. 80, no desce/it cast shall toll or defeat a right of entry]. No right ofentry In case of deforcements also, where the deforciant had originally forc^nu. ^ a lawful possession of the land, but detains it wrongfully he still • 8.170. continues to have the presumptive prima* facie evidence of right; that is, possession lawfully gained. Which possession shall not be overturned [as a general rule] by the mere entry of another ; but only by the demandant'n shewing a better right in a course of law. This remedy by entry must be pursued, according to statute 5 Bio. II. St. 1, c. 8, in a peaceable and easy manner ; and not with force or strong hand. For, if one turns or keeps another out of possession forcibly, this is an injury of both a civil and criminal nature. The civil is remedied by immediate restitution; which puts the ancient possessor in statu quo; the criminal injur;p, or public wrong, by breach of the king's peace, is punished by fine to the king. For by the statute b Hen. VI. c. 9, upon complaint of forcible entry, made to any justice of the peace, of a forcible entry, with strong hand, on lands or tenements ; or a forcible detainer after a peaceable entry; he shall try the truth of the complaint by jury, and, upon force found, shall restore the possession to the party so put out; and in such case, or if any alienation be made to defraud the pos- sessor of his right, (which is likewise declared to be absolutely void,) the offender shall forfeit, for the force found, treble damages to the party grieved, and making fine and ransom to the king. But this does not extend to such as endeavour to keep possession mam /orti, after three years' peaceable enjoyment of either themselves, their ancestors, or those under whom they claim ; by a subsequent clause of the same statute, enforced by statute 31 Eliz. c. 11. The right to enter [As now no descent cast, or discontinuance, tolls or takes away a regards a civil right of entry, and no feoffment has a tortious operation so as to con- vey by wrong a greater estate than the feoffor has, it seems to follow] Entry mnat be peaceable by Stat. R. II. St. 1, 0.8, andSt. 8H.VI.e. 9,remedyinca8ei aetion. UNDER CONSOLIDATED STATUTES, 0. 88. 201 [that as a general rule in all the oases put by Sir W. Blackstone, ex- cept most kinds of deforcement, the party entitled can lawfully enter and bold, provided he do so without offending against the statutes a? to forcible entry and detainer; and even though he should so offend, still, tbough liable under those statutes, and to criminal proceedings, he migbt yet in many cases justify in a civil action of trespass, if ho 7ere to gain possession by no more force than requisite (a)]. Thus far of remedies [by entry], where the tenant or occupier of or ca«M not the land hath gained only a mere possession, and no apparent shadow J^l*^^**' of rigbt. Next followed another class, which [were] in use where the title of the tenant or occupier advanced one step nearer to per- fection ; so that he [had] in him not only a bare possession, which [migbt] be destroyed by a bare entry, but also an apparent right of poisessionf which [could not be removed by more entry, but only] by orderly course of law; in the process of which it must be shown that tbough he [had] possession and therefore* the presumptive * s. iso. right, yet there [was] a right of possession superior to his, residing in him who [brought] the action. These remedies [were formerly] either by a writ of entry, or an By posaestory mise; which [were] actions merely possessory; serving only to *""'"*■» regain that possession, whereof the demandant (that is, he who sues for the land,) or his ancestor [had] 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 which ctodded restoring the demandant to that state or situation, in which he was rmpcV'to t^ (or by law ought to have been) before the dispossession committed. rfKntofpropei But this without any prejudice to the right of ownership ; for, if the dispossessor [had] any legal claim, he j^might] afterwards exert it, notwithstanding a recovery against him in these possessory actions. 1. The first of these possessory remedies [was] by writ o/"cn»• have a mere writ of right; which [was] in its nature the nighest m2?« wruofrliht writ in the law, and [lay] only of an estate in fee-simple, and not'*^' for him who had a less estate. This writ [lay] concurrently with SiUMuSttoM*' all other real actions, in which an estate or fee-simple [might] beJ5^"**«J'^ recovered; and also after them, being as it were an appeal to therecoTered; and mere right, when judgment had been had as to the possession in ""*••**•' "»»• SD inferior possessory * action. But though a writ of right [might] • s. 194. be brought, where the demandant [was] entitled to the possession, nut rarely »d yet it rarely [was] advisable to be brought in such cases, as a^more ''■"*•'« ^ ■»"'*» expeditious and 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. But, in case the right of possession [were] lost by length of time, or by udgment against the true owner in one of thoso inferior suits, there where no other was] no other choice; this [was] then the only remedy that [could] "™***'- )e had. In the progress of this action the demandant alleged some Proeeedfajn on seisin of the lands in himself, or else in some person under whom ^'" "' '**'**• he claimed, and then derived the right * from the person so seised * s. lae. jx) 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 put the demandant upon the proof of his title ; in which if he failed, or if the tenant [had] shown a better, the demandant and his heirs were perpetually oarred of their claim ; but if he [could] make it appear that his right [was] supe- rior to the tenant s, he recovered the land against the tenant and his heirs forever. [It will be observed how, having abolished the fictitious proceed- wager of, and ings in ejectment in the names of John Doe and Richard Roe, we '"^ **^' **"**' have reverted to a more simple practice bearing more analogy to the ancient proceedings on the writ of right ; the mode of trial, how- ever, varies considerably ; for on the writ of right, 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 clad in a species of armour and armed with batons and bucklers, though in the courts military they fought with sword and lance; and in those courts, as also in appeals of felony, the parties fought in person.] The battel being begun, the combatants were bound to fight till the stars appeared in the even- ing; and, if the champion of the tenant could defend himself till the stars appeared, the tenant prevailed in his cause ; for it is suffi- cient 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 given. [Wager of battel was abolished by Imp. St. 59 Geo. III. c. 46 (a) ;] (o) Wager of battel, and trial by battel, were only allowed in the court* martial, ia appeals of felony, and on the writ of right in a real action ; in 204 TITLK BT PRESCRIPTION, AND BY NON-CLAIM, Li The ibrmer Sta. of LlmlUtlon. .i i [the last case known in whioh it was allowed, on a writ of right, was m 1812 in a suit as to the Angel pronerty, and in a case of felonv in 1818 (a). The writ of right itself was abolished as preaentlv shown by 4 Wm. IV. o. 1. It will thus have appeared, that according to various circum- stances, a person entitled had to assert his rights in various ways • either by entry, or by real action, mixed, possessory, or droiturcl, as the case might bo, and though he failed in an inferior romedj, be might yet resort, as a general rule, to one superior; as before mentioned, however, the legislature in earlv times imposed a limita- tion to the time within which rights should be asserted, and remedies applied ; by 20 Hen. III., c. 8, and 3 £d. I., o. 80, this time was to be reckoned from certain fixed dates, viz., by the one from the coronation of King Henry III., by the other, from the return of King John from Ireland ; in process of time, these statutes ceased to be of any benefit, there being above 800 years from the coronation of Henry III. to the 32 Hen. VIII., when another statute was passed, and in 21 Jao. I., another, under the operation of one or other of which, the claimant, if resting his title on a former seisin in himseff, was limited to SO years in both possessory and droiturel actions ; if on a seisin in an ancestor, to 50 years in possessory actions, and to GO years in actions droiturel, from seisin to teste of the writ ; nor could he, having been dispossessed for 80 years, make an entry so as to entitle himself to bring an action of his own possession gained by such entry ; the limitation to the writ of formedon, the remedy given on discontinuance by tenant in tail, was 20 years after the right accrued; and as to the mixed action of ejectment that Wik. to be brought within 20 years from the right first accruing, with a reservation of such right, or rather of the operation of the statute, in cases of the disabilities named, as imprisonment, infancy, &c., in which cases a period cf ten years was allowed from the time of there first ceasing to be any disability. It will be seen that 60 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 60 years, is a sufficient title against nil the " world, and cannot be impeached by any dormant claim whatever ;" yeari'poMcii.ion gn observation now admitted to be incorrect, for as said by Lord St. may no n e j^gongrdg ^^^^ « It ^qs possible that an estate might be enjoyed " adversely for hundreds of years, and yet at last be recovered by a " remainder-man; for instance, suppose an estate to be limited to " one in tail, with remainder over to another in fee, and the tenant " in tail to be barred of his remedy by the statutes of limitation ; it is " evident that as his estate subsisted, the remainder-man's rii/hl oi " entry could not take place till failure of issue of tenant in tail, " which might not happen for an immense number of years :" other instances might be put, as of p. remainder or reversion dependant on a life estate, in which 60 years adverse possession, pending the] other cases, as if proceedings were taken against a debtor in a civil auit, it was never competent for him to deny the plaintiff's claim, wage iiis battel, and tender to the plaintiff that mode of trial. (a) See 1 B. & Aid. 405. (6) S'lgden on Statutes, p. 4. sixty or more may t tie, common, v UNDER 00N80LIDATBD STATUTES, 0. 88. 205 [existcnco of the life might not then, or now, confer a title against [he remainder man or reversioner, and in the ease put of tenant in tail, 60 years might not even now confer a title ; aa we shall see in coDsideriDg section 30 of Con. Stat. Tbe defects in the statutes of Henry and James are noticed more Particularly, in considering the various sections of the statutes 4 k'm. IV., c. 1 (Con. Stat. c. 88, and c. 27), copied to a great extent from the Imperial Acts 8 & 4 Wm. IV., o. 27, and o. 42, and 2&3 Wm. IV., 0. 71. Under the Stat. 4 Wm. IV., Con. Stat. c. 27, s. 78, all real and mixed actions are abolished, except the writ of dower, of dower \inde% nihil habet, and ejectment ; a reference to this section will shew the extraordinary actions applicable to the various positions in vhich the demandant and tenant might stand in regard to the property : as real and mixed actions were thus abolished, except as regarded dower and ejectment, and as ejectment could not be brought except where there exists a right of entry, the necessity arose for providing against this right being tolled or taken away at common fair by descent cast, discontinuance, or warranty (a), and therefore it was provided that no right of entry or action should be thereby tilled, c. 27, s. 80. A further object in the statute was to limit actions to 20 years from tbe right accruing, and extinguish the right itself afterwards except in certain cases of disability, and wild lands ; and there- fore, not only were real actions abolished, under which, as before explained under certain circumstances, only 60 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, or distress, or of bringing an action, c. 88, ss. 11 & 12 ; the effect theretofore, of such entry or claim, was, among other things, to give a new right, and prevent the Statute of Limitations from running (ante, s. 175). Under the former Statutes of Limitations, the time limited did not begin to run, except from adverse possession, and great difficul- ties occurred in determining whether the possession of the party claiming under the statutes, wa-j or was 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 ofs. 10; and moreover, the present statute cannot be understood without adverting 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, 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 cotenants or copar-] Renl and mixed •ctioni atiollahed except In dower and ejectment by Con. SUt e. 27 1.78. S. 80. Prerents right of entry being tolled. ''ifl C!on. Stat. c. 88 8«. 11, 12. As to mere entry and continual claim. Doctrine of non- adverse posses- sion. (a) Ante, 8. 176, p. 200. 206 TITLI BT PRISORIPTIOir, AND BT NON-CLAIM, F k Ol))«ot of the lit. to do away with qnestlont of non- adverM poiaes- ■lon. [oencra, so that even the receipt by one of all the profits was not sufficieDt to cause the possession to be deemed adverse ; a tortious acqniring of the freehold by abatement or intrusion, which was an ouster iu law; or an actual ouster in deed, or what was tantamoant 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 cotenant not only receivea the whole rents but on being asked for payment of the ootenants' share, refused payment and denied the right, it was held to be evidence of an ouster ; so also solo possession for 40 years by one tenant in common being unexplained, was held sufficient for a jury to presume aclQal ouster: the possession of a relative of the heir was not alwajg deemed adverse to the heir ; as when a man seised in fee, died leaving two sons, and the younger entered by abatement, the statute did not run against the heir at law ; for the law presumed the younger son entered, claiming to uphold and preserve tne title of the ancestor, 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 of non-adverse possession, as above explained, and the difficulties attending it, and the general purport of the act is to make the statute run from the time of the right first accruing, whether the possession were or w< .0 not adverse according to the old law : it dy^2o^yMMff!Sm" provided, therefore (s. 1]), that no person shall make an entry, or ''is^>i>'« ao- distress, or bring an action to recover any land or rent, but withia ^' 20 years next after the first accruing of such person's own right, at if he claims through another, from the first accruing of the right of such other (s. 1) ; declared that the possession or receipt of the s. 13. PosaeMion profits by One coparcener, joint tenant, or tenant in common, should nottoepM^on "^^ ^^ dccmed the possession or receipt 0* the other (s. 13) ; and of tb« other. that the possession of or receipt of the protikS by a younger brother of yonngw^rvi'"' or Other relative of the heir at law, should not be deemed the pos- ^ft*h'"''*""'*^®^^°'* of or receipt by such heir (s. 14). s. 1. DifTerent See. 1. Let me here at the outstart allude to a matter which) wordrent,aa%ent unless Understood, is likely to lead to great confusion; viz. the dif- BMYke**"""* ferent senses in which the word rent is used in the statute: some- times 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 (b). In the interpretation clause, s. 49, it is used in both senses, and is expressly made to " extend to all annui- " ties and periodical sums of money charged on or payable out of , any land ;" so also in s. 9, where it used to signify rent charge, except when therein lastly spoken ot, when it means rent reserved : in s. 10 the word is used seven times, sometimes in one sense, some- times in another; whenever not spoken of in that section as rent > reserved, it means rent charge; in s. 2 it means rent charge only;] (a) 2 Smith Lg caseei, p. 661, note, 6tb ed., and p. 683. (i) Sees. 41, 42, pp. 29, 80. UNDER 0OM8OLIDAT£I) STATUTES, 0. 88. 207 sod it is used in the same seme in s. 8 (a). I may alto add that there may be a demise of a rent charge in fee, as for instance on payment of a ffross sum oi money at a smaller rent reserved than the rent payable by the charge (&). Sometimes, therefore, the statute refers to rent, as rent reserved or rent service, which is a loere incident to the reversion ; sometimes as payable by, or in the sense of a rent charge, and thjs like ; in which latter a man may have a distinct estate in fee, and which may be in fact an incorpo- real hereditament (c). Bent reserved on a lease is governed by other sections, as here- The pMition of after explained : (d) thus s. 19 prevents arrears, six years overdue, toS»nt'i^'*rent being a charge on the landt, but the personal remedy by action uruervedonrMre left : Con. Stat. o. 78, prevents recovery in a personal action in up"w "J'Sme.*" debt on indenture of demise, or on the covenant, after twenty years from the time the particular instalments of rent claimed fall duo ; and whore the relationship of landlord and tenant subsists, as in the case of an unexpired lease in writing, it has been decided that by the mere non-payment for twenty years of the rent reserved, the landlord does not lose his right, even quoad the land, to recover arrears less than twenty years old, when distrained for within sis years ailer becoming due. (e) The le^l principle is, that the rent is incident to the reversion ; and on expiry of every day on which rent becomes due under a deed constituting the tenancy, whether payable yearly, half-yearly, or oftener, a right of distress accrues : neglect to enforce payment of the ren!} deprives the lessor by the express terms of s. 19, of all arrears beyond six years ; but as to all accruing pay- ments, the right is constantly renewed ; by-gone arrears are lost, but there can be no neglect in enforcing what is not due C/). The landlord On wrongftii pay- , if ..• • i.i^'^i.'i.. meat to ihe OTtrd may, however, lose his estate in reversion, and the rent incident io ptrvm. it, notwithstanding the lease may be unexpired, by lapse of twenty years from payment of rent to a third person wrongfully claiming the reversion (adverse possession (a); but thig would seem to be subject to two exceptions, the one in cases of continuous tenancies at will, under s. 7, as subsequently ezplaiDed under that section ; and the other in cases of leases in writing at less than four dollars rent, not included in s. 10, and which latter eases are apparently left as before the statute. The crown is not affected by this statute, except as regards pre. scription, the crown not being expressly named. Time also will not run whilst the fee is in the crown, as against persons claiming ag lessees or looatees of the crown before patent issued (b). The crown may, however, be barred under the nullum tempus act, 9 Geo. III. c. 16 (c). The word rent in this section means rent charge as before explained (d). See. 2. As under s. 1 the time begins to run fcom the right first accruing, this section defines when such right shall be deemed to have first accrued ; but still there may be cases coming under s. 1 which are not defined in s. 2 (e). The word rent when used means rent charge, as before explained. s. 2 e. 1. In eases Clame 1, it will bo noticed, applies to cases of actual dispos- ordiM^S!un^eaB^^^°° or disseisin of the land or rent-charge, of the person la of possession, possession of the land, or entitled to the charge: the word t^ts. continuance 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 (/), Beferenoe to the cases given will show wnat amounts to disposses- sion or discontinuance of possession. Under this clause, though a person dispossessed of land has twenty years from dispossession ; yet, as in case of a rent charge, it may be a less period, and time ran from the last payment or receipt, not from the time when the next payment thereafter would fall due and be unpaid ; thus, if the rent be payable annually, the time may be limited to nineteen years (g), Clause 2 of s. 2 applies as the iirst, to estates in possession, thougli not to oases of dispossession ; the case of an abatement (as to which see ante p. 197), will illustrate this clause. The heir at law, or devisee,] (a) Nepean y. Doe, 2 M. & W. 9m, 2 Smith Lg. oases, 476. (6) Jameton y. Jffar^er, 18 Q. B. U. C. 690 ; Dowiett r. Cox, 18 Q. B. TJ. C. 694. (c) See Jteffina y. MeCormick, 18 Q. B. U. C. 181, the rights of the croyn considered in this countrj. (J) Ante, p. 206. (e) See Jamea y. Salttr, 8 Bing. N. C. 644 ; Grant y. ElUi, 9 M. & W., 124, (/) Ketehum y. Mightm, 14 Q. B. U. C. 99; Doe Cuthbertton, ▼. McOUlis, 2 C. P. U. C. 124, per SuUiran, J.; Wallace y. Hewitt, 20 Q. B. U. C. 87; Smith y. Lloyd, 9 Ex. 662 ; Keyse y. Powell, 2 E. & B. 182 : Pringle y. Allan, 18 Q. B. U. C. 676. '{g) Per Parke, Owen y. DeBeavoir, B. 16 M. & W. 665. B. 2 c. 2. On abatement or death. TITI for personal r ilause be ban or acknowledj the ancestor ( began to run start, against by force of c claims, havin administratort presently allu Clause 3 o applies to the mler vivos, w had not acqu continue in pi tion of the co life, remainde sion, though i of the deed, i B.'s right wo The first tl possessi<«i ; cl for life with i sessed for mo such case, tl estate vests ii years, under to B. as rever of such rever will not apt) fiivor of C, i non-payment reversioner, i possession ; term (a): tl the wrongful claiming as i to ran again: the determin receipt by th considerably Sec. 10, 1 rent or upwa the landlord and receivini be deemed t< no new righl such a lease (a) Doe dem. TITLE BT PRESOBIFTION, AND BT NON-CLAIM, 209 for personal representative in cases of chattels real, vriW under this olanse be barred if they allow twenty years to pass without action, or acknowledgment of title as provided for by s. 16 : ' if, however, the ancestor or devisor had died dispossessed, and the statute had begun to run against him, it would continue to run from its first start, against the heir, devbee, or personal representative ; and this, u force of clause 1, which speaks of the person through whom he tlaims, having been dispossessed. Sec. 6 alters the old law as to administrators, and s. 14 as to heirs in certain cases, to which I will presently allude. Clause 3 of 8. 2 is much the same as the 2ud; except that its.2ci.3. when applies to the case of a person becoming entitled by an instrument JJ^',^,^^^^** inter vivos, when the grantor was in possession and the grantee inur vivot. had not acquired it ; thus, if A. should convey to B. in fee, and continue in possession, the statute would run against B. from execu- tion of the conveyance; but if the conveyance had been to Z., for life, remainder to B. in fee, and A. should have continued in posses- sion, 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 clause 4, s. 2. Tho first three clauses of s. 2 apply to cases of right to immediate s. 2 ci. 4. Former possession ; clause 4, a. 2, to cases of future estates. If A. be tenant J^^^pp'^^*^" for life with remainder to B. in fee, the mere fact of A. being dispos- to /uiure right sessed for more than 20 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 yean, under a lease in writing, paying rent exceeding four dollars to B. as reversioner in fee, and C. claiming adversely to B. in respect ofsuch reversion, should have received the rent, here this clause will not apply, and by s. 10, the statute would run against B., in &vor of C, from time of his receipt : under this clause, the mereMer»iioiii>ay- non-payment of rent for 20 years by a tenant, will not bar thenot'bii''*°*'"" reversioner, who will have a new right when his estate comes into possession ; as in case of a lease, on the determination of the term (a) : this was so under the former law \ under which even the wrongful payment of rent by the tenant to a stranger wrongfully claiming as reversioner, 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 (&) ; this latter doctrine, however, is considerably modified ; thus, by s. 10 : Sec. 10, relating to a leaae in writing whereon is reserved ^4 s. 10, when iMwe rent or upwards, unless as therein mentioned, twenty years will barl.'^J^;^'^^^^, the landlord as against a person wrongfully claiming the reversion, on "eceiTea the and receiving the rent ; his right of entry against such person will KTerBioner^^.tme be deemed to have accrued on such receipt of rent, and he will have J^ii^jJ^*""^ no new right on determination of the lease. But the tenant under such a lease paying rent to such third person (unlike a tenant under] (a) Dot dem. Davy v. Oxenham, 7 M. & W. 181 ; Orant v. Ellit, 9 M. & W.^ 118 ; Arehbold v. Scully, 9 II. L. Cases, 860. 14 (b) Soe ante, p. 205. 210 VNDEB CONSOLIDATED STATUTES, 0. 88. ■I • under unwritten lease. [an unwritten lease, or at will, sa. 7 & 9) would by this section acquire no right ; for the statute only begins to run against the landlord from the payment of rent b^ the tenant, and when the landlord is barred by twenty years, the right accrues, not to the tenant, but to the person to whom he has paid, for as between the tenant and such person s. 17 applies. I have before explained (a) that the word rent in this section means sometimes rent charge', and that there may be a demise of a rent charge ; it is necessary to bear this in mind to understand the staftite. If rent lees than If the Icasc Were in writing, but at less than $4 rent ; it would seem ^*' the case will be governed by the old law (6), and the non-payment to the landlord, or even the wrongful payment to another claiming as against the landlord, will not bar the landlord of his right to enter on the determination of the lease. I refer the reader to the observations under s. 1 (e), for further consideration of the effect of non-payment or wrongful payment of rent to a third person. s. e. Tenant Under sec. 9, time will run against the landlord on an unwritten lease at the end of one year in the case 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 last payment. Under this section, unlike oases under s. 10 the tenant can acquire a right against he landlord by non-payment of rent, which is a great alteration on the old law as before ex- plained. Rent in this section sometimes means rent charge, sometimes rent reserved (d). Sec. 7, as to tenancies at will. The reader will bear in mind that under certain circumstances, by payment of rent, a tenancy at will may be converted into a tenancy from year to year (e) ; in which case s. 9 applies : but where a tenancy strictly at will does exist, this section considerably varies the old law; and now no question arises as to whether the possession is or is not adverse ; and if the laiiulord neglect for 20 years from the time limited, to enforce pay- ment of rent, or possession, ha will be barred (/), unless indeed he can shew a continuous or a new tenancy, or perhaps a determination within the twenty yeart of the old lenancy, to which I will presently allude. A mortgagor, and cestui que trust, who under certain cir- cumstances may be regarded as tenants at will, are excluded from this section by s. 8, and their cases are governed by other seotions. The operation of this section may be of considerable importance Caoee of render in cases where a person is let into possession under a contract of contJaS'of eato!' pu'chase (g) J in which case, (at least if there be no right of posses- sion till default in payment), he becomes tenant at will, and this section applies, and s. 8 does not exclude its application, as s. 8 only applies to cases of express and declared trusts, as explained in treating of that section. If there be a right of possession till default, on a certain named day, and default be made, the vendee can be treated] (a) Seo. 1, p. 206. (6) Ante, p. 205. (e) Page 207. (d) Anto, p. 206. (e) Ante, p. 93, (/) Doe dem Thompton v. Thompaon, 6 A. & £. 722 {g) See the analogy bstwden mortgagor and mortgagee, pott, s. 25, p. 219. S. 7. Tenandei at will. TITLE BT FRISOBIFTION, AND BT NON-OLAIM, 211 fas tenant at suflferance (a) ; and time would 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 s. 1 : but where there is in the conlmct of sale no clause giving the vendee right of possession till default, and he is let into possession, he becomes tenant at will, and time will run as provided by s. 7, at the end of one year from com- mencement of the tenancy (6). The operation of the statute may lie avoided in both these instances, as also in most oases within s. 7 : 1st, by shewing a eontinuance of the tenancy at will, or the creation Operation of i. 7 of a new tenancy ; which may be inferred from the acts and oondnotf^^^^^l^'^'' of the parties, irrespective of express acknowledgment or payment of tenancy, or erea- jent : 2nd, by shewing a determination of the tenancy within 21 years HS^cya/wui, from its comniiencement, hi/ act of tht partiea, thereby giving rise to i Dcw right of entry, from which alone the time will run, notwithstand- ing continuance in possession by the tenant, after such determination, ctanng which he is tenant at sufferance : it is admitted, however, or determination there is much doubt as to the 2nd mode of preventing the strict S^fo^/tSr" application of this section, and whether, notwithstanding such a ?"**«■• determination, 21 years from the commencement of the original tenancy at will would not be a bar (c). I would particularly call your attention to the very great import- jnce of preventing a bar by either of the two siodes above men- tioned, because thereby the effects of the bar otherwiiio created by 58. 1 & 2, and by s, 7, in the various cases to which they apply may be considerably modified, and a new and later right of entry spring up, from which alone time will run, in the same way as if an acknowledgment were given under s. 15. As to the first branch of the subject, viz. : evidence of the oresk-Aa to evidmce of tion of a new tenancy at will, or of continuance of the old tenancy, J^'"°y,[*|',j^*' preventing lapse of time being a bar. or of cmHnmnce Suppose a person went into possession under circumstances not"'"*^"'^' sach as to constitute a tenancy at will, and yet not constituting a possession strictly adverse (d); or that the circumstances under which he went into possession were not shown at all; in either case I apprehend the owner would be barred under ss. 1 & 2, by twenty jears from such possession taken : take the other case of a person going into possession strictly as tenant at will, and that this was all that appeared ; here twenty-one years from the commencement of the tenancy is a bar under this section : but in all these cases the possessor's acts and conduct may furnish evidence to prevent the operation of the statute, and as said by Patteson, J. (e): " his acts " may well amount to an admission that during the period in question " he was in fact tenant,'' as for instance, tenant at will. Erie, J., in the same case said : " the question is, whether the " estate of the heir at law is defeated by certain acts in pais relied " on by the defendant : the lessor of the plaintiff (who brought] (a) Ante, p. 95. (6) Jones v. Cleaveland, 16 Q. B. U. C, 9. (c) Smith Lg. CMes, vol. 2, pp. 602, 605. (i) See report of real prop, oommissioners. {() Dot dem. Orovet v. Orovtt, 10 Q. B. 486, post note (a) ; see also Foster v. Emer$on, 6 Qrant, 135. .'/ % 212 UNDER CONSOLIDATED STATUTES, 0. 88. [" ejectment claiming as mortgagee of the heir at law — Ed.) was « clearly entitled, and his title recognized in the plainest way by the " defendant ; but the defendant's answer is, that he occupied as "apparent owner for twenty years: to this the reply is, that the " real owner came now and then, and lived with him. If I had been " in the place of the jury, I should have held that this shewed that " the defendant was in reality tenant at will." Lord St. Leonards (a) gives the facts of this case, and comments on it thus : " Although a man has been in possession twenty years " as apparent owner, yet the rightful owner may show that the pos. " session was not such as the statute will give effect to. Thus " where a widow and her only son, an infant, resided together on " the property which had descended from the husband to the infant, " and she married again, and her second husband lived with hei " son until 1805, when the latter, who was about twenty-one, left " the premises, and the second husband acted as owner of the pro. " perty ; but the son occasionally resided two or three weeks at a time " in the house, inhabited by the second husband and his wife, and " so resided there at the death of his mother in 1841, and remained " about three weeks after her death, and in 1842 the surviving hus- " band procured the son, the heir at law, to execute a mortgage of " the property, and the money was paid by the son to the husband, *' it was held in ejectment by the mortgagee against the husband, " that the former was entitled to recover, as the presumption was " that the husband held as tenant at will to his son-in-law (b)" And again Lord St. Leonards (c) says : " Where the tenancy at " will is by the act of the landlord converted into a tenancy at suf- " ferance, still the twenty years must be computed from the expiry " of the first year after commencement of the original tenancy at " will ; but if a new tenancy at will be created between the parties, " then the twenty years will run from expiry of the first year of " such new tenancy." In a recent case {d), to which I particularly direct the student, Blake, C, commenting on the last case, of which the facts hare been given above, says : " It establishes that when the act of the " parties cannot be reconciled except with a rightful holding of " some kind, and no other tenancy is shown and no rent paid, in " that state of things a jury ought to presume a tenancy at will, " which being found, prevents the operation of the statute." The court in that case considered the acts and conduct of the parties as evidence of a continuous tenancy at will. I may add that the ques- tion as to creation of a new tenancy or of continuance is one for the jury. It is clear, therefore, that the conduct of the parties to the original tenancy (e), by furnishing evidence of the creation of a new] (a) Sugden Statates, p. 26. (6) Doe ▼. Groves, 10 Adol. & Ell. N. S. 488. (c) 2 Ed. p. 66, referring to Doe v. Turner, 7 If . & W. 226 ; Turner v. Doe, 9 M. & W. 648; Doe T. Carter, 9 A. & E. N. S. 868 ; but see 2 Smith Lg. Ca. 602, 605 ; Randall v. Stevens, 2 £. & B. 641. (d) Foster v. Emerson, 5 Orant, 146. («) As to eontiauoos tenancy, Sagden on Statutes, 2nd «d. o8, 64. UNDER CONSOLIDATED STATUTES, 0. 88. 213 [tenancy at will, or it would seem also of continuance, may (apart ♦rom express acknowledgment of title or payment of rent,) prevent the statute from creating a bar by lapse of time, in cases where but for Eoch conduct a bar might have been created (a). The eflFect of this is, however, apparently to re-introduce to a certain extent the doc- trine of non-adverse possession, which it was an object in the statute to avoid, as manifested by the particularity with which it defines when the right of entry under various circumstances shall be deemed to bare first accrued, and making time run from such first accruer. I now come to consideration of the 2nd, the more doubtful, ques- New right of tion; nanftly, whether, where a tenancy at will has existed, and twen-SiSuon of*the ty-one years have elapsed from its commencement, the bar which under ^"*^,^^ ^* ^ s. 7 would be created by such lapse, may be prevented, merely by to prevent 21 shewing a determination of such tenanjyiy act 0/ the parties within SiraownOTit the twenty-one years, where such determination is succeeded by a 'wins « bar? continuance in possession of the tenant without any right, or crea- tion of a new tenancy at will : whether, in other words, on such determination, a new and later right of entry then springs up against the tenant, who has become thereby a tenant at sufferance, from which period alone time shall run, instead of from a year afler the commencement of the original tenancy at will, which has been deter- mined. When Judges and the ablest writers on the subject differ or doubt, it would be presuming in me to do more than call the attention of the student to the question, and give the authorities (h). The language of the Vice-Chancellors, in a case before referred to (c), bears not only on this second question but also on the first, though perhaps as regards the second it is somewhat extra-judicial, as that case turned on a continuous tenancy. Esten, Y. C, in giving judgment, says: "The views entertained respecting the << construction of this clause appear to have varied. At first it was " supposed that the time began to run from the end of a year after " the commencement of the tenancy at furthest, and from a deter- " mination of the tenancy only if it took place before that time « (Sugden's Concise Views, p. 358, and 2 V. & P. 612). Then it " was supposed that the tenancy might be deemed to have deter- " mined at the end of a year, so as to give a start to the time, and " yet that it would actually continue, and might be aflerward deter- " mined by an act of the lessor, whereby the tenant would become " tenant by sufferance ; but that this would not affect the currency " of the time unless a new tenancy-at-will were created (^Doe v. " Turner, 7 M. & W. 226). It is obvious that it would have been " much simpler and more natural to have considered, as our own " Court of Queen's Bench did in Doe v. Henderson (3 U. C. Q. B.] (a) As to possesaion by a servant or caretaker, Doe v. Henderson, 3 Q. B. U. C. 486 ; Doe Quimey v. Caniffe, 5 Q. B. U. 0. 602, commented on in Foster T. Emerson, supra ; Allen v. England, 3 F. & P. 49, Erie, C. J. ; Hogan v. Band, U Moore, P. C. C. 810 ; White v. Bayley, 10 C B. N. S. 227. (i) See the oases collected and commented on, 2 Smith Lg. cases, 602 ; Bee also the passage from Sugden quoted in the text ante, that twenty-one years would bar ; Allen v. England, 8 P. & P. 49 ; Hogan v. Hand, 14 Moore, P. G. C. 810, supra., last note. (c) Foster y. Emmersonf 6 Grant, 184. •I Iff I 214 TITLE BY PRESCRIPTION, AND BY NONOLAIM, [" 486), that the tenancy determined at the end of the year, and «< that the act of the lessor, which would have been a determination " of it if it had continued, went for nothing. The English oases " are not all very intelligible; and it appears to me that muoli " unnecessary perplexity has been introduced into the consideration " of this question. It was afterwards decided that the tenancy " might bo shewn to have continued beyond the end of the year by " any circumstances evincing a friendly understanding between the " parties respecting the land (^Doe v. GroveSf 10 Q. B. Rep. 486). " Lastly, it was suggested by Lord Campbell, in Randall v. Stephem " that any act of the lessor which would be a determinaAon of tbe " tenancy, supposing it to have continued after the end of the year " would give a new start to the time. This view supposes the " tenancy to continue after the end of the year, and the words " ' from the determination of the tenancy, or from the end of a " 'year after its commencement' to mean whichever shall last " happen. If this construction should prevail it would open the " door very wide for the admission of exceptions to the bar of " the statute, as anything which would operate a determination " of the tenancy, whether the secret act of the lessor, or the act " of God, as the death of either party, would make the time begin " de novo. This doctrine rests wholly upon the extra-judicial opinioa " of the present Lord Chief Justice of England, which, howeyer, " must be entitled to great weight. I should myself think it more " reasonable to hold that the tenancy must be deemed to have deter- " mined at the end of the year, unless it is shewn to have continued " beyond that time, and that an act or circumstance which if it had " continued beyond the end of the year would be sufficient to work " its determination, cannot itself shew such continuance, but this " fact must first be shewn by other evidence. Three points may " safely be considered as settled by the decisions : first, that the time " will begin to run from the end of a year after the commencement " of the tenancy, unless it be shewn to have continued beyond that " time ; at all events, if nothing have occurred after that time which " would have worked its determination, supposing it to have contl- *< nued. Second, that the tenancy may be shown to have continued " beyond the end of a year after its commencement, by evidence of " any facts or circumstances indicating a good understanding between " the parties relative to the land (Doe v. Groves, ubi supra.), " And third, that any fat* evidencing the existence of a tonancy-at- " will within twenty yeani before the commencement of the action " will be an answer to the statute (Doe v. Burton, 15 Jur. 990). " A fourth point must be considered doubtful, namely, whether it is " sufficient to shew an act or circumstance within twenty years, " which, if the tenancy had continued, would have worked its deter- " mination." Spragge, V. C, in giving judgment in the same case, says: "I <' take it to be the meaning of the statute, and so determined b; " adjudged cases, that the tenancyat-will shall be deemed to have " determined at the expiration of one year from its commencement " only where no other determination of the tenancy is shewn ; and " that where another determination of the tenancy is shewn, either] UNDER C0N80IIDATSD 8TATUTKB, 0. 88. 215 r« before the expiration of the first year or within twenty years after II it, tbe statute begins to run from that other determination ; and i< iu such case the legal presumption is not resorted to. Thus at the « expiration of twenty-one years from the commencement of the •( tenancy, if nothing has occurred in thb meanwhile to rebut the ii legal prcvsumption, it shall take effect and the tenancy be deemed « to have determined twenty years before : but if there has been " during any portion of that time an actual determination, then up I' to that actual determination the tenancy must have continued, for i( there could be no determination of that which had no existence " ai the time. In such a case the only evidence of the continued II existence of the tenancy after the first year is the fact of its being 11 pat an end to at some subsequent period, if indeed that fact can X properly be called evidence of its previous existence. Perhaps the II more corr^ict view is, that the le^ presumption does not arise I' until after the twenty-one years have expired ; and if anything « occurs to rebut it within the twenty-one years, it does not arise at «all; and until the twenty-one years have expired, the continued ('existence of the tenancy-at-will is a legal consequence ot the " tenure." By s. 8 a mortgagor or cestui que trust is not to be deemed tenant s. 8. Mortgagor, at will to the mortgagee within the meaning of a. 7, so as to cause ",!?^"mere!y m the statute to run as named in that section: under certain circum-'uch, not tenants , ... . ' ., . • 1 . /< J at wiU within stances a mortgagor remaining in possession without right conferred b. 7. by the mortgage, may, it has been said, be looked on as a tenant at will (a). This exception as to cestuis que trust applies only to express and declared trusts, not to implied trusts (b) ; as for instance in tbe case of a vendee let into possession under a contract of pur- chase; in which case the vendor becomes by the contract trustee by implication for the purchaser (c). The exception created by s. 8 out of s. 7, has been said to be equivalent to saying, that the right of entry of a trustee against his cestui que trust shall not be deemed to have first accrued at the expiration of one year next after the commencement of the tenancy : and the exception seems to be introduced, in order to prevent the necessity of any active steps being taken by the trustee to preserve his estate from being destroyed, as in the case of an ordinary tenancy at will, by mere lapse of time (rf). Sen. 2, cl. 5, and «. 4. We now come to a right of entry accruing s. 2 ci. 6 and s. 4. in neither mode before provided for, but on forfeiture or breach of ^ccruin|^n condition : forfeitures and breaches of condition conferring a right fcrfeiture. of entry may in most cases be waived : had cl. 5 of s. 2 stood alone, than notwithstanding waiver, it was apprehended, proceedings must have been taken by the reversioner or remainder man within twenty years from the right accruing on tbe forfeiture ; the object of s. 4 was to modify this, and notwithstanding forfeiture and consequent right, to give a further right to the reversioner or remainder man, and twenty years within which to proceed, from the time at which] (a) Keech T. Hall, 1 Smith Lg. Ga. 518. (A) Doe V. Boek, 4 M. & G. 30. (c) Ante, p. 88. (d) Garrard v. Tuck, 8 C. B. 253. 216 TITLE BY PRB8CRIPTI0N, AND BY NON-CLAIM, [his estate would have vested in possession had no forfeiture hap. Distinction be- pcncd. Aod here the distinction must be borne in mind between ent?y Mcming *^o^® forfeitures and breaches which may be waived, as conditions on breach of con- in deed, of which the common clause of reentry in a lease is an qnont. alldtn instance, and those, whereon the estate passes over by force of the ronditionaj limit- limitation contained in the instrument creating it, as a conditional limitation (a) ; thus, if A. grant to B. and his heirs to the use of C. and his heirs, with a proviso that if C. do, or omit to do, a cer- tain named act, B. and his heirs shall thereon hold to the use of J), and his heirs ; on the happening of the named event, by force of the grant the use will ( ft and be executed into an estate in posses- sion, and consequent right of entry, in D., and the statnte will run from such time. Where a right of entry has accrued on forfeiture or breach, and the person next entitled in remainder or reversion desires to avail himself of such right and forfeiture during the continuance of the particular estate forfeited, without waiting under s. 4 till his estate comes into possession, he must under this el. 5 bring his action within twenty years from the forfeiture. s. 5. Reversioner }^ec. 5. The objcct of the 5th section seems to be to prevent to have new right ^jjy doubt that might have arisen upon the question, whether a person being in possession of an estate, and then going out of pos- session to make room for somebody entitled to a sub-interest, could be barred of the remainder of his interest by that person's possri- sion. For instance, suppose A. to be in possession of an estate, subject to a power of leasing vested in B. ; B. exercises the ri'^ht of making a lease for twenty-one years. Now, in this case the 5th section declares that the possession of the lessee for twenty 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 twenty years, and the consequent determination of the lessee's estate. It must, however, be recollected, that the 5th section applies only to cases where the owner of the estate is dispossessed by some one rightfully claiming a particular interest, as, in the instance above s. 18. When right put, by ouc claiming under a power ; section 48 expressly providing MsMo^ba'r°redl'*^ that whorc a pcrson having a particular estate is dispossessed hj wrong, the lapse of twenty years shall bar not only that estate, but also any subsequent one existing in the same person ) '■ ^nless indeed it be revested by the entry, not of the person dispossessed or his representatives, but of some one entitled to an intermediate estate, which, being previous to the estate in reversion or remainder of the person dispossessed, could not vest without causing the other to revest. Where, 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 circumstances such as to render it doubtful whether there was a merger, but he did not take possession, and the property continued to be occupied by persons not entitled, and upon the last life falling in he brought ejectment, it was held, that even if there was no merger, yet, reading the 5th and 48th sections together,] (a) S. 155, p. 101. right to future estates al80 barred UNDEB CONSOLIDATED STATUTES, G. 88. 217 [the statute ran from the time when the title to the term accrued, and not from tho determination of the term ; the 5th section applying ooly in cases where another than the termor or person entitled to an iuterest in possession is also the immediate reversioner (a). ggc. 6. Varies the old law, for under it time would not run against s- «; Adminutra. the administrator, notwithstanding adverse possession, till letters ofSaWi'ntlltSe ddministration (6) ; it was otherwise as to an executor, whose claim being under the will, took from the testator's death ', and though :he title of an administrator on grant of letter relates back in many cases for the benefit of the estate (c) to the death of the intestate, so as to enable him for instance to sue for wrongful injury to goods between the time of the death and the grant ; still it did not relate back so as to cause the Statute of Limitations to run ; that being to the prejudice of the estate. Sees. 11 & 12. Under the old law entry or continued claims i. lift 12. Kirect preserved the right of the disseisee, and prevented time from running wntwi^ciato""^ against him ; this was before explained (f?), and is now abolished, abolished. Sec. 13. Before this it was settled that the possession of one ofg.13. PoMeBsion such tenants was the possession of all, so as to prevent the Sta-"'"""**"*"**". r" T • 'i. 1* r • • ,. x-L. X i? • common, Ac, not tales of Jjiuiitation from running against those out of possession ; to be possesion of unless, indeed, in cases which would amount to actual adverse pos- *^**°""'" session (e) : as to what was adverse possession so as to cause the statutes to run, was never easy to determine, and under this and other sections the doctrine of non-adverse possession is done away fith, and actual possession or enjoyment of the profits by one of such tenants, though not adverse under the old law, is now a bar(/). Sec. 14. The old law on this head was before alluded to, and s. 14. Possessioa much the same observations apply to this as to the last section. ther*or"^ativT Sec. 15. The acknowledgment cannot under this section be given not to be thapos. hi/ any agent, and the agent to whom it may be given must be agent g*"6°°Acknow-* ' in writhuj ; in both which respects it varies from ss. 19, 21, and 24 ledgmem. as to acknowledgments in other cases. It is for the judge, not the 1"*'®'"®°* *«"°" jury, to decide whether a writing is an acknowledgment within the '"^" statute (y). A letter written in answer to a claim for rent, which is instances. ia effect an admission that rent was due, is a sufficient acknow- ledgment of the claimant's title. The signature may be at the beginning as well as the end of the paper (J,) ; thus, " I John Doe, " hereby," &c. The observations made hereafter, as to acknowledg- ment under s. 21 may here be referred to. Beference may also be had '0 cases decided under Con. Stat. cc. 44 & 78, in regard to acknow- ledgments for the purposes therein mentioned Qc) ', but attention must be paid to the variance in these difierent statutes and sections,] (a) Doe dem Hall v. MouUdale, 16 M. & W. 689 ; 2 Sm. Lg. Cas. 595 ; Doe V. LivertedgQ, 11 M. & W. 517. (4) Woolley v. Clark, 6 B. & Aid., 744. (c) Morgan v. Thomas, 8 Ex. 302. (rf) Ante, s. 176. (e) Ante, p. 205. (/) Burroughs v. McCreight, 1 Jo. & L., 290; Mgers v. Boyle, 9 C. P. U. C. 371. {g) Sugden, Statutes, 67. (A) Furadon v. Clogg, 10 M. & W. 572. (0 Holmes v. Mackrell, 3 C. B. N. S. 789. {k) See, further, Shelford Statutes, 6th ed., p. 236. 218 TITLB BY PRE80RIPTION, AND BT NON-CLAIM, 8. 10. Right ex- tlngulthtd after the period limited. It* effect! on Uie old law. S. 21. Mortgagor barred at end of 20 years from taking posaesdon by mortgagee, on laft written acknowledg- ment. Vo saving for disability. Acknowledg- ment. [aa to the agency and writing requisite. An acknowlodgincnt giyen after the bar by the statute has arisen, will avail nothing (a). Sec. 16. The effect of this section is to abolish the distiuction existing under the old law, before explained (&), between right of property and right of possession. Now, the right of property, can no longer exist as a mere rightf or be of any avail, unless coupled with a right of possession immediate or future : under the old law the remedy ulone was barred, not the right extiugui.shed ; and it has been shewn that the party entitled had various remedies according to the various stages, or the state of his title; as on descent cast, recovery against him in a possessory action, on continual claim, discontinuance, &o. ; and might, though barred of his rome- dies by entry, or by a possessory action, &o., ultimately full back on his right of property, and recover in a real action droiturel. At present, though till expiry of the prescribed period, the possessor is a wrong-doer, still, when the clock strikes the last hour, " the effect " of the statute is to make a parliamentary conveyance of the " to him " (c) J and the former owner, if he enter, becomes in turn a wrong-doer as against the party in poissession {d). A title depending on this statute can therefore now be forced on an unwij. ling purchaser (e). It will be borne in mind, that under this section and s. 1, cl. 1, as before explained, the right to rent, as on a rent charge or the like, is extinguished by lapse of 20 years, not from the time when first unpaid on falling due, but from an anterior period, viz., the time of the last payment. An acknowledgment after the prescribed period will avail nothing (/). Sec. 21, bars bhe mortgagor and those claiming through him, of right to redeem, under the circumstances there mentioned. It will be observed there is no exception in cases of disability under this section, as named in s. 45; so that the mortgagor and those claiming through him, notwithstanding disability, will be barred (jj) ; bat as regards persons other than the mortgagor, and those claiming under him, their rights, of course in cases of disability or otherwise, depend on other sections (K). The object of tne statute in requiring the acknowledgment to be in writing to the mortgagor or person claiming through him, was to avoid those kinds of recognition which theretofore served to keep the equity of redemption alive : thus, formerly a transfer of a mort- gage, to which transfer the mortgagor was not even a party, was an acknowledgment of the subsistence of the equity of redemption; but now (the mortgagor not being a party) will not have that effect, as not being made to him (t). A direct express recognition of the right to redeem is not required ; thus, an expression of the mort- gagee's " being willing to settle if the partj was of age \" or that the writer saw no use in a proposed meeting " unless some party wan] (a) McDonald v. Mclntoihfi Q. B. U. C. 388. {b) Ante, c. 13 and pp. 201, 202. (c) Per Parke, B., Doe Juket v. Sumner, 14 M. ft W. 80; see, also, Incorpor- ated Society v. Richards, 1 Connor k L., 84, 85. (rf) 11 Holmes v. Newlands, A. & E., 44. (e) 8 Dr. & War., 388. (/) McDonalds. Mcintosh, 8 Q. B. U. C, 888; Doty. Henderson, 3 Q. B. U. C, 486. (^r) Sugden'8 Statutes, p. 118. (A) Hayes' Con. 279. (t) Lucat V. Dennison, 18 Sim. 686. UNDER OONflOLlDATED STATUTIB, 0. 88. 210 frcady witb tho money to pay him off (o) has been held sufficient." jli various sections as to acknowledgment differ, both as regards the writing required and the agent, to which I before alluded in speaking of s. 16. The right of a mortgagee on redemption or foreclosure to insist on arrears of interest beyond six year*, which by s. 19 cease to bo ( charge on the land, is alluded to in treating of thrt section. Sec. 25. The enactment of this section becimo law after that of s-^ft- Jtortgagee most other sections; it' arose, in England at least, from a doubt bring'iuit within expressed (b), whether, in case the right of entry of a mortgagee M/^nt"° '"* accrued on default in payment or otherwise, more than twenty years before the bringing his action, he would not be barred under see. 1, notwithstanding payment to lum on account of principal or interest, fhich might not be a sufficient acknowledgment of title under section 15, to prevoat the operation of section 1. Unless a mortgagee obtain some payment under this section, orifnopannentor some acknowledgment under section 15, he will bo barred under JJ'[,°°rtM«ee?°* section 1 by twenty years from his right of entry j and I will there- when hf* right fore shortly explain when such right of entry is to be deemed to have accrued. have first accrued (c). 1. When the conveyance is absolute, and nothing said as to possession in the instrument, and no tenancy created, by verbal or other agreement, the right of entry accrues on execution of the iDstrament. 2. If the mortgage contains a proviso or agree- ment, that till default in payment on a certain named day, the mortgagor may remain in possession, this operates as a redemise, BS being an affirmative agreement by the mortgagee for a definite mmed time ; and the right of entry will accrue only on default, and thereon the mortgagor become mere tenant at sufferance (d). 3. if nothing appear as to right to possession, beyond a covenant by the mortgagor that after default the mortgagee may enter^ hold, possess, and enjoy, this will not by implication override the effect of the conveyance which gives an immediate right of entry '0 the mortgagee ; moreover such a covenant may be regarded :i8 an ordinary covenant for auiet enjoyment, to take effect after default (e). 4. There is another class of cases as to which some where the pos- (oubt has been expressed (/) : you will bear in mind that ^^^^l^^^^u> create a d that from the jability when hia ten years allowed img, will run on, rwards contract- some disability! ) without a free 'n to run from next claimant, be right accrues right will be the person to . for the whole y able to assert ilapsed since he 56 in tail, to be red to sanity, a ether the term lave elapsed or ); if he should then have ten lave elapsed or years, the right •e restored, or, )f, say, thirty- 38ue be under] )r this section ; B. U. C, 9U; d. 5, p. 2ta I disability at his death or not, would have, instead of ten years, only Ive years from his restoration or death. If A. should continue insane for forty years, or, if he should be restored, or, without baviog been restored, should die at the end of, say^ thirty-five years, and the issue, or he and the issue, should neglect to take any pro- ceeding within five years from the removal of his disability or his death, the persons in remainder or reversion, whether under disa- bility or not, would 1)9 absolutely barred (s. 28). So, if A. should be restored at the end of, say, thirty-five years, and die within five yenrs from the period of his restoration ; or if he should continue insane for, say, thirty-five years, and then die, leaving issue in tail, ffhich issue should fail within five years from his death ; in either case, the persons entitled in remainder or reversion, whether under disability or not, would be absolutely barred unless they prosecuted their claim before the expiration of the five years (s. 29). In the examples here given, it is assumed that no disability, either existing concurrently with A.'s insanity, when the right first accrued, or afterwards supervening, is of longer continuance; otherwise, the determination of the concurrent or supervening disability, last removed, must be substituted for his restoration to sanity. It seems to be immaterial whether a supervening disability be voluntarily or involuntarily contracted ; so that if a female, to whom the right first accrues, be then an infant, and, so continuing, marry, the coverture may be pleaded in extension of the time. Sec. 3 has been held not to apply on an ejectment brought by a s. 3. Cases of mortgagee more than twenty years after his right of entry accrued, ^"^ ^^^' the lands having been in a state of nature. The court, referring to section 3, said : " That is a provision for protecting the grantees of "the Crown and their assigns, as between them and strangers « usurping the possession ; it does not apply so as to relieve the " mortgagee from the necessity of claiming under his security before " twenty years have expired, and does not deprive the mortgagor of " the protection of the statute, which is grounded on the premmp- " tion of payment.'* (a) Possession taken, and afterwards aban- doned, by the person to whom the grant subsequently issues, will prevent this section applying in his favour; the section refers to " the grantee of the Crown," and hi* possession of the land granted, and the possession must be therefore after patent issued (h). Sees. 28, 29. In order properly to appreciate the eflfect of these sees. 28, 29. sections and s. 30, the student should have some knowledge of the ^r^'^upj^** mode of barring estates tail under Con. Stat., 0. 83, a subject which aRainHt tenant in wc have not yet reached, and which is considered in ch. 22. In order those whom he that those sections may not be passed over, I will briefly explain tbe™'K^*»*J®^jj^^ mode of bar under that statute, and endeavour to illustrate the effect be^un 'to run of this act as regards tenancies in tail. On a gift to A. in fee tail, Snue''afterhi8 the reversion in fee simple is left in the donor, to whom or whose ffeoted with hig now understand roceeds on the lainder-man, or he tenant, thev 8 part as would J., the neglect U nder s. 29, if t will continue arred uutwith- 1 be observed future estates, It the parties ates in posseg. es of tenancies tenant might I investigation ' heing a dor- It on an estate B of the issue run from the •een a perfect fe, commenc- ht have been twenty years S)ility after a 've that this snant in tail, after or in otector, and gainst those e tenant or have barred conveyance in fee ; an protector,] UNDEE CONSOLIDATED STTA UTES, 0. 88. 227 [operate only to create a base fee, barring the issue in tail, but not those claiming ulterior estates, against whom as above mentioned, time would only run from failure of issue in tail. By sec. 80, how- ever, time will run against 0. from the death of A., as then there ceases to be a protector, and B., without the consent of any person, could by an assurance then made have barred such estate. The nature of this work is such as to have enabled me to alludes. 1.31,82, 33, but briefly to rights and remedies in Equity, and the law as there ^^{{n^tion of administered, and only so far as it affects the subjects treated of by*uitain£quity. the learned commentator. The bar to such rights and remedies, therefore, will be but briefly dwelt upon. I will merely remark that before this statute courts of equity, in accordance with the maxim, ^quitas tequitur legenif nevertheless acted on the principle enjoined by tecHon 31, but there was no positive enactment compelling them go to do : now it is no longer discretionary, but imperative on them go to act It will be noticed section 32 applies only to express trosts, 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 implication of law, or from circumstances ; in oases within this section time will not run against the cestui que trust in favor of the trustee, or any one olaim- iug under him unless as purchaser for value; but this section will not protect a cestui que tnat as against a third person who has held pos- session adversely to him and the trustee. And where a person has b^en in possession under such circumstances as 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 the meaning of this section, such person 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; " when a beneficial "interest in property is conveyed to a party charged with the " payment of a legacy, then section 24 will govern, for then it is in " reality a aero charge on the land ; but when property is conveyed " to trustees on the express trust that out of it a legacy be paid, then " sec. 32 removes the period of limitation" created by sec. 24 (a). ' As regards acquiescence, it does not follow that because the statu- tory period of bar has not elapsed, therefore the court cannot decline to interfere on the ground of acquiescence or delay (b) ; thus, where the plaintiff who had sold a reversionary interest sought sixteen years after it became an estate in possession 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 PRESORIPTION. This is the only remaining subject under this statute that we have Title by prescrip- to consider; and as it is absolutely requisite, in order to understand ^^^ '* *""""'"' the statute, that a knowledge should be had of prescription as it existed at common law ; and as, moreover, there are cases, as after-] (a) Per Vankoughnet, C, Tiffany v. Thornton, 9 Grant, 264, referring to 1 Giff. 188. (&) Tiffany v. Thornton, per Vankoughnet, C, 9 Grant, 262. (e) See p. 119 as to sales of reversionary interests. i- ik'^ i 228 TITLE BY PRESCRIPTION, AND BY NON-OLAlM, on enjoyment from time imme- tnorial. ft k [wards explained, wherein only the law as it existed before the statute will alone avail a claimant, I give the text of Mr. Justice Blackstone and subsequently the effect of the statute. I should first, however' explain, that usage from time immemorial, which was at common law requisite to establish a claim by prescription, must have been from a time anterior at least to the beginning of the reign of Richard I. • thus, if evidence were given of uninterrupted user for over twenty years, or otherwise, raising a presumption (as hereafter explained) iu favor of the prescriptive right, it might still have been destroyed (among other modes) by shewing that the usage first existed subse< quently to the accession of King Richard ; and this explains the expression sometimes applied to prescriptive rights, that they must have existed from time ichereo/ the memory of man runneth not to eviienoeofsach the contrary. Evidence to establish the claim was not, however enjoyment confined to living witnesses, but might be given in other modes, as by records, &o. ; still, 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 twentv years, or even for a less period if accompanied by other presumptive evidence, presumed the enjoyment to have been from time immemo- rial, so as to sustain the claim by prescription : so also afler twenty years 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 free from interruption, dispute, and denial, during the period relied on as establishing the presumption, and evidence to the contrary defeated the claim by destroying the presumption. When once the claim was sufficiently established by proof of constant apparent peaceable user 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 prescrip- tive 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 s. 39); in such a case as the above therefore the claimant would have to plead his prescriptive right as at common law (c), or a non-existing grant of the right claimed, which latter I will presently explain ; here remarking that by the statute the common law is not supersed- ed (^d), and the claimant can and should carefully elect how he will plead according as to how he can support his claim, namely by prescription at common law, by user under the statute, or by non- existing grant. The prescription claimed and pleaded as a prescriptive right at common law, founded on immemorial usage, is liable to be defeated] (a) Co. Litt. 114 b. (6) Page 238. (c) See form of a plea justifying under a prescriptive right at common law, BuUen & Lea. Prec. 2 ed. p. 684, and casea and reasons there gireo. (d) Gale on Easements, ed. 1862, b. 98. UNDKR CONSOLIDATED STATUTES, 0. 88. 229 [not only by shewing the first existence of such right, and so, that the How defMted. user of it is not immemorial, but also " by proof of a grant, or of a i< iioeose, written, or by parol, for a limited period, comprising the (' whole or part of the 20 years, or of the absence or ignorance of « the parties interested in opposing the claim and their agents, « during the whole period it was exercised" (a). When the claim is liable to be defeated by proof that its user is not immemorial, it should be advanced and pleaded (if the facts permit) either by right acquired by user under the statute, or under a non-existing grant : ;or instance, a hundred years uninterrupted peaceable enjoyment as of right, down to the time of commencement of a suit, would be insufficient, if advanced as a prescriptive right at common 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 ss. 37 & 38, if the enjoyment had been pleaded under the statute, and the same period might also suffice to sustain a right set up as at common law, under a non-existing grant. I have yet to allude to the doctrine of, and claim under, an Non-existing alleged non-exuting grant : from the same facts Rafter 20 years' *"°** enjoyment), that a presumption arose of immemorial usage so as to support a claim by way of prescription, would also in most cases arise a presumption of a grant of the right claimed ; and there- fore, a claimant could advance his claim either as 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 as a prescriptive 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 years' open constant peaceable user, were given, which established the presump- tion 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 is supposed never in fact to have existed. The party pleading it averred that it was lost, and relied on evidence of enjoyment as presumptive evidence of its having existed (6) ; this was well known by juries as well as by judges to be mere fiction, and was introduced and allowed to temper 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 grant may be good, not only where a claim of prescriptive right at common law would fail, but also where a claim under the statute would fail by reason of absence of enjoy- ment down to the time of suit ; such absence of enjoyment would not defeat a claim under a non-existing grant, nor under prescription at common law (c). There are cases wherein the right may be claimed in any one of the three modes I have alluded to ; one advantage of setting up the] (a) Per cur. Bright v. Walker, 4 Tyr., 509. (b) See form of plea Bullen & Leake, 2 ed., p. 685, and casern znd reasons there given, (c) Ante, p. 228. As to pleading a right to an easement by non-existing grant where the right has been extinguished at some time by unity of seisin and of possession. See Ghitty's Pr. Plead, by Peareou, 781, and oases ; see also Blewitt v. Tregonning, 8 A. & £. 664. 230 TITLE BY PRESCRIPTION, AND BY NON-CLAIM, J4 ♦ S. 263. Of title by preicription. at cummon law. [right under the statute is, that under it the right may be elaimed after the prescribed period, as absolute and indefeasible, which, otler- vise pleaded, is still an open question before the jury, and sustained afler all by mere in/trence of the grant, or prescription alleged- " The legislature must be taken to have intended that where a do- " fendant 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 serve him " as a kind of parliamentary conveyance of the easement" (a): in this point of view a right by prescription under the statute to incor- poreal hereditaments would stand on the same footing as a right acquired to corporeal hereditamfinta (J). I am not aware that the question has ever beeu raised, whether a claim by pre&cripthn at common law, as distinguished from a oliiim under a uou-existing grant, 'an be sustained in this country; here manifestly no right can rest on immemorial usage in the strict legal sense put on those words (c). Prescription as governed by common law rulea is spoken of hy Mr. Justice Blackstone as follows :] * A. third method of acquiring real property by purchase is that by prescription ; za when a man can shew no other title to what he claims, than that he, and those under whom he claims, have imme- morially used to enjoy it. Concerning customs, or immemorial usages, in general, with the several requisites and rules to be observed, in order to prove their existence and validity, we inquired at Irrge in the preceding part of these commentaries (d). At pre- sent, therefore, I shall ouly, first, distinguish between custom, strict!; taken, and prescrlpHon ; and then shew what sort of things may be prescribed for. And, first, the distinction between custom and prescription is MdprMcription. ^"^'^ • *^** custom is properly a local usage, and not annexed to any person ; such as a custom in the manor of Dale that lands shall descend to the youngest son : prescription is merely a personal uo!age ; as, that Sempronius and his ancestors, or those whose estate he hath, have used time out of mind to have such an advantage or privilege (e). As, for example, if there be a usage in the paiish of Dale, that all the inhabitants of hat parish ma; dance on a cer- tain close, at all times, for their recreation, (which is held to be a lawful usage,) this iii strictly a custom, for it \& applied to the plact iu general, and not to any particular persons : but if the * tenant who is seised of the manor of Dale iu fec^ alleges that he and his ancestors, of all those whose estate he hath in the said manor have used time out of mind to hav^ oommon of pasture in such a olose, this is properly calied a prescription ; for this is a usap;e annexed to the person of the owner of this estate. All prescription must bo either in a man and bis ancestors, or '>\ a man and those whose estate he hath: which last is called prescribing in a que estate. And formerly a man might, by tho common law, have prescribed (a) McKechnie v. McKeyet, 10 Q. B. U. C. 66, per cur. (h) Ante, 218. (c) Burrowtt v. Cairnt, 2 Q. B. U. C. 288. {d) See vol. 1, p. 78, &a («) Co. Litt. 118. Distinction between castom * S. 264. 3LA1M, may be claimed 'le, which, otler. y, and sustained sription alleged, nat where a de-' statute requires, •oise of any dig. hould serve him ment"(a): in itatute to incor. 'ting as a right aware that the prescription at a nou-existing ifestly no right se put on those urchase is that itle to what he is, have imme- »r immemorial d rules to be y, we inquired (d). At pre. ^sfotn, strictly things may be )rescription is nnezed to any It lands shall ly a personal ! whose estate advantage or in the paiish Dce on a cer- held to be a to the place the * tenant t he and his manor have !uch a close, B annexed to ion must ho those whose que estate. ? prescribed C. 288. UNDER CONSOLIDATED STATUTES, 0. 88. for a rig^* which had been enjoyed by bis ancestors or predecessors ,1 any distance of time, thouj^h his or their enjoyment of it had been suspended for an inde6nite series of vears. But, by the statute of limitations, 32 Hen. VIIL, c. 2, it is enacted, that no person shall make any prescription by the seisin or possession of his ances- tor, or predecessor, unless such seisin or possession hath been within threescore years next before such prescription made. Secondly, as to the several species of things which may, or may incorporeal not, be prescribed for: wo may, in the first place, observe, that J,^om ^"JJ" Dothing but incorporeal hereditaments can be claimed by prescrip- claimed by tion: 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 be and his ancestors have iuiS?emorially used to hold the castle of Arundel: fur this is oiearly .nother sort of title; a title by corporal seisin and inheritance, which is more permanent, sad therefore more capable of proof, than that of prescription. But, a3 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 immemorial usage. 2. A «s. 265. prescription must always he ♦ laid in him that is tenant of the fee. Sim'iaways be A tenant for life, for years, at will, '^r a copyholder, cannot pre- i»id in the tenant scribe, by reason of the imbecility of their estates. For, as pre-" * **" scription is usage beyond time of memory, it is absurd that they should pretend to prescribe for anything, whose estates commenced within the remembrance of man. And therefore the copyholder must prescribe under cover of his lord's estate, and the tenant for life under cover of the tenant in fee-simple. As if tenant for life of a manor would prescribe for a right of common as appurtenant to the same, he must prescribe under cover of the tenant in fee-simple; and must plead that J ohn Stiles and his ancestors h' i immemorially used to have this right of common, appurtenant to the said manor, and that John Stiles demipad the said manor, with its appurte- nances, to hill? the said tenant for life. 3. A prescription cannot it cannot before be for a thing which cannot be raised by grant. For the law allows |W«>8 «»* •y*''K prescription only in supply of the loss of a grant, and therefore every p°e^'ppoM8 the prescription presupposes a grant to have existed. Thus, the lord of®j][^^''^^°'* a manor cannot prescribe to raise a tax or toll upon strangers ; for, as such claim could never have been good by any grant, it shall not be good by prescription. 4. A fourth rule is, that what is to arise xhat which by matter of record cannot be prescribed for, but must be claimed "'««"^ ""»*'«' • ... j*^, /... .1 ^ n of record cannot Dv grant, entered on record; such as, for instance, the royal iran- be prescribed chises of felons' goods, and the like. These, not being forfeited till^^JIg^'JJ^Jj. the matter on which they arise is found by the inquisition of a jury, and so made a matter of record, 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 private contingencies, and not from any matter of record. 5. As to the manner Among things incorporeal, which may be claimed by prescription, ° "*'*"' "*' a distinction must be made with regard to the manner of prescrib- ing; that is, whether a man shall prescribe in a qM eitate, or in 232 TITLE BY PRESCRIPTION, AND BY NON-CLAIM, •8.260. The mode of deicent of an eiUte bjr prMcripUon. The statute pro- Tidea by i. 86 for vroJUs a prendre; ny ■. 37 for eaM- mentt; by 8.38 for light. Olyect of the tatut e. S. 80 gives prima facie right as to profits a prendre after SO years. himself and his ancestors. For, if a man prescribes in a que estate (that is, in himself and those whose estate he holds,) nothing * '^ claimable by this prescription, but such things as are incident appendant, or appurtenant to lands; for it would be absurd toclain! any thing as the consequence, or appendix of an estate, with which the thing claimed has no connexion : but, if he prescribes in him. self and his ancestors, he may prescribe for anything whatsoevsr 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 b th in the manor of Dale, have used to hold the advowcon of Dale, as appendant to that manor; but, if the advowson be a distinct inheritance, and not appendant, then ho can only prescribe in his ancestors. So also a man may prescribe in a que estate for a common appurtenant to a manor ; but if he would prescribe for a common in gross, he must prescribe in himself and bis ancestors. 6. Lastly, we may observe, that estates gained by prescription, are not, of course, descendible to the heirs general, like other purchased estates, but are an exception to 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 bis aucestora, it will des'"ind 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. But, it he prescribes for it in a que estate, it will follow the nature of that estate in which the prescriptioa is laid, and be inheritable in the same manner, whether that were acquired by descent or purchase ; for every accessory followeth the nature of its principal [The statute provides for three cases, viz., profits a prendre by s. 36, easements by s. 37, and light by s. 38. A main object in the statute was to prevent a prima facie right acquired under ss. 36 & 37 by enjoyment as therein named, from being defeated by shewing it had not existed prior to the respective periods named as conferring such prima facie right ; to leave it open to be defeated in any other way as theretofore, but render it absolute and indefeasible after a more lengthened period of enjoy- ment, unless such enjoyment were had by consent or agreement : place access and use of light on a more favorable footing : state and define the time and the circumstances which would give a right by force of the statute in the cases it refers to : prevent any presump- tion arising in favor of a claim on proof of enjoyment for a less time than the prescribed period : and vary the mode of pleading. Sec. 36 gives a prima facie right, after uninterrupted taking or enjoyment for thirty years by a person claiming right thereto ; leaves such prima facie right open to be defeated as before the statute, in any other way than by proof it did not exist prior to such thirty years, and declares it absolute and indefeasible after sixty years, unless the taking or enjoyment claimed was had by some consent or agreement expressly made or given 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 39, to which I will presently] act of user first and lai Jmes ((?)■ before exp common la Sec. 39 : j interruptio of a bar, u year of the effect than the 20 yea 19 years i provided i interruptic As rega 40, and ol h ss. 36 i. " stealth, " to time " but an " at the (J) Per Pa (c) Lowe V (rf) 8 Gl. & I rorkt Co UNDER CONSOLIDATED STATUTES, 0. 88. 298 fillade, as also to ivhat is moant bv claiming right, which is again [efcrred to in aection 40; I have before mentioned in what modes ,!,( right might have been defeated before the statute (a) other than t,y (hewing it not to have been immemorial. Sec. 39 provides for the calculation of the periods which are to s. so. ai to ai. create the right, and they ore to be taken next be/ore the tuit or JgJ,*^*"' "' **" nciion, and time cannot be reckoned with reference to the wrongful Qct complained of; "the act is so worded that though there have 4ecn 50 years enjoyment up to the time of the act done, that is HO defence, unless it continues up to the time of the commence- Kment of the suit (5) ;" thus to an action of trespass quare clauaum fftgit, the defendant in his plea justified, setting up a prescriptive {ioht 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 liefore the commencement of the suit ; the court held the plea was got sustained by the proof. Parke, B., remarked, " it is quite It impossible that acts of user should continue to the very moment II 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 II true construction of the statute, some act of that description must « take place in each year (c)." 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 Jmes ((?). In such a case as the last, thd def°n to time the laws in being, and the zeal with which successive parliaments have pursued them through all their finesses : how new remedies Mrere n. By alienation. I. Alienation in tiurtmaxn. !lill the fith diffi< By the other priv ofalienat always, mortmain as the kin s own c( profits, by or (lie. jary amon conquest. paramount heigniory, (a) S. 252 and following seotions, p. 190. OV TITLE BT FORrEITURE. 237 itill the parents of new evasions ; till the legislature at last, though lith difficulty, hath obtained a decisive victory. By the common law, any man might dispose of his lands to any other private man at his own discretion, when the feodal restraints of alienation were worn away. Yet, in consequence of these it was iicensf « of mort- Jljrays, and is still necessary, for corporations to have a license in "»•'' **^^ **"• Bortmain *from the crown, to enable them to purchase lands ; for as the king is the ultimate lord of every fee, he ought not, unless by * ^' ^''' I own consent, to lose his privilege of escheats and other feodal profits, by the vesting of lands in tenants that can never be attainted or die. And such licences of mortmain seem to have been neces- sary among the Saxons, above sixty years before the Norman conquest. But, besides this general licence from the king, as lord paramount of the kingdom, it was also requisite, whenever there was a mesne or intermediate lord between the king and the alienor, to obtain bis license also, (upon the same feodal principles), for the alienation of the specific land. And if no such license was obtained, the king or other lord might respectively enter on the land so aliened in mortmain as a forfeiture. The necessity of this license from tha crown was acknowledged by the constitutions of Clarendon, in respect of advowsons, which the monks always greatly coveted, as Dg tbe groundwork of subsequent appropriations. Yet, such Erarion of this I were the influence and ingenuity of the clergy, that (notwithstanding ^l^^ *• this fandamental principle) we find that the largest and most consi- derable dotations of religious houses happened within less than two I centuries after the conquest. And, (when a licence could not be ained), their contrivance seems to have been this : that, as the I forfeiture for such alienations accrued in the first place to the imme- I diate lord of the fee, the tenant who meant to alienate first conveyed I lands to the religious house, and instantly took them back again, I to hold as tenant to the monastery; which kind of instantaneous seisin was probably held not to occasion any forfeiture : and then, by pretext of some other forfeiture, surrender, or escheat, the society I entered into those lands in right of such their newly-acquired heigniory, as immediate lords of the fee. But, when these dotations jucgan to grow numerous, it was observed that the feodal services, I ordained for the defence of the kingdom, were every day visibly Ivithdrawn ; that«the circulation of landed property from man to man Ibegan to *stagnate ; and that the lords were curtailed of the fruits • s. 270. [of their seigniories, their escheats, wardships, reliefs, and the like ; land therefore, in order to prevent this, it was ordained by the second Conveyances to lofKiDg tlenry III.'s great charters, and afterwards by that printed ;^^'8'^^j^°,"„'i5; lin our common statute-books, that all such attempts should be void, and |^« land land the land forfeited to the lord of the fee. But, as this prohibition extended only to religious houses, bishops This being also [and other sole corporations were not included therein; and the th^gt^tutod"**^ aggregate ecclesiastical bodies, (who. Sir Edward Coke observes, in reiigiotit,TEi.i. his were to be commended, that they ever had of their counsel the best learned men that they could get,) found many means to creep put of this statute, by buying in lands that were bond fide holden pf themselves as lords of the fee, and thereby evading the forfeiture ; pr by taking long leases for years, which first introduced those 238 OF TITLE BT FORFEITUBB. m .■■' '] 1 ; ■'1. 1^ ':i Origin of com- mon recoveries. * S. 271. The gtatnte of Westminster 2d< J', > 1*1 3 New metliod of coDTeyanoe doTised by the clngj to nominal feotfoes to the tue (if the religiooa hoasea. • 8. 373. extensive terms, for a thousand or more jean, vbicb are now sol frequent in conveyances. This produced the statute efe religio^\ \ 7 Edw. 1. ; which provided that no person^ religious or other wiau soever, should buy, or sell, or receive under pretence of a gift q. term of years, or any other title whatsoever, nor should, by any art! or ingenuity, appropriate to himself any lands or tenements in xam\ main : upon pain that the immediate lord of the fee, or, un his I default for one year, the lords paramount, and, in defiiult of all of 1 them, the king, might enter thereon as a forfeiture. This seemed to be a sufficient security against all alienations iqi mortmain : but as these statutes extended only to gifls and conTeyJ ances between the parties, the religious houses now began to setoni a fictitious title to the land, which it was intended they should have I and to bring an * action to recover it against the tenant; who, bjl fraud and collusion, made no defence; and thereby judgment was I given for the religious house, which then recovered the land by sen- tence of law upon a supposed prior title. And thus they had the I honour of inventing those fictitious adjudications of right, whichar«| since become the great assurance of the kingdom, under the name of I common recoveries. But upon this the statute of Westminster thef second, 13 Edw. I. o. 32, enacted, that in such oases a jury shall tn the true right of the demandants or plaintiffs to the land, and if the! religious house or corporation be found to have it, they shall still recover seisin; otherwise it shall be forfeited to the immediate lord! of the fee, or else to the next lord, and finally to the king, upon i immediate or other lord's default. And the like provision was made I by the succeeding chapter, in case the tenants set up crosses upoa their lands (the badges of knights templars and hospitallers) in order! to protect them from the feodal (demands of their lords, by virtue of I the privileges of those religious and military orders. So oarefuif indeed was this provident prince to prevent any future evasions, that when the statute of quia emptores, l8 Edw. I., abolished all sub- infeudations, and gave liberty for all men to alienate their lands tobe holden of their next immediate lord, a proviso was inserted thatthb should not extend to authorize any kind of alienation in mortmaJD. And when afterwards the method of obtaining the king's license b; writ of ad quod damnum was marked out, by the statute 27 Ed. I, et. 2, it was farther provided by statute 34 Edw. I. st. 3, that no such license should be effectual without the consent of the mesne or | intermediate lords. Yet still it was found difficult to set bounds to ecclesiastical I ingenuity ; for when they Wore driven out of all their former holds, they devised a new method of conveyance, by which the lands were granted, not to themselves directly, but to nominal feoffees to thentti of the religious houses; thus distinguishing between the pojswioa and the use, and receiving '*' the actual profits, while the seisin of th« lands remained in the nominal feoffee; who was held by the court! of equity (then under the direction of the clergy) to bo bound in con- 1 science to account to his eestuy que use for the rents and emolument) I of the estate. And it is to these inventions that our praotisersarel indebted for the introduction of uses and trusts, the foundation of| modern conveyancing. But, unfortunately for the inventors them- OF TITLE BY FORFEITURE. 23d rbiob are now bo I ute dt religio^t I u8or others; at! ;ence of a gift, or ihould, by any art snements in mort- 1 ke fee, or, on his I 1 defkult of all of I e. I b all alienations Id gifts and convey. iw began to set op tbeysbouldhate,! e tenant J who,bjj sby judgment was d tbe land by sen* tbus tbey hadthe of rigbt, wbichawl under tbe name of I ' Westminster the jes a jury shall tr; be land, and if the ) it, tbey shall still be immediate loM tbe king, \ip3D the )rovision was made ^Ives, they did not long enjoy tbe advantage of tbeir new device ; But the lUtnte for the statute 15 Ricb. II. c. 5, enacts, that tbe lands wbicb bad muSi'^royJit lieen flo purcbased to uses should be amortised by license from tbe ^ ^^e itatutes of Crown, or else be sold to private persons ; and tbat, for tbe future, "°'*™**"* gses shall be subject to tbe statutes of mortmain, and forfeitable like the lands themselves. And wbereas tbe statutes bad been eluded by purchasing large tracts of land, adjoining to cburcbes, and conse- crating them by tbe name of cburob-yards, sucb subtle imagination ij also declared to be witbin tbe compass of tbe statutes of mort- gialn. And civil or lay corporations, as well as ecclesiastical, are ilso declared to be witbin tbe mischief, and of course witbin tbe remedy provided by tbose salutary laws. And, lastly, as during tbe times of popery lands were frequently given to superstitious uses, though not to any corporate bodies; or were made liable in the bands of heirs and devisees to tbe charge of obits, cbaunteries, and the like, whiob were equally pernicious in a well-governed state as actual alienations in mortmain ; tberefore, at tbe dawn of tbe Refor- mation, the statute 23 Hen. YIII. o. 10, declares, that all future grants of lands for any of the purposes aforesaid, if granted for any lonjjer term than twenty years, sbr'l be void. But, during all tbis time, it was in tbe power of tbe crown, by The Crown may gnnting a licence of mortmain, to remit the forfeiture, so far as |^'"j^'^{|*^'*JJf ' related to its own rigbts; and to enable any spiritual or otber taka lands, *e. in corporation to purchase and bold any lands or tenements in perpe-™*"*'"*'°* taity ; which prerogative is declared and confirmed by tbe Statute 18 Edw. III., St. 3, 0. 3. But, as doubts were conceived at tbe time of the Revolution bow far sucb licence was valid, since tbe king had DO *power to dispense witb tbe Statutes of Mortmain by a • s. 273. clause of non obstante, wbicb was the usual course, tbougb it seems to hare been unnecessary : and as, by tbe gradual declension of mesne seigniories tbrough tbe long operation of tbe statute of quia mptorcs, the rigbts of intermediate lords were reduced to a very small compass j it was tberefore provided by the Statute 7 & 8 Wm. Ill, 0. 37, that tbe crown for tbe future, at its own discretion, may grant licences to aliene or take in mortmain, of wbomsoever tbe tenements may be bolden. After tbe dissolution of monasteries under Henry VJII., tbougb the p j'icy of tbe next popish successor affected to grant a security to tbe possessors of abbey lands, yet, in order to regain so much of tbem as either tbe zeal or timidity of tbeir owners might induce them to part witb, the statutes of mortmain were suspended for twenty years by tbe statute 1 & 2 P. & M., c. 8, and during that time, any lands or tenements wee allowed to be granted to any spiritual corporation, without any licence whatsoever. And, long Enactmentg for afterwards, for a much better purpose, the augmentation of poor of pTOrTiTings?" livings, it was enacted by tbe statute 17 Car. II., c. 3, that appro- priators may annex the great tithes to tbe vicarages ; and that all benefices under £100 per annum may be augmented by the purchase |of lands without license of morbmaiu in either case; and the like provision hath been since made, in favor of the governors of Queen Queen Anne's nne's bounty (a). It bath also been held, that the Statute 23''^»°*y- (a) Stat 2 & 3 Ann., o. 11. I m 240 OF TITLE BY FORFEITURE. * S. 274. Hen. yill. before mentioned, did not extend to anything bat superstitious uses ; and that therefore a man may give lands for the Charitable umb. maintenance of a school, an hospital, or any other charitable useg But as it was apprehended, from recent experience, that persons on their death-beds might make large and improvident dispositions 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, 86, that no 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 witDesses' twelve calendar months before the death of the donor, and enrolled in the Court of Chancery within six months 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 he made to take effect immediately, and be without power of revocation; and that all other gifts shall be void. The two universities, their colleges, and the scholars upon the foundation of the colleges of Eton, Winchester, and Westminster, are excepted out of this act: but such exemption was granted with this proviso, that no college shall be at liberty to purchase more advowsons, than are equal in number to one moiety of the fellows or students, upon the respective fourdations; [there is a further exception in favor of purchases and traiisfers " really and bonajide for a full and valuable consideration, " actually paid at or before the making such conveyance or transfer, " without fraud or collusion." [This statute of Geo. II. and the Statutes of Mortmain, have been held to be in force here (a) ; registry in the county registry office (if, indeed that can be deemed requisite), has been considered equivalent to the enrolment required by the statute Geo. II. The effect of the Statutes of Mortmain is much diminished by various provincial acts: by 3 Vic, c. 74, s. 16 (6), conveyances of land or personalty to any Bishop of the United Church of England and Ireland for endow- ment of his see, or for general uses of the said church, or for the use of any particular church, or for other uses or purposes appurte- nant to such church in general, or any particular church, or to a bishop, parson, or other incumbent, for the endowment of the par- sonage or living, are good, if made and executed six months before I the death of the person conveying the same, and registered not later than six months after his decease. By s. 17, any person may erect | and found a church and endow it with sufficiency for its main- tenance, and of divine service according to the rites of such United | Church, on license under the hand and seal of the bishop ; and after erection and appropriation by the founder, adequate to main- tain the same, and an incumbent, and the charges attendant on such I church, to the satisfaction of the bishop, such founder, his heirs and assigns, being members of such United Church, shall have the right of presentation, as an advowson in fee presentative, according to the rules of said United Church.] la) Ante, chap. 1 A. ; Doe Anderson t. Todd, 2 Q. B. U. C. 82 ; Mercer %\ Jlewaton, 9 C. P. U. C. 349 ; Halleck v. Wilson, 7 C. P. U. C. 28. (6) See old revised acts. Provtncial acta authorizing con- conveyances to religions uses. 3 Vic, c. 74. > or TITLE BT FOBmTTJBE. 241 [By Con. Stat. o. 69, s. 1, when any religious society or congrega- con. stat. o. 69. I tioD of Christians in Upper Canada desire to take a conveyance of ]uicl fcr the site of a church, chapel, meeting-house, burial ground, or residence for the minister, or when other religious congregations named in the act, desire a conveyance for the support of public worship, or the propagation of Christian knowledge, they may appoint trustees, to whom, and their successors, to be appointed as specified in the conveyance, the land may be conveyed ; and such trustees and their successors, by the name expressed in the convey- at.ce, may take, hold, and possess the land : by s. 2 the trustees shall within twelve months after execution of the conveyance register it I jQ the county whera the lands lie, otherwise it shall be void : and such lands may be resold, mortgaged, or leased (a), as polu'ed out iu the act. Sec. 16 extends the rights and privileges conferred on any religious society or congregations of Christians in s. 1 men- tioned, to the Roman Catholic Church.] 3. In cases of conveyance by fine or recovery, when such mode of 3. Alienation by conveyance was in force, or by feoffment when such a conveyance ^^J!j|'^nting bad a tortious effect, such] alienations % particular tenants, when estates larger they [were] greater than the law entitled them to make, and devested **""* ***"' *^^"" the remainder or reversion, [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 iu tail, or in fee ; these being estates, which either must or may last longer than his own, the creating th<"a is not only beyond nis 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 feodai connexion and dependence ; it im- plies a refusal to perform the due renders and services to the lord of *the fee, of which fealty is constantly one ; and it tends in its con- • g. 275. sequence to defeat and devest the remainder or reversion expectant ; as therefore that is put in jeopardy by suMi 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 improper 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 original interest; and on such determination the next taker is entitled to enter regularly, as in his remainder or reversion. It is as well here to mention that forfeiture as above mentioned no forfeiture would only take place on a conveyance by way of feoffment with^^'^/g^j^'Jj'^,,^,. livery of seisin, or by fine or recovery, and not where it was by yeyauces are what is termed an innocent conveyance, as one operating under the ^0^!*^ convey- Statute of Uses ; thus a conveyance by way of bargain and sale, or covenant to stand seised, would noii 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 foot- ing as an innocent conveyance, it would seem tbf^t the consequences on conveyance by feoffment would be no more than on any other innocent conveyance, and so no forfeiture]. 16 (a) Pott, B. 822. 242 OF TITLE BY FORFEITURE. 1; ' M Disclaimer of tenure a for- feiture. * S. 276. 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 chatteiia.! terests; but if tenant in tail aliened in fee, this was no immediate forfeiture to the remainder-man, but a mere discontinuance (as it \A called) of the estate tail, which the issue [might] afterwards avoid by due course of law : for he in remainder or reversion hatt only a very remote and barely possible interest therein, until the issue in tail is extinct. But, m case of such forfeitures by particQ. lar tenants, all legal estates by them before created, as, if tenant for twenty years granted a lease for fifteen, and all charges by him law- 1 fully made on the lands, shall be good and available 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 I has created. [ Equivalent, both in its nature and its consequences, to an illegal alienation by the particular tenant, is the civil crime of disclaimer;] as, where a tenant who holds of any lord, neglects to render hiin| the due services, and, upon an action brought to recover them, dis- claims to hold of his lord. Which disclaimer of tenure in anycouitl of record is a forfeiture 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 dis- claimer ', if he claims any greater estate than was granted him at I the first infeodation, or takes upon himself those rights ^bich belong only to tenants of a superior class ; if he affirms the reversion to be in a stranger, by attorning as his tenant, collusive pleading, and the like, such behaviour amounts to a forfeiture of his particular | estate. [A mere verbal disclaimer, however, will not create a forfeiture I J,^^^,^;^"* where the tenant holds for a term certain (a); and though such a with necessity of 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 1 forthwith treated as a trespasser, and immediate proceedings in I ejectment by his landlord without any notice to quit, and before his | tenancy would otherwise terminate ; still, this does not proceed much on the ground that the mere verbal disclaimer out of court I creates a forfeiture, as on the ground that it dispenses with necessitj of any evidence of notice to quit ; for such notice could only be | requisite in case of a tenancy, and the party disclaiming has by 1 disclaimer himself denied the existence of the tenancy, and therefore | cannot insist on it in an action by the landlord (&). And a disclaimer to have such an effect must be such as to amount I to a distinct repudiation of the relation of landlord and tenant, a mere refusal to pay rent till the itinant could ascertain whether some third person claiming it was not entitled, would not amount to a | disclaimer (c).] (a) Per Lord Wensleydale, Arckbold v. Scully, 9 H. L. Ca. 881, referring t«| Doe Oravea t. Wells, 10 A. & E. 427. (i) Doe Oravea v. Wells, 10 A. & E., supra, post, n. b. (c) Hunt V. Allffood, 10 C. B. N. S. 263 ; Jones v. Mills, 10 C. B. N. S. 788, 1 On tenancy from notice to quit. f#; OF TITLIG BT FOBrEITURE. 248 10 C. B. N. S. 788. [Some difference has arisen in the courts here (a) as to whether Denui of iand< or no, where a tenant, on ejectment brought by his landlord, by his^jj^'nt/oon. notice of defence under Con. Stat. c. 27, s. 8, sets up title in him- Bt. o. 27. ' self and also denies his landlord^ » 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 jear 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 unani- mous, this much is clear, and it answers my purpo.^e as an illustration of the principle of disclaimer ; that, to use the language of the present learned Chief Justice of Upper Canada, then presiding in the Common Pleas, " 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 (6)."] UI. Lapse is a species of forfeiture, whereby the right of pre- sentatiou to a church accrues to the ordinary by neglect of the patron to present, to the metropolitan by neglect of the ordinary, and to the king by neglect of the metropolitan. 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 there* fore given this right of lapse, in order to quicken the patron ; who might otherwise, by suffering the church to remain vacant, avoid paving his ecclesiastical dues, and frustrate the pious intentions of his ancestors. * V. The next kind of forfeitures are those by breach or non- • s. 28i. performance of a condition annexed to the estate, either expressly, v. By breach or by deed, at its original creation, or impliedly, by law, from a princi- °f ^^?JSi*°** pie of natural reason. Both which we considered at large in a former chapter (c). VI. I therefore now proceed to [what was formerly] another vi. By waste— species of forfeiture, viz. by waste. Waste, vastunif is a spoil cr destruction in houses, gardens, trees, or other corporeal heredita- ments, to the disherison of him that hath the remainder or reversion in fee-simple or fee-tail. Waste is either voluntary, which is a crime of commission, as by which is either pulling down a house ; or it is permissive, which is a matter of ^J^Jj^i^e."' omission only, as by suffering it to fall for want of necessary repara- tions. Whatever does a lasting damage to the freehold or inherit- as to what con- ance is waste. Therefore removing wainscot, floors, or other things ''""tes waste, once fixed to the freehold of a house, is waste. If a house be destroyed by tempest, lightning, or the like, which is the act ofLiabUityondes- Providence, it is no waste : but otherwise, if the house be burnt by oy^^Ji^JctofGod. (a) Thompson v. Falconer, 18 C. P. U. C. 78 ; Cartwright v. McPheraon, 20 Q. B. U. C. 261. {h) A3 to what amounts to disclaimer and consequences, see Tud. Lg. oases, Rl. prop. 2i ed., p. 26, Doe Claus v. Stewnrt, 1 U. C. Q. B. 512. (e) See oh. 10 s. 152, p. 99. 244 or TITLK BT TORFXITUiOB. t!ie carelessness or negligence of the lessee: though now bj the I statute 6 Ann. o. 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. Ixf c. 78, ss. 84, 86, the latter statute substantially tbe snuiti as the! statute of Anne ; there is a great distinction between accidental fire and one arising from carelessness or negligence, and the absence of I this distinction in the text, more especially in the first volume of the I Commentaries, p. 481, is commented on in one case (a), wh^r;>i^ the I dist: actio' is po'*' d cit betweoa neglifenoe and accident; in the | IVrmr '."m tha ^ i-art \wovld bo liable. If the tenant have cove- nanted to ttv^air, !:T\out exception in case of fire, he will ^e bound | to rebuil ' ; se xs •(.• ii iunrh destruction happen bj the act of God (l\- and even thougu such option be made in the covenant to repair still if none be made in thu covenant to pa^ rent, the rent mast be I paid, notwithstanding destruction of the thing demised.] Waste may also be committed in ponds, dove-houses, warrens anil I the like, by so reducing the number of the creatures therein, that there will not be sufficient for the reversioner when he comes to the I inheritance. Timber also is part of the inheritance ; such are oak, ash, and elm, in all places ; and in some particular countries, by local I custom, where other trees are generally used for building, they are for that reason oonsidere>' as timber ; and to cut down such trees, or top them, or do any other act whereby the timber may decay, is waste. But underwood the tenant may cut down at any seasonable | • s. 2S2. time * that he pleases ; and may take sufficient estovers (a) of com- mon right, for house-bote and cart-bote ; unless restrainea (which h I usual), by particular covenants or exceptions. The conversion of I land from one species to another is waste : to convert wood, meadow, or pasture, into arable ; to turn arable, meadow, or pasture, into wood- land ; or to turn arable or woodland into meadow or pasture, are aU I of them waste. For, aa 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 described aa pasture, u { found to be arable, and e converao. And the same rule is observed, for the same reason, with regard to converting one species of edifice I into another, even though it is improved in its value. To open the land to search for mines of metal, coal, &o., is waste ; for that is a detriment to the inheritance : but, if the pits or mines were opea before, it is no waste for the tenant to continue digging them for his | own use ; for it is now become the mere annual profit of the land These three are the general heads of waste, viz., in houses, in tin her, and in land. Though, as was before said, whatever else tends I to the destruction, or depreciating the value of the inheritance, k | considered by the law as waste. Btmitabie wMte. [There is yet another Rpecies of waste, teriucd equitable waste, and | so called because it is only considered waste in a court of equity^ and not in a court of common law ; this 1 will presently speak of] (a) Filliter v. Phippard, 11 Q. B. 847 ; see jvIpo Oaston v. Wald, 19 Q. B, U. C. 586. (6) 2 Wms. Saunders, 422 a. (e) Ante 9. 85, p. 27. or TITLE BT rOBfElTURE. 245 ice: Buch are Q, — ^j „ down such trees, C [It is a 1 ; itter of no small importarce to tw as to how far the doc- How flu- the trine of v. e as appliec! in Englnnd in regard to cutting timber ^^'^pjjfj' fill apply ' -^re : it is manifr ^t that in many cases, especially ini>er*«Mto respect to wild lands, thr interest of the life tenar might not only aSSi.°* ""** boa wort?' 1 fls but oven dariinosa hsereditan, uuiesu he be allowed toi cat the t'.( er and clear the land, for th'^ life tenant is bound to ay off tho taxes, at least if u'^'ler the name title he takes profitable lands (a); in one '^.ise (&) the question was raised ; it was an action ])y the remainder-man against the tenant for life for felling trees ; the plea was that the treeb were felled for the purpose of clearing the jsnd, and improving and cultivating the same according to the cus- tom of good husbandry, and of Upper Canada, and that thereby the land was enhanced in value ; the main question was not decided, for the plea did not necessarily call for it, as it was bad in not set- ting out that the land in fact was cleared of the trees cut down, and it was consistent with the plea that the trees were left lying to encumber the land. On the one hand it may be urged that the rendering the property more valuable will not the less prevent the cutting timber from being waste according to the adjudged cases ; as above stated, the converting one species of edifice into another, though it is improved in value, is waste ; this species of waste has, I believe, been termed ameliorating waste ; the principle, however, Ameliorating in such cases appears to be that the tenant shall not, as against the v»8"«'»*«• extremely troublesome, though many methods were invented to [ evade them ; till at last, they were made no longer necessary to complete the grant or conveyance, by statute 4 & 5 Ann. c, 16, nor shall, by statute 11 Geo. IE. o. 19, the attornment of any tenant I affect the possession of any lands, unless made with consent of the I landlord, or to a mortgagee after the mortgage is forfeited, or by I direction of a court of justice. In examining the nature of alienation, let us first inquire, briefly, (a) 18 Edw. I., 0. 1. (6) See ss. 72, 91. (e) 18 Edw. I 0. 18. 9.290. I ; ' 250 or TITLE BT ALIENATION. 1. Who may aliene, and to whom. What may or may not be aliened or asBlgued. Persons attainted of treason, &c., incapable of conveying, • S. Wl. ConTeyanees and Jmrchasea by diots, infants, and persons I i.'ane, or under duress are void- able. who may alione, and to whom ; and then, more largely, how a man may alieDe, or the several modes of conveyanoe. I. Who may aliene, and to whom : or, in other words, who is capable of conveying and who of purchasing. And herein we tmu consider rather the incapacity, than capacity, of the several parties- for all persons in possession are prima facie capable of convejing and all persons whatsoever of purchasing, unless the law has laid them under any particular disabilities. But if a man has only iQ] him the right of either possession or property, he [could not for. merly] convey it to any other, lest pretended titles might be granted I to great men, whereby justice might be trodden down, and the veak oppressed (a). Yet reversions and vested remainders [might] be granted ; because the possession of the particular tenant is the pos. session of him in reversion or remainder; but contingencies, and mere possibilities, though they [might] be released, or devised bj will, or [might] pass to the heir or executor, yet [could not before 14 & 15 Vic. c. 73, Con. Stat. c. 90,] (it hath been said) be assigned | to a stranger, unless coupled with some present interest (6) : [but I doctrine only held good at law, and not in equity]. Persons attainted of treason, felony, And praemunire, are incap of conveying, from the time of the offence committed, provided I attainder follows : for such conveyance by them may tend to defeat the king of his forfeiture, or the * lord of his etJcheai (c). But they may purchase for the benefit of the crown, or the lord of the I fee, though they are disabled to hold : the lands so purchased, if I 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 lauds; yet, unless they have a license to hold in mortmain, they cannot retain | such purchase ; but it shall be forfeited to the lord of the fee. Idiots and persons of nonsane memory, infants, and persons under I duress, are not totally disiabled either to convey or purchase, but ml modo only. For their conveyances and purchases are voidable, but not [always] actually void (d). The king, indeed, on behalf of as idiot, may avoid his grants or other acts. But it has been said tbat a non compos himself, though he be afterwards brought to a right mind, shall not be permitted to allege his own insanity in order to | avoid such grant : for that no man shall be allowed to stultify him- self, or plead his own disability. The progress of this notion is I somewhat curious. In the time of Edward I., non compos was a H\ •i r' ^^:i (a) Co. Litt. 214. (6) See further poa<, title by execution, ch. 21. (c) Ante, BS. 72, 244. {d) Mills V. Davis, 9 C. P. U. C. 510. On the other hand, in Grace t\ Whitehead, 7 Grant, 691, the court considered a mortgige from an infant als Intely void, thongh given to secure the purchase money of lands conveyed to I him, and for vrhioh when he oame of age he brought ejectment, repudiatiDg however the mortgage. So also in Addison on Contracts, ed. 6, p. 'J3G, it is | said, " All deeds, also, and covenants, feoffments, grants, releases, confirm- " ations, cognovits or other vrritings under seal made by infants, arc as a I " general rule (subject to some few exceptions, presently noticed), void." The authorities there referred to however hardlv warrant so broad an asser- tion aa that a grant or release of an infant is void. Of TITLE BT ALIENATION. 251 non compos was a execution, ch. 21. Lfficient plea to avoid a man's own bond : and there is a writ in tlie ister for the alienor him: elf to recover lands aliened by him Ijaring his insanity ; dum fax non compos mentis suae, ut didt, &c. hot under Edward III. a sci »ple began to arise, whether a man I should be permitted to Uemiah himself by pleading his own insanity : |tnd afterwards a defendant in assise having pleaded a release by the plaintiff since the last continuance, to which the plaintiff replied \[m tenus, as the manner then was) that he was out of his mind l^hen he gave it, the court adjourned the assise, doubting whether, Ltbe plaintiff was sane both then and at the commencement of the I suit, he should be permitted to plead an intermediate deprivation of reason , and the question was asked, how he came to remember the I release, if out of his senses when he gave it. Under Henry YT. s way of * reasoning (that a man shall not be allowed to disable s. * 292. I himself, by pleading his own incapacity, because he cannot know Uhat he did under such a situation) was seriously adopted by the jjadges in argument ; upon a question, whether the heir was barred I of his right of entry by the feoffment of his insane ancestor. And from these loose authorities, which Fitzherbert does not scruple to reject as being contrary to reason, the maxim that a man shall not stultify himself hath been handed down as settled law: thougl later opinions, feeling the inconvenience of the rule, have in many I points endeavoured to restrain it. And, clearly, the next heir, or other person interested, may, after the death of the idiot jr non Umpos, take advantage of his incapacity and avoid the grant. And But «nch convey- so too, if he purchases under this disability, and does not afterwards euhera>iifirmed ppon recovering his senses agree to the purchase, his heir may either °'"°*"^**- [waive or accept the estate at his option. [The above is subject to some qualification by modem cases : a I purchase by a lunatic on a fair and bona fide contract, when appa- Ireutly of sound mind, from a person ignorant of the lunacy, cannot it seems be vacated, nor the money paid recovered back (a). As to I the other questions alluded to above, viz., the defence of lunacy, 1 the right to avoid a contract or grant, the court in one case (&) I 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 doctriue was applied to " drunkenness. Moderu 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 that if the contract were fair and honest, and the lunacy unknown to the other contracting party, it will be no defenoo 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 (c) ; but neither the right to en- force a contract wholly executory, nor the validity of a conveyance hj deed from a lunatic, though under such circumstances as above, appears to be free from doubt (c?).] [ (a) Biamn v. McDonnell, 9 Ex. 809. (6) Molton v. Camboux, 4 Es. 18. (c) Anten. b. Addison on Contracts, 91. [d) See observations of Spragge, V. C, IVancii v. St. Oermain, 6 Grant, 641. 252 or TXTLl! BT ALIKNATXOM. Con. Stat. c. 73, tbe separate estate of a mar- ried woman. ^m ^r-\ ■,■" ^B^- :*w t An infant may waive a parohase or conveyance, when he cornea to full age ; or, if he does not then actoally agree to it, his hein may waive it after him. Perbons also, who purchase or Qooyej under duress, may affirm or avoid such transaction, whenever the duress is ceased. For all these are under the protection of tL^ la^ which will not suffer them to be imposed upon, through the imb^ oility of their present condition ; so that their acts are only binding in case they be afterwards agreed to, when such imbecility ceases. Pnrchase by a The caso of a feme covert is somewhat different. She may pur. IbTe! **'*'*' '°'*'c^«* an estate without the consent of her husband, and the convey. • S.293. ance is good during the coverture, till he '^^ avoids it by some aet declaring his dissent (a). And, though he does nothing to avoid it, or even if he actually consents, the feme covert herself may, after the death of her husband, waive or disagree to the same : nay, even hei heirs may waive it after her, if she dies before her husband, or if in her widowhood she does nothing to express her consent or agree- ment. [By Con. Stat. c. 73, a married woman is, in regard to her sepa- rate property, placed in many respects in much the same position as a feme sole. By that statute a woman married without any mar- riage settlement may hold real estate however acquired, free from her husband's control, as fully as if she were a, feme sole]. The conveyance of a married woman, [unless with the formalitiei required by Con. Stat. o. 85, as to examination, &o.,] is abaolntelj void at law (6), and not merely voidable ; and therefore cannot be af- firmed or made good by any subsequent agreement [short of a valid conveyance : and the Con. Stat. o. 73, gives a marrieid woman at law no greater power to contract than she had before (c) ', it would seem, gr^ter°power therefore, to follow that she cannot convey as a feme sole ; besides which, the original statute 22 Vic. c. 35 (Con. Stat. c. 85), enacta I that " the requirements heretofore necessary to give validity at law " to a conveyance by a married woman of any of her real estate, << shall continue to be necessary for that purpose with respect to | " deeds of conveyance executed after the passing of this act, not- '^ withstanding anything contained in this act, or in any act irAtcli I " has been or may he passed during the (then) present session of " Parliament ;" Stat. 22 Vic. c. 84 (Con. Stat. c. 73), was passed [ in the same session : Con. Stat. o. 8o makes no mention of this ; but irom Bank U. O. v. Brough (<2), it appears that the original act | can be looked at to guide in construing the Consolidated Statute; at least if there be no direct conflict of expression : it must be | admitted that in favor of her right to convey s. 4 affords an argn- ment, by enacting that no conveyance of a married woman shall { deprive her husband of his tenancy by the curtesy (e).] (a) Co. Litt. 8. " (b) As to the validity in equity of conveyanoes by married wonitn of pro- perty held for their separate use, where the husband does not concur, or | Con. Stat 0. 85 is not complied with ; see Lechmtre v. Brothcridge, 9 J. N. S. 705; Tullett^. Armstrong, 4 Beav. 819. (c) Kramer v. Oleta, 10 C. P. U. 0. 473, per Draper, 0. J. \S) Bank U. C. v. Brough, 2 Err. and App. R. U. C, 101. («) See also cosos note b. St. e. 73 gives married women to contract or convey than theretofore. OF TITLE BT ALIENATION. 253 The case of an alien born [was] also peculiar, [and has been before AUena. fODsidered]. For he [might] purchase any thing j but after pur- chase he [could] hold nothing [against the Crown under ihe old law] except a lease for years of a liouse for convenience of merchan- dize, in case he were an alien friend : all other pure! ases (when found by an inquest of office) being immediately forfeited to the king. We are next, but principally, to inquire, how a man may aliene orABtoAowaman convey; which will lead us to consider the several modes of con-^n^ej!*"****' veyance. In consequence of the admission of property, or the giving a OHgin and use of jeparate right b^ the law of society to those things which 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 have more than once observed, was • s. 294 that of occupancy or first possession. But this possession, when onco gained, was also necessarily to be continued ; or else, upon one man's dereliction of the thing he had seized, it would again become common, and all those mischiefs and contendons would ensue, which property was introduced to prevent. For this purpose, 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 his involuntary dereliction of it by his death; the latter to continue it in those persons to whom the pro- prietor, by his own voluntary act, should choose to relinquish it in lis life-time, A translation, or transfer, of property being thus admitted by law, it became nepessary that this transfer should be properly evidenced ; in order to prevent dbputes, either about the ht, as whether there was any transfer at all ; or concerning the persons, by whom and to whom it was transferred ; or with regard 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) tiie conveyance was made. The legal evidences of this translation of property are called the common, assurances of tho kingdom ; whereby every man's estate is assured to Lim, and all controversies, doubts, and difficulties are either prevented or removed. These common assurances are, 1. By matter in pais, or deed; which is an assurance transacted between two or more private per- sons in pait, in the country; that is (ac ording to the old common law), upon the very spot to be transferred. 2. The [second] takes po effect till after death ; and that is by devise, contained in last will and testament. We shall treat of each in its order. r\| 254 OF ALIENATION BT DEED. • S. 295. Of deeds. Indenttires. * S. 200. Deeds-poll CHAPTER XX. OF ALIENATION BY DEED. '*'In treating of deeds I shall consider, first, their general natare- and, next, the several sorts or kinds of deeds, \i?ith their respective | incidents. And, in explaining the former, I shall examine, first, what a deed is ; secondly, its requisites ; and thirdly, how it may I be avoided. I. First, then, a deed is a writing sealed and delivered by tbe parties. It is sometimes called a charter, carta, from its materials; but most usually, when applied to the transactions of private su' jects, it is called a deed, in Latin factum, because it is the most I solemn and authentic act that a man can possibly perform, witli| relation to the disposal of his property ; and therefore a man ah; always be estopped by his own deed, or not permitted to aver or | prove anything in cc atradiction to what he has once so solemn and deliberately avowed. If a deed be made by more parties than one, there ought to be regularly as many copies of it as there are I parties, and each should be cut or indented (formerly in acute angles instar dentium, like the teeth of a saw, but at present ia a | vraving line,) on the top or side, to tally or correspond with the other ; which deed, so made, is called an indenture. X Formerly, when deeds were more concise than at present, it was usual to write both parts on the same piece of parchment, with some words or let- ters of the alphabet written between them; through which the parchment was 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 chirographa, or hand-writings ) the word cirographum or cyrographum being usually that which is divided in making the 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 purpose, than to give name to the species of the deed, [and at pre- B< t.t it suffices to style the deed an indenture, in the body thereof]. Vli n thn several parts of an indenture are interchangeably executed OS ihe several parlies, that part or copy which is executed by the v^antor is Tisually called the original, and the rest are counterpartv, ♦.iijjirh oi late it is most frequent for all parties to execute every Of If which renders them all originals. A deed made by one party \v\'j is not indented, hvA. polled or shaved quite even : and therefore called a deed-poll, or a single deed. or ALIEhAliON BY DEED. 255 II. We are in the next place to consider the requisites of a deed. fl;e first of which is, that there be persons able to contract and be contracted with, for the purposes intended by the deed : and also a Ihing, or subject-matter to be contracted for ; all which must be expressed by suL ent names. So as in every grant there must be a grantor, a grantee, and a thing granted ; in every lease a lease , a lessee, and a thing demised. Secondly, the deed must be founded upon good and sufficient Consideration. consideration. Not upon an [illegal] contract j nor upon fraud Oi' collusion, either to deceive purchasers hondfide (a), or just and laviul creditors (6) ; any of which bad considerations will vacate the and subject such persons as put the same in use, to for- feitures, and often to imprisonment. A deed also, or other grant, Remiting use on made without any consideration, is, as it were, of no effect : for it is 3^Sd*ra-"*'' construed to inure, or to be effectual, only to the use of the grantor "<»»• himself, [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 (c?) inas- much as there is no reason apparent why the conveyance should have been made for B.'s benefit, that therefore he will be considered as holding for the use )r 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, ii would seem only on conveyances in fee simple ( e ).] [The student at first sight perhaps will hardly reconcile t?: 3 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 dis- posal of property, or with the fact that a deed being so solemn and authentic is always assumed to have been made on sufficient consid- eration; it flowed, however, from the causes which induced men, prior to the statute of uses as hereafter explained (/), to convey their estates, and from the decisions thereon prior to the statute ; moreover the use of the words in the habendum clause, " unto B. and his heirs " to the use of B. and his heirs;" or, which has the same efi"ect, " 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 implication 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 ; 80 also a nominal consideration of five shillings will prevent such resulting use : it is, however, absolutely requisite to the peculiar operation of some conveyances (as hereafter explained {g) ), that (a) Stat. 27 Eliz., c. 4. (6) Stat. 18 Eliz., c. 5. (c) Post, B. 309. id) Wms. Rl. Prop., 137 ; Tud, Lg, Cases, 281 ; post, s. 380. (e) Smith Rl. aud Pers. Prop., 194. (/) Post, 8. 829. ig) See post, Bargain & Sale, Covenant to itand seised. i i 256 OF ALIENATION BY DEED. m * S. 297. B P r In writing or print. Stat, of frauds. t I '%'■ there should be a oonsideration, and that of a certain character; thus I that a conveyance should operate by way of bargain and Bale a I consideration of money or money's worth is requisite; and to a cove-l nant to stand seised, the consideration of blood or marriage.] v * The consideration may be either a good or a valuable one. ^| good consideration is such as that of blood, or of natural love : affection, when a man grants an estate to a near relation ; founded on motives of generosity, prudence, and natural duty: ai valuable consideration is such as money, marriage, or the like, which the law esteems an equivalent given for the grant; and is therefore! founded Jn motives of justice. Deeds made upon good consideration! only; are considered as merely voluntary, and are frequently set asiij in favour of creditors, and bona fide purchasers, [which will be here-i after considered] (o). Thirdly, the deed must bo written, or I presume printed, for it | may be in any character or any language ; but [certificates, patents, charters; bonds, records, judgments, statutes, and recognizances, are I to be in the English language] (b). It must be upon paper or parcbJ ment; for if it be written on stone, board, linen, leather, or the like, it is no deed. Wood or atone may be more durable, and linen lesij liable to rasures ; but writing on paper or parchment unites in itself, more perfectly than any other way, both those desirable qual- itles : for there is nothing else so duT 'lie, and at the same time so little liable to alteration ; nothing so secuie from alteration, that is at the same time so durable. Formerly many conveyances wore made bj parol, or word of mouth only, without writing; but this being a | handle to a variety of frauds, the statute 29 Car. IL c. 3, enacts, that [" all leases, estates, interests of freehold, or terms for years, or | '' any uncert:un interest of, in, to, or out, of any messuages, manurs, " lauds, tenvoients, or hereditaments, made or created by livery and " seisin only, or by parol, and not put in writing and signed by the] " parties so making or creating the same, or their agents thereunto '' lawfully authorized by writing, shall have the force and effect of *^ leases and estates at will only, and shall not, either in law or in " equity, bo 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 8rd section it is enacted, '' that no " estates, or interests, either of freehold or term for years, or (( uncertain interest not being copyhold or customary interest of, in, " to, or out, of any messuages, &c., shall be assigned, granted, or i " 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 i " no action shall be brought, whereby to charge any person upon '' any agreement made upon consideration of marriage, or upon any I " contract or sale of lands, tenements, or hereditaments, or anj " interest in or concerning them, or upon any agreement that is not " to be performed within the space of one year from the making (a) Ch. 24. {b) 4 Qw. II. 0. 26. I ages, It IS contain. OF ALIENATION BT DEED. 25T ition, that is at the 1 nesBuages, manurs, 3.298. r< thereof, unless the agreement upon which such action shall bo >' brought; or some memorandum or note thereof, shall be in writing, " and signed by the party to be charged therewith, or some other " person thereunto by him lawfully authorized." Xbe 1st section appears to relate to cases where an estate or interest ij created de novo, and actually passes to the grantee or lessee ; the 3rd section to cases where an estate or interest previously existing is transferred ; and the 4th to cases where a right of action only is created by an agreement, or where an agreement is made respecting the future creation or transfer of an estate or interest. In cases within the 1st and 3rd sections the statute requires the agent to be authorized in writing, but not in cases within the 4th section (a). The section requiring assignments of leases to be in writing is not confined to leases required b^ ss. 1 & 2 to be created by deed or writing, but extends to all leases however short (b) ; it will be I presently explained (c) that apparently the Statute of Frauds does not apply where the instrument is sealed, in which case it is said I sicnature is not requisite.] Fourthly; the matter written must be legally or orderiy set forth : that is, there must be words sufficient to specify the agreement and I hind the parties ; which *sufficiency must be left to the courts of law to determine. For it is not absolutely necessary in law to have order in a ^La. j till the formal parts that are usually drawn out in deeds, so as there flo^tf^^/ "****' be su^cient words to declare clearly and legally the party's meaning, psrtiei, &c. But, as these formal and orderly parts are calculated to convey that ! meaning in the clearest, distinctest, and most effectual manner, and I have been well considered and settled by the wisdom of successive I ages, it is prudent not to depart from them without good reason or urgent necessity ; and therefore I will here mention them in their I usual order. [And here let me mention, that it is very inadvisable to depart I either from the usual order, or from the well settled precedents ; tile usual order is important in enabling any particular part of a conveyance to be found at once without reading through a long deed, and is especially so in the hurry of msiprius on the trial of a cause j and the importance of adhering to precedents, particularly as regards covenants is manifest, for otherwise, on difficulty arising, the parties are all at sea without probably the aid of decisions to guide them, ' whereas the usual forms have by a series of decisions during centu- I ries received judicial construction. Punctuation in strictness is not observed in a legal instrument, punctuation. nor is it recognized, and the settled forms of conveyances are so [drawn as to be independent of punctuation in their construction ; I for no one would like to have his title dependent on a comma (tZ).] The premises may be used to set forth, 1st, the numbers and PremiBes. I names of the parties, with their additions or titles. They also [contain, 2nd, the recitals, if any, of such deeds, agreements, or (a) See farther as to leases and assignments, ss. 822, 327. {b) Addison on Contracts, 29. (c) Sec. 806. I {d) Doe V. Martin, 4 T. R. 65 ; Ooicoiqne v. Barker, 8 Atk. 9 j S-inford t. Raikea, 1 Mer. 661 ; Wms. Rl. Prop. 168. 17 258 or ALIENATION BY DEED. "rt Nanua. CU" " atlonof partk :. Penona not named M partiM caaoot take. Conoidflnition. Receipt. Veudor'g lien. Application of purchase- money. Opcratire words. matters of fact, as are necessary to explain the reasons on which tbe present transaction is founded ; and herein also is set down, 8rd, the consideration on which the deed is made; and then follows, 4th, [the grant itself], and, 5th, the certainty, or description, of the thino granted. [As to the names and descriptions of the parties ; except in so far as the registry laws may affect the quesHon (a), strict accuracy is not requisite, if there be sufficient to identify (b) j so if a man be known by a different description than even his name of bapt'.sm, it will do (c). It will be always advisable to classify the parties into various parts and priorities, according to their various estates and interests' thus, those conveying the legal estate are placed distinct from and prior to those conveying the equitable estate or mere beneficial interest (as mortgagee and mortgagor, trustee and cestui que trust), and to those joining in the deed for the sake of confirmation ; persoos having joint estates, as joint tenants, are made parties of one part; those having separate and distinct estates should be parties of sepa- rate parts ; so husband conveying, and wife barring dower, should be distinct parties^ by reason of their distinct interests, and the wife placed last, as having no present estate, but a mere possible right of action contingent on her surviving. No person can, by or under an indenture inter partes, take an immediate interest or benefit, unless named as a party, at least if any other be named in the premises as grantee ; this rule however, does not extend to remainders (d), nor it is said, to uses (c), and under a grant or 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 named as a party will not be bound by his covenant with one not a party, though a person covenanting and sealing the indenture will be bound by his covenant with one named as a party. When the consideration is a money payment, it is usually expressed in the deed to have been paid, and this, except in cases of fraud, or illegality, at law absolutely estops the party so acknow- ledging the receipt from saying the contrary j but the rule in equity is different, and the vendor's lien still subsists on the estate for tlie purchase money, a doctrine so important that we will hereafter consider it at length (/); as also the necessity which sometimes exists, that a purchaser shall see to the proper application of the purchase money, in case of purchases from vendors occupying a fiduciary position, unless within the protection afforded by Con, Stat. c. 90, s. 9. The question of consideration and its sufficiency has been before, and will again be alluded to (jg). X The operative words of the conveyance should be such as are apt and proper according to the mode in which the instrument is intended to operate, as by demise, surrender, assignment, bargain and sale,] (a) Post, c. 25. (c) Williams v. B \e) Burton Rl. Pr {9) An (6) Janes v. Whitbread, 11 C. B., 406. '. 6 M. & W. 447. (rf) Co. Litt., 231 a. 42 n. (/) Chap. 26. .J6 ; post ch. 24, post a. 888. k; j^ OP ALIENATION T»Y DEED. 259 BDt, it is usually lis, except in cases jy has been before, for otherwise, the nature of which will presently be spoken of j until recently a multiplicity of operative words was used, as " give, grant, u biiigJiin, sell," &c., &c.; this is uhcIcss, and proceeded from a four that if one word alone were used, a wrong one might be adopted, and the right omitted; as, however, lands now lie in grant, if the word grant be used it will suffice in every case (a) ; moreover, if a word cannot operate in its own peculiar character, it may in another, thu3 the word release may operate as a grant, and a grunt as a release; still perhaps the neatest mode is to make use of the proper of proper char- operative word which stamps the character of the instrument, and ^*"" to this if thought proper the word grant can be added. The present tcuse nlone should be used except in deeds of disclaimer and feoflf- Tense, ment; both that and the past tense were formerly used, which arose from the early convevance by feofiFment and livery of seisin, which without dejd or writing passed the estate ; a charter or deed, how- ever, usually accompanied the transaction, as evidence for the future, which stated as the fact was, that the feolfor had enfeoffed, and then proceeded in the present tense to confirm it : in deeds of dis- claiuiei also, the past tense is proper, as where a person to whom property is conveyed in trust, declines to accept the conveyance and the trust, it is ;:.ioper to say that he always has disclaimed and still disclaims, for it" he have once accepted he cannot disclaim; in such hitter case, if allowable, he should convey, for the estate has vested in him {jpod s. 809). Following the operative words, comes the descrtplion of the pro- Description i>r perty, technically called the parcels ; in describing the property it Is p*'""^*'''- very inadvisable to describe property, or a boundary of it, by refer- ence to another cooveyance, as " heretofore conveyed by one A. to lone B by deed dated," &c., or, " conveyed by the within inden- ture," ur, " bounded on the north by property conveyed," &c. : this is loo frequently done, and leads to great difficulty in proving title, and in registration of taA instrument (6) ; it is far better to take a certain named limit or i«ed boundary, or if there be none then to make one. 1 shall have occasion again to allude to the mode of description in treating of take registry law ; I may here mention however, that though usually jands are described as being a particular [ lot, or part of it, still a general conveyance of all the lands of the I grantor in a particular city or township, is a good conveyance of all such lands, and capable of registry. Falsa detnonstratio nan nocet ; PaUa demon- thus if I convey lot 20 in concession 1 of the township of York now ^''■'''"'• occupied by A., and A. be not occupant, that false addition to what was sufficiently certain will not affect the conveyance ; so also if the 1 addition had been " in the county of Kent," and there were no oUch I township in that county, but in some other county ; and it' there were such a lot, concession, and township, in two counties, and no [county or other description named, it would be a latent omhiijuity, jand as such the intention could be shewn by parol evidence. Easements and privileges legally appurtenant to the lands pass by I conveyance of the lands simply ; but there may be others used and] (a) Post 8. 317. (J) Regina v. Regittrar of Middltitx, 16 Q. B. 976, post, Appendij:, Registry Law. 260 or ALIENATION DT PEED. Easements, *c. [enjoyed With the land, and still not legally appurtenant to it (a), nnd h Except ione. Habendum and tenendun. * S. 298. f encc after the description eonietimes follows a grant generally of all easements and privileges enjoyed with the lands or known as part thereof. The necessity for any such clause is obviated by conveyancea drawn under Con. Stat. c. 91. Any intended exception out of the property conveyed is most properly made in the premises; it nmst not however bo repugnant to the grant, so as to take away all benefit from it ; thus, if lurid be granted except the profits, the exception is void : nor can it be such as to render nugatory any part of an express specific grant of what is afterwards excepted ; thus, if a grant be made of a house and shops, except the shops ; or of twenty acres except ten, the exceptions are void j so if a person grants all his horses except his white horse, and he has three or more horses, and one is white, the exception is good ; but if he has only tm horses, the exception is void as conflicting with the grant, which was of more than one horse (b) : but if lot 20 be granted, excepting the house on it, or the trees, or a particular field, these exceptions are good.] \ 2, 8. Next come the habendum and tenendum. The office of the habendum is properly to determine what estate or interest is granted by the deed : though this may be performed, and [now usually] b performed, in the premises. In which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to the estate granted in the premises. As, if a grant be " to A. and the heirs of his body," in the premises, habendum "to " him and his heirs for ever," or vice versa ; here A. has an estate- tail, and a fee-simple expectant thereon (c); [but so far as the case put vice versa, of a grant to A. and bio heirs for ever, habendum to him and the heirs of his body ; it would seem that if the words " for ever " were left out in the grant, then the habendum would control the word " heirs " to an estate tail only; becauae the haben- dum merely explains what heirs are meant in the premises, viz., heirs of the body and not heirs general ; and that there would be no fee-simple expectant on the estate tail] (d) : but had it been in the premises " to him and his heirs," habendum " to him for life," the habendum would be utterly void ; for an estate of inheritaiice is vested in him before the habendum comes, and shall not after- wards be taken away or devested by it ; [and for this there is also the rule of law that in the construction of a deed, where one clause is inconsistent wit', another, the first shall prevail, being the reverse of the rule regaraiog wills. X Where the premises are Eilcnt 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 construction of law would be placed on the grant in the premises, the habendum will prevail j as if in the premises lands be granted to A., habendum to him for twenty-one years; the hahen- dum will explain the premises and control the life estate, which] (a) Siiry v. Pigot, Tud. Lg. cases, 147. (6) 1 Preston Shep. T. 78, n. (68). (c) Co. Litt. 21 ; 2 Roll. 19 ; Cro. Jac. 476. \d) Smith Rl. and Pera. Prop. 494. OP ALIENATION BY DEED. 261 es, habendum "to '^ffould otherwise have been given by construction of law (a) ; but if tlio grunt had been expressed to be for life, it would have been othcr- \i\ic. So if a lease be made to two, habendum to one for life, fcmainder to the other for life, the habendum governs (t). 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 interpretations, to be tukcn most strongly against the grantor, and therefore the grantee might take the larger estate.] The tenendum " and to hold," ia now of very little use, and is 7\mendum. only kept in by custom. It was sometimes formerly * used to signify * s- 29"- the tenure by which the estate granted was to be holdon, viz., tenen' km per servitium militare, in burgagio, in libero socagio, &c." But, all these being now reduced to free and common socage, the tenure is never specified. Before the statute of quia emptores, 18 £dw. 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 hath been also antiquated ; though for a long time after we find it mentioned in ancient char- ters, that the tenements shall be holden de capitalibus dominis feodi ; but as this expressed nothing more than the statute had already pro- vided for, it gradually grew out of use (c). Next follow the terms of stipulation, if any, upon which the grant -RftWsfufwm. 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 therefore 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 viilcnagc, of the most slavish offices ; and in socage, it usually con- sists of money, though it may still consist of services, or of any other certain profit (d). To make a reddendum good, if it be of anything (a) Co. Litt. 183 a. (4) Co. Litt. 183 b.; see, further, as to void habendums, Owstony. Williams, 16 Q. B. U. C. 405 ; Doe dem. Meyers v. Marsh, 9 Q. B. U. C 242. (c) I do not feel warranted in taking on myself to say that in ordinary cases of conveyances in fee the habendum as well as the tenendum had better be omitted, for the general custom is to adopt it, and I have had my own coDTeyances objected to as invalid by reason of the absence of the habendum clause, notwithstanding a sufficient grant existed in the premises. I will give, however, the words of Mr.Smith; in his work on Real and Personal Property, p. 493, lie says, '< When the estate or interest is pointed out in the premises, the " habendum 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. i., 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 resumfe of the effect intended to be pro- " duced." 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. {d) S. 41, p. 28. IMAGE EVALUATION TEST TARGET (AAT-3) . ^O ^/.% ♦ 1.0 I.I % [f iiiiii^ \ lis IIIIIM 18 L25 |||||u_ 11.6 e 'W /A >m / m '/ -^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 873-4503 S^ O 4j? ^<^ :<> 262 or ALIENATION BT DEED. Implied renrvations. IVi' m 'f Condition. » S. 300. Warranty. Covenanta. newly created by the deed, the reservatian must be to the grantors or some or one of them, and not to any stranger to the deed. [A reservation as a general rule, is of something new issuing out of the property, not theretofore existing, as a rent, a right of way if it be a part of the property, as trees, a house, oi the like, it is an exception. In the absence of anything to the contrary, the law vill presume, where a man grants part of his property and retains the residud, that there is a reservation of all that is requisite for the proper enjoyment of the part retained, as of access of light, support for buildings, drains, rights of way, &o. ; and so conversely the grantee takes by implication a grant of rights and easements over the lands retained (a) ; but such rights, &o., must be apparent and continuous (b) : a simple illustration of the above is afforded by the case of a man granting a piece of land surrounded by other land to him belonging; or granting the surrounding part and retaining the interior piece ; in the latter case there is an implied reservation, in the former an implied grant, of right of way over the surrounding part.] 5. Another of the terms upon which a grant may be made is a condition ; which is a clause of contingency, on the happening of which the estate granted may be defeated ; as, '' Provided always, " that if the mortgagor shall pay the mortgagee'*' £500 upon such a " day, the whole estate granted shall determine ; and the like ; [of which we spoke before] (c). 6. Next may follow the clause of warranty / [to Which I shall again allude {d). This clause is entirely superseded by covenants for title]. Covenants, which are clauses of agreement contained in a deed, whereby either party may stipulate for the truth of certain facts, or may bind himself to perform, or give, something to the other. Thus, the grantor may covenant that he hath a 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, &c. If the covenantor covenants for himself and his heirs, it is then a covenant real, and descends upon the heirs, who are bound to perform it, 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 covenant ; which makes such covenant a better security than any warranty. [Executors and administrators, indeed, are liable, though not named in the covenant, unless the covenant be of such a nature as to be performed personally by the covenantor ; in which case they are not liable, unless a breach have happened in the life- time of the covenantor ; and as regards heirs, it makes little differ- ence if they be omitted, for the lands which are assets can be reached by process against the personal representatives, as I shall hereafler explain («).] The grantor usually covenants only for the acts of I himself and his ancestors, whereas a general warranty extends to (a) Dart Vendors, 848 ; Ewart y. Cochrane, 7 J. N. S. 926. (6) Glave t. Harding, 27 L. J. N. S. Ex. 286. (e) Sec. 166, p. 101. (d) Beginning of chapter 22, on estates tail. («) Poit c. 21. OF ALIENATION BT DEED. 263 ill mankind. For wbioh reasons the covenant lias in modern prac- tice totally superseded the other (a). K. 8. Lastly comes the conclusion, which mentions the execution and Ooncioaion. ^te of the deed, or the time of its being given or executed, either Date, expressly or by reference to some day and year before mentioned. Xot 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 80th of February, provided the real day of its being dated of given, that is delivered, cau be proved. I proceed now to the jt/iJi' requisite for making a good deed ; the Reading. mdtng of it. This is necessary, wherever any of the parties desire it; and, if it be not done on his request, [if illiterate; or if it be not read to him, nor he be permitted to reaia it, if literate,] the deed is void as to him (&). If he can, he should read it himself: if he be blind or illiterate, another must read it to him. If it be read &Isely, it will be void, at least for so much as is misrecited ', unless it be agreed by collusion that the deed shall be read false, on purpose to make it void ; for in such case it shall bind the fraudulent party. Sizl^ly, It is requisite that the party whose deed it is should seal, seaung. and now in most cases, should sign it also, [at least if signing is « g g^ made requisite by some statute, as for instance in the case of a me- morial for registry ; or 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 requisite to the validity of a deed, as I shall presently explain.] The use of seals, as a mark of authenticity, to letters and other instruments in writing, is extremely ancient. We read of it among the Jews and Persians in the earliest and most sacred records of history (c) ; and in the book of Jeremiah there is a very remarkable instance, not only of an attestation by seal, but also of the other usual formalities attending a Jewish purchase (d). In the civil law also, seals were the evidence of truth ; and were required, on the part of the witnesses at least, at the attestation of every testament, ^at in the times of our Saxon ancestors, they were not much in use in England ; for though Sir Edward Coke relies on an instance of king Edwin's making use of a seal about an 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 donbtful authority, 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 oould write to subscribe their names, and, whether they could write or not, to affix the sign of the cross ; which custom our illite- (a) As to ooTenanta in leases, s. 827. (&) Owent ▼. Thomas, 6 C. P. U. G. 883. (e) 1 Kings, o. 21 ; Daniel, a 6 ; Esther, o. 8. {d) <• And I bought the field of Hanameel, 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 the evidence of the purchase, both that which was sealed " according to the law and custom, and also that which was open." — Ch. 82. I K i1 i \ ^ ■>i m f"f- • I 1: f ■ ».. 264 or ALIENATION B7 DEED. rate 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 inability to write, and therefore making a cross in its stead b honestly avowed by Caedwalla, a Saxon king, at the end of one of | his charters. In like manner, and for the same unsurmouutable • s. SM. reason, the Normans, a brave but ^illiterate nation, at their first settlement in France, used the practice of sealing only, withoat writing their names : which custom continued, when learning made its way among them, though 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, and is generally 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 intro. duced waxen seals only, instead of the English 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 more suV stantial villeins as were fit to be put upon juries, had their distinct particular seals. The impressions of these seals were sometimes a knight on horseback, sometimes other devices : but coats 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 Christian nation who resorted thither, and who could not, when clad in complete steel, be otherwise known or ascertained. Signing, This neglect of signing, and resting only upon the authenticity of I seals, remained very long among us ; for it was held in all our booh that sealing alone was sufficient to authenticate a deed : and so the common form of attesting deeds, " sealed and delivered," continues to this day ; notwithstanding the statute 29 Car. II. o. 3, before mentioned, revives the Saxon custom, and expressly directs the signing, in all grants of lands, and many other species of deeds : in which, therefore, signing seems to be now as necessary as sealing, though it hath been sometimes held that the one includes the other [or rather that when sealing and delivery occur, signing is not requisite, notwithstanding the Statute of Frauds (a). Not reqxiiaite. [At common law before the Statute of Frauds, a deed was requisite (though it might have been without signature,) to transfer incorpo- real hereditaments, as of those livery could not be made ', but where livery could be made nothing further was requisite (b) ; and though a deed of feoffment was usually drawn up and sealed and delivered, that was done 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 the deed, which our modern deeds still some- times unnecessarily follow, shews this ; it witnesseth that the feoffor hath given, &c., making use of the past tense (c). It is true that to the validity of certain conveyances a deed was requisite, as a bar-] (a) Cherry v. Etming, 4 Ex. C81 ; Aveline r, Whiaton, 4 M. & Q. 801 ; Addison OB Coatraota, 40 ; Preston Shep. Toaoh. 66. (&) Poat, Feofibneat, b. 810; Grant, s. 817. (c) Ante^ p. 2&d. or ALIENATION BT SEED. 265 fifliin and sale, oovenant to stand seised ; but that was in oonseqnenoe [f the peculiar character of those modes of conveyance ; but to the fttlidity of certain other modes of conveyance, no instrument what- lerer was requisite. To remedy this the Statute of Frauds was lassed, and, as remarked by Mr. Baron Bolfe (a) : " The object of ' the statute was to prevent matters of importance from resting on I « the frail testimony of memory alone. >The statute was not intended I II to touch those instruments which were already authenticated by a II ceremony of a higher nature than a signature or mark." I should Uention, however, that this case turned on the fourth section of the statute, and that the remarks as to signature are also extra judicial ; ia another case above referred to as against the necessity of signa- tare (b), the point seems to have been given up without argument ; ind there are decisions and statements of eminent writers that sig- I sature is requbite. Whatever doubt there may be as to the neces- j of signature, it will be seen in the sequel in treating of the JTarious modes of conveyance, that sealing is for the most part requisite to the validity of a conveyance of interests in lands, and that certain conveyances, formerly good if only signed as required '^""8 reqiJre** by the Statute of Frauds, must now by Con. Stat. o. 90, ss. 3 & 4, oJ. ***■"" I be by deed (c).] .^ . . A seventh requisite to a good deed is, that it be delivered, by the 7. Delivery. [party himself or his certain attorney, which, therefore, is *also •S-80T. expressed in the attestation ; " sealed and delivered." A deed takes effect only from this tradition or delivery: for if the date be false or impossible, the delivery ascertains the time of it. And, if another person seals the deed, yet, if the party delivers it himself, he thereby adopts the sealing, and by a parity of reason the signing also, and makes them both his own. A delivery may be either absolute, that lis, to the party or grantee himself: or to a third person, to hold till |Eome conditions bo performed on the part of the grantee : in which case it is not delivered as a deed, but as an escrow; that is, as aEscrov. hcrowl or writing, which is not to take effect as a deed till the con- Iditions be performed; and then it is a deed to all intents and pur- I poses, [and will relate back to the time of delivery.] I The last requisite to the validity of a deed is the attestation, or 8. Atteetation. I execution of it tn the presence of witnesses : though this is necessary, irathei for preserving the evidence, than for constituting the essence I of the deed. Our modern deeds are, in reality, nothing more than Ian improvement or amplification of the brevia testata mentioned by [the feodal writers ; which were written memorandums, introduced ■to perpetuate the tenor of the conveyance and investiture when Igrants by parol only became the foundation of frequent dispute and I uncertainty. To this end they registered in the deed the persons pho attended as witnesses, which was formerly done without their jsigning their names, (that not being always in their power), but [they only heard the deed read ; and then the clerk or scribe added Itheir names, in a sort of memorandum ; thus : <' hijs testibus, & G. 801 ; Addison ■(a) Cherry y. Heming, 4 Ex. 681, ; see also Tupper t. Foulke$, 9 C. B. N. S., 66. ■ 797, arguendo, {b) Aveline y. Whiaton, 4 M. & Q. 801. (c) Hee St. in Appx. r, signing is not w 41 !. l* I fr • S. 308. i i<% 266 OF ALIENATION BT DEED. " Johanne MoorCf Jacoho Smith, et aliis ad hanc rem convocatit." This, like all other solemn transactions, was origiDallj done onM coram paribus, and frequently when assembled in the court-barot, handred, or county- court; which was then expressed in the attesta^l tion, teste comitatu, hundredo, &c. Afterwards the attestation of I other witnesses was allowed, the trial, in *case of a dispute beios still reserved to the pares; with whom the witnesses (if more than one) were assooiaied and joined in the verdict; till that also vas abrogated by the statui? of York, 12 Edw. II. st. 1, o. 2. And in this manner, with some sucu clause of hijs testibus, are all old deeds and charters, particularly magna carta, witnessed. And in the time of Sir Edward Coke, creations of nobility were still witnessed in the | same manner. But in the king's common charters, writs, or letters. patent, the style is now altered : for at present the king is his own I witness, and attests his letters-patent thus: " Teste meipso, wit- ness ourself at Westminster, &c.," a form which was introduced by Richard tbe First, but not commonly used till about the beginning of the fifteenth century ; nor the clause of hijs testibus entirely dis- continued till the reign of Henry the Eighth : which was also the aera of discontinuing it in the deeds of subjects, learning being then revived, and the faculty of writing more general ; and, therefore, ever since that time the witnesses have usually subscribed their | attestation either at the bottom or on the back of the deed. [It is tolerably clear, at the present day, that there need be no I Attestation not attesting witness to a deed, and the fact of sealing and delivery may necessary. ^^ proved as any other matter of fact, as by some person present who witnessed the delivery (a) : it seems even that though no person witnessed the delivery, the subsequent conduct of the party may be left to the jury as to the fact of sealing and delivery; thus, in an action of covenant in an indenture said to have been made by the defendants to the plainti£f, it appeared that all parties had executed but one of the defendants, Homing, and as to him there was no sig- nature, but there was a seal affixed to the deed for each party ; the deed was produced out of the custody of Homing; he had written to the plaintiff referring particularly to the indenture, and describing it a made between the various parties including himself; and this was held sufficient evidence to go to the jury of the sealing and deliveiy | by him (6). In cases where attestation is not necessary, even thoi there be an attesting witness, the instrument may be proved by I admission, or otherwise than by such witness, contrary to the former general rule (c). Some instruments, however, require attestation; as, if executed in exercise of a power of appointment which enjoins attestation ; in other cases, attestation, sometimes by two or more | witnesses, is enjoined by statute, as in cases of wills- to pass i estate under the Statute of Frauds, and Con. Stat., c. 82 ; Memo- rials, under the Registry Act ; conveyances to charitable uses, under j the Statute of Mortmain (d).^ \ (a) Smith Bl. and Pers. Prop., 711. (6) Cherry v. Hming, 4 Ex. 681. (c) Com. Law Pro. Act, 212. (d) See Taylor on Evidence, further instances, b. 1013. Nor ^vitneBB. OF ALII'.NATION BT DEED. 267 We are next to consider how a deed may be avoided, or rendered How a deed may jjfno effect. And from what has been before laid down, it will***'"'^*^* follow, that if a deed wants any of the essential requisites before- Lentioned; either, 1. Proper parties, and a proper subject matter; 1 9 A good and sufficient consideration, [or rather, perhaps, the I'bijeDce of all illegal consideration ; since a deed merely wanting a coDsideration, or voluntary, is still good between the parties to it; I though there may be sometimes a resulting use to the grantor, as lielibre pointed out (a):] 3. Writing on paper or parchment: 14. Sufficient and legal words, properly disposed: 5. Reading, if ired, before the execution : 6. Sealing ; and, by the statute [of I Frauds, possibly], in most cases, signing also : or, 7. Delivery ; it is JtToid deed a5 t'niVto. It may also be avoided by matter ex post Hdo: as, 1. By rasure, interlining, or other alteration in any mate- By alteration. I rial part; unless a memorandum be made thereof at the time of the [execution and attestation; [in which case the rasure, &c., could dly have been ex post facto : the effect of rasure, &o., as above ;ed, requires some little explanation, because the later cases go I to shew that an alteration, if nothing appears to the contrary, will be presumed to have been made at or before execution of the instru- ment, for the law will not infer fraud or wrong (b). If the altera- tion be immaterial, though after execution, by whomsoever made, it would seem, it will not vitiate; and for this reason, it is better Lever 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; alteration even in a material part, by a mere stranger, hrithout the consent of the party benefited, will not vitiate; at least if the instrument were not at the time in the custody of such party (c); but any erasure or alteration in a material part by the party bene- |fited, at least if in his own favor, will vitiate (d).!^ 2. By breaking off or defacing the seal. 3. a I to be cancelled. [The absence of proper appreciation of the two latter instances of jaTQiding a deed has led to what may be sometimes a source of great difficulty (e), viz., the supposition that the destruction of a convet/'i>eetmetionottk once with the assent of the grantee will have the effect of a recon-^'^^t^"* iTeyance to the grantor in such conveyance, and revest in him the estate, estate which had passed by its execution and delivery; this would be a singular way of defeating the Statute of Frauds, and is about as sensible as the once very common idea, that on investi- gation of a title, the title deeds need not be looked at, on the ground that the contents of the registry office are open to inspec- tion. What is meant by the two latter instances is, that the tearing off the seal, or cancelling the deed, will avoid the deed so far as regards contracts or obligations arising out of it ; thus a cove- nant in an indenture, or a bond, could not be enforced afler destruc- 1 tioQ with intent by the covenantee, or obligee, to cancel the obliga-] (a) Ante, B. 296, p. 256. (4) Doe Tatum v. Catomore, 16 Q. B. 745. (e) Davidion t. Cooper, 18 M. M. 848. (d) Smith Rl. and Pers. Prop., 722. (e) See an instanoe in Frater v. Dralick, 21 Q. B. U. C. 848. J delivering it up By cancelling or destruction. ¥ I pl^C p^'- llj, : \ p." %, h t u 268 Eitateonee paaied will not ruTMt, by the deitractlon of the conveyance. Disagreement. Decree in Chan' eery. or ALIENATION BT DEED. [tion ; but an estate once passed bj the instrument will not revestJ however destroyed. The question came up in a recent case (d\ • the plaintiff had by deed demised to defendant for a term ootl expired, reserving rent, and he sued in debt on the demise (not ol the covenant,) for the rent, averring that the defendant had enteredl the plea was that after the making the deed and before suit, thaf deed was cancelled by mutual consent of both parties ; the coun considered that the estate which had passed by the lease was qoh divested, that the plaintiff was still reversioner and the defcndantl atill lessee, and consequently liable for the rent reserved by reasoal o( the privitif 0/ estate between the parties; it seems to have been I conceded on argument that had the action been on the covenantl as on a privity of contract it could not have been maintained 'I Mr. Baron Watson in his judgment says : " Where the contractl " arises from the deed itself, and the deed is destroyed, no actiool " can be maintained in respect of it. But this case is very different [ " for here upon the execution of the deed there passed from thel '< lessor to the lessee an estate which was not affected by the can.| " collation of the lease; the lessee holds the estate subject to the! << "ont, which is incident to the reversion in the lessor. According I < kO the argument for the defendant, he may hold the estate without! " payment of vent. But the authorities are clear that the cancelling! '' a deed does not devest the estate of the lessee or deprive *' lessor of his right of action upon the demise."] [The fact of cancellation, though not of itself sufficient to amountl to a surrender, is still a strong fact from which, if coupled \rith| others, a surrender may be implied in law (b)'\. 4. By the disagreement of such, whose concurrence is necessary, I in order for the deed to stand : as the husband, where a feme-covert is concerned; an infant, or person under duress, when those disa- bilities are removed ; and the like. [Where a person is named as grantee, the grant being for his benefit, the law, till the contraTj appears, assumes that he assents ; an assumption of the law certainly not unreasonable. It is common, however, for those to whom pro- perty is conveyed as trustees, to renounce by deed of disclaimer (c), 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 cannot always be renounced, at least without assent of the cestv.i que trust"]. 5. By the judgment or decree of a court of judicature. This \rai I antiently the province of the court of star-chamber, and now of the chancery : when it appears that the deed was obtained by fraud, force, or other foul practice : or is proved to be an absolute forgery. [Not I but that such a deed is not also void at law. The advantage, how- ever, of resort to equity is, that the evidence to avoid the deed maj die I out, and then the deed be enforced, whereas a court of equity will] ill (a) Lord Ward v. Lumley, 5 H. & N., 87 ; see also ia Fraaer v. Fralick, 21 Q. B. U. C. 846 ; Doe dem. Burr t. Dmiton, 8 U. C, Q. B. 186, remarked on, (6) Doe dem. Burr v. Denison, 8 Q. B. U. C. 185, see as to implied surren- 1 ders, Poat, s. 826. (c) Ante, p. 269. OF ALIENATION BT DEED. * S. 809. [st onco compel the delivery up of the deed to be cancelled, on a Lper case made (a). What constitutes a proper case and in what ^s a court of equity will give relief, opens too wide a field for (oniideration here. Equity relieves also in very many instances in fhich a court of common law cannot interfere. Thus, for instance, ut general rule, and except under special circumstances, a purchase ^jaa agent for sale from his principal, will be set aside at the jggtaDce of the latter, and a reconveyance decreed ; whilst at law the toDTeyance would stand good (6).] X Id any of these oases the deed may be voided, either in part or iotally. according as the cause of avoidance is more or less extensive. And, having thus explained the general nature of deeds, we are itjt to consider their several species, together with their respective iDcidents. And herein I shall only examine the particulars of those fhich, from long practice and experience of their efficacy, are gene- itlly used in the alienation of real estate : for it would be tedious, nay iDfinito, to descant upon all the several instruments made use of in personal concerns, but which fall under our general definition of tdeed; that is, a writing sealed and delivered. The former, being principaliy such as serve to convey the property of lands and tene- nents from man to man, are commonly denominated conveyances ; which are either conveyances at common law, or such as receive their force and efficacy by virtue of the statute of uses. I. Of conveyances by the common law, some may be called Common law i 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 benefit, or estate originally created, is enlarged, restrained, transferred, or extinguished. Orisrinal conveyances [operating at common law without the aid Original conTey- of the"Statute of Uses] are the following: 1. Feoffment; 2. Gift;^"^';^,;;*'"*'''""' 3, Grants 4. Lease; "5. Exchange; 6. Partition: derivative are, 7. Release; 8. Confirmation; 9. Surrender; 10. Assignment; 11. Defeazance. 1. A feoffment, feoffamentum, is a substantive derived from the i. Feofflnent. verb, to enfeoff, feoffare or in/eudare, to give one a feud; and therefore feoffment is properly donatio feudi (c). It is the most ancient method of conveyance, the most solemn and public, and therefore the most easily remembered and proved. And it may properly be defined, the gift of any corporeal hereditament to another. He that so gives, or enfeoffs, is called a feoffor^ and the person en- feoffed is denominated the feoffee. This is plainly derived from, or is indeed itself the very mode of The feoffor mast the ancient feodal donation ; for though it may be performed by the thrq^nturo"" word " enfeoff" or " grant," yet the aptest word of feoffment is, (7o estate he meonB otdedi" (d). And it is still directed and governed by the same*°°°°'®^* jfeodal rules ; insomuch that the principal rule relating to the extent land effect of the feodal grant, " tenor est qui legem dat feudo," is in other words become the maxim of our law with relation to feoff- (a) Harkin v. Rabidcn, 7 Grant, 243. \(h) As to cases where equity interferes see Smith's Bl. and Pers. Prop. 674. (c) Co. Lltt. 9. (d) Ibid. m 1 ?v: i V. 270 or ALIENATION BT DEED. ments, '' modus legem dat donationi." And therefore, as in puJ fcodal donations the lord, from whom the feud moved, must exl pressly limit and declare the continuance or quantity of estate wblcli The feoffee must have livery of BeUin. The origin of tuTestitureB. h, • S. 312. kerefore Ld vicara{ Le meant to confer, " ne quin plus donasse prsesumatur, quam tfllij io^^'^^^ '< donatione expresserit (a) ;" so, if one grants by feoffment Ian J tffl ^^^ ^^ n^Win. IV till he had hied before f or tenements to another, and limits or expresses no estate, tin grantee (due ceremonies of law being performed) hath barely ai estate for life (b). For as the personal abilities of the feoffee weri originally presumed to be the immediate or principal inducements L the feoffment, the feoffee's estate ought to be confined to his person 1 and subsist only for his life ; unless the feoffor, by express provisioj in the creation and constitution of the estate, hath given it a longel continuance. These express provisions arc indeed generally made- for this was for ages the only conveyance, whereby our ancestors were wont to create an estate in fee-simple, by giving the land to the| feoffee, to hold to him and his heirs forever; though it equally well to convey any other estate of freehold (c). But by the mere words of the deed the feoffment is by no meansl perfected ; there remains a very material ceremony to be performed called liveri/ of seisin ; without which the feoffee has but a mere estate at will. This livery of seisin is no other than the pure feodal investiture, or delivery of corporal possession of the land or teoe- ment, which was held absolutely necessary to complete the donation. " ^am feudum sine investitura nuUo modo constilui potuit ; " and an estate was then only perfect, when, as the author of Fleta ex- presses it in our law, "Jit Juris et seisinas conjunct io." Investitures, in their original rise, were probably intended to demonstrate in conquered countries the actual possession of the W, and that he did not grant a bare litigious right, which the soldiei was ill qualified to prosecute, but a peaceable 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 either long or accurately retained in the memory of 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 transfer of the estate, and that such as claimed title by other means might know against whom to bring their actions. In all well-governed nations some notoriety of this kind has bees ever held requisite, in order to acquire and ascertain * the property of lands. In the Boman law plenum dominium was not said to subsist, unless where a man had both the right and the corporal possession ; which possession could not be acquired without both an actual intention to possess, and an actual seisin, or entry into the premises, or part of them in the name of the whole. And even in ecclesiastical promotions, where the freehold passes to the person promoted, corporal possesson is required at this day, to vest the property completely in the new proprietor; who, according to the distinction of the canonists, acquires the Jus ad rem, or inchoate and imperfect right, by nomination and institution ; but not the jut in re, or complete and full right, unless by corporal possession. (a) Ante, sa. 108, 66. (b) Co. Litt. 42. (e) Co. Litt. 9. Ijt [was for lietual entr; linheritance Yet, the |i symbolic liUowedj ' Icrediblo wi i very th lland itself. I^as define I" former t j« changing |«and gav( [Among th llands were jcloak of tn lin order to Ifrom the V ■the witness la necessar Ito this day; Ifrom the s Iverge, and isame, in tl Conveya Inent. Tb Idepending Inesses, wa Ifrquently InecessitieS; Imeans to 1 Imaking tb Inations fo: lof the Ian I lia order t Irons bran( Iwhich coi noil from i Jconveying ■therefore i (a)S OF ALIENATION BT DEED. 271 ^erefore in dignities possession is given by instalment ; in rectories liid vicarages by induction, without which no temporal rights accrue tQ the minister, thou,';;h every ecclesiastical power is vested in him L iostitution. So also even in descents of lands by our law, which U cast on the heir by act of the law itself, the heir [had not till \{ Wm- IV*. c. 1] plenum dominium, or full and complete ownership, till he bad made an actual corporal entry into the lands ; for if he jied before entry made, hut heir [formerly was] not entitled to take possession, but the heir of the person who was last actually seised. lit [was formerly] not therefore only a mere right to enter, but the lictual entry that made a man complete owner; so as to transmit the iaheritaoce to his own heirs : non jus, sed semna, facit sHpitem (a). >r Yet, the corporal tradition of lands being sometimes inconvenient, STmimiioai I symbolical delivery of possession was in many oases anciently ^eUTery. [illowed ; by transferring something near at hand, in the presence of credible witnesses, which by agreement should serve to represent tbe very thing designed to be conveyed ; and an occupancy of this sign or symbol was * permitted as equivalent to occupancy of the * s. sis. land itself. Among the Jews we find the evidence of a purchase thus defined in the book of Ruth(&): "Now this was the manner in "former time in Israel, concerning redeeming and concerning « changing, for to confirm all things : a man plucked off his shoe, "and gave it to his neighbor; and this was a testimony in Israel/' Among the ancient Goths and Swedes, contracts 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, ia order to give possession ; and a staff or wand was also delivered from the vendor to the vendee, which passed through the hands of tie witnesses. With our Saxon ancestors the delivery of a turf was |a necessary solemnity, to establish the conveyance of lands. And, to this day, the conveyance of our copyhold estates is usually made from the seller to the lord or his steward by delivery of a rod or JTerge, and then from the lord to the purchasor by re-delivery of the same, in the presence of a jury of tenants. \ Conveyances in writing were the last and most refined improve- introduction of [ment. The mere delivery of .possession, either actual or symbolical, JJJ^° «>nyvj' depending on the ocular testimony and remembrance of the wit- nesses, was liable to be forgotten or misrepresented, and became Ifrequently 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 them liable to a multitude of conditions and minute desig- nations for the purposes of raising mone;^, without an absoulte sale of the land ; and sometimes the like proceedings were found useful Id order to make a decent and competent provision for the nume- Irous branches of a family, and for other domestic views. None of which could be effected by a mere, simple, corporal transfer of the soil from one man to another, which was principally calculated for conveying an absolute unlimited dominion. * Written deeds were • s. 314. therefore introduced, in order to specify and perpetuate the peculiar >>l Cc) Co. Litt. 9. (a) See chap, on Descent, pp. 187, 188. (6) Ch. iv., V. 7. 272 or ALIENATION DT DIED. ■/I T'H It V 1 ^' M ' i, ■I^^H ,* t^^H 1 ^ 1 II ' 1 LiTeryofMliln nicei n ry on th« gnii hoI( lold. On the creation of an estate in remainder. purposes of the party who conveyed ; yet still, for a very long leriei of years, they were never made use of, but in cooipany with the more ancient and notorious method of transfer, by delivery of cor poral possession. Livery of seisin, by the common law, is necessary to be made uponj nt of a free- ^▼^■''y grant of an estate of freehold in hereditaments corporeal whether of inheritance or for life only. In hereditaments inoorpo!] real it 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 entrjf is necessary, to vest the right in the lessee : for the bare lease gives hiin only a right to enter, which is called his interest in the term, or intertut termini: and, when he enters in pursuance of that right, he is tben and not before in possession of his term, and complete tenant for years. This entry by the tenant himself serves the purpose of noto- riety, as well as hvery of seisin fVom the grantor could have done; which it would have been improper to have given in this case, because that solemnity is appropriated to the conveyance of a free- hold. And this is one reason why freeholds cannot be made to commence in futuro, because they cannot (at the common law) be made but by livery of seisin ; which livery, being an actual manual tradition of the land, must take effect in prceaentif or not at all (a), On the creation of a freehold remainder, at one and the same time with a particular estate for years, we have before seen, that, at the common law, livery must be made to the particular tenant (i). But, if such a remainder be created afterwards, expectant on a lease for years now in being, the livery must not be made to the lessee for years, for then it operates nothing ; " nam quod temel meum esl, ** ampliua meum esse non potest;" but it must be made to the remainder-man ^himself, by consent of the lessee for years; foi without his consent no livery of the possession can be given ; partly because such forcible livery would be an ejectment of the tenant from his term, and partly for the reasons before given (c) for intro- ducing the doctrine of attornments. Urery in de*i, Livery of scisin is either in deed, or in law. Livery in deed is thus performed. The feoffor, lessor, or his attorney, together with the feoffee, lessee, or his attorney (for this may as ef^ctually be done by deputy or attorney, as by the principals themselves in person), 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 be 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 latch of the door, the house being quite empty, and deliver it to the feoffee in the same form ; and toen 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 • S. 816. (a) Ante, S. 165. (6) Ante, 8. 167. (e) Ante, S. 28d. OF ALIENATION BY DEED. 278 tlie feoffor's possession, livery of seisin of any parcel, in the name gftho rest, sufficeth for all; but, if they bo in several counties, ihero must be as many liveries as there- are counties. For, if the title to these lands comes to be disputed, there must be as many inals aa there are counties, and the jury of one county are no judges of the notoriety of a fact in another. * And thus much fur livery * 8. ois. Id deed. Livery in law is where the same is not made on the land, but in LiTcry tn law. tight of it only; the feoffor sayine to the feoffee, " I give you yon- Mjer land, enter and take possession." Here, if the feoffee entevd daring the life of the feoffor, it is a good livery, but not otherwise ; QDless he dares not enter, throudi fear of his life or bodily harm : and then [before 4 Wm. IV. o. 1, Con. Stat. c. 88, s. 12,] his continual OonUnuaiciaim. claim, made yearly, in due form of law, as near as possible to the lands, [would] suffice without an entry [to preserve his right from being barred by time (a).] This livery in law cannot however be given or received by attorney, but only oy the parties themselves. [By Con. Stat., c. 90, s. 3, a feoffment otherwise than by deedcon st.e. oo. shall be void at law, and no feoffment shall have any tortious Jj*'^^^]"'"' operation.] X 2. The conveyance by ffi/t,_donat{o, is properly applied to the am. ~ •"""* ii tfT **'"* ^* — ....*..^| i-ii Qg creation of an estate-tail, feoffment is to that of an estate in fee, and lease to that of an estate for life or years. It differs in nothing from a feoffment, but in the nature of the estate passing by it : for the operative words of conveyance in this case are do or dedi ; and gifts in tail are equally imperfect without livery of seisin, as feoffments in fee-simple. [Of the nature of the estate and its incidents we have before spoken (&). *3. Grants, conceasiones ; the regular method by the common law * s 3i7. of transferring the property of incorporeal hereditaments, or such *'""'*'• things, whereof no livery can be had. For which reason all oorpo- real hereditaments, as lands and houses, are said to lie in livery ; and the others, as advowsons, commons, rents, reversions, &c., to lie in grant. And the reason given by Bracton : " traditio, or livery, " nihil aliud est quam rei eorporalis de pertona in personam, de " manu in manum, translatio aut in possessionem inductio ; sed " res incorporales, quae sunt ipsum jus rei vel corpori inhserens, " iraditionem non patiuntur.'* These therefore pass merely by the delivery of the deed. And in seigniories, or reversions of lands. Each grant, together with the attornment of the tenant (while attorn- ments were requisite) were held to be of equal notoriety with, and therefore equivalent to, a feoffment and livery of lands in imme- diate possession. It therefore differs but little from a feoffment, except in its subject matter : for the operative words therein com- monly used are dedi et conceasi, " have piven and granted." [By Con. Stat., c. 90. *' All corporeal- tenements and heredita- Con. sut. c. oo, " ments as regards the immediate freehold thereof, shall be deemed ^'''"'""''*°«"°'- " to lie in grant as well as in livery." The result of this I appre- hend, will be that this mode of conveyance will supersede the mode of conveyance heretofore most generally adopted to pass fee simple] (a) Ante, s. 176, p. 199. 18 (6) Page 65, et teq. see also cb. 22. 274 OF ALIXNATION BT DEED. ^ 1 .K IE ■■ ■ ^ 5" '^1 Operation of the y/ori grattt. Conveyanoes should be plead- ed according to their legal effect. Implied core- nan t. [estates; viz., by way of bargain aud sale, wbiob has disadvantageg 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 exten. I sive signification ; it might, as the circumstances of the case should I require, operate as a feoffment, surrender, lease, release, bargain and sale, covenant to stand seised, or other assurance ; and vice versa (a) ; but for the purposes of pleading, it is requisite to deter- mine in what way the instrument really does operate, and to set it out accordingly ; thus, if a lessee should convey the residue of hia term to his landlord by use of the words, " release, assign, bargaio 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 surrender), such is its proper legal effect. And so in every case, in correct pleading, the instrument should be pleaded in the character in which it really operates in law, and not in the general words used in it (b). 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 enjoyment, unless the implication be destroyed by an express covenant on the subject. Con. Stat. c. 90 declares that the word shall neither imply a warranty nor covenant. X Conveyances of remainders or reversions dependant on a life or other freehold estate, were always properly made by way of grant, as being in their nature incorporeal, whereof livery could not be made, for the seisin of the freehold was in the immediate freeholder. Such interests are not touched by the statute, and grants of them operate under the common law. I apprehend that a grant of the immediate freehold will operate under the statute as 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 iVyf. T, "mt m- a consideration, the conveyance will operate as a feoffment or a com- c'^-#'I«Jt^afd™'0'* law conveyance (c). And if the conveyance had been toB. ;x u«» deeUred. to the usc of G. the first and only use raised would be in B., which xivey- (*" P'''*s®'*tly explained in speaking of the Statute of Uses) (d) iicAt eaa operate would be oxecuted by the statute, and C. thus take the legal estate mnyfjM^Tor^^^ *'*'®'' ^^ informal conveyancing, however, a question of some under the Stat, of difficulty might arise as to whether the conveyance should operate as w^w^mopei^ a common law conveyance, or under the Statute of Uses. Thus if ttr'^°^Mtate"*-^' ^^^ ^° ^®® should, using the words " grant, bargain and sell," be^piMedf for a pecuniary consideration expressed, convey to B. and his heirs to the use of 0. and bis heirs, and no intention be apparent as to the] (o) Co. Lltt., 801 b. ; Smith Rl. and Pers. Prop., 727 ; NiehoUon t. Dillth bough, 21 Q. B. U. C, 591 ; Watt v. Ftader, 12 C. P. U. C. 254. (6) Stephen on Pig. 811, 891 ; 1 Saund., 286, o. n. 9, post, p. 282. (e) The student had better postpone consideration of the following remarks till after perusal of the sections as to uses and trusts. ((f) S. 886. kaa disadvaDtaca, J;/f «^8o has tS ■'Of those modes of I rajs a most exteo. °^ the case shouM >, release, bargain •nraDoe ; and .,« | requisite to deter- Brate, and to set it ' the residue of hig e, assign, bargain, ed as operating in Tender; forasij »der), such is i^ rect pkadiDg, the which It really in It (ft). ^ the word, from a ' tj for title; and ' word " demise" 8 the implication ect. Con. Stat. » warranty nor iant on a life or >y wajr of grant, ry could not b« diate freeholder. grants of them i a grant of the at common law, Uses to give it grant to B. for frnent or a com. bad been to B. be in B., which 8 of Uses) (rf) he legal estate. Jstion of some ould operate as Uses. Thus if ?ain and sell," and his heirs rent as to the] holton T. J)ilia. 7. C. 254. '*', p. 282. owing remarks sta. OF ALISNATION BT DEED. 275 [party in whom the legal estate is to be vested, the conyeyance would It seems operatels at common law (a)y. and the fee therefore vest in C. But if it were manifest on the face of the instrument that B. should take the legal estate, and C. the equitable estate only; then as it cau operate as a bargain and sale, it would rather appear it will ])« 80 construed, to carry out the intention of the parties. The same qoestions might arise where the word " grant" alone is used as the word of conveyance, which, as before mentioned, may operate as a bargain and sale. One of the ablest writers on real property (&) alludes to a question of this nature, and after recommending in a particular case a conveyance by lease and release, and its enrolment, says — " With respect to an assurance by lease and release, some practitioners have felt an apprehension, lest if no precaution were taken, a conveyance by tenant in tail to uses, framed as a lease and release, and intended to operate as such, should, by reason of the enrolment, operate as a b&rgain and sale, and consequently vest the legal fee in the intended re-lessee to uses : and the corrective propoued is the omission of the words " bargain and sell." It IS cleiir, however, that unless the conveyance were incapable of operating in its primary character of a lease and release, the courts would not give it effect, against the obvious intention, in its secon- dary character of a bargain and sale ; and it is equally clear that there is no magic in the words " bargain and sell." A more effectual expe- dient, where the nature of the transaction does not preclude it (jm it necessarily does in the instance of a purchase or a mortgage) would be to avoid inserting a pecuniary consideration. But abundant caution may, perhaps, dictate in every case the propriety of intro- ducing the operative words by a qualifying clause to this effect, " by way of grant and release at the common law, and not by way of bargain and sale creating a use," for as the owner may give an election to the grantee to take either at the common iuw or under the statute of uses, (and, where he makes a conveyance capable of taking effect in either mode, does tacitly give such election) (c), so he may unquestionably, by the express terms of his deed, confine the conveyance to one given mode of operation."] ^ 4. A lease m properly a conveyance of any lands or tenements 4. lbom. (usually in 'couiideration of renter other annual reoompence*), made lor 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 ope- ration in it are, " demise, grant, and to farm let : demisi, concessi, et " adjirmam Hradidi" Faring or feorme, is an old Saxon word, ^s. 8ii. 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 corn, in poultry, and the like; till the use of money became more frequent. So, that a farmer, JlrmariuSf was one who held his lands upon payment of a rent or feormt: though at pre- sent, by a gradual departure from the original sense, the word farm 1 (a) Haiffh v. Jaggar, 16 M. & W. 526 ; Smith's Real and Pers. Prop. (6) Hbyes's ConTeyaficing, 6th ed. 162. (e) Heyward's case, 2 Rep. 85 a; Fox's case, 8 Rep. 93 b. 728. I hi -. 276 OF ALIENATION BT DEED. Who could lease nt common law. h'i' •8.319. k i The enabling xf^tute, 32 Hen. VIII. 0. 28. As to tenants in tail. Hnsbands seised right of their wives. Certain ecelesias* tical persons. is brongbt 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 ' though livery of seisin is indeed [if the conveyance is to operate only in the character of a lease,"] incident and necessary to one species of leases, viz., leases for life of corporeal hereditaments ; but to do other, [and now ja lease for life may operate hy grant without liveiy.1 Whatever restriction, by the severity of the feodal law, might in times of very high antiquity be observed with regard to leases ; yet by the common law, as it has stood for many centuries, all persons seised of any estate might let leases to endure so long as ther own interest lasted, but no longer. Therefore, tenant in fee-simple might let leases of any duration ; for he hath the whole interest, but tenant in tail, or tenant for life, could make no leases which should bind the issue in tail or reversioner; nor could a husband, seised ^ure uxoris, make a firm or valid lease for any longer term than the joint lives of himself and his wife, for then his interest expired. Yet some tenants for life, where the fee-simple was in abeyance, might (with the concurrence of such as have the guardianship of the fee,) make leases of equal duration with those granted by tenants in fee. simple, such as parsons and vicars with consent of the patron and ordinary. So also bishops, and deans, and such other sole ecclesias< tical corporations as are seised of the fee-simple of lands in their corporate right, might, with the concurrence and confirmation of such persons as the law requires, have made leases for years, or for life, estates in tail, or in fee, without any limitation or control And corporations aggregate * might have made what estates they pleased, without the confirmation of any other person whatsoever. Whereas now, by several statutes, this power, where it was unreason- able, and might be made an ill use of, is restrained ; and where, in the other cases, the restraint by the common law seemed too hard, it is in some measure removed. The former statutes are called the restraining, the latter the enabling statutes. We will take a view of them all, in order of time. And first, the enabling statute, 82 Hen. YIII., c. 28, empowers three manner of persons to make leases, to endure for three lives or one-and-twenty years; which could not do so before.. As, first, tenant in tail may by such leases bind his issue in tail, but not those in remainder or reversion. Secondly, a husband seised in right of his wife, in fee-simple or fee-tail, provided the wife joins in such lease, may bind her and her heirs thereby. Lastly, all persons seised of an estate of fee-simple in right of their churches, which extends not to parsons and vicars, may (without the concurrence of any other person,) bind their successors. But then there must many requisites be observed, which the statute specifies, otherwise such leases are not binding. 1. The lease must be by indenture, and not by deed poll; or by parol. 2. It must begin from the making, or day of the making, and r<'>t at any greater distance of time. 3. If there be any old lease in being, it must be first abso- lutely surrendered, or be within a year of expiring. 4. It must be either for twenty-one years, or three lives, and not for both. 5. It must not exceed the term of three liveS; or twenty-one yearS; but OF ALIENATION BT DEED. 277 may be for a shorter term. 6. It must be of corporeal heredita- . ments, and not of such things as lie merely in grant ; for no rent ean be reserved thereout by the common law, as the lessor cannot resort to them to distrein (a). 7. It must be of * lands and tene- * s. 32o. ments most commonly letten for twenty years past : so that if they had been let for above half the time (or eleven years out of the twenty,) either for life^ for years, at will^ or by copy of court roll, it is sufficient. 8. The most usual and customary feorm or rent, for twenty years past, must be reserved yearly on such lease. 9. Such leases must not be made without impeachment of waste. These are the guards, imposed by the statute (which was avowedly made for the security of farmers and the consequent improvement of tillage,) to prevent unreasonable abuses, in prejudice of the issue, the wife, or the successor, of the reasonable indulgence here given. Next follows, in order of time, the disabling or restraining statute, thedisabUr^ or 1 Eliz. c. 19, (made entirely for the benefit of the successor), which Itatutes*"^ enacts, that all grants by archbishops and bishops, other than for the ^ ^"''' "• ^^- term of one-and-twenty years, or three livea^ from the making, or without reserving the usual rent, shall be void. Next comes the statute 13 Eliz. c. 10, explained and enforced by^^}|^'««- the statutes 14 Eliz. c. 11 & 14, 18 Eliz. c. 11, and 43 Eliz. c. 29, ii & u-is euz. which extend the restrictions laid by *the last-mentioned statute on juz^^'^^ii^j. bishops, to certain other inferior corporations, both sole and aggre- tena tiie restrie- gate. From laying all which together we may collect, that all col- other taferior^ leges, cathedrals, and other ecclesiastical or eleemosynary corporations, corporations, and all parsons and vicars, are restrained from making any leases of • g. 321. their lands, unless under the following regulations : — 1. They must not exceed twenty-one yeard, or three lives, from the making. 2. The accustomed rent, or more, must be yearly reserved thereon. 3. Houses in corporations, or market towns, may be let for forty years, provided they be not the mansion-houses of the lessors, nor have above ten acres of ground belonging to them; and provided the lessee be bound to keep them in repair; and they may also be aliened in fee-simple for lands of equal value in recompence. 4. Where there is an old lease in being, no concurrent lease shall be made, unless where the old one will expire within three years. 5. No lease (by the equity of the statute) shall be made without impeachment of waste. 6. All bonds and covenants tending to frustrate the provi- sions of the statutes of 13 & 18 Eliz. shall be void. GoDcerniDg these restrictive statutes there are two observations to be made ; first, that they do not, by any construction, enable any persons to make such leases ao they were by common law disabled to make. Therefore a parson, or vicar, though he is restained from making longer leases than for twenty-one years or three lives, even with the consent of patron and ordinary, yet is not enabled to make any lease at all, so as to bind his successor, without obtaining such consent. Secondly, that though leases contrary to these acts are (a) But now, by the statute of 6 Geo. III. c. 17, a lease of tithes or other incorporeal hereditaments, alone, may be granted by any bishop, or any Buch ecolesiastioal or eleemosynary corporation, and the sucoessor ciball be entitled to recover the rent by an action of debt, which (in case of a freehold lease,) he could not have brought at the common law. 278 OF ALIENATION BT DEED. I'* * 8. 322. h ; 5> . declared void, yet they are good against the les$or, during bis life if he be a sole corporation ; and are also good against an aggreoate corporation so long as the head of it lives, who is presumed to be the most concerned in interest. For the act was intended for the benefit of the successor only ; and no man shall make an advantage of hig own wron^. *There is yet another restriction with regard to college leases, bv statute 18 Eliz. c. 6, which directs, that one-third of the old rent then paid, should for the future be reserved in wheat or malt, reserv. ing a quarter of wheat for each 6s. 8d. or a quarter of malt for every 5«. ; or that the lessees should pay for the same according to the price that wheat and malt should be sold for, in the market nest adjoining to the respective colleges on the market day before the rent becomes due. This is said to have been an invention of lord treasurer Burleigh, and Sir Thomas Smith, then principal secretary of state ; who, observing how greatly the value ot money had sunk, and the price of all provisions risen, by the quantity of bullion imported from the ngv-found Indies, (which effects were likely to increase to a greater degree,) devised this method for upholding the revenues of colleges. Their foresight and penetration has in this respect been very apparent : for, though the rent so reserved in corn was at first but one-third of the old rent, or half of what was still reserved in money, yet now the proportion is nearly inverted : and the money arising from corn rents is, communihm annis, almost double to the rents reserved in money. , [The advantage derived by tenants in tail, and husbands seised in by tenanu f\^i of their wives, by the enabling statute of Hen. VIII., before alluded to, is nearly superseded by modern statutes; as regards tenants in tail, by Con. Stat o. 83 (a), who by conveying in accord- ance with that act are not bound by the formalities required by the statute of Henry ; though a lease invalid under the provincial act might, perhaps, be upheld under the statute of Henry : and, as regards conveyances by married women, they also can take effect under Provincial Statute, c. 85, which requires only that the husband be a party, and a certificate as to the consent of the married woman Con. Stat. c. 69, to depart with her estate. Under Con. Stat. c. 69, s. 4 (b), trustees of reiigiovw"bo^es. lands for the use of a religious body or congregation, may lease for not exceeding 21 years ; and by s. 5, in such leas« may agree to renew at the expiry of any term of 21 years, 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. 6 requires the consent of the 'congregation to be signified as pointed out ; and excepts land necessary for erecting a church, place of worship or other building, or for burial grounds. Lands so held ma; also be sold as pointed out by the act Sec. 13 extends to the Roman Catholic Church all the rights conferred on any religions society or congregation of Christians, in the first section of the act mentioned.] Con. Stat. c. S3, leases ' intaU And sales. (a) Poll, c. 22. (ft) Ante, s. 274, p. 211. OF ALIENATION BT DEED. 279 [Leases, like other conveyances, were good at common law by parol. Formalities re- 1 5y s. 4 of the Statute of frauds (a), an agreement for a lease, or for^^r.ij;,^^'*" ^*' r^y interest in lands, to be binding on the party to be charged, I giast be signed by nim or his agent. By s. 1, all leases and other interests in lands made and created by parol, and not put into I writing by the parties making or creating the same, or their agents I lawfully authorized in writing, are void, and to have the effect of estates at will only ; except, (by s. 2), leases not exceeding three ' jears from the making, whereon is reserved as rent two thirds of the Dill 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 singu- I larity ; that a lease not exceeding three years at such a rent, if actuaU.v 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 crea- tioD of an interest on a higher footing than an agreement for its creation ; thus, in the latter case, it will be seen they required only rerbal authority to the agent, but in the former a written one. I explained before that the seal of a party to an instrument appar- if t>y deed, eDtly superseded the necessity for a signature, and placed the iostru- nor wUnMi'^'"'^ Dient without the statute (6); also, that under certain circumstances, '^^*''«- a mere sealing would suffice without an attesting or other witness (c). By Con. Stat, o. 90, a lease required by law to be in writing, con. st c. m, stall be void at law unless made by deed : it would seem that the 5Hh"nTr?tin*|at latter statute has considerably altered the effect of the first section of ^ requisite, the Statute of Frauds, as regards authority to the agent which wasEirMtoftbigSt.: Bufficient if in writing; as, however, leases Cexoept as above) and**'*'?'*''"i'l*y*" certain other conveyances must now be by deed, the authority to the deed, agent, apparently, must also be by deed {d) ; on the general princi- ple that the authority to contract must be of no less a character and oature than the contract («). It has been before explained (/) that notwithstanding the posi- ^^^'^r » toii tire language of the Statute of Frauds, a lease void under it may, rraTmay'create nevertheless, by payment of rent, become a tenancy from year to ^^^^J'y f"*™ year. And a lease or other contract or conveyance void under the Statute of Frauds, may yet be enforced in equity where there has been a part performance, so that the parties, if the transaction and on part p«r- intended be not carried out, cannot be restored to their original pos- ^Vform'ncSbe^" ition. Thus, if possession be given, and acts done (as by expending decreed, money in building or otherwise) in some manner inconsistent with any other idea than that of the contract intended, specific perform- ance thereof will be decreed in equity. But such acts as the taking of surveys, preparation of conveyances, 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.] (a) See stat. verbatim, s. 297, p. 256. (6) Ante, p. 264. ' (e) Ante, p. 266. (d) Addidon on Contracts, 4th ed., p. 46. («) Harriion v. Jackson, 7 T. R., 208. (/) S. 147. 280 Word "demise impllet a oove- lumt. Dnlese there be an eipress oue. ¥ Kzchange By Con. Stat. e. 90, no right of reentry. 6. Partition. * S. 324. 1. S. OF ALIENATION BT DEED. ' [The use of the word demise as an operative word will imply ;, general coveaant for quiet enjoyment against all claiming by lawful! title : but if, as is most usual, there be an express covenant on the! subject, no covenant will arise by implication, even though theexJ press covenant be limited to the acts of the lessor and those claimignl under him, and thus less extensive that the covenant the law would I imply. In such cases the maxim " expresmmfacit cessare tacitnn"] applies (a). I have before spoken of rents, of their nature (b), and of remedies therefor, and proceedings of the landlord, and I reserve for future I consideration (c) the subject of covenants, and the rights of tho | assignees of the lessor and lessee respectively.] 5. An exchange {d) is a mutual grant of equal interests, the one I in consideration of the other. The word " exchange *' is so indi- vidually requisite and appropriated by law to this case, that it cannot | be supplied by any other word or expressed by any circumlocution. The estates exchanged must be equal in quantity ; not of value, foi I that is immaterial, but of interest; as fee-simple for fee-simple, a lease for twenty years for a lease for twenty years, and the like. And I the exchange may be of things that lie either in grant or in livery. But no livery of seisin, even in exchanges of freehold, is necessar; I to perfect the conveyance : for each party stands in the place of the other and occupies his right, and each of them hath already had cor- poral possession of his own land. But entry must be made on both sides ; for, if either party die before entry, the exchange is void, fo? want of sufficient notoriety. And so also, if two parsons, by consent of patron and ordinary, exchange their preferments ; and the one ] is presented, instituted, and inducted, and the other is presented, and instituted, but dies before induction ; the former shall not keep his new benefice, because the exchange was not completed, and there- fore he shall return back to his own. For if, after an exchange of | lands or other hereditaments, either party be evicted of those which were taken by him in exchange, through defect of the other's title; be shall return back to the possession of his own, by virtue of the implied warranty contained in all exchanges (e) [and now by Con, St. 0. 90 the word " exchange " shall create no warranty, or right of re-entry, or covenant by implication j and every exchange must be by deed]. 6. A partition is when two or more joint-tenants, coparceners, or tenants in common, agree to divide the ^lands so held among them in severalty, each taking a distinct part. Here, as in some instances, there is a unity of interest, and in all a unity of possession, it is necessary that they all mutually convey and assure to each other the several estates, which they are to take and enjoy separately. By the common law, coparceners, being compellable to make partition, might have made it by parol only ; but joint-tenants and tenants in common must have done it by deed : and in both cases the conveyance must have been perfected by livery of seisin. And the statutes of 31 Hen. VIII. c. 1, and 32 Henry VIII. c. 32, made no alteration in this (a) Broom's Legal Maxims, post, s. 327. (6) S. 42. (c) S. 827. (d) Co. Litt 50. (e) Sec. 300. or ALIENATION BT DEED. 281 oint. But the Statute of Frauds, 29 Car. II. c. 8, [and Con. Stat. |n[e. 85 & 90 have] nowaholished this distinction, and made a deed in I jU cases necessary. [Of the mode of partition we before treated (a) .] These are the several species of primary or original conveyances, secondary or llhose which remain are of the secondary , or derivative sort ; ^^ic^ vlyMMel* "*°* presuppose some other conveyance precedent, and only serve to enlarge, confirm, alter, restrain, restore, or transfer the interest granted by such original conveyance. As, 7. Releases: which are a discharge or conveyance of a man's right 7. Release. ia lands or tenements, to another that hath some former estate in possession. The words generally used therein are " remised, released, aad for ever quit-claimed." And these releases may enure either, 1. By way of enlarging an estate, or enlarger V estate : as if there be By way of en* tenant for life or years, remainder to another in fee, and he in •"Bement. remainder releases all his right to the particular tenant and his heirs, this gives him the estate in fee. But, in this case, the relessee must be in possession of some estate, for the release to work upon ; for if there be lessee for years, and, before he enters and is in pos- Posaesrion requi- session, the lessor releases to him all his right in the reversion, such ***** release is void for want of possession in the relessee, [for under a lease operating only at common law, the lessee, till entry, has no complete estate, but a mere interesse termini {b). But a virtual yiitxaXanmces, possession, or possession in law, when the estate is vested and com- plete, will suffice for a release to operate on ; as where the owner in fee for a money consideration should bargain and sell to the lessee for a term, here the lessee, as hereafter explained, will, by virtue of the Statute of Uses, be deemed in possession, at least sufficiently for as under statute the operation of a release j or perhaps for the purposes of the ques- °' "^' tion now under consideration it may be said, that in such case the estate granted is by force of the statute no longer incomplete as on a lease operating only at common law, for want of entry : it is in fact by sucn a lease, and such a release, that the ordinary mode of con- veyance by lease and release takes place without entry or livery of seisin. So also a virtual possession will suffice, if the releasee has or where releasee an estate actually vested in him at the time of the release, y^jjich *"■■*"'«' "'«'«• would be capable of enlargement by such release if he had the actual possession ; thus, if a tenant for twenty years makes a lease to instances, another for five years, who enters, a release to the first lessee by his lessor, the owner in fee, is good, for the possession of his lessee was his possession. So if a man makes a lease for years, remainder for years, and the first lessee enters, a release by the lessor to the person in remainder for years is good, to enlarge his estate, (c) But a release to a tenant at sufiferance is void, (d) for though in possession, ho has no estate.li 2. By way of passing an estate, or mitter V estate: as when one By way of passing of two coparceners releaseth all *her right to another, this passeth ®'**^"g. 325. the fee-simple of the whole. And in both these cases there must be a privity of estate between the relessor and relessee ; that is, one (a) Sees. 189, 194. (6) Sec. 144. (c) Co. Litt. 270, a. n. 8, by Hargrave. {d) Dot dem Connor v. Connor, 6 U. C. Q. B. 298. 282 or ALIENATION BT DIED. ■: ?: W^l tat th« operation of « release, a vuted estate more important than mere poHeaslon. PaniDg a right. Eztlogubhinent, Entry and feoff- ment. Beleaae, Inralld u auch, may operate in oth«r character. In pleading, In- struments should be set ont accord- ing to their legal effect. Instances. of their estates must be so related to each other, as to make but one and the same estate in law, [as in the cases put above. But if ^ 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 theoi. So also a release to a tenant at will is good, but to a tenant at suffer- ance void, for in the latter case there is a mere possession but no i estate, and consequently no privity (a). And thus from all thatig above stated it would appear that it ia rather the existence of some! actual vested estate, whereon the release may operate, which ia im. portant, than the mere possession ; for the instances above glveQ I shew that the latter will not suffice without the former, but the I former will suffice without the latter.] 3. By way of passing a right, or mitter le droit : as if a man he I 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 before was tortious or wrongful. 4. By way of extinguishment : as, if my tenant for life makes a l lease to A. for life, remainder to B. and his heirs, and I release to A. ; this extinguishes my right to the reversion, and shall enure to | the advantage of B.'s remainder as well of A.'s particular estate. 5. By way of entry smd feoffment : as, if there be two joint disseisors I and the disseisee releases to one of them, he shall be sole seised, and shall keep out his former companion ; which is the same in efifect as [ if the disseisee had entered, and thereby put an end to the disseisin, and afterwards had enfeoffed one of the disseisors in fee. And! hereupon we may observe, that, when a man has in himself the pos- session of lands, he must at the common law convey the freehold bj feoffment and livery : which makes a notoriety in the country : but, I if a man only has a right or a future interest, he may convey that right or interest by a mere release to him that is in possession of the land : for the occupancy of the relessee is a matter of sufficient noto- riety already. [The niceties above referred to as to the operation of releases are rendered of less importance by the fact, that though a release, as such, may be invalid, it may yet operate in another character; for instance, as a grant (6). And now also that corporeal as well as incorporeal hereditaments lie in grant, it would seem that a release or other conveyance which may be inoperative in the particular mode intended, can hardly fail to take effect in some way. Still the character in which an instrument really does operate requires attentiou, for in pleading the instrument must be set forth according to its legal effect and operation (c). Thus if A. seised in fee should demise to B. for years, and B. sublet to C, and A., by use of the word release, should before entry by C. con .ey to him in fee ; the instrument should be pleaded not as a release, for in that character it cannot operate, but as a grant : or if on pecuniary consideration, and it appeared that it was not intended to operate as a common law conveyance, then it might be pleaded as a bargain and sale. So if one joint tenant should assign to his co-tenant, it should be pleaded as a release.] (a) Co. Litt. 270 b. ; Doe d. (b) Ante, a. 317. Connor v. Connor, 6 Q. B. U. C. 298. (c) Ante, p. 274, n. 6. or ALIENATION BT DIED. 283 w to make but one above. Butifj^i >re a release to thi vity between them a tenant at suffer! _ possession but no ms from all that is existence of some jsrate, which is in,. ;ancea above given former, but the it: as if a man be right ; hereby the the quality of hij rtious or wrongful, for life makes a I », and I release to and shall enure to I I particular estate, j iwo joint disseisors I be sole seised, and le same in eflfect as id to the disseisin, ors in fee. And in himself the pos- ey the freehold bj the country: but, e may convey that Q possession of the of sufficient noto- on of releases ate >ugh a release, as ler character; for rporeal as well as !em that a release in the particular some way. Still operate requires et forth according iised in fee should i.j by use of the him in fee; the in that character ry consideration, as a common law and sale. So if hould be pleaded B. U. C. 298, 274, n. b. I A confirmation is of a nature nearly allied to a release. Sir ConflmaUon. Jffard Coke defines it to be a conveyance cf an estate or right in % whereby a voidable estate is made sure and unavoidable, or libereby a particular estate is encreased : and the words of making L tre these, " have given, granted, ratified, approved, and con- « g 32,^ 111 firmed." An instance of the first branch of the definition is, if ant for life leaseth for forty vears, and dieth during that term ; ye the lease for years is voidable by him in reversion : yet, if he Lb confirmed the estate of the lessee for years, before the death of Lant for life, it is no longer voidable but sure. The latter branch, L that which tends to the increase of a particular estate, is the same ja all respects with that species of release, which operates by way of eolargement. [A confirmation must be bv deed, but under certain circum- itances a confirmation may be implied by law (a)]. 9, A surrender, or rendering up, is of a nature directly opposite Surrender. to a release; for, as that operates by the greater estate's descending gpoD the less, a surrender is the falling of a less estate into a greater. It is defined, (b) a yielding up of an estate for life or years to him tliat hath the immediate reversion or remainder wherein the par- ticolar estate may merge or drown, by mutual agreement between ibem. It is done by these words, " hath surrendered, granted, and II yielded up.'' The surrenderor must be in possession (c) ; and the surrenderee must have a higher estate, in which the estate sur- rendered may merge ; therefore, tenant for life cannot surrender to lim in remainder for years. In a surrender there is no occasion for livery of seisin ; for there is a privity of estate between the surren- deror and the surrenderee; the one's particular estate, and the other's remainder are one and the same estate ; and livery having been once made at the creation of it, there is no necessity for hav- iag it afterwards. And, for the same reason, no livery is required on a release or confirmation in fee to tenant for years or at will, though a freehold thereby passes : since the reversion of the relessor, or ooDfirmor, and the particular estate of the relessee, or confirmee, are one and the same estate ; and where there is already a posses- sion, derived from such a privity of estate, any further delivery of possession would be vain and nugatory. [At common law a surrender was good by parol ; by s. 3 of the Sta- ^o statute of tute of Frauds (d), all surrenders must be by deed, or note in writing, larrenders. signed by the party surrendering, or his agent thereunto authorized in writing ; or by act or operation of law. There is, as to surren- ders, no exception in favor 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 writing or by act of law (e). I before referred to the question as to whether a deed unsigned, but sealed and delivered would not satisfy the statute (/). By Con. Stat., c. 90, " an assignment of a chattel] ^^^ g^^j^ g^ I {n) Co. Litt. 295 b. ; Lud/ord ▼. Barber, 1 T. R. 86 ; Doe Southouf v. Jen- kins, 6 Bing. 469 ; Jenkins v. Church, Cow. 482. (i) Co. Litt. 837. (e) Ibid. 888. {d) See the statute, s. 297. (e) Addison on Contracts, 4tti ed., p. 29. (/) Seo. 806. IK-' 284 OF ALIENATION BT DEED. m^ I ■ i i W\ m render. Initonoes of. 3 ( [" interest in any land, and a surrender in wiiting of any land ni «' being an interest which might by law h^ve been created mtW " writing shall be void at law, unless made by deed." The quenioi as to the necessity of authority to the agent being by deed, and m merely in writing, since the statute, has been before referred to (a snrrondcriniaw, A Surrender by act of law is expressly excepted out of the foriQi or implied lur- gtatutc, and is not within the operation of the latter, which speal only of surrenders in writing (o). A surrender in law, or impliji surrender, as distinguished from a surrender in fact, may take plai by the acts of the parties ; thus, when a lessee for years accepta new lease from his lessor for any term of which any part was inoludei, in the old lease, the latter shall be deemed surrendered, for other wise the new lease could not be valid : moreover by accepting tin new lease, the lessee admits the lessor had power to make it, \Thic1 could not be unless the first lease were surrendered : and evei though under the second lease, the lessee will take for a less num. ber of years than under the first, this principle will apply : thus i{ a lessee for thirty years accept a new lease for ten years, part ol such thirty, the first lease is surrendered in law ; so also, thougl such second lease is to commence three years after its execution, the first lease will cease instantly on the execution. A surrendei in law may arise out of the acts of the parties merely ; thus whei there was a tenancy from year to year determinable on a quarter's! notice, and the lessor licensed the tenant to leave in the middle oft quarter, and he left accordingly, 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 lanij lord by parol agreed that the tenant might leave, and the tenant left accordingly, but the landlord never took possession 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 accruing due subsequent to his leaving : but if the tenant ehould leave, and the landlord relet to another, this has been held a taking of possession by the landlord and so equivalent to a surrender. The mere cancelling the lease is not sufficient, though a circumstance from which, if coupled with others, a surrender may be implied (c), If a lease containing a personal covenant for payment of rent be sur- rendered, the surrenderor still remains liable to pay the rent \(hicli fell due before the surrender, unless the instrument of surrender Effector merger Stipulate Otherwise. The effect of a surrender is of course thattbe to suWeM^ " estate thereby surrendered is gone, but the rights of strangers are however preserved; thus if . lessee for years surrender to the lessor, or acquire from him the reversion, having prior thereto I granted a sublease, the rights of the sublessee are not prejudiced; | Con. Stat. C.W. and before the Stat. 14 & 15 Vic, c. 9, Con. Stat. c. 90, he sUM even in a better position, for as the estate of his lessor wul destroyed, so also were the rights of such lessor reserved in the sub- 1 lease, as to receive rent, enter for non-payment or forfeiture, &c,,| &o. ; this however was before considered, and the remedy which | was afforded (rf).] (a) Seo. 822, p. 279. (c) Ante, p. 268. (i) Letoii V. Brooks, 8 Q. B. U. C 676. (d) Ante, s. 42, p. 29. OF ALIENATION BY DEED. 285 I B. U. C. 676. ,10. An am'gnment is properly a traDsfer, or making over to AMigmnent. ither, of the right one has in any estate ) but it is usually applied [to estate for life or years. And it differs from a lease only in that by a lease one grants an interest less ♦than his own, • S- sar. lerviog to himself a reversion ; in assignments he parts with the I property, and the assignee stands to all intents and purposes I the place of the assignor; [subject, however, to an exception as Nonliability on ^rds both the burden of covenants entered into by the assignor, ~„*°,''Jj%J'j^*,,jg 1 the benefit of covenants made to him, in case such covenants land assigned. not run with the land. The frequent occurrence of the necessity applying the law on this subject, induces me to consider it at je length. [There are, apart from express covenants by the parties, covenant ^"pJJ***"'"- mpUcation of la .7 ; thus a covenant would be implied after entry, ID the words " yie?cling and paying," on the part of the lessee and issigns to pay rent to the reversioner ; so the words " demise" or [lease," will raise an implied covenant against the landlord for quiet ijment by the lessee and his assigns against all having lawful title. Ashefore remarked, (a) covenants implied by law are subser- controlled by jt to, and controlled by express covenants between the parties on •*"'•"• same subject matter ; or perhaps it may be stated thus, that no enant will arise by implication of law on any matter as to which parties have themselves expressly provided. The maxim applies •fressumfacit cessare taciturn." jnplied covenants, or as they are sometimes termed covenants in implied eove. I, are binding between the parties by reason of the privity o/^Son^fand ^ /« between them, and are binding only as long as that privity ^^^ '"*'**y *' state exists ; thus on the implied covenant to pay rent, to farm husband-like manner and use the premises in a tenant-like man- instance* aa to which are covenants the law will imply, the lessee will continue '*"^* lie cnly so long as his privity of estate continues, that is, so long e is lessee; for if he assign, the privity of estate between him his landlord ceases, and he is no longer liable. The privity of lie after assignment exists between the landlord and the assignee, the assignee becomes liable in his turn during its continuance, e landlord on the implied covenants ; on his assigning he ceases Run with the liable, and so on through all assignments : in other words, implied J^Td^bSSeflt"'?*" inants always " run with the land" as the technical expression is ; cease with estate. the party who takes the estate, takes during the time he holds estate the burden and the benefit of the implied covenants, ih go with the land. It must be here remarked that the original Exception. e cannot by destroying the privity of estate between him and landlord escape liability on his implied covenant to pay rent, iout his lessor's assent, which assent may be expressed or ied; receipt of rent from the assignee of the lessee by the ir implies assent to the assignment : but no assent of the lessor uisite to any assignment by an assignee, though such assignee Id assign to a pauper. e lessor on his part is liable on the implied covenant for quiet instance as to ment arising from the word " demise," (in the absence of an] ' (a) Ante, seo. 822, p. 280. 28« OF ALIENATION BT DIED. < I 1^ .1 NtciMity ibf •ipnM eoT» DMltei PrWlty of eon- tnict on exprsM corenABto. [express coTenant,) bnt bis liability ceases on his assigning his revJ aioo, which destroys the privity of estate between him and hisle^ae 10 also it oeasns with the determination of his estate in revereioij as where a tenant for life should demise for a term, and die bef(] its expiry, no action lies against his executors on the implied covj nant (a). From what has been said as to the cesser of the liability of j lessee with his estate, on his assigning with lessor's assent | became important to the lessor to have express covenants tinl which the lessee should continue liable, notwithstanding and afi assignment: and to these, as additional security, it is usual to a] a clause of reentry in the lessor and his assigns on breach ; benefit of which, being a condition subsequent, could not before tl statute 32 Hen. VIII. o. 84, be taken advantage of by the attij of the lessor, as was before explained (b). j Express covenants are sometimes termed covenants in deed, distinguished from covenants in law or implied covenants, and ( liability on them arises out of privity of contract, as distiDguisb from the liability on implied covenants arising out of prlvitj] estate. Any lawful contract may be the subject matter \>r iipress cof nant, but there is sometimes great difficulty in determining how I uk^th'T'S**"*"*^ ^° ^^^^ particulars, an assignee of the estate of a covenantor| or uie teDefit,*° bound by, or entitled to the benefit of, a covenant ; and hov ! covenants run with the land. 1. Thoagtanot The subject maybe considered under the following heads; bouuMnuned^ Where assigns are within the covenants, though not Dumed. n«m»l*'' **'*"*"'* ^^®*^® *^®y *^® *^ °°'y because they are named. 3. Where I are not so, though named. In considering the above, perhaps no better or more concise s ment can be given than that of tne Real Property CommissioDJ in their third report Their deduction from the authorities is thi " 1st. That in order to make a covenant run strictly with the " so as to bind the assignee or give him the benefit without his 1 " named, it must relate directly to the land, or to a thing in exbtd '' parcel of the demise. 2nd. That where it respects a thing doiI " existence at the time, but which when it comes into existel " will be annexed to the land, the covenant may be made to I " the assigns by naming them, bnt will not bind them unless naiii '' 3rd. That when it respects a thing not annexed, nor to be anne^ " to the land, or a thing collateral or in its nature merely pen " the covenant will not run, that is, it will not bind the assigDee| " pass to him, even though he is named (c)." It may b? as well to illustrate the above by cases. CoveDanlj pay rent, to keep existing buildings and fences in repair, to om particular modes of culture on the lessee's part, and the coren for quiet enjoyment on the lessor's part, are all instances undetj first class, in which the covenants run with the land, and the assij (a) Pen/old v. Abbott, 82 L. J. N S. Q. B. 68, per Wightman, J., and( there referred to. (6) S. 166, p. 102. (c) Third Report, p. 46. Clanl. ClaM2. Clan 3. nioitrationi of CUmI. or ALIENATIOir BT DEED. 287 satate in reveniod 3rm, and die hm [ffould be within the covenant, though not named ; eo that the tcigns of the lessor or lessee re8pecti\nely may be liable on and (utitled to the benefit of the covenants ; thus on tne covenant to keep jg repair the dwelling-house demised, the assignee of the lessee would lie liable; and on the covenant for quiet enjoyment the assignee of llie lessor would be liable, in case he or any one claiming under him iticted the tenant without sufficient cause. Covenants to erect buildings, or to plant trees on the premises, or ciut 3. e instances under the second class, in which assigns are bound if pmed, but not bound if not named. I Covenants to repair or build a house o/f the premises demised areofcUMS. I^es noder the third class, in which the assigns will not be bound loagh named. As regards both the burden and benefit to asv'gnees on these AnigneM bound press covenants running with the land, they depend respectively wip^VoV ^^v HiA privity of estate existing between the parties j and they con- > 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 no' *»» «*»«« modern resolutions,) where lands are given to one and his heirs, l^quMte the [under such circumstances as make it requisite that he should have ^toinUw leg'^ the legal estate, the use or trust declared will not be executed by estate. the statute. Thus, in cases where the grantee is to have a control or exercise a discretion,] as where the grantee is to receive the profits and pay over [to the separate use of a married woman, or to sell and pay debts,] and the like, he will retain the legal estate to enable him to carry out the trust. 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 beneficial 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 coart determined, that though these were not uses, which the statute could execute, yet still they were trusts in equity, which in conscience Tmatg. oaght to be performed. To this the reason of mankind assented, and the doctrine of uses was revived, under the denomination of tnils : and thus, by this strict construction of the 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 altera- tion in the formal words of a conveyance. [Thus, if a conveyance of lands be made, operating as a common The first use oui/ law conveyance, (a) or as a grant under Con. Stat. o. 90 (6), to ^.i8«='»">*«^- and his heirs, to the use of B. and his heirs, the first use raised will be in A., and the statute will execute it and give B. the legal estate. If the conveyance had gone on to declare a further use in favor of The second we u C. and his heirs, here would have been a use upon a use, which a trust" * ' second use the statute cannot execute, being exhausted by the exe- cution 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 second use declared, which is unexecuted, trustee for B. j for it makes no difference that the first use declared Though the first is iri favor of the grantee himself, instead of in favor of some other ; ^^1^"^'*^^'" °* for all practical purposes as regards the person in whose favor the second use (or trust) is limited, it is as efficacious if declared in favor of the grantee, as of some other : and indeed the common mode of expression where B. is to take only a trust estate, is " unto and to] (a) Ante, sec. 309. (b) Ante, sec. 817. niit.^wa»vuraHCKS* ■ r Object of the St, to abolish trustA; defeated, My t 206 or ALIENATION BY DEED. r« ^Ae use of A. and his heirs in trust for B. and his heirs ;" which IS tantamount to saying " unto A. and bis heirs, to the use of A. and " his heirs in trust, &c." The insertion of five monosyllables in a conveyance thus defeats the great object of the statute, which was to prevent the separation of the beneficial right from the legal estate, and revert to the single, ness and simplicity of the common law (a) ; and this it proposed to do by abolishing trusts or uses, declaring that the person " to the " use, confidence, or trust" of whom, any other should be seised ' should have "the legal seisin, estate, and possession." If the courts of law had held, (which as above mentioned (b) by Sir W. Llack- j stone, they well might have held) that the second use was not a mere nullity, and that the statute might as well execute any second or subsequent use as the first, then the statute would have operated as intended. The holding that the second use was not executed, Mr. Watkins says, (c) must have surprised every one who was not suffi. ciently learned to have lost his common sense. When therefore common law lawyers, or men as eminent as Mr. Hayes, speak of j <' the all absorbing jurisdiction of equity, ever seeking to insinuate " its jurisdiction" (d); they may be willing to overlook, among other by the conrts of things, the fact, that it was the courts of law who expressly con- tinued, if they did not create the jurisdiction of equity in one of its widest fields ; and that, by placing a construction on the statute, which Mr. Watkins speaks of as above, and to which Mr. Hayes him- self (e) alludes as " mocking the reason and spirit of the statute," " if indeed it did not militate against the plainest principles of inter- " pretation."] 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 as 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 over- paid 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 me 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 use 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 or equitable estate, by force of the statute, in a] (a) Ghudleigh's case, 1 Co. R. 124, a. (6) Seo. 836. (c) Conveyancing, introdnction, zxiv. (d) Hajes' Convg. 6 ed. p. 163, (e) Conveyancing p. 64, ed. 6. (/) Trusts at the present day however, must necessarily exist, and it is fortunate perhaps that the courts of law pat the construction they did on the statute, thereby continuing the existence of trasts: how otherwise for instance, could a testator devising his lands, benefit an improvident son, and at the same time secure him permanently against the results of his own improvidence ? St. will apply though the word trust be used. t . or ALIENATION BT DEED. 297 I [case where he would have taken it if the word use had been em- ployed. Under a common law conveyance to A. and his heirs in , \^t for B. and his heirs, the statute will execute the declared tnist as it would a use, and B. will take the legal estate (a]) ; its II language is (6), " where any person shall be seised of any lands, II jio.; to the use, confidence, or trust of any other," &c. : and vice ^(na, the employment of the word we will not per se prevent the Lrgon in whoso 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). Let me also call the attention of the student to the difference Distinction be- jietween limitations to uses by conveyances operating at common JJIJonJJ^'^*, common (d) by transmutation of possession, or by way of grant under i*w<»«>'ey»n<» ■ , ^<-i. 1 e\/\ /N/'i-'t . •.! and one operatiDK Con. Stat. n. v\) (e), (which operates m the same way as a common under the St. law conveyance,) and by conveyances operating under the Statute of Uses, of which we have yet to speak. The distinction is Lost important, because on the character in which the instru- Lent operates will depend the placing of the legal and equitable estates ; thus, under a feoffment ^r grant to A. and his heirs to the use of B. and his heirs, the latter takes the legal estate, for the |irst and only use raised is in A.: but had the conveyance been by gain and sale, or covenant to stand seised, and could it only so I operate; A. would take the legal, and B. merely the equitable estate: for, as we shall see presently, under such conveyances the first use raised is in the bargainor, or covenantor, and consequently the use declared in favour of B. is unexecuted by the statute, and I is a mere trust (/).] The courts of equity, in the exercise of this new jurisdiction, have jpng'g^^vaient I wisely avoided in a great degree those mischiefs which made uses to the legal own- intolerable. The Statute of Frauds, 29 Car. II. c. 3, having •"*'P' required that every declaration, assignment, or grant, of any trust in lands or hereditaments, (except such as arise from implication or construction of law,) shall be made in writing signed by the party, or by his written will; the courts now consider a trust-estate (either I when expressly declared, or resulting by such implication,) as equiva- llent to the legal ownership, governed by the same rules of property, land liable to every charge in equity, which the other is subject to lin law ; and, by a long series of uniform determinations, for now [near a century past, with some assistance from the legislature, they raised a new system of rational jurisprudence, by which trusts lare made to answer in general all the beneficial ends of uses, with- lout their inconvenience or frauds. The trustee is considered as Imereiy the instrument of conveyance, and can in no shape affect the lestate, unless by alienation for a valuable consideration to a pur- Ichasor without notice; which, as cestui/ que trust is generally in Ipossession of the land, [and the trusts can be set out on registry,] is la thing that can rarely happen. The trust will descend, may be I-,;: (rt) Doe Synder y. Mattera, 8 Q. B. U. C. (c) Ptst, p. 299. (d) S. 809. |(/) The effect of a conveyance where the operative words aro " grant, bar- ■ gain and aell," b. 817. (6) Ante, s. 883, p. 292. («) S. 317. ri ' * S. 338. OoyenaDU to atand aeiwd. U? 298 OF ALIENATION BY DEED. aliened, is liable to debts, to executions on jadgments, reoognizances 1 (by the express provision of the Statute of Frauds,) to forfeiture to leases and other incumbrances, nav, oven to the curtesy of the hus. band, [and dower in equity,] as if it was an estate at law. It hath I also been held not liable to escheat to the lord, in consequence ofl attainder or want of heirs : because the trust could never be inteDdedl for his benefit. But let us naw return to the Statute of Uses. 12. A twelfth species of conveyance, called a covenant to standi seised to uses: by which a man seised of lands, covenants in congid.l eration of blood or marriage, that he will stand seised of the saute to! the use of his child, wife, or kinsman ; for life, in tail, or in fee. Here, the -statute executes at once the estate; for the party intended I to be benefited, having thus acquired the use, is thereby put at once into corporal possession of the land, without ever seeing it, by ai kind of parliamentary magic. But this conveyance can only ope- rate, when made upon such weighty and interesting cocslderatioQai as those of blood or marriage. [A use will not arise on a covenant to i?tand seised to the use of a I ficn-in-law, an uncle-in-law, or Vother-in-law (a), for there is no I aflinity of blood. Where a covenant to stand seised fails to take I effect as such, it may yet operate as a bargain and sale, if there be a I money consideration expressed. A man cannot covenant with his wife to stand seised to her use, for husband and wife are one in lav, and a man cannot covenant with himself; the covenant should b«| with some third person, to stand seised to the use of the wife (6), This form of con . .^yance is wholly out of use ; it was always con- fined in its use by the consideration required, and had the dis- advantage (which attends also a bargain and sale (c), that powers I cannot be engrafted on it. A knowledge of its operation mi<^bt be| of service ; as where a bargain and sale should fail to take effect : such, for want of a money consideration; it might yet operate as a I covenant to stand seised, if on consideration of blood or marriage, of which parol evidence might be given ; and operating thus, the! legal estate would remain as intended, which would not be the cae«| if it were to operate (as it might) as a grant. Bargain and Sale. 13. The conveyance by way of bargain and sale is that which has I been and still is in most general use in this country. In England, foil the passing of freehold estates in possession, it was in less general use than the conveyance by lease and release; or by grant, where estates in reversion or remainder were conveyed. There is no reason why the conveyance by grant should not, as to freehold interests, be used ib every case where the conveyances by bargain and sale, and by lease Disadrantages. and release are used. The latter modes of conveyance have disad- vantages which do not attend the conveyance by grant, and in manj cases they will fail to take effect where a grant will operate. For these reasons, I do not 'aesitate to recommend a conveyance by way of grant, in preference to that by way of bargain and sale, or leasoj and release. On considering the disadvantages as compared with the convey]! (a) 3 J. & B. coDTg. by Sweet, 674. (b) Ibid., 672. (c) PoBt, p. 800. or ALIINATION BT DEKD. 209 . with the convey] hy way of lease and release, which were attendant on the ^DveyttDce bv way of bargain and sale ; disadTantages so great that for three or four centuries past, and up to the passing of the Imp. I gtat. 8 & 9 Vic, 0. 106, the bargain and safe had been almost entirely rejected in England, in favor of the lease and release, one (}QDot but be surprised that a contrary practice should have prevailed here, and that from the earliest times of conveyancing in Canada, the bargain and sale should have been the universal mode of conveyance. The following history of the conveyance by way of bargain and lale, and the legislative enactments to remedy its inconveniences, vill serve to shew the disadvantages which were attendant on it irhen first made use of in Canada : many of these have since been removed by colonial statutes ; some yet remain. Prior to the Statute of Enrolments, hereafter referred to, nooper»0(mof,at writing or deed was requisit j to create, or rather, as evidence of, common law. I the raising of a use, but the mere verbal bargain and payment of the coDsideration were sufficient to raise a use in the bargainor, to hold for the use of the bargainee; on which the Court of Chancery listened, and declared the bargainor a trustee for the bargainee, and I that tlie bargainee was entitled to the beneficial me of the land, { vhil't; the bargainor remained entitled to the legal estate. The effect of the Statute of Uses, 27 H. VIII. o. 10, was, as before explained, to execute the use. The result of course was, j that the bargainee took the legal estate without any deed or writing by the mere effect of the bargain, and of the payment of the con- sideration. This being a secret mode of conveyance, a mode which was repugnant to the principles of the common law, and to the I ideas of our ancestors, accustomed as thev were to the publicity of I the conveyance by way of feoffment and livery of seisin, the Sta- tute of 27 Hen. VIII., c. 16, called the Statute of Enrolments, wasgt^<,f,„oin^ntg 1 passed ; which required every bargain and sale of an inheritance or Vjmhold to be by deed indented tixid enrolled mthin six lunar months after its date in one of the courts at Westminster, or before justiceb aDd clerk of the peace in the county where the lac :1s lay. This inconvenient necessity of enrolment would seem, by the Provincial 5'P*"|J^*' ^ Statute 37 Geo. III., c. 8, to have been supposed to have existed in 3/^^ ni.c.8 this province. That statute in effect declared that registry in the sHbgtitutes county registry office should supply the place of enrolment under m^'tilnd"""*" the Statute of Enrolments. It has been held also to have been ■''^•'oj^ •][»•* retrospective in its operation, and to have authorised the convey- ance by way of bargain and sale by deed poll as well as by [indenture (a). Next followed the Provincial Statute 4 Wm. IV., c. 1, s. 47, 4 wm. iv. c. 1, bhich did away with even the necessity of registry, and was also ye^istryf ''** held to be retrospective (h). By Stat. 9 Vic, c. 34, s. 14, regis- tration was declared to be equivalent to enrolment, but Stat. 13 & 14 I Vic, c. 63, reciting that the effect of that clause might be to render [doubtful the meaning of 4 Wm. IV., 0. 1, repealed it. By the] (a) Roffert v. Bamum, 6 Q. B. U. C. 0. S. 252. |(i) Rogers v. Bamum, ubi. sup. ; Doe dem. Loucki v. Fisher, 2 Q. B. U. C. 470. 800 or ALIENATION BT DUD. aim allowi eorpontloni to convvjr by B. A S. OltJectloiiHtothU modaofconyey' ance, at tha present day. Money conoldera- tion requisite. Powers cannot be engrafted on. y^- •S.339. 14. Lease and re- leaae. [operation of these statates therefore, the Statute of Enroluients seems to he entirely superseded. There was a flirther difficulty attending the conveyance by bar- gain and sale, which also required legislative remedy, namely, that ' a corporation could not convey by this s»ode of assurance. This was in consequence of the wording of the statute of uses being *' that where any ptraon shall stand seised to the use of another, or I " of a body politic or corporate," &o. j and it was held that the word ' " person" did not include corporations, so that the statute did not i apply to a corporation, and the use raised in the corporation would not be executed by the statute, but left as at common law, a mere trust. This was remedied by Stat. 4 Wm. IV., c. 1, Con. Stat. c. 90, declaring that corporations aggregate might convey by bar- 1 gain and sale. | The chief objections at the present day to the bargain and sale, | which do not apply to the conveyance by way of lease and release, or of grant, are j First, that in the conveyance by way of bargain and sale a consideration must be expressed, and it must bo a money con- sideration, or money's worth, to raise the use ; Secondly, no general powers, OS powers of appointment, &c., &o., can be engrafted on the j deed by bargain and sale. The first objection depends on the necessity of some consideration [ passing to the bargainor to raise e use, and make him stand seised to the use of the bargainee; and it must have been money, or money's worth ; natural love and affection would not suffice ; though I in the latter case the deed might oporato as a covenant to stat seised ; and in the absence of any consideration, it can take effect I as a grant, but in such case the legal estate may nut vest in the same person as if the instrument operated as intended, namely, as a j bargain and sale. Thus if A. bargain and sell to B. and his heirs, to the use of C. and his heirs, and the conveyance opci i.w in that I way, B. will take the legal, and C. the equitable estate, ibr every use | declared is a use on a use, the first use being raised in the bar- gainor ; but if it operate as a grant, C. will take the legal estate. As to the second objection ; general powers, as to grant leases, or | of appointment, cannot be engrafted on a bargain and sale, or cove- nant to stand seised, as they can on a grant, or release (a). On passing the statute of enrolments clandestine bargains and sales of chattel interests, or leases for years, were thought not worth regard- ing, as such interests were very precarious, till about six years before; I which also occasioned them to be overlooked in framing the Statute of Uses : and therefore such bargains and sales are not directed to be enrolled. But how impossible it is to *foresee, and provide against, all the consequences of innovations I This omission has | given rise to 14. A fourteenth species of conveyance, viz. by lease and releait;\ first invented by Serjeant Moore, soon after the Statute of Uses, and [in England] the most common of any, [till conveyances by grant came into vogue]. It is thus contrived : A lease, or rather bargain (a) Gilbert, Uses, 46; Sagden, Powers, 188; Watkina, Conveyencing, 9th | ed. p. 867. or ALIKNiiTION BT DEED. 801 ite of EnroliuenU resee, and provide This omission lian y lease and releau; oonveyauce s, Couveyencing, 9tli ind sale, upon some pecuniary consideration, for one jear, is made w the tenant of the fruobold to the lessee or bargainee. Now, this, without any enrolment, makes the bargainor stand seised to the use of the bargainee, and vests in the bargainee the me of the term for I year; and the statute immediately annexes the possession. He tberefure being thus in possession, is capable of receiving a release of the freehold and reversion ; which, we have seen before (a), must \ji made to a tenant in possession : and, accordingly, the next day, [or immediately after the lease,^ a release is granted to him. This 13 held to supply the place of hvery of seisin : and so a oonv< by lease and release is said to amount to a feoffment. 15. To these may be added deeds to lead or declare the uses of Deeds to ima or other more direct conveyances, as feoffments, fines, and recoveries j <»"«i"»«» «»*•• of which we shall speak in the next chapter : and 16. Deeds of revocation of uses; hinted at in a former page (Zi), needs of revoca- and founded in a previous power, reserved at the raising of the uses, newsp^'t."** to revoke such as were then declared ; and to appoint others in their meat. stead, which is incident to the power of revocation (c). And this may suffice for a specimen of conveyances founded upon the Statute of Uses : and will finish our observations upon such deeds as serve to transfer real property. ^Before we conclude, it will not be improper to subjoin a few « s. 340. remarks upon .'uch deeds as are used not to convey, but to charge or 9* ^««*" *° ioijumber, lands, and to discharge them again : of which nature are, ohu-ge Luids!^ obligations or bonds, recognizance? , and defeasances upon them both. 1. An obligation or bond, is a deed whereby the obligor obliges i.obugatioa or himself, his heirs, executors, and administrators, to pay a certain *^'"^' tarn of money to another at a day appointed. If this be all, the bond is called a single one, simplex obligatio : but there is generally a coDdition added, that, if the obligor does some particular act, the obiigt^tion shall be void, or else shall remain in full force : as, pay- ment of rent ; performance of covenants in a deed ', or repayment of a principal sum of money borrowed of the obligee, with interest, which principal sum is usually one-half of the penal sum specified ia the bond. In case this condition is not performed, the bond becomes forfeited, or absolute, at law, and charges the obligor, while living ; and after his death the obligation descends upon his heir, who (on defect of personal assets) is bound to discharge it, provided he has real assets by descent as a recompense. So that it may be called, though not a direct, yet collateral, charge upon the lands ; and how the lands of a deceased obligor descended to his heir can )e reached though the heir be not bound in the bond, will be con- sidered in the next chapter, where it will be seen that the lands can be sold under execution against the personal representatives.] If the condition of a bond be impossible at the time of making it. How a bond or or be to do a thing contrary to some rule of law that is merely posi-j^^^^j^"^""*"^ tive, or be uncertain, or insensible, the condition alone is void, and the bond shall stand single, and unconditional : for it is the folly of the obligor to enter into such an obligation, from which he can never be released. If it be to do a thing that is malum in se, the (a) Sec. 824. (6) Seo. 836, and Sec. 137. (c) Co. Litt. 237. 302 OF ALIENATION E7 DEED. ' H obligation iteelf is void : for the \rhole is an unlawful contraot and the obligee shall take no advantage from such a transaction! And if the condition be possible at the time of making it, and uft^r* ♦ s. S41. wards ♦ becomes impossible, by the act of God, the act of law, or the act of the obligee himself, there the penalty of the obligation is saved; for no prudence or foresight of the obligor could guard against such a contingency. On the forfeiture of a bond, or its becoming single, the whole penalty was formerly recoverable at law- hut here the courts of equity interposed, and would not permit a man to take more than in conscience he ought; vie. his principal interest, and expenses, in case the forfeiture accrued by non-paymcst of money borrowed ; th« damages sustained, upon non-performance of covenants ; and the like. And the like practice having gained some footing in the courts of law. the statute 4 & 5 Ann. o. 16, at \ lengtb ppooto^l ia the same spirit of equity, that, in case of a bond conditio ned for the payment of money, the payment or tender of tiie principal sum due, with interest and costs, even though the bond be forfeited and a suit commenced thereon, shall be a full satisfaction and discharge, a Recognfaancos. 2. A recognizance is an obligation of record which a man enters into before some court of record, or magistrate duly authorized, with corHlition to do some particular act ; as, to appear at the assizes, to keep the peace, to pay a debt, or the like. It is in most respects like another bond : the difference being chiefly this, that the bond is the creation of a fresh debt or obligation de novo, the recognizance is an acknowledgment of a former debt upon record; the form whereof is, " that A. B. doth acknowledge to owe to our lord the « king, to the plaintiff, to C. D., or the like, the sum of tea " pounds ;" with condition to be void on performance of the thing stipulated : in which case the king, the plaintiff, C. D., &c., is called the cognizee, " i$ cut cogniscitur ;" as he that enters into the recognizance is called the oognizor, " is qui cognoscit. This, being either certified to, or taken by the officer, of some court, is witnessed only by the record of that court, and nut by the party's seal : so that it is not in strict propriety a deed, though the effects of it are greater ♦ s. 342. than a *common obligation; being allowed apriority in point of payment, and binding the lands of the cognizo'^, from the time of enrolment on record (a). 3. Defeazances. 3, A defeazaiice, on a bond, or recognizance, or judgment reco- \c ed, is a condition, which, when performed, defeats or undoes it, in tue same manner as a defeazance of an estate before mentioned. It differs only from the common condition of a bond, in that the one is always inserted in the deed or bond itself, the other is made between the same parties by a separate, and frequently a subsequent deed. This, like the condition of a bond, when performed, dis- charges and disencumbers the estate of the obligor. These are the principal species of deeds or matter in pais, by which estates may be either conveyed, or at least affected. Among which the conveyances to uses are by much the most frequent of any : though in these, there is certainly one palpable defect, the (a) 8tftt. 29 Car. II., o. 8. See/>o«<, o. 21, and reference there to Con. Stat 0. 6, requiring registry. Conclnslon. . e% !i, shall be a full OF ALIENATION BT DEED. ijnt of sufficient notoriety ; so that purchasors or creditors cannot thow vrith any absolute certainty what thb estate, and the title to it, in reality are, upon which they are to lay. out or to lend their money. Id the antient feodal method of conveyance (by giving corporal jeisin of the lands), this notoriety was in some measure answered j tiQt, all the advantages resulting from thence are now totally defeated liy the introduction of death-bed devises and secret conveyances : ind there has never been yet any sufficient guard provided against fraudulent charges and incumbrances, since the disuse of the old gaxon custom of transacting all conveyances at the county-court, and entering a memorial of them in the chartulary or ledger-book of iome adjacent monastery, and the &ilure of the general register established by King Richard the First, for the Starrs or mortgages made to *Jews, in the Capitula de Judseis, of which Hovenden has preserved a copy. How far the establishment of a like general register, for deeds, and wills, and other acts affecting real property, roald remedy this inconvenience, deserves to be well considered. Iq Scotland, every act and event regarding the transmission of property, is regularly entered on record. And some of our own provincial divisions, particularly the extended county of York, and the populous county of Middlesex, have prevailed with the legisla- ture to erect such registers in their several districts. But, however plausible these provisions may appear in theory, it hath been doubted by very competent judges, whether more disputes have not arisen in those counties by the inattentbn and omission of parties, than prevented by the use of registers ; [and, at the present day even, many eminent lawyers in England doubt the policy of registry lavs (a).] (a) See evidense. befora th« BeaL PEoperty Commiasionen. 803 «S.848. there to Con. Stat 304 OF ALIENATION AT MATTER OF RECORD, CHAPTER XXI. OF ALIENATION BY MATTER OF RECORD, AND UNDER j EXECUTION. I. Private acts of parliament. Of assurances by A ssuranccs by matter of record are such as do not entirely depend ' on the act or consent of the parties themselves : but the saDction of a court of record is called iu to substantiate, preserve, and be a per- petual testimony of the transfer of property from one man to another- or of its establishment, when already transferred. Of this nature are, 1. Private acts of parliament. 2. The king's grants. 3. Fines, [ 4. Common recoveries. I. Private acts of parliament are, especially of ite years, become | a very common mode of assurance. For it may sometimes happen, that, by the ingenuity of some, and the blunders of other practition- ers, an estate is most grievously entangled by a multitude of oontin- gent remainders, resulting trusts, springing uses, executory devises, < and the like artificial contrivances (a confusion unknown to the simple conveyances of the common law) ; so that it is out of the power of either the courts of law or equity to relieve the owner. Or it may sometimes happen, that, by the strictness or omissions of family-settlements, the tenant of the estate is abridged of some rea- sonable power (as, letting leases, making a jointure for a wife, or the like), wbicn power cannot be given him by the ordinary judges [ either in common law or equity. Or, it may be necessary in settlii an estate, to secure it against the claims of infants or other persona I under legal disabilities, who are not bound by any judgments or decrees of the ordinary courts of justice. In these, or other oases of the *like kind, the transcendent power of parliament is called in, to cut the Gordian knot; and by a particular law, enacted for this very purpose, to unfetter an estate ; to give its tenant reasonable powers; or to assure it to a purchasor, against the remote or latent claims of infants or other disabled persons, by settling a proper equivalent in proportion to the interest so barred. This practice was carried to a greath length in the year succeeding the restoration ; by setting aside many conveyances alleged to have been made by constraint, or in order to screen the estates from being forfeited during the usurp- ation. And at last it proceeded so far, that, as the noble historian | expresses it (a), every man had raised an equity in his own imagin- ation, that he thought was entitled to prevail against any descent, testament, or act of law, and to find relief in parliament : which occasioned the king, at the close of the session, to remark that the •S. 346. (a) Lord Clar. Contin. 162. AND UNDER EXECUTION. 305 ), AND UNDER iure for a wife, jood old rales of law are the best security ; and to wish, that men jiight not have too much cause to fear, that the settlements which (hey make of their estates, shall be too- easily unsettled when they I are dead, by the power of parliament. *A law, thus made, though it binds all parties to the bill, is yet ♦ s. 346. I looked upon rather as a private conveyance, than as the solemn act of the legislature. It is not, therefore, allowed to be a public, but I I mere private statute ; it is not printed or published among the other laws of the session; it hath been relieved against, when I obtained upon fraudulent suggestions ; it hath been holden to be void, if contrary to law and reason; and no judge or jury is bound to take notice of it, unless the same be specially set forth and I pleaded to them (a). It remains, however, enrolled among the pablic records of the nation, to be forever preserved as a perpetual I testimony of the conveyance or assurance oo made or established. II. The king's grants are also matter of public record. For, as ii. The Wngs I St. Germyn says, the king's excellency is so high in the law, that ^tont.*" '^"*" 00 freehold may be given to the king, nor derived from him, but by Latter of record. These grants, whether of lands, honours, libei'- ties, fnnchises, or ought besides, are contained in charters, or letters \fiUnt, that is, open letters, literae patentet : so called because they tre not sealed up, but exposed to open view, with the great seal pendant at the bottom (6) ; and are usually directed or addressed by tiiekiug to all his subjects at large. And therein they differ from leertaia other letters of the king, sealed also with his great seal, but I directed to particular persons, and for particular purposes : which, [therefore, not being proper for public inspection, are closed up and id on the outside, and are thereupon called writs closCf literas Umie, and are recorded in the close-rolhy in the same manner as [the others are in the patent-rolls. The manner of granting by the king does not more differ from Mode of construe- Ithat by a subject, than the construction of his grants, when made, ^granu'by'thl ll, A f;rant made by the king, at the suit of the grantee, shall be ^>n«- Itaken most beneficially ybr the king, and o^atns/ the party; whereas ithegrantof a subject is construed most strongly a(/ains< the grantor. [Wherefore, it is usual to insert in the king's grants, that they are "e, not at the suit of the grantee, but " ex speciali gratia, certa fscientia, et mero motu regis;" and then they have a more liberal toDstniction. [The kings grant, when gratuitous, is to be construed Dost favorably for him ; btU when for value, most strongly in favor bf the patentee, for the honor of the crown (c).] 2. A subject's ^rant shall bo construed to include many things besides what are Expressed, if necessary for the operation of the grant. Therefore, in a private grant of the profits of land for one year, free ingress, Igress, and regress, to cut and carry away those profits, are also Inclusively granted : and if a feoffment of land was made by a (a) See Con. Stat, of Can., o. 5, s. 6, ol. 27. (i) Doe d. Jackson v. Wilkes, 4 Q. B. U. C, 0. S. 142, where the law in , h text was recognized in the ease of an instrument granted by Governor laldimand, under hia seal at arms ; see also Doe d. Sheldon v. Ramsay, 9 B. U. C, 106. (c) Per Macaulay, J., Clark v. BonnycatUe, 8 Q. B. 0. S. U. C, 657. 20 306 Wi' \ * S. 848. ff^ I Of execution. St. We ttninsfer gave first a remedy agalnnt laadi by wit of elegit. 01 ALIENATION Bt MATTER OF RECORD; lord to his villein, this operated as a manumission, for he vraai otherwise unable to hold it. But the king's grant shall not enurel to any other intent than that which is precisely expressed in the! grant. As, if [when alienage was an incapacity] he grants land I to an alien, it operates nothing; for *such grant shall not a! enure to make him a denizen, that so he may be capable of ta ing by grant. 8. When it appears, from the face of the g«int,| that the king is mistaken or deceived, either in matter of fact orl matter of law, as in case of false suggestion, misinformation, orl mi.^recital of former grants; or if his own title to the thing granted! be different from what he supposes; or if the grant be inforJ mal ; or if he grants an estate contrary to the rules of law ; in anyl of these cases the grant is absolutely void. For instance, if the] king grants lands to one and his heirs ma^e, this is merely void: fo^ it shall not be an estate-tail, because there want words of procre^ don, to ascertain the body out of which the heirs shall issue : neithei is it a fee-simple, as in common grants it would be : because it mavj reasonably be supposed, that the king meant to give no luore tliani an estate-tail ; the grantee is therefore (if any thing) nothing morel than tenant at will. And to prevent deceits of the king, with| regard to the value of the estate granted, it is particularly provided| by the statute 1 Hen. lY. c. 6, that no grant of his shall be good | unless in the grantee's petition for them, express mention be mader of the real value of the lands. [The crown can grant to uses, and the use declared will be ei^ cuted by the Statute of Uses j though this would seem not to ' been free from doubt (a). It has been before mentioned, that as the crown is not barredj under Con. Stat. o. 88, the grantee of the crown will take notwitb standing time run which would bar a subject ; and that the crovnl may be barred under the nullum tempus act, but this even woulif not relate to unsurveyed waste lands of the crown (&). Of fines and recoveries, mention will be made hereafter. [We come now to consider Title under, and how lands are affecb by, execution. In order properly to consider this subject it willl necessary to consider the state of the law in England as well as bere,^or8, and The Statute of Westminster 2, 13 Ed. I. c. 18, was the first whiclif gave a judgment creditor a right to proceed against the lands of bit debtor. Under that statute the judgment creditor may " havei " fieri facias to the sheriff to levy his debt on the lands and chi(| '< tels of the debtor, or that the sheriff shall deliver to him all «lii " chattels of the debtor (saving only oxen and beasts of the plough)! " and the half of his land, until the debt be levied, on a reasoDabltl " price or extent." It is from the election given by the statutj ■to adopt one of the two remedies that the writ of elegit derives itsj name, and from the entry of the award of this on the judgment rollj " quod elegit sihi executionem," &o. " Before this statute, a m " (says Blackstone) could only have satisfaction of goods, chattels ■" and ilie present profits of the lands by the writs of fieri facial w\ igam. (a) Doe d. Snyder v. Masters, 8 Q. B. U. C. 55. (6) Ante, p. 208 ; and see Doe d. Fitzgerald v. Finn, 1 U. C. Q. B, 70. |«) Rymal ■ OORD, AND UNDER EXjfiOUTION. 807 sslon, for be vraal lit shall not eDurel r expressed in thel ;y] he grants land! ant shall not also! be capable of tak- face of the grant,! a matter of fact orl misinformation, orl > the thing granted! le grant be infor-l les of law ; in any! or instance, if thei is merely void : forf , words of procrea shall issue : neither! be : because it give no ujore tliaiil ling) nothing morel of the king, witU articularly provided| F his shall be i 8 mention be madel eclared will be m Id seem not to havel iTown is not barred} n will take notwith and that the croml lut this even wouldj m (5). 3 hereafter. }W lands are affect [lis subject it will 1 rland as well as I , was the first whicli inst the lands of his editor may "havei the lands and cbat- iliver to him all M leasts of the plough ned, on a reasonabltj 'iven by the statut* , of elegit derives it^ n the judgment rollj this statute, a mi Q of goods, chattels, its oi' fieri /aciat(x\ cr. C. 55. in, 1 U. C. Q. B. 70, ji'levari facias, but not the possession of the lands themselves, whicH ffas a natural consequence of the feodal principles which prevented I II the alienation, and of course the encumbering of the fief with the ill debts of the owner. And when the restriction on alienation began III to wear away, the consequence still continued, and no creditor III could take possession of the lands, but only levy the growing jiiprotits, so that if the defendant aliened his lands the plaintiff was Kflusteii of his remedy; the statute, therefore, granted the writ of ii(/<'^«'<." The writ of fieri facias only affected the goods of the Jebtoi, and the sheriff sold them under it : the writ of levari facias Ijffected the goods and the present profits of the lands of the debtor, Lt not the lands themselves, and under it the sheriff was not auth- lorized to sell or extend the lands, or deliver them to the creditor ; ; could only proceed to collect the rents and profits. Both these I frits are yet m force in England : the latter, however, has become Ijlmost obsolete, from the more advantageous remedy given by the iTrit of elegit ; whilst to the former extended operation has been Lven in England and here, so as to affect other personal estate than lias theretofore liable to seizure under it. It will be observed that the statute does not authorize the sheriff sell the goods of the debtor under the writ of elegit, but +0 deliver Ithetn to the plaintiff. If the plaintiff desired to sell the goods, the jcourse was to issue Vkfi.fa. ) and it is said to be more advisable to jiue out a fi. fa. against goods in the first instance, and afterwards, jifthey are not sufficient, to sue out an elegit. The practice on the Ivrit of elegit is for the sheriff to impanel a jury, who appraise the s and the value of the lands ; the sheriff delivers the goods to Itiie plaintiff at the appraised value, and if they be sufficient the lands aoDot be extended, but if insufficient the lands are extended. The ^heriff does not give actual possession of the lands extended, and the blaiDtiff gets possession as he best can, sometimes being driven to an ^ci'ion of ejectment. And when the creditor is satisfied out of the brofits of the lands, the debtor is entitled to have the lands back igain. Under this Statute of Westminster only half the lands could be extended under the writ j and when there were two elegit credi- tors, and the first had a moiety, the other had a moiety of the lemaining moiety. So also the interest of a cestui que trust, and «rtain other interests of debtors in lands were not to be reached bder execution. By the Statute of Frauds, however, as will be bereafter more fully explained, the interests of cestuis que trust are } subject to exeeutioo : and by Imp. Stat. 1 & 2 Yic. c. 110, |he remedy by elegit is extended to all the lands of the debtor, and 1 estates in lands over which the debtor has such disposiifg power, I he might, without the assent of any other person, exercise for his |iwn benefit. I have referred briefly to the proceedings by writ of elegit, not bly because an acquaintance with them is requisite to understand |he cases wherein the writ or its effect is alluded to, but because it nay be perhaps that such writ might issue in this country (a) ; it] a) Rymal v. Ashberry, 12 C. P. U. C. 342; Doe Htnderaon v. Burtch, 2 0. 8. Q. B. 514. I 308 OF ALIENATION BY MATTER OF RECORD, I* H.fa.mgainKt goods and pw- gonal intorwta inlands. What eanb* Mid undar. ;:«■; fsbould be borne in mind however, that on any such writ issued ii this country, no imperial statute subsequent to 15th October, I792 in regard to such writ, would apply (a), and therefore the writ oulij not have the extended effect given to it by later imperial enactmeDts The only writs of execution in use in this country, affecting pro perty, except where the Crown is concerned, are the writs of fieri facias, and of venditioni exponas, and the writ of sequestration, th latter only issuing out of chancery (b). I will consider 1st, the operation of the writ of fieri faciat ai regards personal interests in lands liable to seizure under such a wrii against goods; 2nd, its operation as regards other estates not bein personal, and only to be affected under such a writ against lands The writ of fi. fa. against goods has, by provincial legislativL enactments, a much wider operation than it had at common law (c)l and also, as regards both goods and lands, may now issue when ii could not at common law, as for instance to enforce payment 01 money payable under decree or order of the Court of Chancery, orj by any rule or order of the common law courts (d). It is only iJ respect of the operation of the writ as regards personal interests ia' lands in any way that I propose to treat. Under the writ against goods, the sheriff at common law can sel no estate in fee or for life, unless perhaps an estate ^ur autre vie[tj\ but he may sell a lease or term of years belonging to the defendant, as also a term of years belonging to the wife of the defendant, tbe execution and sale by the sheriff having the same effect as to reduc- tion into possession, as a disposal by the husband himself ; if hot.| ever, such term is the separate estate of the ryife, under the Cod. Stat., oh. 73, then it cannot be sold. It would seem that if a lease for years contain a covenant by the lessor with the lessee to convej to him the fee on payment of a named sum, on sale of the lessee's interest under execution against goods, the right of preemption inll not pass (/). An annuity for years may, but an annuity for life may not be sold under a writ against goods. The sale of interests of cestuis que trust, by virtue of the Statute of Frauds, is considereii hereafter, as also what distinction there may be between sales undetj an elegit in England and under the writ of ^. fa. here. Under this writ the sheriff cannot sell part of a lessee's interest (g"), nor can be, it has been said, on sale of the teim, turn an occupant out of posses-j sion to give possession to a purchaser, who may theiefore have t( resort to an action of ejectment to obtain possession (h). The assign ment, by the sheriff, of the debtor's interest, is affected both by tliej fr'*art*"*'**^®***^'**® of Frauds and the Provincial Begistry Acts, and therefore,] (a) See ch. 1, A. {b) Con. Stat. oh. 24, s. 21, s. 19. (c) Con. Stat. ch. 22, ss. 257, 260, 261. (d) Con. Stat. c. 24, s. 19,| (e) Johnson t. Street, Comb. 290. (/) Henrihan v. Oallagher, 9 Qrant, 488, since in appeal, See SanpmrX ' Me Arthur, 8 Qrant, 72. ♦ (^r) Osborne y. Kerr, 17 Q. B. U. C. 184. (h) Doe Tiffany v. Miller, per Burns, J., 10 Q. B. U. C. 80, 81 ; Doe V. Jones, 9 M. & W. 873, arguendo. Sate under, la within Stat, of AND UNDER EXECUTION. 309 IS within the exceptions in these acts, must be in writing and jstered (a). \t common law the writ bound from .the teste, but this hardship By 8t. of fr«adt 1^8 removed by 29 Car. 2, ch. 8, b. 16, which enacted that the writ JU*'„5»JJ ***"'■ ihould only bind from its delivery to the sh( riff to be executed. This iberiff aa against extends only to purchasers for value, ard not to the defendant **""*"**"■ ife, under the Con. eal, See Sampson u The writ of ^. fa. against lands in this province rests on Imperial n./a. against I Statute 5 Geo. II., ch. 7, by the 4th section of which it is enacted ^^gf^^J*^ that "after the 29th September, 1732, the houses, lands, negroes n-c- 7." Land other hereditaments, and real estates, situate or being within " much of the lands to be aflfected by the process of law as a man " was capable of alienating by his own deed." On the passing of this statute a judgment became a lien on a moiety at least of the lands of the debtor, not only from the time of its actual recovery but, by a fiction of law, even from an antecedent period. Judgments at one time were only given in term when the court sat; and when subsequently, certain judgments were allowed to be recovered and entered out of term, the appearance of their having been actually given in term was still kept up, and if entered in vacation, in most cases, they had relation back, and were entered as of the prior term and of the first day of such term, and the execution on it usually was so tested ; the consequence was that lands of a defendant were liable to bo extended in the hands of a purchaser even though the judg. ment did not actually exist at the time of the purchase, if the judf^. ment and writ related back to a time antecedent to the sale, viz., to the first day of the term. To remedy this it was provided by 29 Car. II. c. 3, s. 14 & 15, that the day of the month and year of iion back to first Signing judgments should be entered, and that as regards lands, they taken away by should Only bind from such time of such entry as against bona fiik purchasers for value, and not relate to the first day of the term; and to facilitate searches for judgments, it was enacted by 4 & 5 W. iS; M. c. 20, that an alphabetical list of the defendants' names should be kept by a docket thereof, and that no judgment not docketed should affect any purchasers or mortgagees, or have any preference against heirs, executors, or administrators, in the administrationjof estates of their ancestors, or testators, or intestates. The statute of Charles was confined to purchasers, and did not apply as between the parties to the suit ; and, therefore, if a defendant died in vaca- tion, judgment might still be entered as of the prior term, when he was living, and it would be a good judgment ; but, by the effect of the statute, it would not, as against purchasers for value, so relate back. Rule of Co rk Now, howover, by Rule of Court No. 47, all judgments are to be mentereiateoniy entered of the day when signed, and have relation to no other day, tfxJ^y ^*»*" unless by order. It must be borne in mind that leasehold property, * ^ ' which is not affected by the writ against lands, but only by one against goods, was, by the statute of Charles, as regards purchasers, bound only from the delivery to the sheriff of the writ ; as between the parties, however, and personal representatives, it is bound from the teste, which is now the day of issuing. The statute of George II., which gives the writ of/, fa. against lands, places it on the same footing a.' the writ against goods ; and therefore, it has been held that, against purchasers, it binds not from the judgment, or the teste, but from the M agt^LtPw"'"^^^^^^^'")' *° *^® sheriff to be executed. In this respect it will be seen chasers. that its relation back was less than that of the writ of elegit, which referred to and bound from the docketting the judgment. And this being so, a singular question might have arisen between an execution creditor hyji. /«., whose judgment should be subsequent to another judgment on which an elegit should have issued, and have been deliv- ered to the sheriff subsequently to the delivery of the/, fa. The ques- tion would be whether the writ o£ elegit relating back to the judgment, would; as to a moiety of the lands, defeat the/, fa. relating to the] Ft. fa. against lands on Bame footine as fi. /a, gooilB by 5 Geo. II, and therefore binds only from AND UNDER KXKCUTION. 813 I 'elivery to the sheriff only, or perhaps to the testo when purchasers I Hi not concerned : this point actually did arise in the case of Doe ^mihrson v. Burtch (a), but was not decided, the judgment being on another ground (6). In Bank of Montreal v. Thomption (c), Esten, V. C, scemea to consider that the case of Doe Demp$ey v. ^ouUon (d), expressly decided that the writ of elegit was not in force. On reference to that case, the language of the court, is that I II the Legislature knew that the process by ele(/it was never resorted I to here, being considered to be superseded by the Ji. fa. against Inlands under the 5th Geo. II." The question es to whether a jadgment duly docketed bound lands was much discussed in the case of Doe Mcintosh v. McDonell (i). See also Doe Ami jo v. Mollis- ftr (/). And it was held that a Ji. fa. at 'east did not relate back to the docketing of the judgment as binding the lands from that time. The Common Law Procedure Act (g) also refers to the mode of docketing where judgment entered in an outer county. The statute 18 Vic. o. 127 (A), would have set at rest any question as to whether a writ of elegit could relate back to the docketing, for it enacted no judgment should constitute a lien till registered. This clause was repealed by statute 24 Vic. o. 41, which enacted, how- I ever, that no judgment should be a lien on lands. The writ binds property acquired by the defendant subsequently I to the delivery to the sheriff, and pending its currency. interests not The following interests in real estate are not liable to sale under '****^^*' I the writ of Ji. fa. Leaseholds, they being personalty ; the interest of a mortgagee (t), he being quad trustee for the mortgagor ; a rent seek \k) ; and it has been doubted whether a rent charge with power of distress, secured on freehold estate can be sold under the vrit; the statute Geo. II. referring to houses, hereditaments, and real estate, &c., "situate and being in any of the said plantations," thus referring to something visible, and which it was said did not in strict- ness include a rent charge on lands (/); such a rent charge is, how- ever, extendible under an elegit even prior to the Imperial Act 1& 2 Equity of re- Vic, c. 110. Prior to the statute 12 Vic. o. 73, the interest of a mort- Sie by c^n. gagor in lands could not be sold ; by that statute, however (w), all the sta^ c. 22. legal and equitable interest of a mortgagor may be taken in execution, sold and conveyed in like manner as other real estate, and the effect thereof is declared to be to vest in the purchaser such interest of the mortgagor, subsisting as well at the time of the sale, as at the time of delivery of the writ to the sheriff, and to vest in the pur- cliasor the same rights the mortgagor would have had if the sale had not taken place : the purchaser is also entitled to discharge any incambrances existing at the time of sale, and the original mort-] vV '■'I (a)2 0. S.,514. (c) 9 Grant, 61. {/) 6 0. S., 739. (6) See also Rymall v. Aahberty, 12 C. P.U. C. 839. {d) 9 Q. B. U. C, 582. (e) 4 0. S., 195. {ff) Con. Stat. 0. 22, ss. 243, 244. (h) Con. Stat. 0. 89, s. 64. (j) Doe dem. Campbell v. Thompson, Hil. 6 Vic; R. & H. Digest, 202. (k) Dougall v. TurnbM, 8 Q. B. U. C, 622. \l) Dougall t. TurnbuU, 8 Q. B. U. C, 622. (m) Con. Stat. 0. 22 ; G. L. P. Act, ss. 267, 268, 259. 814 !l Oon. Stat e. 8T. as to mortgagee pnrcbailng the equity of re- demption with- out merging bia mortgage debt. i II OF ALIENATION BT HATTKR OF EIOORD, [gagee on being paid is to give a certificate of payment operatiDg as I a reconveyance. The statute authorizes the mortgagee, his heirs or assigns, to purchase, but in the event of the mortgagee becomiDe such purchaser, he shall give to the mortgagor a release of the mort. gage debt; and if any other person becomes such purchaser, and the mortgagee enforces payment of the mortgage debt against such mortgagor, then such purchaser shall repay the amount of such debt and interest to the mortgagor, and in default of payment thereof within one month after demand, the mortgagor may recover the amount of such debt and interest in an action for money had and received, and until such debt and interest have been repaid to the mortgagor he shall have a charge therefor on the mortgaged lands. The same statute allows the sale by the sheriff of the interest or equity of redemption of a mortgagor in goods and chattels. The student will not fail to notice the importance of the latter words of the act, giving the mortgagor a charge on the lands if he should be [ compelled by suit at law on his covenant in the mortgage or other- wise to pay the mortgage ; the mortgagor has also a remedy io i equity without actual payment by him, for he can file a bill agaiust the purchaser to compel him to pay the mortgage and relieve the | mortgagor from his liability. It behoves a purchaser to be exceedingly cautious how he par- chases an equity of redemption at sheriff's sale, for in the absence of a mortgagee or of any statement by him as to the amount due on I the mortgage, the purchaser runs the risk of finding that there is more due on the mortgage than he supposed, and that perhaps thu he has given more for the property than it was worth, or he intended to give. Moreover, the question was raised in one case (a), and noticed by the court, but not decided, whether in case there happened | to be incumbrances, as registered judgments, existing on the la prior to the delivery of the writ to the sheriff, the purchaser would I not have to pay off all such incumbrances : the time of the sheriff's! sale is not stated in that case : I infer, however, it was prior to I Statute 14 & 15 Vic. o. 45 (6). That statute may here be alluded to in connection with sales of I interests of mortgagors by the sheriff. It enacts that "any mort-j " gagee of freehold or leasehold property, or any assignee of sad " mortgagee, may take and receive from the mortgagor or hb '' assignee, a release of the equity of redemption in such property, j '^ or may purchase the same under any power of sale in his mor(-| ** gage, or any judgment or decree, without thereby merging ** mortgage debt, as against any subsequent mortgagee or judgment I " creditor having a charge on the same property." (c) And;! " In case any such prior mortgagee or his assignee takes a release o(| " the equity of redemption of a mortgagor, or his assignee, in st " mortgaged property, or purchases the same under any power ofl " sale in his mortgage, or any Judgment or decree, no subsequent! " mortgagee, or bis assignee, or judgment creditor, shall be en-i '' titled to fore se or sell such property without redeeming oi *' selling, subject to the rights of such prior mortgagee, or his] (a) Feffffe v. Medcalfe, 6 Grant, 628. (6) Con. Stat. c. 87. (e) b. 1. AND UNDER EXECUTION. 815 his it. 0. 87. (c) 8. 1. [« assignee, in the same manner as if such prior mortgagee, or Missignee, had not acquired such equity of redemption." (a) The object of this statute was to prevent the operation of thatotjeotoriUtaU. jociriDe of merger, under which, if the owner of the legal estate (the mortgagee) acauired the equity of redemption, and thus both the legal and equitable estates met, the legal estate was merged and the mortgage considered as though never in existence; and the result yig to let in and give priority to any incumbrances existing on the liDd though subsequent to the mortgage : and th^ parties having such iscutnbranccB could proceed to enforce them, by sale, foreclosure, or otherwise, against the mortgagee so acquiring the equity of redemp- tion, who could not set up his right to be paid his prior mortgage debt {h). I forbear commenting on this statute or its effect on sales Qoder judgments, until it has received judicial construction, for the former Chancellor Blake remarked in reference to it that it was cer- Uinlyobscure (c). I should, however call attention to one important point on which I believe there is some misapprehension or conflict of opinion among common law members of the profession ; viz., whether, apart from Can a mortgaged tDy question of merger, this statute does not warrant a mortgagee in ^^,r'),'f*J^^f buying himself under a power of sale in his mortgage, thereby vir- tually obtaining all the benefit and effect of a foreclosure in equity. This would be contrary to the well-known rule in equity, tnat a trostee shall not purchase the trust estate, (for a mortgagee is a trustee for the mortgagor, and especially so in such a matter as sale of the estate), and there is no more wholesome rule in equity, or one that rests on sounder principles, than that a trnstee shall not sell to himself; breaking in upon a law of such importance to the publio is a strong argument against any interpretation of the statute which would allow it : still, it must be confessed, there was room for ques- tion, but it seems to have been decided that a mortgagee so buying will i^till continue mortgagee, and liable to be redeemed by the mort- gagor on bill for redemption (d). Undoubtedly, under Con. Stat. o. 22, s. 259, above alluded to, a mortgagee may purchase for his own sole benefit the equity of redemption of his mortgagor at sheriff's sale, and thai even on an execution in which he is plaintiff; but there the above rule is not offended ; for the sheriff, a publio officer assumed to do his duty, intervenes between the parties, and he, not the mort- gagee, conducts the sale, and (on a Ji. fa. at least), cannot sell at a sacrifice, is compelled by statute to give adequate notice, and is bound to proceed with due regard to the interest of the debtor (e) ; moreover, the distinction 'above alluded to, where the sheriff intervenes, has been recognised in adjudged cases (/). So far as this statute, o. 87, enables a mortgagee to receive from the mortgagor a release of the equity of redemption, or purchase the] \{a) 8. 2. (6) See s. 177, p. 118. (e) Watkint v. McKellar, 7 Grant, 684. (df) Watkint v. MeKellar, 7 Grant, aupra. 584. I (() Henry v. Burnett, 8 Grant, 856 ; Bethune v. Corbett, 18 Q. B. U. C. 498; McOiUi. McOlathan, 6 Grant, 824. (/) Stratford v. Twynam, Jacobs, 418 ; McOill MeOlathan, 6 Grant, 824; lloAaicA; Bank y. Atwater, 2 Paige, 54; Wooda v. Monell, 1 Johns, Chan. Ca., 502 ; and cases tupra. 316 OF ALIENATION BT MATTER OF RECORD, t' -' . r 1 [same under uny judgment, without merging the mortgage debt as against a subsequent mortgagee, there is not so much difficulty; for in the first place, that does not offend against the rule that the mortgagee shall not sell to himself, and for the reasons above giveD • and next, but for the statute (where it is the equity of redemption he buys, having already the legal estate), the effect would be as above explained, to cause a merger of the legal, by its coalition with the equitable, estate, and thus mesne incumbrances would stand first: but when a mortgagee sells under his power of sale, it is not (in case of a mortgage in fee), the mere equity of redemption which he sells, but the legal estate in the lands, and the effect and object of the power is to enable him to sell such legal estate free from any equity of redemption : on any sale under the power, the purchaser need care nothing for incumbrances subsequent to registry of the mortgage, his title under the power will be paramount to any such (a) j and so by parity of reasoning, if the mortgagee were the purchaser (assumin» he could sell the legal estate to himself), he also would take freed of the equity of redemption, and paramount to incumbrances subse- quent to his mortgage ; no question of merger in such a case would arise, for the mortgagee is not selling the equity of redemption, retaining the legal estate, but the latter, freed of the former, as authorized by the power. The statute seems to assume, that a mort- gagee (Selling under his power of sale, can and sometimes does, sell the mere equity of redemption, and is based on that supposition : as- suming even that under powers of sale as usually drawn such a sale could be had, I never knew it happen in practice. It will be observed that the statute protects, as against a subse- quent mortgagee, and registered judgment creditor, but does not mention execution creditor. In those cases in which a mortgagee happens to be the first incum- brancer as mortgagee, and also to have the first /./a. against lands of the mortgagor for the mortgage debt in the sheriff's hands, and there are many incumbrances subsequent to the writ, it may be found that a sale of the equity of redemption under the writ, and purchase thereof by the mortgagee, will afford a less expensive remedy or foreclosure, than the adoption of proceedings in equity to sell or foreclose. M*"toi» ^1^*1? ^* ^^ ^^^^ ^'^^^ *^**' ^° order that an equity of redemption should must be apparent be Saleable under the Stat. 12 Vic, it must be "clearly existing on on the mortgage, ^^q fj^^g ^f ^|jq mortgage ;" and thus, if a conveyance be absolute in form, though intended to be and in fact sustainable in equity by collateral facts as a mortgage, yet the equity of redemptioa cannot be sold, under the statute (b). and formerly Lastly, I may remark, that in order that an equity of redemption agifnrt the mor*. should be Saleable under this act, it was formerly requisite that the nagor bimMif. equity should be subsisting in the mortgagor and in a suit against him ; in other words the act was held not to apply so as to make the] (a) Daniels r. Davidson, 9 Grant, 178; where a parohaser under a power of sale in a mortgage took paramount to a oonvejanoe made prior even to the mortgage, bat registered after its regiatratica. (6) MeCabe y. Thompson, 6 Grant, 176. AND UNDER EXSOUTION. aiT [equity saleable in the hands of an assignee of the mortgagor, in a suit against such assignee (a) ; so that to reach the equity of redemp- tion, in the hands of any assignee of a mortgagor, it was requisite to go into equity. Still it did not appear to be clear whether or no on a suit against the personal representatives of a mortgagor, the equity of such deceased mortgagor could be sold; in one case (b), Mr. Justice Burns seemed to consider it could ; on the other hand, in the above case of The Bank of Upper Canada v. Brough, the lan- gaage of the court was broad enough to exclude such sale, and in A more recent oaeo (c), it was held not to be saleable. The Stat. 27 st- 27 vie. c. 13, "7 ,„ ii • 1 • ..» now authorlies a Vie, 0. lo, now authorizes a sale in either case. MieinaBuit By the 10th section of the Statute of Frauds, trust estates are Jf'i^^^Se? made liable to seizure and sale under execution ; but it would seem or an asaignM. that the trust estates saleable by virtue of that statute must be Trust estates where the estate is held on a pure and simple trust, and not where ?t!^f Fraudsl'ir the trust is of a special nature (d). the trusts are It has been doubted in one case (e) whether a trust estate is sale- Cr'iwtft" * "'*' ° able at all in this country under a Jl. fa. lands, and this doubt ren- ders, perhaps, the consideration of the question as to whether an elegit can issue, of more importance. The interest of a reversioner during the life of the tenant for life BeTersions. may be sold (/).^ A vested remainder was, even prior to the statute 14 & 15 Vic. c. Remainders. 73 (^), allowing sales of future interests, saleable under execution (h). Prior to this statute, also, a right of entry was not saleable under Rights of entry, execution ; that is, where some person was in possession of the land claiming the land as his own adversely to the true owner, the interest or right of entry of such dispossessed owner was not saleable under execution ; this was on the principle that as the owner could not himself by deed or otherwise convey his interest, but must first gain possession (i), so neither could a transfer of such interest take place through the instrumentality of the sheriff (k). At common law, also, contingent interests could not be effectually conveyed by deed, contingent (/), though under circumstances they were upheld in equity ) and *'»*«'^e8'*- not being capable of effectual conveyance by deed, they were not liable to execution, nor bound by any judgment. The inability of the common law to reach by judgment and execution many species jriyen^bVlt^to of interests, as rights of entry, contingent remainders, &c., caused judgments and the interference of the legislature, and their action on this is as fol-] Tuious^iutwests. H' (0) Bank of Upper Canada t. Brough, 2 Error & App. Rep. U. C. 96. (6) Leviseonte v. Dorland, 17 Q. B. U. C. 442. (c) Lowell V. Bank of Upper Canada, 10 Grant, 57. {d) Simpson v. Smith, 1 Err. & App. Eep. U. C. 44 ; Doe dem. Simpson v. Privat, 5 Q. B. U. C. 215 ; see alao Doe dem. Jarvii v. Cumming, 4 Q. B. U. C. 890 ; McLean ▼. Fiehvr, 14 Q. B. U. C. 617. (e) Doe dem. Lawrason v. Canada Company, 6 Q. B. 0. S. U. C. 428. (/) Doe dem. Cameron v. Robinson, 7 Q. B. U. C. 835. (g) Con. Stat. 0. 90. (A) Lundy y. Malony, 11 C. P. U. C. 148 (t) Ante, B. 290, 176. (ft) Doe Amman v. Minthornef 8 Q. B. U. C 423. {I) Ante, s. 176, p. 117. 1" 318 or AUKNATION BT MATTER OF BECORD, Vic. c. 34. •« to [lows : by statute 9 Vic. o. 34 (a), judgments registered in pursnanca Sfito7°'^"^*' °^ '^® *°* ^®'® *° ^^°^ *^^ *^® ^''°^'' .^^**»^° ***® county in which registered in like manner as the docketing of judgments in Englanj then bound lands, this was an unfortunate reference by the legisla. ture, because at that time the practice of docketing had been dis* continued in England by statute for some time, and no longer existed, being superseded by another mode. In one case here it became nv^cessary to decide what the legislature meant, and whether lands were bound at all under the act by registry; and the court held they were, and that the statute must be read as though it were expressed that registry should bind in like manner as docketing " when docketing was in force in England." The legislature by I3 4i4vic.c.e3,13 & 14 Vic. o. 63 (6), corrected the statute 9 Vic. c. 34, by refer. Con. St. c. 89. j.jjjg expressly to the eflfect of docketing before it was discontinued. By these statutes, therefore, lands could be bound by the effect of registry from the time of such registry, whilst theretofore (at law at least for the purpose of execution and assuming that the writ of elegit was not in force,) the lands were only bound from the delivery of the writ of fi. fa. against lands to the sheriff, which could not take place till a return of the writ against goods. It was not only in respect of the power to bind lands before the deliveir of the writ to the sheriff that the statute 13 & 14 Vic. conferred a benefit, but that statute went beyond the statute 12 Vio. and allowed the judgment the widest effect m binding every species of interest of the judgment debtor, " over which he had any disposing " power which he might, without the assent of any other person, " exercise for his own benefit." AdTantAge of I will illustrate the advantage creditors gained by these statutes ?'f5f*^*'*"**" *" by reference to one or two cases : As before mentioned, there are creditors. .», i-ii .« i.i 7->.i» many interests not bound by an execution, which were bound by registry of the judgment (c); it has been shewn that the interests of a mortgagee, and of a cestui que trust, (unless in case of a pure and simple trust,) were not bound, and could not in any way be reached at law ; so also if an estate were limited to a man and his heirs to such uses as he should appoint, and in default of and till such appointment to him in fee, such an interest might not be salea- ble under execution, because the subsequent exercise of the power of appointment in fee would override the execution ; the appointee being deemed to take, not under the appointment as from that time, but under the original conveyance, as though he were a party io whom the use in fee was by it originally limited (d). Such interests and power, however, would have been bound under the statute 13 & 14 Vic. That act was copied from Imp. Act 1 & 2 Vio. o. 110. It will be observed it gave the courts of common law no greater scope than they had before; an interest not saleable under execution before the statute was not saleable afler it, though bound, and the course was to proceed in equity on the lien.] (a) Con. Stat. c. 89. (fi) Con. Stat. c. 89, s. 49. (c) Ferrie v. Kelly, 9 Grant, 262. {d) Bee ante, p. 87; Wma. Rl. Prop. 256; Doe v. Jonet, 10 B. & C. 459. AND UNDER EXEOUTIOIT. 819 [It was by the statute 12 Yio. c. 71 that the commoD law courts I got extended powers under executions, still this did not extend to ,11 rights of entry, but only those for condition broken. This statute, however, was in its main provisions repealed by 14 & 15 Vic. c. 7 (a), Co?- s*- «• ^ I " " u • v « A.' i. i J i> , ■ , , ^ j" authorizes con- nnder wbicb " a contingent, an executory, and a niture interest, and a yeyanoe of rights (( possibility coupled with an interest in any land, whether the object "^l^*^^^"^*' II of the gift or limitation be or be not ascertained, also a right of and seizure and ' II entry whether immediate or future, vested or contingent, may be "*** *^"«*''- II disposed of by deed ;" and by sec. 11 are liable to seizure and sale onder execution. The 5th section is taken from the Imp. Stat. 8 j;9 Vic. c. 106, and the decisions on that will guide as to the Pro- TJDcial Statute. As regards rights of entry that may be conveyed and sold under execution, there is this singular difference between the gtatttte 12 Vic. (repealed) and 14 & 15 Vic, that the former related only to rights of entry for condition broken, the latter to rights of entry simply; the difference is important, for under the former statute, the right of entry of a person disseised was not assignable, bat a right of entry for condition broken was, as of a reversioner to enter on breach of covenants in a lease under a power of reentry : whilst under the last statute it is just the reverse, a right of reentry for condition broken, as in the case of reversioner, is not assignable, but the right of a person disseised is (b) : as between assignee of the reversioner and lessee the statute 82 Hen. VIII. c. 84 gives the right to an assignee to take advantage of the clause of reentry on any breach whilst assignee, as before explained (c). It was before mentioned also (d) that at common law the interests and rights named in this statute were not assignable. So far as regarded rights of entry, the Stat. 82 Hen. VIII. c. 9, imposed a penalty both on the seller and the buyer thereof under certain circumstances (e), inde- pendently of the conveyance being void at common law : the Statute of Victoria virtually repeals the Statute of Henry, where at least a right of entry actually does exist, as in the case of the true owner being disseised, and it is not a mere pretended right, which the claimant himself could not enforce (/). The power to bind lands by registry of the judgment is taken i!*** <>' JuiJa" away by 24 Vic. c 41; in England such power still continues, but abolished by 24 I should mention to you that when in English cases and books ^**'' "• *^* registry of a judgment is referred to, it is not registry in a county registry office, but registry as named in the Imperial Act in the court of Common Pleas. The result of taking away the power to bind such interest in lands of a judgment debtor over which he has any disposing power which he could exercise of his own sole authority is that there are, as above mentioned, many interests in lands which are interests in innds not bound at all by a judgment, nor, except so far as the Stat. 14 & f^^eq^^i^J'^ych 15 Vic. extends, can they be reached at law, at least under an execu-] ■« not bound by ' •' ' "^ execution at law. (a) Cod. Stat. o. 00, s. 6. (6) Hunt T. JBiahop, 8 Ex. 676 ; Hunt v. Remnant, 9 Ex. 635. (c) Ante, pp. 102, 286. {d) Ante, pp. 260, 117. (e) Btailey t. Cahill, 2 U. C. Q. B. 320 ; Baldwin v. Henderson, 2 U. 0. Q. B. 888. (/) Baby q. t. T. Watton, 18 Q. B. U. 0. 681. 820 OF ALIENATION BT MATTXB OF RECORD, ftion. Id equity, however, aflere zeeution' issued against lands, manv interests which cannot be reached at law can be made available to sat- 1 isfy the judgment creditor (o). The statute 14 & 15 Vic. does not! authorize a sale of a mortgagee's interest ; nor of equitable interests I nor would it, I apprehend, prevent the exercise of a power of appoint! ment; and as above explained, if a person be so minded, he caa on any conveyance to him of lands, have the limitations so as to have the power to convey in fee unrestrained by any execution against | him.J (a) Keate v. Duke of Marlborough, 3 M. & C. 407 ; Bank British N. A.y] Matthews, 8 Oraot, 486. There are certain qaestioos which have been much agitated in onrl courts, and on irhioh there has been much oonfliot of authority ; they are yet of importance on investigation of titles, but as by lapse of time since registry of judgments has been abolished, they have not the importance they heretofore had, I will merely state the result of the oases as governed by the Statutes 14 & 16 Vic. and 24 Vio. : Ist. A writ related back to the registry of the judgment on which it was founded, so as to avoid an inter- mediate execution or conveyance by the execution debtor, and that before and after the Stat. 24 Vic, o. 41 (a). 2nd. If such writ was not delivered to the sheriff within a year from entry of the judgment, it could not relate back as against another execution first delivered to the sheriff ; and it makes no difference in this whether the last-named execution was or was not on a registered judgment, or whether being on a registered judgment, it was or was not delivered to the sheriff within a year from entry, and this was so both before and after the Stat. 24 Vic. (&). 8rd. An execution on an unre- gistered judgment will take priority over a prior registered judgment, if no execution on the registered judgment have been delivered to the sheriff within a year from entry of the judgment ; that is, a sale under the execu- tion will not be subject to the equitable charge created by the prior registered judgment (c). 4th. That for writs to relate back to registry, they must b; Stat. 24 Vic, have issued prior to Ist September, 1861. 5tb. That statute gives to a registered judgment no greater efiScacy or binding effect if thertto- fore prejudiced in any way, as by absence of re-registry within three yetn prior to the passing of the act, or neglect to deliver the writ within a year, than it had before. 6th. The statute gave to ne writ any greater efficacy than it had before ; thus, if the interest bound by the registry of judgment were an equitable, or other interest, as a mortgagee's, which could only be reached in equity and not at law under execution, the remedy of the plaintiff I was still only in equity ; and so far as regarded the giving priority of writs according to the respective times of registry of the judgments, it would ] seem that was law before the act. There remains yet for consideration the case of contest between an execu- tion creditor on a registered judgment, and a purchaser from the execution debtor. Judgments by 9th Vic, o. 84, were made to bind lands of a judg- ment debtor from registry, and if after registry the debtor conveyed, the grantee took subject to the judgment ; but this act gave no priority to » judgment over a conveyance (though unregistered) from the debtor, prior to the judgment; this was done by 13 & 14 Vic, o. 63, Con. Stat, c 89,8. 63, by which a conveyance ^rt'or to the judgment is declared void against the judgment, if registered before the conveyance. The statute, it has been held, only applies to render void conveyances prior to the judgment, not those aubtequent, even though the judgment were first registered {d). That (a) Doe T. Panning, 8 Q. B. U. C. 160; Doe v. Boulton, 9 Q. B. U. 0. 6.12; Bank of Hontmi T. Thompton, 9 Grant 61, in Appeal, 1803. {b) Route V. Jarvit, 13 0. P. U. 0., 496, and caseH there cited, in Appeal, 1861; iloffaUr March, 3 Grant, 623, overruled. (e) Ktrr v. AtMdm, Cban., 1868 ; in Appeal, 1861 (d) XTarkcU v. PatUrtm, 18 Q. B. U. 0., 76 AND VNDEB EXECUTION. 821 ■1 mk British N, A, 632; Bank of Monimi [I now proceed to consider how and when the Jieri facias against How and when lands may issue, and the e£fect of irregularities in the mode of ^^'iIq^Mo procedure. JfriiiM'o^wie" By Con. Stat. o. 22 s. 252, goods and lands shall not be included undeTu.'* *" ^ ia the same writ, (which perhaps would have been warranted by the Con. st. c. 22, statute of Geo. II.,) nor shall execution issue against lands till the'*^^' retttrn of a writ against goods, nor shall the sheriff expose the lands to sale within less than twelve months from the day on which the vrit is delivered to him. It has been held that an alias ji. fa, need not have a year between the teste and the return day (a) ; and it would seem also that if lands be acquired by a defendant pending the writ, sale can be had of them within less than twelve months from acquisition, if the time required for due advertisement be allowed (&). The sheriff cannot, under the writ, dispossess the sheriff cannot occupant (c), and therefore the purchaser may have to bring fen^^^** '*** ejectment to gain possession. In such an action, if it be against on^ectment by U defendant in the original suit, or any one claiming under him, ?^^""' ^'°°^ subsequent to the delivery of the writ, the purchaser need not prove tbe judgment under which the writ issued (d) ; nor, it would seem, the proceedings requisite to the validity of the issuing the writ, as that tbe f. fa. goods issued within a year, or was returned " No goods " («) ; but if the defendant in the ejectment be a stranger, not claiming under or in privity with the execution defendant, then the judgment must be shewn, and the issuing and return of the writ against goods (/): and even though the judgment, or the writs, when produced should be irregular, or appear to be improperly issued, and such as wonld have been set aside on proper motion for that purpose, still it would not follow that therefore a purchaser would lose the benefit of his purchase ; in many cases the purchase has been upheld under irregular proceedings, where the writ under which the sale took place was valid on its face, and the prior pro- eeodings, or the absence of them, not such as to make the writ absolutely void ((f) : but in one case Sir J. Robinson, C. J., observed, " there may be defects in a title under a sheriff's sale which when] (a) Niekall y. Crawford, Taylor's Repts. U. C., 277. (b) Ruttan t. Levitconte, 16 Q. B. U. G. 495. (c) Doe Tiffany v. Miller,, 10 Q. B. U. C, per Burns J., pp. 80, 81; ante, p. 208. [i) See generally Roe v. McNeill, 13 C. P. U. C, 189. {i)DeMe v. Dewitt, 18 Q. B. U. C. 155 ; Douglas v. Bradford, 3 C. P. U. C. 469 ; Mitchell v. Greenwood, 3 C. P. U. C. 466. (/) Perry v. Piquotte, 12 Q. B. U. C. 872; McDonell v. McDonell, 9 Q. B. U. C. 259. [g) Doe dem. Boulton v. Ferguson, 6 Q. B. U. C. 515; Doe Meyers y. Meyersy 9 Q. B. U. C. 465 ; Doe dem. Spafford v. Brown, 8 Q. B. U. C. 0. S. 90; Doe dem. Eagerman v. Strong, 4l U. C. Q. B. 510. Act, also, as before explained in this chapter, gave to registry of judgments the widest offeot in binding all interests of the debtor. At present, an unregistered conveyanoe is not void as against an execution against tbe grnctor, but may become so as against a purchaser under the execution, if he first registers (a). Mi •-tl 21 (a) Pbst, p.323. 322 OF ALIENATION BT MATTER OF RECORD, Recitals in she- riff's deed, prima fade evidence of certain matters. >l Inception of execatien of the writ. Sale within the St. of Frauds and Registry Act. [<' proved would not be fatal to the title, if a stranger had been thi ** purchaser, but which could be urged with success against th] " plaintiff' in the Ji. fa. if he became the purchaser, because thd " irregularities might be such as he could be clearly held responsibld "for" (a). As regards those proceedings within the cognizance of tW sheriflF, as the time of delivery of the writ to him, the seizure] advertisement, and sale, the statement in his deed of conveyance toL the purchaser in relation to such matters is j)rtm a /acte evidence (i)| in one case where the judgment was in assumpsit, and the exeoutioof in debt, the court amended the writ to conform to the judgmenu even after sale and conveyance (c). 1 If nothing be done by way of seizure or advertisement during tbel currency of the writ, a sale under it when it has expired will bel void (JC), but if the sheriff have commenced the execution of the writl during its currency, as by advertisement, even though under anothetl writ, then a sale may be had under it after it has expired (e) ; J seizure under one writ is a seizure under all writs in the sherif s| hands. Prior to the Common Law Procedure Act, a question arosel as to what was a 8u£Bcient seizure or inception of execution to enable! the sheriff to sell after the expiry of the writ ) it was considered tbatl the advertisement was sufficient (/); by Con. Stat. c. 22, C. L. P,[ Act, s. 268, it is provided that the advertisement in the GaziiiX during the currency of the writ, with a reasonably definite descrip-l tion of the lands, shall be a sufficient inception of the execution to | enable the sheriff to proceed to sell after the expiry of the writ. By s. 296, if a sheriff vacate his office before sale, his successor | is to proceed on the writ, but if after sale, then the old sheriff i execute a conveyance of any lands sold by him while in office. Priori to this enactment, if a sheriff had commenced the execution of a writ, as by seizure or advertisement, and then gone out of office, be could notwithstanding have proceeded to a sale, and have execuled the conveyance to the purchaser, and this even though he might have left office for some time (^). I A sale by the sheriff is within the Statute of Frauds, and therefore! a conveyance is requisite as required by that statute, and it should be under the hand and seal of office of the sheriff (A). So aks conveyance from the sheriff is within the Registry Act, and can by | priority of registry both defeat a prior conveyance unregistered, and be defeated by a subsequent conveyance first registered ; thus, if a] (a) Delisle v. Dewitt, 18 Q. B, U. C. 155. (A) Cases supra. (c) Doe dem. Elmsley v. McKenzie, 9 Q. B. U. C. 659. (c?) Doe dem. Greenthields v. Oarrow, 6 Q. B. U. C. 37. (e) Doe d. Campbell ▼. Hamilton, E. T. 8 Vio. R. & H. Dig. 403 ; Canif- bell V. Clench, 1 Q. B. U. C. 267; Doe Miller t. Tiffany, 6 Q. B. U. C. 79;| Doe Tiffany v. Miller, 10 Q. B. U. C. 66 ; Rowe v. Jarvit, 13 C. P. U. C. 495. (/) Doe Tiffany y. MUUr, supra. (ff) Per Draper, J., in Burnham t. Daly, 11 Q. B. U. C. 211 ; CamphUr Clench, 1 U. C. Q. B. 267 ; Doe dem. Campbell v. Hamilton, E. T. 8 Vic.B, & H. Dig. 408. (A) Per Burns, J., Doe Tiffany ▼. Miller, 10 Q. B. U. C. 81; Witham ▼. SmW, i 6 Qrant 203 ; Doe Bughet v. Jonte, 9 M. & W. 872. AND UNDER EXECUTION. 323 », 13 C. P. U. C. 495, [person should have bought from another, and have omitted to register the conveyance, and the land should be sold to nbonajide purchaser Qoder an execution against the vendor, and such purchaser should register the conveyance from the sheriff, he would gain priority over the former unregistered conveyance (o). Should the purchaser from the sheriff omit to register the conveyance to him, and the execution debtor convey to another after the execution of the conveyance from the sheriff, such latter conveyance will be postponed, if the person buying from the execution debtor first register (6); but it would seem that if such latter conveyance were be/ore the execution of the deed from the sheriff', and after the delivery of the writ, it would not, though registered first, take priority over the sheriff's deed ; thus in one case a purchaser bought at sheriff's sale under execution, in 1843, but the sheriff did not execute the conveyance till 1858 : in 1852 the execution debtor conveyed to a second purchaser, who registered, and insisted on priority under the Registry Act ; but it vas held that the act did not apply in such case to enable a pur- chaser who became such aflek' the sale by the sheriff', and before the conveyance from him to defeat such conveyance or sale, that the lapst^ of a day between the sale and conveyance would not enable a purchaser from the debtor to defeat the sheriff's sale, so neither would a lapse of ten years, the sheriff's deed related back, and the wording of the Registry Act was referred to, as enabling subsequent deeds to defeat prior deeds, not prior deeds to defeat subsequent ones, which latter was what the second purchaser was contending for(c). Under certain circumstances, as misconduct of the sheriff', or fraud, saie and couvey- asale and conveyance by him maybe set aside (d)', whatever power may be sVIsfde. a court of common law might have in such case (e), still relief can be had more completely in equity (/)j at any rate a court of common law from which the execution has issued has power at least to stay the conveyance after sale; but on motion for such purpose, the purchaser as well as the sheriff should be called on to shew cause : 80 both the courts of law and equity can compel a sheriff to execute a conveyance. If on or after the delivery of the writ to the sheriff, he be instructed Effector staying to wait, or not to proceed till another writ should come to his hands, ti»e execution, then the writ is not deemed as in the sheriff's hands to be executed, and is liable to be postponed to any subsequent writ delivered to the sheriff (jf).'\ (a) Doe dem. Brennan v. O'Neill, 4 U. C. Q. B. 8 ; Waters v. Shade, 2 Grant. 457; Doe dem. Hughes v. Jones, 9 M. & W., per Alderson, B. 877. (i) Per Draper, C. J., Bruyere v. Knox, 8 C. P. U. C. 524 ; per Alderson, B., Doe Hughes v. Jones, 9 M. &. W. 877. (c) Burnham v. Daly, 11 Q. B. U. C. 267. \d) McGill V. MeOlashan, 6 Grant, 824. {«) See Bank U. C. v. Miller, Hil. Term 3 Vio. ; R. & H. Dig. 404 ; UcOilUs V. McDonald, Easter Term, 8 Vic. ; R. & H. Dig. 404 ; Bethune v. Corbttt, 18 Q. B. U. C, p«r Robinson, C. J., 611, 614. (/) McOiU V. McGlashan, supra. (,g) Foster et al. v. Smith, 18 Q, B. U. C, 243. i^.:ii 324 OF ALIENATION BT MATTER 01* BEOORD, '71 - ^feii £1 II Sheriff'B duty to [There is, I am aware, a very general impression, among sheriffJ foriaadlh^ ^ at least, that no duty is cast on them by law on delivery of a ^ril against lands, to make any inquiries or ascertain what lands ar] liable to satisfy the writ; and that at any rate they can relievJ themselves from any responsibility in that respect by asking th] creditor or his attorney to point out lands. I do not understand that such is the law; on the contrary, it has been decided thai sheriffs are not relieved from making reasonable enquiries, and thai " if sufficient evidence is given to shew that the sheriff had notice] " though not coming from the execution creditor, that the debtoi " had lands liable to be taken in execution, or ever to put him on *' enquiry, when by reasonable dilijjence he might ascertaiu thd '' same fact, that the plaintiff has done enough to sustaia that par) " of his case," on an action by him against the sheriff for not levji ing, and a false return of " no lands " (a) 1 Prior to Con. St. ^'''' <>/ extent at mit of the Crown. Prior to 14 & 15 Vic, c. n 0.6, lands of specialty debts by bond or otherwise due to the Orown, bound tli^ dSrto'rs £)ttud lands of the debtor, from the time of tha matrument ; thus, if a bond from dato ouhe ^q^q given to the Crown, to secure the faithful performance of; office, the lands were bound from the date of the bond, even thouo^ no default should happen till many years afterwards, and though thi^ debtor had aliened his lands to a purchaser before default ; this jJ by virtue cf Stat. 33 Hen. VIII., o. 39. Simple contract debts dd not seem to have bound the debtor's lands at common law, (before! go also the lands *' "^ ^^^® recorded on a commission for that purpose,) unless tk]i of crown account- tpcre due from known public vjicers and accountants of the Cromt gO* TOntrwft** ^^ which case they seem to have always bound the lands from the| debts. time the debt accrued; and by the Stat. 13 Eliz., c. 4, s. 1, all jj which the class of persons therein named should have, whilst thejj remained accountable to the Crown were bound from the time thej first entered office or became accountable, and not merely from i time when the debt should accrue to the Crown. In cases, thereforej of specialty obligations to the Crown, as also of that class of persocsl within the statute of Elizabeth, if they should, after the specialtl obligation in the one case, or after entering an office or becomingi accountable in the other, alien their landF<. and twenty years shouidl elapse during which th3 lands should have gone thr< 'gh maoTl hands, and then, default (ihould be made lo the Crown, in &JcouDt[ ing or otherwise, the Crown can avoid all mesne incumbrances by tlil process of extent. There were frequently great difficulties by a vendee, in ascertainJ ing even whether a vendor was ia the position of having his laDdl bound to the Crown, aud therefore by Stat. 14 & 15 Vic , c. 9, CodJ By Con. Stat. c. Stat. c. 5, it was enacted, that no deed, bond, contract, or otktl Wnd*^c*y from ** instrument UNDER SEAL, \yhereby any debt, duty or obligation is| registry in Q. B. incurred to Her Majefety, should bind lands as against a subsequeal purchaser o': mortgagee for value or registered Judgment creditor^, unless a copy were registered with the clerk of Queen's Bench, before the execution of the conveyance to the purchaser or mort- gagee. The act further provides that the clerk shall keep a book] (a) Jlutchingt v. Eultan, 6 C. P. U. C, 452. AND UNDER EXECUTION. 325 [therein to enter registrations. In one resnect, perhaps, the act [irdly affords sufficient information to purchasers, because it only, it seems to me, relates to sealed instruments, and as above men- tioned, there are others whose lands are bound, though they may got have given any sealed instruments, viz., those whose lands are ^nod under the Stat. Eliz. Virtute Ojfficii, and those who may owe jebts on simple contract, if they were known public officers or iccountants to the Grown. 14 & 15 Vic, c. 9J Crown, bound tbj nt ; thus, if a bond performance of an bond, even thoughl :ds, and though thef )re default ; this id e contract debts M mmon law, (before! irpose,) unless (hm tants of the VromM . the lands from thef , 0. 4, s. 1, all land?] d have, whilst thejj from the time thejl lot merely from tbel In cases, therefurel i>hat class of persocsj , after the specialtjT office or becominJ twenty years shouldl ;one thn -gh manyl Crown, in ajcountT ncumbrances by tkl :15Vic , c. 9, CodI ?? fi I tr,ij 326 CONVEYANCES BY TENANTS IN TAIL, CHAPTER XXII. CONVEYANCES BY TENANTS IN TAIL, UNDER CONSOLIDATED STATUTE, Ch. 83. I Necessity for [Conveyances by tenants in tail, whereby the estate tail, and all m°r modf ofba?' cstates to take effect after, or in defeasance of the same, are bamd, are I by recovery, fine, governed now solely by 9 Vic. c. 11, Con. Stat. c. 83. Before cod- ! or warrau y. gi(jei.iijg t^is statute, howcvcr, it will be advisable to give the student an insight into the former mode of bar by the levying a fine, oi the suffering a recovery, or by warranty ; not so much because such modes ever prevailed to any extent in this Province (in fact there are 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 reports and text books constantly allude to warranties, fines, and recoveries, as methods of conveying not only estates tail, but also many other I estates and interests, of the nature and effect of which, therefore, the | real-property lawyer should not allow himself to be ignorant, i my warrant for this course, moreover, I have the sanction of a very I learned writer, who, possessing a knowledge of the law of real | property equalled by few in his time, is as preeminent as Sir W. Blackstone himself for the elegance of style, and the originality of I expression, with which he has contrived to impart that knowledge, and " place a polish on the rugged science of the law." In refer- ence to the English disentailing act he says : " This statute consults " the old law, and it is not possible to appreciate or expound its | " provisions without some knowledge of the law of settlement, ai " an acquaintance, more intimate, with those assurances which the I " statute has superseded ; with their various uses and modes of | " operation, their learning, and their language." (a) The principles of the law relating to warranties were never! clear (ft); and as by 9 Vic. c. 11, Con. Stat. c. 83, s. 3, all warran- ties by tenants in tail are abolished, and the statute 4 W m. lY. c, 1 1 (Con. Stat. c. Ii7) deprived a warranty of the power to defeat right of entry or action, and deprived also the party wishing to avail I himself of the benefit of warranty of the writs requisite so to do, 1 1 shall enter but shortly into this matter.] By the feodal constitution, if the vassal's title to enjoy the feud I 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 | Warranties, how abolished. Implied trarranty at commoa law (a) Hayes on Conveyancing, 6 ed. p. (6) 1 Wils. 73 per Willes, C. J. 131. 53, and recoveries, UNDXB CONSOLIDATED STATUTES, OH. 83. 327 ^coopense. And so, by our ancient law, if, before the statute of MA cmptores, a man enfeoffed another in fee, by the feodal verb 0^ to hold of himself and his heirs by certain services, the law iQDdxed a warranty to this grant, which bound the feoffor and his beirs, to whom the services (which were the consideration and equi- taleot for the gift) were originally stipulated to be rendered. [It was on these principles that the word " grant" in a convey- i^ce in tee was supposed to imply a covenant for title ; but all doubt OQ that point is removed by Con. Stat. o. 90, s. 10, which enacts By Cob. st«t. that neither the word "grant" »ior "exchange" shall create any ex^an^'MMtM larranty, or right of re-entry, or covenant by implication, unless no warranty or there so enacted by statute. The Provincial act leaves to the word '*"''* °' '*^°*'^* ii^ive" its former effect; whilst the Imperial statute 8 & 9 Vic. c. 106, to much the same effect as the Provincial statute, extends to lach word as well as to " grant" and " exchange."] And so even at this day, on a gift in tail or lease for life rendering rent, the donor or lessor and his heirs (to whom the rent is payable) are bound to warrant the title. [The word " demise" in a lease implies a cove- ^vora rfmo* im- iiant for quiet enjoyment against all the world, unless such covenant P»e»» covenant by implication be taken away by an express covenant as to the enjoy- ment. meat (a). It will be remembered that by the statute of quia emp- ms, the doctrine of subinfeudation was abolished, and feoffees in fee were made to hold no longer of their immediate feoffors, but of the next lord paramount of whom the feoffor himself held, and by the same services (i); and therefore] in a feoffment in fee by the verb Mi, since the statute of quia emptores, the feoffor only is bound to the implied warranty, and not his heirs; because it if; a uert^ psr- sonai contract on the part of the feoffor, the tenure (and of course the ancient services) resulting back to the superior lord of the fee. Aad in other forms of alienation, gradually introduced since that statute, no warranty whatsoever is implied, they bearing no sort of ^. analogy to the original feodal donation. And therefore in such cafes it became necessary to add an express clause of warranty, to bind the grantor and his heirs ; which is a kind of covenant real, and can only be created by the verb warrantizo or warrant. [Express warranties in a deed were, as above stated, to the effect, ^"P'^'Jjg^ that the conveying party would, for himself acd his heirs forever, warrant the lands to the grantee and his heirs ; I have seen such forms occasionally in old deeds of conveyance in this Province. It may be laid down as a general rule, that originally an express war- ranty, whether with or without assets, bound those heirs claiming ^on»»^j*^MinMi lineally under the warranting ancestor, as his own issue, as also those heirs. not so claiming, but by collateral title, as in remainder or reversion ; and this was on the presumption that those heirs claiming lineally theretofore had assets by descent from the ancestor, viz., the proceeds of the very lands warranted ; and that those claiming by collateral title, if they had not theretofore assets from such ancestor, by pc.^si- bility thereafter might have from or through him j a presumption somewhat unreasonable, so far at least as the law based on it was concerned. This being so, however, various statutes abridged the] (a) Ante, p. 280. (i) Ante, s. 91, p. 57. 328 CONVEYANCES BY T1NANT8 IN TAIL. 1' " 'ii \ 1 6 [ofTect of these warranties by tenants in curtesy and in dower ; and 1 It was enacted that all warranties by tenant for life should be void against those in remainder or reversion, and that all collateral war. ranties by anv ancestor who had no estate in possession should be T.^fet of warran- void against his heir. Still in other respects the law was \d\ aj TaiiinpoMeMton. before, and therefore tenant in tail in possession could, as above named, bar such heirs as claimed by collateral title though without assets: and he might also so have barred such heirs as claiiQed lineally under him, though without assets, but for the construction placed on the statute de donia. This statute, vou may remember was passed for the protection of the issue in tail, and of the rever- sioner on the determination of the estate tail ; and provided that not. withstanding alienation by the tenant, the estate should go to the issue in tail, and, failing issue, revert to the donor (a). The courts held, therefore, that the tenant should not indirectly by warrantj defeat the statute and bar his own issue, at least unless assets actually did descend ; but as the statute was only passed for the protection of the issue in tail and reversioners, they declined to interfere in favor of those claiming in remainder, who therefore remained bound | as at common law, though without assets. Thus it was that, stated by Blackstone, a tenant in tail in possession might,] without j the forms of a fine or recovery, in some cases make a good convej- ance in fee simple by superadding a warranty to his grant, which, if I accompanied with assets, barred his own issue, and without them f barred such of his heirs as were in remainder or reversion. [It will be observed such an assurance was one not likely to induce a sale, as the purchaser's title against the issue would depend on subsequent | descent of assets to them.] Fiaeft. A fine [was] sometimes said to be a feoffment of record : though I it might with more accuracy be called, an acknowledgment of a feoffment on record. By which is to be understood that it [had] at least the same force and effect with a feoffment, in the convejinv and assuring of lands : though it [was] one of those methods of transferring estates of freehold by the common law, in which liverj of seisin [was] not necessary to be actually given ; the supposition and acknowledgment thereof in a court of record, however fictitious, inducing an equal notoriety. But, more particularly, a fine may be described to [have been] an amicable composition or agreement of a suit, either actual or fictitious, by leave of the king or his justices; | whereby the lands in question became, or [were] acknowledged to be, the right of one of the parties. In its original, it was founded on I an actual suit, commenced at law for recovery of the possession of I land or other hereditaments ; a d the possession thus gained by suih composition was found to be so sure and effectual, that fintitiom actions were, every day commenced, for the sake of obtaiai):gtbe| same security. A ^716 is so called because it puts an end, not only to the suit I thus commenced, but also to all other suits and controversies! concerning the same matter. Mode of lerring. The mode of levying a fine was as follows : 1. The party to whom I (a) Ante, s. 112, p. 67. UNDER CONSOLIDATED STATUTE, OH. 88. 829 rhe party to whom (be land was to be convejod commenced an action at law against the other, generally an action of covenant, by suing out a writ or prtooipe, called a writ of covenant, the foundation of which was a supposed igreement or covenant that the one should convey the lands to the other on breach of which agreement the action was brought. [The proceedings need not necessarily have been on a writ of covenant; there were other writs and proceedings on which a fine might have I been levied, but they were all of them real action$, or in the nature thereof, as oistinguished from personal actions in which jatQBges only were sought, and possessory actions in which only possession was claimed (a), (the distinction between which was before pointed out (b).) It must not be supposed that the present action of corenant is the same as that on the writ of covenant above alluded to ; the latter was termed the writ of " covenant real," and is one of the writs expressly named and abolished by 4 Wm. IV., o. 1, Con. Stat., c. 27, together with other real and mixed actions, except I dover and ejectment] 2. Then follows the leave to agree the suit, "Itcentia concor- " dandi," for the defendant knowing himself to be wrong was sup- posfd to make overtures to the plaintiff; who, accepting them, but having on suing out his writ given pledges to prosecute the suit, could not compromise without leave of the court, which, however, was readily granted on payment of a small fine to the king. 8. Next comes the concord, or agreement itself, after leave obtained from the court ; which [was] usually an acknowledgment from the deforciants (or those who keep the other out oi possession,) that the lands in question [were] the right of the complainant. And from this acknowledgment, or recognition of right, the party levying the fine is called the cognizor, and he to whom it is levied the cognizee. This acknowledgment must [have been] made either openly in the court of Common Pleas, or before the lord Chief Jus- tice of that court ; or else before one of the judges of that court, or two or more commissioners in the country, empowered by a special authority called a writ of dedimus potestatem; which judges and commissioners were bound by statute 18 Edw. I. st. 4, to take care that the cognizors be of full age, sound memory, and out of prison. If there [were] any feme-covert among the cognizors, she [was] pri- vately examined whether she [did] it willingly and freely, or by compulsion of her husband. J 4. The note of the fine, which [was] only an abstract of the writ I of covenant, and the concord ; naming the parties, the parcels of I land, and the agreement [which|was required to be enrolled of I record]. / 5. The fifth part [was] the fabi of the fine, or conclusion of it : I uhich included the whole matter reciting the parties, day, year, and place, aud before whom it was acknowledged or levied. And t ms the fine [was] completely levied at common law. By several statutes still more solemnities [were] superadded, in Prooiamatioa. p'der to render the fine more universally public, and less liable to |(u) Finch, L. 278 ; Booth, Bl. Actions, 247; Shop. Touch. Fine; F. N. B. 145* {b) Ante, p. 202, s. 190. JV'V 330 ! Forre and effact of a fine. PartieB bound. OONYXYANOES BT TENANTS IN TAIL, be levied by ff&xxd or oovin ; [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.] [Fines thus levied were of four kinds : that sur cognizance de droit come ceo; sur cognizance de droit tantum; aur concessit; sur done grant et rendre ; and they thus varied according to the nature and quantity of the estate conveyed, and the particular limitations, if any, intended ; the first being the most usual, and conveying an absolute estate of freehold without livery of seisin]. We are next to consider the force and effect of a fine ; these depended principally on the common law, and the Statutes 4 Heo. YIL, c. 24, and 32 Hen. YIII., c. 36. The common law is very forcibly declared by the Statute 18 Edw. I. in these words. " And « the reason, why such solemnity is required in the passing 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 theii " heirs, but all other persons in the world, who 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 on the foot of the " fine within a year and a day." The Stat. 4 Hen. VII. extended the time of claim. So that, by that statute, the right of all stran- gers whatsoever [was] bound, unless they made claim, by way of action or lawful entry, not within one year and a day, as by the common law, but mthin Jive years after proclamations made : except feme-coverts, infants, prisoners, persons beyond the seas, and such as were not of whole mind ; who had five years allowed to them and their heirs, after the death of their husbands, their attaining full age, recovering their liberty, returning into England, or being restored to their right mind. It seems to have been the intention of that politic prince, King Henry VII., to have covertly by th's statute extended fines to have been a bar of estates-tail, in order to unfetter the more easily the estates of his powerful nobility, and lay them more open to aliena- tions ; being well aware that power will always accompany property. But doubts having arisen whether they could by mere implicatioD, be adjudged a sufficient bar, (which they were expressly declared not to be by the statute de donis). the Stat. 32 Hen. VIII., c. 36, was thereupon made ; which removed all difficulties, by declaring that a fine levied by any person of full age, to whom or to whose ancestors lands have been entailed, shall be a perpetual bar to them and their heirs claiming by force of such entail ; [except in the cases presently mentioned]. From this view of the common law, regulated by these statutes, it appears that a fine is a solemn conveyance on record from the oognizor to the eognizee, and that the persons bound by a fine are parties, privies, and strangers ; [but if the latter were entitled to no present estate in possession^ but only in remainder or reversion, they were allowed five years from accruing of their right of entry.] The parties are either the oognizors, or uognizees ; and these are immediately concluded by the fine, and barred of any latent right they might have, even though uader the legal impediment of TNDER CONSOLIDATED STATUTE, OH. 83. S81 )ies, by declaring ] corertare. And indeed, as tbis [was] almost tbe only act tbat a \ feme-covert, or married woman, [was] permitted by law to do, (and Married women. I that because sbe [was] privately examined as to her voluntary con- ut, wbich removed tbe general suspicion of compulsion by ber kasband), it [was] tberefore tbe usual and almost tbe only safe method, wbereby sbe [could] join in tbe sale, settlement or inoum- I brance of any estate [at common law]. Privies to a fine are sucb as [were] any way related to tbe parties PriTies bound. [ vho levied tbe fine, and claimed under tbem by any rigbt of blood, or other rigbt of representation. Sucb as are tbe beirs general of tbe cognizor, tbe issue in tail since tbe statute of Henry tbe Eigbtb, tbe .endee, tbe devisee, and all otbers wbo must make title by tbe per- sons wbo levied tbe fine. For tbe act of tbe ancestor sball bind the heir, and tbe "'act of tbe principal bis substitute, or such as 'S. 356. claim under any conveyance made by him subsequent to tbe fine so levied. Strangers to a fine are all other persons in the world, except only strangers, when irties and privies. And these [were] also bound by a fine, unless, ^'*°**- within five years after proclamations made, they interposed their claim ; provided they [were] under no legal impediments, and had then a present interest in tbe estate. The impediments, as bath before been said, were coverture, infancy, imprisonment, insanity, mi absence beyond sea : and persons who [were] thus incapacitated to prosecute their rights, bad five years allowed tbem to put in their claims after sucb impediments [were] removed. Persons, also, tbat had not a present, but a future interest only, as those in remainder or reversion, bad five years allowed tbem to claim in, from tbe time that such rigbt accrued (a). And if within tbat time they neglected to claim, or (by tbe statute 4 Ann. c. 16,) if they did not bring an action to try the right within one year after making such claim, and prosecute the same with effect, all persons whatsoever [were] barrod of whatever right they [might] have, by force of tbe statute of non- claim. But, in order to make a fine of any avail at all, it [was] necessary Tbe parties lery* that the parties should have some interest or estate [of freehold (6) haye^d'wm^'* by right or by wrong] in the lands to be effected by it ; else it were estate of fnehoid possible tbat two strangers, by a mere confederacy, might, without any risk, defraud tbe owners by levying fines of their lands; for if the attempt [were] discovered they [could] be no sufferers, but only remain in statu qvo : whereas, if a tenant for life levied a fine, it [was] an absolute forfeiture of bis estate to the remainder-man or rever- eioner, if claimed u\ proper time. It is not, therefore, to be sup- posed that such tenants [would] frequently run so great a hazard ; but if they did and the claim [was] not duly made within five years after their respective terms expired, tbe estate [|was] forever barred by it. Yet where a stranger, whose presumption cannot be thus punished, officiously interferes in an estate which in nowise belongs to him, bis fine is of no effect, and fmight] at any time be set aside (unless by such as [were] parties or privies thereunto) by pleading tbat (a) Co. Litt. 872 a, 1 Wms. Saunders, 819 n. 2; 5 Cruise Digest, 148. (b) Daviet v. Lowndet, 5 B. N. C, 172. 'i' I 832 f ii Common recoverius. Thttir nature. ttt! OONVEYANOES BT TENANTS IN TAIL, "partes Jinis nihil kabuerunt." And, even if a tenant for years who hath only a chattel interest, and no freehold in the land, levied a fine, it operated nothing, but [was] liable to be defeated by the same plea. Wherefore, when a lessee for years [was] disposed to levy a fine, it [was] usual for him to make a feoffment first, to dis. place the estate of the reversioner, and create a new freehold by disseisin. And thus much for the conveyance or assurance by fine* which not only, like other conveyances, [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. IV. [Another] species of assurance by matter of record [was] a common recovery. I am now to consider, first, the nature of a com. mon recovery, and, secondly, its force and effect. 1. And, first, the nature of it. A common recovery is so far like a fine, that it [was] a suit or action, either actual or fictitious ; and in it the lands [were] recovered against the tenant of the freehold* which recovery, being a supposed adjudication of the right, [boundl all persons, and [vested] a free and absolute fee-simple in the reco. vereror. 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 David Edwards to be tenant of the freehold, 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 Francis Golding. To effect this, Golding is to briov an action against him for the lands ) and he accordingly sues out a writ, called a praecipe quod reddat. In this writ the demandant Golding alleges that the defendant Edwards (here called the tenant) has no legal title to the land, but that he came into possession of it after one Hugh Hunt had turned the demandant out of it. The subsequent proceedings are made up into a record, in which the writ and complaint of the demandant are first recited : whereupon the tenant appears, and calls upon one Jacob Morland, who is supposed, at the original purchase, to have warranted the title to the tenant; and thereupon he prays that the said Jacob Morland may be called in to defend the title which he so warranted. This is called the voucher, vocatio, or calling of Jacob Morland to warranty; and Morland is called a vouchee. Upon this, Jacob Morland, the vouchee, appears, is impleaded, and defends the title. Whereupon Golding, the demandant, desires leave of the court to imparl or confer with the vouchee in private ; which is (as usual) allowed him. And soon aAerwards the demandant, Golding, returns to< court, but Morland the vouchee disappears, or makes default, Whereupon judgment is given for the demandant, Golding, now called the recoveror, to recover the lands in question against the tenant, Edwards, who is now the reooveree : and Edwards Las judgment to recover of Jacob Morland lands of equal value, 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 ^recompense, or recovery in value, M Jacob Morland having no lands of his own, being usually the crjei ■i UNDEE CONSOLIDATED STATUTE, OH. 83. 833 of the court (who, from being frequently thus vouched, is called the common vouchee), it is plain that Edwards has only a nominal reoomponse for the lands so recover.ed against him by Golding; vhioh lands are now absolutely vested in the said reooveror by jodgtnent of law, and seisin thereof is delivered by the sheriff of the county. So that this collusive recovery operates merely in the nature of a conveyance in fee-simple, from Edwards, the tenant in till, to Golding, the purchasor. The recovery here described is with a single voucher only ; but Double voucher, sometimes it is with double, treble, or farther vouchers, as the exigency of the case may require. And indeed it [was] usual always to have a recovery with double voucher at the least : by first conveying an estate of freehold to any indifferent person, against whom the ^rajape was brought; and then he vouched the tenant in tail, who vouched over the common vouchee. For, if a recovery bo bad immediately against tenant in tail, it bars only such estate in the premises of which he is then actually seised ; whereas if the recovery be had against another person, and the tenant in tail be vouched, it bars every latent right and interest which he may have in the lands recovered. If Edwards, therefore, be tenant of the freehold in possession, and John Barker be tenant in tail in remainder, here Edwards doth first vouch Barker, and then Barker vouches Jacob Morland, the common vouchee, who is always the last person vouched, and alvravs makes default : whereby the demandant Golding reco- vers the land against the tenant Edwards, and Edwards recovers a recompense of equal value against Barker the first vouchee, who recovers the like against Morland the common vouchee, against whom such ideal recovery in value is always ultimately awarded. This supposed recompense in value is the reason why the issue in supposed remm- tail is held to be barred by a common recovery ; for, if the recoveree ^°*^ *° *"*"• '" should obtain a recompense in lands from the common vouchee (which there is a possibility in contemplation of law, though a very improbable one, of his doing), these lands would supply the place of those so recovered 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 force, as to most remainder-men and reversioners ; to whom the possibility will remain and revert, as a full recompense for the reality, which they were otherwise entitled to : but it will not always hold ; and therefore, as Pigott says, the judges have been even astuti in inventing other reasons to maintain the authority of recoveries. 2. The force and effect of common recoveries may appear, from joree and effect j what has been said, to be an absolute bar not only of all estates tail, of » recovery, but of remain:?ers and reversions expectan'. on the determination of such estates. So that a tenant in tail [might] by this method of I assurance, convey the lands held in tail to the recoveror, his heirs and assigns, absolutely free and discharged of all conditions and I limitations in tail, and of all remainders and reversions. But, by I statute 34 & 35 Hen. VIII. c. 20, no recovery had against tenant in tail, of the king's gift, whereof the remainder or reversion is in the king, shall bar such estate tail, or the remainder or reversion of the 1 crown. And by the statute 11 Hen. VII. c. 20, no woman, after ■; 11 ■!1 ^n'lTiaiT 334 ' The office otpro- tector to the tetr j dement 1b by analogy to the position of the tenant to the praecipe on a recovery. Deeda to lead or declare the uses. |, ' GONYXTANCES BT TKNAMT8 IN TAIL, 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 ancestors. And by statute 14 Eliz. c. 8, no tenant for life, of t._ sort, can suffer a recovery, so a& to bind them in remainder or reverl sion. For which reason, if there be tenant for life, with remaindeJ in tail, and other remainders over, and the tenant for life is desiroagl to suffer a valid recovery, either he or the tenant to the praepi^e byl him made, must vouch the remainder-man in tail, otherwise thel recovery is void : but if he does vouch such remainder-man, t he appears and vouches the common vouchee, it is then good ; fori if a man be vouched and appears, and suffers the recovery to be 1 against the tenant to the praecipe, it is as effectual to bar the estat«| tail as if he himself were the recoveree. [Attention to the above, as also to what next follows, will enablel the student the better to understand the office of " protector to t!ie| settlement," referred to in 9 Vic. c. 11.] In all recoveries it is necessary that the recoveree or tenant to thel praecipe, as he is usually called, be actually seised of the freehold f else the recovery is void ; for all actions, to recover the seisin ofl lands, must [have been] brought against the actual tenant of the| freehold, else the suit [lost] its effect, since the freehold cannot I recovered of hhi who has it not. And though these recoveries! [were] in themselves fabulous and fictitious, yet it [was] necessary that I there should be adores fahulse, properly qualified. But the nicetyl thought by some modern practitioners to be requisite in conveyiDgl the legal freehold, in order to make a good tenant to the pmec{})«,i9| removed by the provisions of the statute 14 Geo. II, c. 20, whii enacts [among other things], with a retrospect and conformity tot! ancient rule of law, that, tnough the legal freehold be vested lal lessees, yet those who are entitled to the next freehold estate in I remainder or reversion may make a good tenant to the j3raeci]fi{,[ And this may suffice to give the student a general idea of coinmoB| recoveries. Before I conclude this head, I must add a word concerning deedil to lead, or to declare, the uses of fines and of recoveries. For if I they be levied or suffered without any good consideration, and withT out any uses declared, they, like other conveyances, enure onlytol the use of him who levies or suffers them. And if a consideration! appears, yet as the most usual fine, " sur cognizance de droit com\ ceo," &c., [conveyed] an absolute estate, without any limitations, tol the cogaizee; and as common recoveries did the same to the! recoveror, these assurances could not be made to answer the purposel of family settlements (wherein a variety of uses and designations iij very often expedient) unless their force and effect were subjected t the direction of other more complicated deeds, wherein particulul uses can be more particularly expressed. The fine or recovery itgelf|| like a power once gained in mechanics, [might] be applied and l-I rected to give efficacy to an infinite variety of movements, in th«j vast and intricate machine of a voluminous family settlement. Aniil if these deeds [were] made previous to the fine or recovery, tbejl [were] called deeds to lead the uses ; if subsequent, deeds to deelml V em. As, if A. tenant in tail with reversion to himself in fee,] UNDER CONSOLIDATED STATUTE, CH. 83. 885 trottld settle his estate on B. for life, remain dar to C. in tail, remain- der to D. in fee j this is what, by law, he has no power of doing effectually, while his own estate tail is in being. He therefore usually, after making the settlement proposed, covenants to levy a gne (or, if there be any intermediate remainders, to suffer a recovery) to E., and directs that the same shall enure to the uses in such set- tlement mentioned. This is now a deed to lead the uses of the fine or recovery ; and the fine when levied or the recovery when suffered sball enure to the uses so specified and no other. For though E., the cognizee or recoveror, hath a fee-simple vested in himself by the fine or recovery ; yet, by the operation of this deed, he becomes a mere instrument or conduit-pipe, seised only to the use of B., C, and !)■> in successive order : which use is executed immediately, by force of the Statute of Uses. Or, [^by 4 & 5 Anne o. 16] if a fine or recovery be had without any previous settlement, and a deed be tftencards made between the parties, declaring the uses to which the same shall be applied, this will be equally good, as if it had been expressly levied or suffered in consequence of a deed directing its operation to those particular uses. [^t will be seen from the above how abstruse and difficult was the law un the subjects we have been considering. Blackstone thus alludes to it :] To such awkward shifts, such subtle refinements, and itrange reasoning were our ancestors obliged to have recourse in order to get the better of *that stubborn statute de donis. The design for which these contrivances were set on foot, was certainly lauda- ble; the unrivetting the fe* jrs of estates-tail, which were attended i°ith a legion of mischiefs to the commonwealth ; but while we ap- plaud the end, we cannot but admire the means. Our modern courts of justice have indeed adopted a more manlv way of treating the sub- ject; by considering common recoveries in no other light than as the formal mode of conveyance, by which tenant in tail is enabled to alieue his lands. But, since the ill consequences of fettered inheri- tances are now generally seen *and allowed, and of course the utility and expedience of setting them at liberty are apparent, it hath often been wished that the process of this conveyance was shortened, and rendered less subject to niceties, by either repealing the statute de knit ; which, perhaps, by reviving the old doctrine of conditional fees, might give birth to many litigations ; or, by vesting in every tenant in tail of full age the same absolute fee-simple at once, which DOW he may obtain whenever he pleases, by the collusive fiction of a common recovery; though this might possibly bear hard upon those ia remainder or reversion by abridging the chances they would otherwise frequently have, as no recovery can be suffered in the in- tervals between term and term, which sometimes continue for near five months together : or lastly, by empowering the tenant in tail to kr the estate-tail by a solemn deed, to be made in term time, and lenroiled in some court of record : which is liable to neither of the ther objections, and is warranted not only by the usage of our imerican -colonies, and the decisions of our own courts of justice, hich allow a tenant in tail ^without fine or recovery) to appoint his state to any charitable use, out also by the precedent of the statutes hich, in case of a bankrupt tenant in tail, empower his commis- * S. 361. ft' : 886 OONY£YANOES BT TENANTS IN TAIL, t^i\ 'I here? siouers to sell the estate at any time, by deed indented and enrolled I And if, in so national a concern, the emoluments of the officers conJ cerned in passing recoveries are thought to be worthy attention, thosa might be provided for in the fees to be paid upon each enrolment. [Notwithstanding Blackstone and others thus lamented the state oj the law, it was not till the statute 3 & 4 Wm. IV. o. 74, that a chanej Changs effected was cflFected in England, nor here till the statute 9 Vic. c. 11. j^ brtwMntheUme^*®*' ^* ^ould socm that there was a time in this Province during ofpasRing where- which, SO far as regards the absence of all power to unfetter an iv.r& if there™' estate-tail, we had retrograded to the period between the passing o(j waa no power to the statutc de doTiis and the decision in Taltarum's case ; for i r any en . j^gf^^g explained the virtue of a warranty, and the power to levy fine, or sufiFer a recovery, were taken away by 4 Wm. IV. o. 1, (] recovery being always founded on a real action,) and it was only U means of one or the other that an estate-tail could be barred; and by a recovdry alone could it under certain circumstances be so barred Fines and rwove- as to defeat thosc in remainder or reversion. I have heard doubt] r n or e gjjpj.ggggj ^^ ^q whether fines, recoveries, or warranties, ever were ia force in this Province ; I think, however, the writs an-d proceedincj requisite to their validity were so introduced with the English law! with other writs, as for instance the writs in dower j in fact certaiif of them were expressly named and abolished by the Provincial Statute 4 Wm. IV. c. 1, and the statute 9 Vic. c. 11 constitutes! protector in certain cases " the person who before the 4th Wm. IV,[ " would have been the proper person to have made the tenant tol " the writ of entry or other writ for suffering a recovery." I haveT seen warranty clauses in old deeds, and was lately shewn the reccrJ of a fine at Osgoode Hall, in a case in which the title actualljj depended on the sufficiency of the fine. If these proceedings wen never more general here, it was I imagine because there was little| necessity for their application ; for so far as regards estates-tall, theit were but few created; and as regards conveyances by married womenl of the lands of which they were seised, and their contingent rightl dower, which in England were effected by fine, our legislature igj early times provided different mod^ of assurance : still I shouldl remark that the 43rd Geo. III. c. 5, enabling married women convey their real estate, recites that no express provision was theil made for levying fines in this Province. The statute 9 Vic. c. 11, Con. Stat. o. 83, is now to be consiii-| ered (a), taken from the Imp. Stat. 3 & 4 Wm. IV. c. 74. Sec. 1 interprets the various words and expressions used ii. tln| act. s. 4 gives power See, 4, it will be observed, gives to actual tenants in tail (in wticll to barentau. ^^^^^^ jg included by s. 1, tenants whose estates are divested and turij Sugden Stat 188. ed to a right) greater power than they theictofore possessed; fori tenant in tail in contingency, or one whose estate by some previomj act, as by feoffment of his ancestor or discontinuance (/>), was dives ted, though not barred, could not have suffered a recovery. Itisi only the issue in tail who can be barred, and all estates to take efff S. 1 : interpreta- tion. ID gran ance, Sec. tered twenty, twelve rack-re Act as latter registry m (a) See the statute in the appendix. (i) Ante, p. 198. AIL, snted and enrolled.) of the officers coni thy attention, thosa 1 each enrolment. imented the state oD c. 74, that a chansd I 9 Vic. c. 11. ij is Province during wcr to unfetter an ween the passing oj rum's case ; for i the power to levy Wm. IV. c. 1,(^ and it was only Q uld be barred ; and stances be so barrej have heard doubts •anties, ever were ial rits antl proceedlDgJ th the English jaffl wer ; in fact certaij by the Provincial 0. 11 constitutes: re the 4th Wm. IVJ made the tenant tol I recovery." I haveT ely shewn the recorl ih the title actualljl ese proceedings verf luse there was littlel irds estates-tail, there es by married womeii| ir contingent right I e, our legislature inj ance : still I sbouliJI 3; married women I provision was theil UNDER CONSOLIDATED STATUTE, OH. 83. 887 is now to be consiij . IV. c. 74. ressioDS used iu tliel ants in tail (in whicll ire divested and ture| ibre possessed; fori ate by some previoal aance (/>), was div« a recovery. ItisDotI estates to 'take 1 b) Ante, p. 198. er the determination of the estate, including thus, remainders and leversions, but also all estates to take effect in defeazance of the vstate tail ; and therefore an executory or shifting limitation over, afier an estate tail, to take effect in defeazance thereof, and not jffait its regular determination by failure of issue, can be barred : thus, if land be limited 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 j^. under the statute will defeat the executory interest or estate ; and this was so before the statute on a recovery suffered by A. (a). The saving clause, and subsequent excepting clauses, will be pre- sently considered. The mode of conveyance requires careful attention, for, as pre- sently shown, defects are incurable by the aid at least of a c urt of equity. Sec. 30 requires that every disposition shall be by deed, and shall s. 30. Mode of not rest merely in contract, though evidenced by deed, whatever the ^^^p*"'"'"" consideration ; still, as afterwards explained, a contract by the tenant may be made the foundation of a suit for specific performance against him, though not against his issue. The concurrence of the husband of a married woman tenant in tail aonveying is requisite. Married womeu and (sec. 43) h..- '»'^nveyance has to be executed and acknowledged with the same formalities as required in other cases of married women conveying their real estate. Again, every disposition by the tenant has to be made by some one of the assurances (not being a will) by which ' he could have disposed of the property, 'i o ut'a mortgage by husband aud wife of Aer estate without nor« - r alting interest is to the wife as hor property; and so also u /aid 'i' .e beon with a tenant in tail ccnveying for some limited or particuia • purpose in exercise of a pc wer given him, the resulting interest would have been to him as te aant in tail ; but under this section, if tenant in tail convey any freehold interest (other than pur autre vie), for any limited purpose as, for instance, by way of mortgage, or in trust to sell and raise a sum of money, the beneficial interest results to the tenant, not as tenant in tail, but absolutely and discharged of the entail; but if the estate created and conveyed be pur autre vie, or for years, or there b'3 merely an interest charge or incumbrance created, without a term of years, or greater estate for securing he same, then, such interest charge or incumbrance in the one case, or estate in the other, will bar to the extent only of satisfying the purpose for which created and the resulting beneficial interest will be for the benefit of the entail (h). Sec. 8. Before the statute, a tenant in tail, who had by fine levied barred his own issue, but not the remainder-man or reversioner, (which as before explained, he could not do by Jine (c),) and had thereby converted the estate-tail into a base fee, retained, aud the issue in tail also inherited, the privilege of defeating the remainders and reversion, by consenting to be vouched in a recovery. This section provides now for the enlargement of the base fee, and the defeazance of the ulterior estates ((/) : but if there be a protector, then by Sec. 25, his consent will be requisite to enlarge the base fee. Sec. 29 provides that when the base fee and the remainder or reversion in fee meet, the base fee shall not merge bnt be itself enlarged. Some knowledge of the doctrine of merger is requisite to appreciate this section (see pp. 29, 118) : I will here merely] (a) Would the instrument be held hero after registry, to relate back to its execution by analogy lo a deed of bargain and sale, which is inoperative by 27 Hen. VIII., c. 16, unless enrolled, but when enrolled, relates back to the execution : the question is not unimportant, as in the case of convcyuDce by a reversioner tenant in tail, and rent falling due between the time of conveyance and registry. It is to be observed, also, that the enrollment of a bargain and sale relates back because it is a collateral act required by statute, and theretofore the instrument was perfect without it, and no necessity for enrollment arose from its nature ; whilst in the conveyance by tenant in tail, the statute which creates the right to convey, makes it conditional oa registry. Shelford St., 867 n. y. ; 2 Ves. Sr., 79. (6) Hayes' Convg. 184. (c) Ante, p. 331. {d) Hayes' Convg. 185, 18G. Sec. 8. I'ower to oalarge base fees. Sec. 25. Cousent of pro tea tor requisite. Sec. 29. A base fee meet- ing ttie imme- diate reversion in fee enlarged instead of being merged. )3' Convg. 185, 18C. TNDEB CONSOLIDATED STATUTE, OH. 8*^. 889 [state that by the ope 'ation of that doctrine as a general rule two cstutes unite in t' > same person in the same rigrh^, the lesser is being when merged in the great, and the efiject is, that such person dePined to hold thereri'-er ander the gre. ter estate, holds subject to charges or incumbran(es existing ^hereon at the time of r -rger, and cannot set up th'^ ibrmcr lesser estate which is merged uud has ceased to f'xist, as a ' eld against the incumbranfCd. la illustration of the i.hf've ard of iho object of the sta^i'te, let us first take a case before the statute. Support A. tu have been tenant in tail with reversion in fee to B., and that B. should have incumbered his reversion to more than the vnlue perhaps, of the fee-simple in pos- gesbion of the property, and that afterwards A. should acquire such reversion so incuraberod from B.: this acquisition would not preju- dice 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 rever- sion in fee; and cc'iiequently A. or his issue might enjoy the entail as long as issue continued free from the incumbrances : but if at a.iy time A. or any of his issue tenants in tail, instead of suffering a recover I/, which would have been the proper course as conveying a neio fee-simple, created a base fee bj/ 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 incumbrances; 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 tenant 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 '"jusequences of a merger under the above and other circumstances; another object was to prevent 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 be entitled to or subse- quently acquire the remainder or reversion in fee (a). Before considering the office of the protector, it is necessary to Estate in strict call your attention to the nature of an estate in strict settlement, as settlement, how also to the modes in which it was formerly and is now preserved and now preserred defeated. Limitations on n strict settlement were before explained {h); ^^^ J«feated. I will therefore here merely state that the great object to be attained always has 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 favor the limitations are made; in short, to revert as far as possible to the state of the law immediately after the pass- ing the statute de donis. The mode adopted has long been thus ; assuming A., unmarried, to be the person in whose family the pro- perty is to be preserved, it will be limited to him for life, with] II' (a) Hayes' Conveyancing, 187. (6) Ante, p. 112, s. 171. ■t : 840 CONVETANOXS BY TENANTS IN TAIL. feh j: [remainders to his first and other sons unborn successively in tail with romainder over in fee, and trustees are interposed to preserve the contingent remainders to the sons ; the limitations of conrso 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 take in tail, but for life, with remainder to their issue in tail. The above simple case, however, will serve our pur- pose ; 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 f)r. ir to the statute, till one of the issue next entitled in tail should ia\v) attained the age of twenty-one; no complete bar could have taken place ; for the tenant for life could not by warranty (p. 328), or fine (p. 330), or recovery (p. 334), bar those in remainder or rever- sion, at least a fine was no absolute bar, except by non claim ; the tenant in tail, in possession, or in remainder, could not by warranty bar his issue or the reversioner, nor before his estate came into pos- session bar remainder-men (p. 328) ; 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 ms requisite that the tenant for life and tenant in tail of full age next in remainder should concur : for the recoveiy suffered by tenant for life alone was void (p. 334), and no recovery could be suffered by tenant in tail alone, as the tenant for life vras the party seised of the freehold, and it was against him therefore only that the necessary proceedings could be had, and he again was required to vouch the remainder-man in tail on a supposed warranty (p. 334) : the tenant for life therefore, protected the entail, and by withholding his concur- rence prevented its alienation. A protectorship is still preserved by The office of pro- the Statute in analogy to the above : it will be observed also that on ** ato **oMi^* *^® death of the tenant for life, when the remainder in tail became an tenant to the estate tail in possession, the tenant in tail could mako a tenant to the the oidkw.^*'^ i'^'*"^^)'^' ^^^ ^J 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. Ey 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 remainder, could have by fine bound his own issue, and when his remainder came into possession, by a recovery have barred his issue and all remainders; but under the re-settlement he and all his brothers in esse take as tenants for life, and the first who take as tenants in tail are grandchildren. This is the mode still adopted ; the re-settlement taking place by means of a conveyance under the statute instead of by a recovery. (o) Hayes' Convg. 139. I7NDXB CONSOLIDATED BTATUTB, OH. 83. 341 [Sec. 11. The protector of the tettlementf as a general rule, is the sco. u. person who is the owner of the prior estate, or of the first of several the wtuJ^t' prior estates, sabsisting under the same settlement, such estate being ono 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 under the same settlement. For if created by some other conveyance than the settlement, then the owner will not be protec- tor, and the tenant in tail is not restrained from conveying a fee sim- ple, or exercising the other powers given to him by the act. The offico of protector is a personal one, and continues notwithstanding the protector should cease by alienation or otherwise to be owner of such prior estate. As regards protectorship by a dowress, there seems to isn dowren ex- be a singular discrepancy between this and the 16th section; forpj"t«aor8bip? tbe former admits whilst the latter excludes, a dowress. This arises apparently in consequence of the framer of the original provincial act having inserted in this section the words " or in dower," without sufficient regard to section 16, and to the fact that such words hive been designedly omitted in the Imperial act, from which our statute was taken. One of the grounds for excluding a dowress as protec- tor, whilst a tenant by the curtesy is admitted, is that the former is only interested partially, viz., to the extent of one third, whilst the latter takes all, for life (a). Sec. 12. When several are owners of the estate constituting the see. 12. joint office, each is protector as to his share. Sees. 15 & 16. Certain persons are excluded from being protect* |*"^^^'^*^ ors, as lessees at a rent, dowresses, (see, however, remarks on s. sons excluded sa 11), bare trustees, heirs, executors, and alienees, subject to the ^"**®'*°"'" savings in ss. 18 & 19. Sec. 17. Where the owner of the prior estate is disqualified as f^gj"; S^usii- protector, the owner of the next prior estate is the protector, not flcation. being disqualified, s. 17, s. 11. Sec. 23. In certain cases of incapacity of the protector, as lunacy, Sec. 23, when infancy, conviction for treason or felony, or if it be uncertain chancwy shall be whether living or dead, or if the settlor declare that the person who P'o'««tor. otherwise would be protector shall not be, and appoint none others ; or there be a prior estate conferring the office, but &om any cause no protector, then the Court of Chancery is protector. Sec. 21. The settlor may, on the settlement creating the entail, sec.21 power to •" . J- .1. J i. 1. • ' Settlor to appoint appoint any person or persons, not exceeding three, and not being protector, aliens, to act as protectors in lieu of the person otherwise protector, with power of substitution. Sec. 22. The deed by which a protector is appointed under such Sec. 22. Deeds as power, or relinquishes office, is to be registered, and such person, j[^?egirtered. ° otherwise protector, may be one of the persons to be appointed by the settlor as above. Sec. 32. The consent of the protector maybe contained in the See. 32, consent same deed by which the tenant disposes, or be by distinct deed, ex-"''^"'*^**""' ecuted on or at any time before the day of the execution of such deed of the tenant, otherwise the consent is void.] (a) 1st Bep. of Heal Prop. CommiBsioners, pp. 82, 33. w -.v, 842 OONVETANOES BY TENANTS IN TAIL, Sec. 8.1. Deemed unqutllflwl un- leu, Ac See. 34. ImTO- cable. Sec. 36. Requlrei regintry. Sec. 38. Sec. 27. Bargnin between tenant and protector as to hid ooDieut. [Sec. 33. And the consent to disposition by the tenant is to bo deemed absolute and unqualified, unless the protector refers to tho deed of disposition by the tenant, and confines the consent to suoh disposition. tScc. 34. Th< consent once given is irrevocable. Sec. 36. Con! nt given by deed distinct from the deed of disposi- tion is void, unless registered at or before the time of registry of the latter. Sec. 38. Consent is given according to this section when the Court of Chancery is protector. Sec. 26. Protector Sec. 26. The discretion of the protector in giving or withholding control M'tohia conscnt is absolute, and a court of equity cannot interfere with it; consent. but the remainder men and reversioner are precluded from entering into any agreement on any consideration with the protector to induce him to withhold his consent from barring their estates. It would appear, however, that with the tenant in tail thu protector may make any bargain he pleases for his own benefit : for, although as a gene- ral rule, a person having a power, as, for instance, of appointing an estate among such one of several as he may think proper, or of doin restraint of devising lands naturally took place, as a branch of > fcodal doctrine of non-alienation without the consent of the [lord (a). And some have questioned whether this restraint (which re may trace even from the ancient Germans) was not founded upon traer principles of policy, than the power of wantonly disinheriting the iieir by will, and transferring the estate, through the dotage or caprice of the ancestor, Arom those of his blood to utter strangers. For this, it is alleged, maintained the balance of property, and pre- Tented one man from growing too big or powerful for his neighbours; since it "-arely happens, ""that the same man is heir to many others, •S.3T4. tliough by art and management he may frequently become their devisee. Thus the ancient law of the Athenians directed that the estate of the deceased should always descend to his children ; or, on failare of lineal descendants, should go to the collateral relations: which had an admirable effect in keeping up equality, and prevent- ing the accumulations of estates. But when Solon made a slight alteration, by permitting them (though only on failure of issue) to dispose of their lands by test<;ment, and devise away estates from the collateral heir, this soon produced an excess of wealth in some, and of poverty in others; which, by a natural progression, first produced popular tumults and dissensions; and these at length ended in tyranny, and the utter extinction of liberty ; which was quickly followed by a total subversion of their state and nation. On the other hand, it would now seem hard, on account of some abuses (which arc the natural consequence of free agency, when coupled with human infirmity), to debar the owner of lands from distributing them after his death as the exigence of his family affairs, or the justice due to his creditors, may perhaps require. And this power, if prudently managed, has with us a peculiar propriety ; by prevent- ing the very evil which resulted from Solon's institution, the tro (a) See s. 67. 346 OF ALIENATION BT DEVISE. II ♦ S. 375. Vsee were deTia- able before the Statute of Uses, great accumulation of property; which ^ the natural oonsequencel of the doctrine of succession by primogeniture, to which the! Athenians were strangers. Of this accumulation the ill effects were! severely felt even in the feodal times: but it should alwavs bel strongly discouraged in a commercial country, whose welfare depends i on the number of moderate fortunes engaged in the extension of trade. The feodal Howcvcr this be, we find that, by the common law of Eu<»lan(jl restraint thereon aiugg jj^e conqucst, no estate, greater than for term of years, could I be disposed of by testament; except only in Kent, and in some ancient burghs, and a few particular manors, where their Saxon I immunities by special indulgence subsisted. And though the feodal I restraint on alienations * by deed vanished very early, yet this on wills continued for some centuries after : from an apprehension of i infirmity and imposition on the testator in extremis, which made I such devises suspicious. Besides, in devises there was wanting that general notoriety, and public designation of the successor, which in descents is apparent to the neighbourhood, and which the sinipjlcity of the common law always required in every transfer and new acqui. sition of property. I But when ecclesiastical ingenuity had invented the doctrine of I us?s as a thing distinct from the land, uses began to be devised very f which, by annex- frequently, and the devisee of the use could in Chancery compel its toU^*uM!*ren-°° execution. For it is observed by Gilbert that, as the Popish clergy km^Vd^tobie" ^^^^ generally sat in the court of Chancery, they considered that men are most liberal when they can enjoy their possessions no longer and therefore at their death would choose to dispose of them to | those, who, according to the superstition of the times, would inter- cede for their happiness in another world. [One mode adopted was 1 to enfeoff another to such uses as the feoffor should, by his last will appoint.] But when the Statute of Uses had annexed the posses- sion to the use, these uses, being now the very land itself, became no longer devisable : which might have occasioned a great revolutioa But the statute in the law of devises, had not the Statute of Wills been made about I i?exp?ainedV Avo ycars after, viz., 32 Hen. VIII. c. 1, explained by 34 Hen, the 34 lien. VIII. VIII. 0. 5, which cnactcd that all persons being seised in feel perso*n8° seised in simple (except feme-covcrts, infants, idiots, and persons of nonsaue fee Bhnpie (with memory) might by will and testament in writing devise to any other some exceptions) -'•' ,i_t i-ini-ii to devise certain persoH, except to Dodics Corporate, two-thirds oi their Ir.nds, tene- Fands""'""''"'' ments, and hereditaments, held in chivalry, and the whole of those held in socage : which now, through the alteration of tenures [into socage], by the statute of Charles the Second (a), amounts to the whole of their landed property, except their copyhold tenements. [It is doubtful, apparently, whether an alien could devise prior I to the statute 12 Vic. c. 197, (Con, Stat, of Can. c. 8) : a qucstloa which before was treated of (6). As regards tJie separate property/ of a married 'woman, under! Con. Stat. c. 73 sec. 16 of that statute enacts that : " From and after | " the said fourth day of May, one thousand eight hundred and " fifty-nine, and hereafter, every married woman may, by deviso or] Aliens. Con. .Stat. e. 73 allows married women to devise their separate estate. (a) Ante, pp. 48, 49. (i) Ante, p. 188. OP ALIENATION BY DEVISE. 347 II bequest executed in the presence of two or more witnesses, neither of whom is her hushand, make any devise or bequest of her sepa- frate property, real or personal, or of any rights therein, whether Ijucli property was or be acquired bufore or after marriage, to or kniong her child^ or children issue of arj marriage, and failing ilbere Mug any issue, then to her husband, or as she may see fit ja the dame manner as if she were sole and unmarried; but her i husband shall not be deprived by such devise or bequest of any ijjirht he may have acquired as tenant by the curtesy" (a).] Corporations were excepted in these [enabling] statutes, to prevent Devises to corpo- lle extension of r/ifts in mortmain ; but by construction * of the "^J^^^^ ijtute i3 Eliz. c. 4 it [was] held, that a devise to a corporation for * s. 3V6. [charitable use [was] valid, as operating in the nature of an appoint- 0t, rather than of a bequest. - And indeed the piety of the judges jirmeriy carried them great lengths in supporting such charitable it being held that the statute of Elizabeth, which favours ointments to charities, supersedes and repeals all former statutes, Kd supplies all defects of assurances : and therefore not only a Icvise to a corporation, but a devise (nay even a settlement) by jenant in tail without either fine or recovery, if made to a charitable [were] good by way of appointment. [It has been before explained (6) that so far as regards devises of |(iids and tenements, and bequests of money, to be laid out thereon, lie operation of the statute. of Elizabeth is virtually repealed by the latute 9 Geo. II. c. 26 (c). There is to this an exception in case If a devise for the purposes of the United Church of England and Prov. Act 3 vie. Ireland under statute 3 Vic. o. 74, to which allusion was made gj^* jj^^j'^^g^ lefore (d): a will has been held to be a conveyance within the land. Uning of s. 16 of that act, which authorizes grants and convey- iDces of lands for such purposes, provided the same be made and Ixecuted six months before, and registered not later than six months ]fter, the death of the person devising : and it was also held that a rill made and published six months before the testator's death wfis kid within this proviso, notwithstanding the general rule hereafter kerred to that a will only operates from the death of the testa- It has been before explained that contingent and executory tn^er- contingent kand mere possibilities were not assignable at common law, but ''^*®''^^*^- pat an assignment for value was upheld and enforced in equity ; and jiat contingent and executory interests were (and still are) devisable Ij will under the Statute of Wills, as also possibilities, if coupled titli an interest, or the person to be benefited were asc stained (/). twas also explained that rights of entry, on disseisin, and of action, nights of entry hrc neither assignable nor devisable at common law. The power at ^^_ gtlt'c! m!"^ loniraon law to devise contingent and executory interests and possi-] It will be observed this Statute is sileDt both as to the witnesses signing in presence of the testatrix and of each other. (6) S. 274, p. 240. As to the construction of this act and convejances in mortmain, see Corbyn v. French, Tud. Lg, Ca. Rl. Prop., 466, and notes. flAnle, sec. 274, p. 240. (e) Doe dem. Baker v, Clark, 7 U. C Q. B., 44. (/) Ante, 8. 176, p. 117 ; s. 290, p. 250. II J., •if 84ft Tbe Statute of Frauds. ■I, OP ALIENATION BY DEVISE. [bilities seems to be confirmed, and indeed extended by Ood. St; 0. 82 8. 14; by the effect of which also rights of entry or of actij are devisable (a). These interests and rights are also now aBsia able at law by Con. Stat. o. 90, as we have before seen (i),] With regard to devises in general, experience soon shewed U difficult and hazardous a thing it is, even in matters of public utiji to depart from the rules of the common law ; which are so nicef constructed and so artificially connected together, that the breach in any one of them, disorders for a time the texture oft whole. Innumerable frauds and perjuries were quickly introdon by this parliamentary method of inheritance ; for so loose ^ras tl construction made upon this act by the courts of law, that bare Dot[ in the hand-writing of another person were allowed to be good within the statute. To remedy which the Statute of Frauds ad tenements shall not only be in writing, but signed by the testato Mode of execu- tion under Stat, of Frauds. Mode of execu- tion under Con. Stat. c. 82. or some other person in his presence, and by his express din Perjuries, 29 Car. II. o. 3, directs that all devises of lands aii| tion ; and be subscribed, in his presence, by three or four ciediUJ witnesses. In the construction of this statute, it has been adjudged that til testator's name written with his own hand at the beginning of 1 will, as, ''I John Mills do make this my last will and testament," | a sufficient signing, without any name at the bottom ; though i other is the safer way. It has also been determined, that thoiiL the witnesses must all see the testator sign, or at least acknowleiiil the signing (c), yet they may do it at different times. But they mi all subscribe their names as witnesses in Ma presence, lest by aoj possibility they should mistake the instrument. [Though of coun it is very advisable that the attestation clause should shew that requisites to the due execution of a will have been complied wltl still thai is not absolutely necessary, and proof can be given. Wills affecting lands executed after the sixth day of March, I83i| in the presence of and attesLad by two or more witnesses, hare same validity as if executed in the presence of and attested by tb witnesses ; and it is sufficient if such witnesses subscribe their i in the presence of each other, though their names may not be salij scribed in the presence of the testator (d). The variance between the statutes of Charles and of William i this : that by the former, the will must be attested and subscribed ^ presence of the testator hy three or four credible witnesses, who nei not subscribe nor attest in presence of each other, or at one and tlij same time ; the latter statute is silent as to the credibilit;,' cf tb wifr; 's;-f3s, and execution in the presence of and attested by tw wi n?3i:es, is us valid as if in the presence of, and attested by tH and it issufficien*- if such witnesses subscribe in presenci her, without su^jcribing (as required by tbe statute i rio?) iii tbe presence of the testator. It wouM seem that fkil .tatiite cf Charles is not repealed by the statute of William, butl Witnesf"^" -Da 3r..cij ^v ■.') is tie (Statute in Appendix. (i) Supra, note a. (r But see Hayes' Conveyancing, 5 ed. 842, n. h. Y*) 4 Wm. IV. 0. 1 ; Con. Stat. o. 82 s. 13. OP ALIENATION BY DE-"^ISE. 349 t the only effect of the latter is to afford an additional mode by lich a will may be executed : in this point of view, therefore, a 11 invalid under the provincial Act might yet be supported under I imperial statute j thus a will executed in presence of three aesses who should have subs'^nbed in presence of the testator, but in presence *^f euch other, ^-s required by the provincial Act), ht yet be sustained. Where a power of appointment given by some instrument is to be lercised by will, the requirementa of the power must be strictly owed, for the will might be valid as a will, and jret invalid as an jrcise of the power ', as if the latter should enjoin sealing. Id the case of a will executed abroad of lands situate here, the ; loci ret sitae governs ; whilst as to personalty, the law of the ice of domicile shall prevail. Section 6 of the Statute Charles enacts, that " no devise of lands ReTocation ud- II be revocable otherwise than by some other will or codicil in writ- rrauda.*' °^ [, or other writing, declaring the same ; or by burning, cancelling, ng, or obliterating the same by the testator himself, or in his pres- and by his direction and consent ; but all devises and bequests of ids and tenements shall continue in force, until the same be burnt, iceiled, torn, or obliterated by the testator, or by his direction ; Bnless the same be altered by some other 7vill or codicil in writing, other viriting of the devisor, signed in the presence of three or I witnesses, declaring the same." It will be observed, that if the ocatioQ be by mere writing other than by will or codicil, it need be signed by the witnesses in the presence of the spectator. If vocation is to take place by another and inconsistent disposition subsequent loill or codicil, the same must be executed with all formalities requisite to a valid will or codicil, and so that it may mte either under the statute of Charles or the Con. Stat : and if second devise made be ineffectual, by reason of its failing to :e effect in consequence of the instrument being insufficiently icuted, then the fact that an express clause of revocation quoad subject matter of the intended second devise be added, wiU make difference, even though the instrument were executed so that as we xmting other than as a will it would have been valid. Thus, bise to A., of Blackacre, will be revoked by a subsequent valid Ise thereof to B., per se, without any revoking clause, for the nd devise is inconsistent with the first, and the last will prevails. the second will, containing the devise to B,, were invalid, as Dg insufficiently executed to pass the estate, then it would be alid as a revocation, even though it contained an express clause revocation of the devise to A. ; but it would seem that in this le if the devise failed, not from defect in the will, but from inca- lity in the devisee to take, the first will would be revoked. Revo- ion also would take place by a valid will or codicil containing an ress revoking clause of the former, even though it should contain disposition of Blackacre j and it can equally take place by a iting other than a will or codicil signed by the testator in the sence of three witnesses, who need not subscribe in presence of testator, or of each other ; one or other of which two latter alities is requisite to the validity of a will.] 360 OP ALIENATION BY DEVISE. Con. Stat. c. In as to custody of wills of living personB. luplied revoca- tion. Crctlibillty re- quired in the witnesses. [Revocation taking place as above explained, causes the learn commentator to state that] a solemnity nearly similar to that requir for execution is requisite for revoking a devise in writing; thou the same may be also revoked by burning, cancelling, tearing, obliterating thereof by the devisor, or in his presence, and with . consent ; as likewise impliedly, by such a great and entire alterati in the circumstances and situation of the devisor as arises from n riage, and birth of a child [in the case of a male, or from marrii alor.'.e in the case of a female testator. As regards revocation by burning, &o., the animus revocandi to be considered j for if a testator by mistake should destroy will, it would be no revocation ; so, on the other hand, though thi were no actual destruction, yet if there were the intent to destn and in fact some partial though only very slight destruction, it woi suffice as a revocation. It is manifest that as a will may be wholly or partially revoked cancellation or obliteration, the door is thereby opened to gn frauds, for on the testator's death the will may be obliterated .so to materially change it ; as in the case of a devise to the widow a eldest son jointly, the will might be fraudulently altered by eithi so also a wiii might be totally suppressed by an heir ut law if un; vourable to him. It was probably the consideration of the possibili of such facfa as above which led to the stniute 22 Vic. c. 93, C Stat. c. IG s. 7-^,. which provides ihat the ci'^ce of the registrar every surrogate court shall bv; the depository of the wills of livi persons left with the registrar for safe keeping. Apart from revocation implied from alteration in the circuinstam and situation of the testator fi.^ above named, the same Uiay also implied from alteration in the devisoi's estate in tho subject-uwtl of the devise. The., as a general rule, a conveyance by a testati after a specific devise, will revoke the devise, even though the eff( of the conveyance is to revest iu the testator the same estate, or pa thereof, as he had before. As, where a testator devised in ' Blackacre to A., and then conveyed to trustees for a term of yei to secure a jointure for his intended wife, with an ultimate limitatii to himself in fee, this was held a revocation of the devise. But operate as a total revocation, the disposition must be co-extensii with that made by the will. Thus, a lease made of the whole, oi conveyance of part only, is only a revocation pro tanto. The gni ing a mortgage, with the redemption clause as usual, does not equity at least, operate as a revocation except to a partial cxtei that is, the devisee will take subject to the mortgage. An agreemel to convey opuratet. iu equity as a revocation ; for, by the contract,j conversion of the land into personalty takes place (a) : nor is devisee entitled to the purchase money. The statute of William is silent as to the credibility of the nesses, whilst the statute of Charles required that the witnesses shoi be credible witnesses, and in one case] the judges were extremelysti in regard to the credibility, or rather the competency, of the nesses : for they would not allow any legatee, nor by consequence (a) Ante, p. 83. or ALIENATION BY DEVISE. 851 Itreditor, where the legacies and debts were charged on the real [state, to be a competent witness to the devise, as being too deeply Lncerned in interest not to wish the establishment of the will; for, lif it were established, he gained a security for his legacy or debt Ifrom the'real estate, whereas otherwise he had no claim but on the [personal assets. This determination, however, alarmed many pur- Ichasers and creditors, and threatened to shake most of the titles in Itkc kingdom that depended on devises by will. For, if the will Ifas attested by a servant to whom wages were due, by the apothe- Itary or attorney whose very attendance made them creditors, or by jtlie minister of the parish who had any demand for tithes or eccle- jiiastical dues (and these are the persons most likely to be present in |tlie testator's last illness,) and if, in such case, the testator had jckarged his real estate with the payment of his debts, the whole jiill, and every disposition therein, so far as related to real property, here held to be utterly void. This occasioned the statute 25 Geo. 25 Geo. ii. c. o jll. c. 6, which restored both the competency and the credit of such JftetoVtoesws. |fc(/a/«s, by declaring void all [beneficial] legacies, [devises, estates, iDterests, gifts, or appointments of or affecting any real or personal state] given to witnesses, and thereby removing all possibility of iei." interest affecting their testimony. The same statute likewise istablished the competency of creditors, by directing the testimony jof all such creditors to be admitted, but leaving their credit (like [ihat of all other witnesses) to be considered, on a view of all the jtireumstfinces, by the court "'and jury before whom such will shall •s.378. le contested. And in a much later case (a) the testimony of three litaesses, who were creditors, was held to be sufliciently credible, [tboufrh the land was charged with the payment of debts ; and the kasons given on the former determination were said to be insufi&- Itient. Another inconvenience was found to attend this new method of By statute 3 & 4 lonveyance by devise; in that creditors by bond and other special- creditors by spe- lies, which affected the heir, provided he had assets by descent, were ^^^ a^ainsuhe*^"" how defrauded of their securities, not having the same remedy d€its«e, as well as [gainst the devisee of their debtor. To obviate which, the statute*'*® ''"''• & 4 W. & M. c. 14, hath provided, that all wills and testaments, pmitations, dispositions, and appointments of real estates, by tenants fee-simple, or having power to dispose by will, shall (as against «ch creditors only,) be deemed to be fraudulent and void : and iat such creditors may maintain their actions jointly against both lie heir and the devisee (h). A will of lands made by the permission and under the control of hese statutes, is considered by the courts of law not so much in the laturc of a testament, as of a conveyance declaring the uses to Vhich the land shall be subject ; with this difference, that in other con- leyances tic actual subscription of the witnesses is not required by liw (c), though if is prudent for them so to do, in order to assist their (a) 4 Bur. I. 430. Ante, p. 178; see also Vankovghmty. Ross, 7 Q. B. U. C, 248, com- mented on in Rymal v. Ashherry, 12 C. P. U. C, 339. (c) See ss. 307, 308, p. 266 H' 852 OP ALIENATION BY DEVISE. 'Will may pas8 by it, I'? '^ u memory when living, and to supply their eridence when dead : bu. in devises of lands such subscription is now absolutely necessary b] statute, in order to identify a conveyance which in its nature cal never be set up till after the death of the devisor. And up^n thj notion, that a devise affecting lands is merely a species of convex ance, is founded this distinction between such devises and testameDt of personal chattels ; that the latter will operate upon whatever th| testator dies possessed of, the former only upon such real estates i were his at the time of executing and publishing his will. Wher^ fore no after purchased lands will pass under such a devise, unlei Su equent to the purchase or contract the devisor republish hi By Con. Stat. c. will J [or (since 6th March, 1834) the will "contain a devise in ani after makin'g'ft* " form of words of all such real estate, as the testator shall die seisej " or possessed of, or of any part or proportion thereof." In whlcj case the will will be as effectual to pass after acquired property, as i the title thereto had been acquired before the making the will (Con Stat. c. 82 s. 11.) wmbeSdered ^<^- ^ ^f this Statute makes a further alteration in the form^ &8 Intending to law in this, tho t " Whenever land is or shall be devised in a wil iil.o'in'tiio land " made by any person who shall die afler the sixth day of Marcf a r^ct-M^int'-t " °°® thousand eight hundred and thirty-four, it shall be cons •ppW. "*'" that the devisor intended to devise all such estate as he was seisi " of in the same land, whether fee simple or otherwise, unless " appears upon the face of such will that he intended to devise onlj " an estate for life, or other estate lees than he was seised of at tl " time of making the will containing such devise." Before th a devise siriply to A., would have given but a life estate, for wai of words reotisite to confer a higher estate ; and now will carry ti fee-simple or such other estate whereof the devisor may have seised. The important subject of executory devises, and the indulgenol shewn them in allowing creation and existence of estates by.modfj which could not be effected by deed, was before treated of (a) ; also the restraint placed on perpetuities in wills (h). 1 may hei| mention that the Imperial Statute 39 & 40 Geo. III., c. 98, times known as the Thelluson Act, which prohibits the accumuiatioj of the income of property beyond a presinbed period (c), is not i force here, for reasons before explained '^i). The subject of devises by will is one which, to be fully treated ol would require very much more space than can be devoted to it in[ work of this nature, which treats of so many subjects on the iawif real property ; and I have therefore contented myself with explaiij ing the alterations in the law since Sir W. Blackstone wrote, making such additional remarks as might be of service.] The general rules "VVe have now considered the several species of common as tion of deeds and ances, whereby a title to lands and tenements may be transfed and conveyed from one man to another. But, before wo conclul this head, it may not be improper to take notice of a few genen viUs. (a) SeoB. 172, 173, p. -^ (c) Stephen, Com., vol. 555. (b) Sec. 174, p. 114. (d) Ante, p. 14. or ALIENATION BT PXYIU. L]es and maxims, which hare been laid down by courts of justice Lr the conetructioQ and exposition of them all. TheD sufficiently careful not to prejudice their jowQ interest by the two extenaave meaning of their words; and lliereby all manner of deceit in any s^rant is avoided ; for men would lilways affect ambiguous Mid intm^ate erpressions, provided they iwere afterwards at liberty to |»at thev own construction upon them. ■But here a distinction must lae takesc between an indenture and a ideed-poll : for the words of an indentuoe, executed by both parties, lare to be considered as the words of th«m both ; for, though deli* jTered as the words of one party, yet th«]y are not his words only, ibecauEe the other party hath given his csDosent to every one of Ithem. But in a deed-poll, executed c^nly by the grantor, they are Ithe words of the grantor only, and shall be taken most strongly hgainst him (^). And, in general, this rule, being a rule of some littrictDess and rigour, is the last to be resorted to ) and is never to p relied upon, but where all other rules of exposition fail. 5. That, if the words will bear two senses, one agreeable to, and liDother against law, that sense be preferred which is most agreable |thereto {h). As, if tenant in tail lets a lease to have and to hold " " ■ ■'■ ,.i.— .1 .1 — .■.■■■■. -■■I -- ,. 11.^ (a) Broom's Legal Maxims, 8rd ed. 481, 604 ; 2 Smith Lg. Cases, 449. (6) Broom Leg. Max. 651. (c) Broom Leg. Max. 611. (rf) lb. 612. {e) lb. 518. (/)Ib. 629. (y) Co. Litt. 134. (A) Co. Litt. 42. 22 858 • S. S80. 354 OF ALTKNATION BY DKVISK. H If si : fi I" i, J daring life generally, it shall be construed to be a lease for his own! life only, for that stands with the law } and not for the life of the! lessee, which is beyond his power to grant. | * 8. 381. '*' 6. That, in a deed, if there be two olaupes so totally repugnantl to each other that they cannot stand together, the first shall bel received, and the latter rejected : wherein it differs from a will; fofl there, of two such repugnant clauses, the latter shall stand (a) J which is owing to the different natures of the two instruments ; fori the first deed and the last will are always most available in iaw.l Yet in both cases we should rather attempt to reconcile them. A dfaTiM mnit be 7. That a devise be most favourably expounded, to pursue if pog.l e^mM^to^ sible the will of the devisor, who for want of advice or learuing mayl iBtrotonhe ^^^^ omitted the legal or proper phrases. And therefore many deviwr. times the law dispenses with the want of words in devises, that are absolutely requisite in all other instruEienta. Thus, a fee may be ocQveyed without words of inheritance (b) ', and an estate-tail with- out words of procreation (c). By a will also an estate may pass by mere implication, without any express words to direct its course. As, where a man devises lands to his heir-at-law, after the death of bis wife : here, though no estate is given to the wife in express terms, yet she shall have an estate for life by implication ; for the intent of the testator is clearly to postpone the heir till after her death; and, if she does not take it, nobody else can. So, also, where a devise is of Black-acre to A. and of White-acre to B. ia tail, and if they both die without issue, then to 0. in fee ; here A. and B. have cross remainders by implication, and on the failure of either's issue, the other or his issue shall take the whole ; and C/s remainder over shall be postponed till the issue of both shall fail. But, to avoid confusion, no such cross remainders are allowed be- tween more than two devisees {d) ; and, in general, where any implications are allowed, they must be such as are necessary (or at • s. 382. least highly * probable) and not merely possible implications. . And herein there is no distinction between the rules of law and of equity; for the will, being considered in both courts in the light of a limita- tion of uses, is construed in each with equal favour and benigDity, and expounded rather on its own particular circumstances, than by any general rules of positive law. Conciuaion. And thus WO have taken a transient view, in this and the three preceding chapters, of a very large and diffusive subject, the doctrine of common assurances ; which concludes our observations on the title to things real, or the means by which they may be reciprocally • lost and acquired. We have before considered the estates which may be had in them, with regard to their duration or quantity of interest, the time of their enjoyment, and the number and connex- ions of the persons entitled to hold them : we have examined the tenures, both antient and modern, whereby those estates have been and are now, holden ; and have distinguished the object of all i inquiries, namely, things real, into the corporeal or substantial, (a) Co. Litt. 112. (6) See s. 108. (e) See s. 115. (d) The doctrine in the text would appear to be no longer law ; 2 Jar, oa I Wills, 512 ; Eeron v. Walth, 8 Grant, 606. or ALIENATION BT DEYISK. 85& incorporeal, or ideal hind ; and have thus considered the rigbta of Ktl property in every light wherein they are contemplated by the liwB of England. A system of laws that differs much from evory ^er system, except those of the same feodal origin, in its notions lod regulations of landed estates; and which therefore could, in lliig particular, he very seldom compared with any other. The subject which has thus emi)loyed our attention is of vei^ exten- dre use, and of as extensive variety. And yet, I am afraid, it has iforded the student less amusement and pleasure in the pursuit than the matters discussed in the first volume. To say the truth, the ytst alterations which the doctrine of real property has undergone ^ni the conquest to the present time ; the innnite determinations upon points that continually arise, and which have been heaped one upon another for a course of [eight] centuries, without any order or •method ; and tho multiplicitv of Acts of Parliament which have amended, or sometimes only altered, the common law ; these causes * s. sss. have made the study of this branch of our national jurieprudence a little perplexed and intricate. It hath been my endeavour princi- pally to select such parts of it as were of the most general use, where the principles were the most simple, the reasons of them the sioat obvious, and the praotico the least embarrassed. Yet I cannot presume that I have always been thoroughly intelligible to such of my readers as were before strengers even to the very terms of art, which I have been obliged to make use of; though whenever those have first occurred, I have geoerallv attempted a short explication of their meaning. These are indeed the more numerous, on account of the different languages which our law has at different periods been taught to speak; the difficulty arising from which however, will insensibly diminbh by use and familiar acquaintance. ' ii* ^>. IMAGE EVALUATION TEST TARGET (MT-S) i^O 1.0 I.I 1^ 1 2.8 ^ Itf 12.0 2.5 li 1.25 '" ^ II 1.4 IIIII..6 ^ 6" — : ~^ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 ^% \ iV N> ^ S O^ f/i I. ff APPENDIX. H CAI». LXXtm. I in Aet rejecting Semediet for or agairat Shseeuiora and AehniniatrO' ' tort, and retpecUng the Limitation qf certain AePiont. EB MAJtISTT, by and with the advice and consent of the Le^atire Council and Assembly of Canada, enacts as follows : BIGHTS AND LIABILITIES OF EXECUTORS, Ao. 1. In case of an injury to the real estate of any person committed within I riz months next prior to hie decease, Ms executors or administrators may luiuatain an action of trespass or of trespass on the case therefor, according )tliie nature of the injury if brought within one year after his decease, and he damages when recovered shall be part of his personal estate. 1 Wou |IV.,c. 3, S.2. 2, In case any deceased person, within six months next previous to his Ijeoease, committed a wrong to another person in respect of such, other I person's real or personal property, the person so wronged may, within six I months after the executors or administrators of the person who committed I the wrong, have taken upon themselves the administration of his estate and I effects, maintain an action therefor of trespass or of trespass on the case lucording to the nature of the wrong against such executors or administra- Iton, and the damages recovered in such action shall be payable in like order J of administration as the simple contract debts of the deceased -penon, 7 ifm.iy., c. 8, s. 2. 8. The executors or administrators of any lessor or landlord may distrain |q)on the lands demised for any term or at will, for the arrearages of rent due jtosnchlesBor or landlord in his lifetime, in like manner as such lessor or I landlord might have done if living. 1 Wm. IV., c. 8, s. 27. 4. Such arrearages may be distrained for at any time within six months I liter the determination or the term or lease, and during the continuance of the IposBession of the tenant from whom the arrears became due ; and the powers lind provisions contained in the several Statutes relating to distresses for [rent shall be applicable to the distresses so made as aforesaid. 7 Wm. IV., |c,8, B. 28. 6. An action of debt on simple contract shall be maintainable in any court I of common law against any executor or administrator. 1 Wm. IV., c. 8, 1 1. 11. 7. Actions of debt for rent, upon an indenture of demise ; actions of cove* I nant of debt, or scire faeio* upon a recognizance ; actions of debt upon an I award where the submission is not by specialty, or for an escape, or for Imoney levied on a /m /acta*; and actions for penalties, damages, or sums I of money given to the party (^grieved by any statute, shall be commenced I and sued within the time and umitation hereinafter expressed, and not after, ■ that is to say : The said actions of debt for rent upon an indenture of demise lor covenant, or of debt upon a bond or other «pecialty, and actions of debt, lor icire facieu upon a recc^izanoe, within twenty years after the canse of luoh actions arose ; the said actions by the party aggrieved, within two years ifUr the canse of such actions arose, and Uie said other acticms, within six \1 %:'i 358 APPENDIX. years after the cause of such actions arose ; but nothing herein contt^ned shall Aztend to any action ^ven by any statute, where the time for brin^a such action is by the statute specially limited. 1 Wm. lY., c. 8, s. 8. Repeated as to 8. In case any person entitled to any such action, or to such teirefadai, .. C^TCrOto^ bff ** *^® **™® °^ *°y ^""^ cause of action accruing, within the age of twenty 36 vie. c. ao. 0D6 years feme covert, non compot nunHs, for without the limits of Uppei Canada,] then such person may bring any such action, within such time anei coming to or being of foil age, discovert, of sound memory, [or returned t Upper Canada,] as other persons haying no such impediment should, accordlDi to the proyisions of this Act, have done ; and if any person against whom any such cause of action accrues, be at such time without the liimts of Uppeii Canada, the person entitled to such cause of action may bring the nctioni within such tii^es as are before limited, after the return of the absent person to Upper Canada. 7 Wm. IV., c. 8, s. 4. 9. In case any acknowledgment by writing signed by the principal partJ or his agent, be made, by any person liable by virtue of any indentarej specialty or recognizance, or in case any acknowledgment be made by aoj such person by part payment, or part satisfaction, on account of any principal or interest due on any such indenture, specialty or recognizance, the penoa entitled to an action in respect to such liability, may bring his action for the money remaining unpaid and so acknowledgea to be due, within twenty yeani after such acknowledgment by writing, or part payment, or part satis&ctiosj as aforesaid ; or in case the person entitled lo such action be at the time ofl such acknowledgment, under any disability, as aforesaid, or the party majdigl the acknowledgment be, at the time of making the same, without Upperl Canada, then within twenty years after such disability has ceased, as afore-l said, or the party has returned, as the case may be ; and the plaintiff orl plaintiffs in any such action, on any indenture, specialty or recognizance,! may, by way of replication, in answer to a plea of this Statute, state Bncii| acknowledgment, and that such action has been brought withhi the time I aforesaid. 1 "Wm. IV., c. 8, s. 4. 10. If in any of the actions hereinbefore mentioned, judgment be eivenforl the plaintiff, and the same be reversed for error in a Court of Error orl Appeal, or if a verdict passes for the plaintiff, and upon matter alleged ill arrest of judgment, the judp^ent be given against the plaintiff that he tti»l nothing by his writ or action, or in any of the said actions the defendiitl being outlawed, reverses the outlawry, the plaintiff, his executors or admimt'l trators, as the case requires, may commence a new suit or action, from tintl to time, within a year after' such judgment reversed, or such judgment given I against the plaintiff, or the outlawry reversed, and not after. 7 Wm. lY,,' c. 8, 8. 6. Imp. Stat. 3 A 4 Wm. IV., c. 106, 1.11. CAP. LXXXII. An Act Respecting Heal Property. HER MAJESTY, by and with the advice and consent of the LegiBlfttlTej Council and Assembly of Canada, enacts as follows : 1. The eighteenth section of the interpretation Act is not to apply to t1iii| Act. DESCENTS SINCE THE 1st JULY, 1884. 2. This Act shall not extend to any descent which took place on the deitli| of any person who died before the first day of July, one thousand eight hwl dred and thirty-four. 4 Wm. IV., c. 1, s. 11. 8. The next ten sections of this Act numbered from four to thirteen syl apply retrospectively to the sixth day of March, one thousand eight hundred I and thirty-four, and also prospectively (as the case may be), and shall be I construed as if the same had been enacted and passed on the said sixth dijl of March, one thousand eight hundred and thirty-four. 4 Wm. IV., c. 1> b. IL | APPENDIX. 869 y, one thousand eight hul 4, In evenr case, on and after the first day of July, one thousand eight imp. Stat. 3*4 bandred ana thirty-four, descent shall be traced fropi the purchaser ; and to Wm. IV, c. 106, the intent that the pedigree may never be carried farther back than the cir-'* ^' cumstances of the case and the nature of the title require, the person last entitled to the land shall for the purposes of this Act be considered to have been the purchaser thereof, unless it be proyed that he inherited the same, in which cose, the person f^om whom he inherited the same shall be consid- ered to have been the purchaser, unless it be proved that ho inherited the yune; and, in like manner, the last person from whom the land shall be proved to have been inherited shall in every case be considered to have been the purchaser, unless it be proved that he inherited the same. 4 Wm. IV., C 1, B. 1. 6. When any land shall have been devised by any testator, who shall die ig,p, gt^t 3 A 4 (iter the first day of July, one thousand eight hundred and thirty-four, to the Wm. IV., c. 106, heir of the person who shall be the heir of such testator, such heir shall be '• 3' c(sisidered to have acquired the land as a devisee and not by descent ; and when any land shall have been limited by any assurance, executed after the 8fud first day of July, one thousand eight hundred and thirty-four, to the per- son or to the hmrs of the person who shall thereby have conveyed the same land, such person shall be considered to have acquired the same as a purchaser, by virtue of such assurance, and shall not be considered to be entitled thereto, 18 of his former estate or part thereof. 4 Wm. IV., c. 1, s. 2. 6. When any person shall have acquired any land by purchase, under a imp. Stat. 3 A 4 limitation to the heirs, or to the heirs of the body of any of his first ancestors, 'Wm. IV., e. 106, contained in an assurance executed after the said first day of July, one thou- '* ' sand eight hundred and thirty-four, or under a limitation to the heirs, or to the heirs of the body of any of his ancestors, or under any limitation having the same effect, contained m a will of any testator who shall depart this life liter the said first day of July, one thousand eight hundred and thirty-four, then and in any of such cases, such land shall descend, and the descent thereof shall be traced as if the ancestor named in such limitation had been the pur- chvser of such land. 4 Wm. IV., c. 1, s. 8. I. When the person from whom the descent of any land is to be traced shall imp. Stat. 3 A 4 hare had any relation who, having been attainted, died before such descent Wm. IV., e. 163, shall have taken place, then such attainder shall not prevent any person from •• "*' inheriting such land who would have been capable of inheriting the same by tracing his descent through such relation if he had not been attainted, unless such fond escheated in consequence of such attainder before the first day of July, one thousand eight hundred and thirty-four. 4 Wm. IV., c. 1, s. 9. 8. Proof of entry by the heir after the death of the ancestor shall in no case be necessary in order to prove title in such heir, or in any person claim- ing by or through him. 4 Wm. IV., c 1, s. 10. 9. Where any assurance executed before the said first day of July, one imp. stat. 3 4 4 thousand eight hundred and thirty-four, or the Will of any person who died Wm. IV., c. 106, before that day, contains any limitation or gift to the heir or heirs of any ■• ^^ person under which the person or persons answering the description of heir shall be entitled to an estate by purchase, then the person or persons who would have answered such description of heir if this Act had not been made, shall become entitled by virtue of such limitation or gift, whether the person named as ancestor shall or shall not be living on or after the said first day of July, one thousand eight hundred and thirty-four. 4 Wm. IV., c. 1, s. 12. 10. Whenever by any letters patent, assurance or will, made and executed after the first day of July, one thousand eight hundred and thirty-four, land shall be granted, conveyed or devised to two or more persons other than executors or trustees, in fee simple, or for any less estate, it shall bo consid- ered that such persons took or take as tenants in common, and not as. joint tenants, unless an intention sufiiciently appears on the face of such letters patent, assurance or will, that they shall take as joint tenants. 4 Wm. IV., 0. 1, s. 48. II. When the will of any person who shall die after the sixth day of March, one thousand eight hundred aud thirty-four, contain a devise in any -.1 I - A mi 860 APPKMStX. form of words of all sncli re*! estate as the testator shall die seised or possessed of, or of any part or proportion thereof, such will shall be valid and effectual to pass any land that mav have been or may be acquired by tli« devisor after the makine of such wUl, in the same manner as if the title thereto had been acquired before the making thereof. 4 Wm. IV., c. 1, g, 49 12. Whenever land is or Khali be devised in a will made by any penory I who shall die after the sixth day of March, one thousand eight nundred and thirty-four, it shall be considered that the devisor intended to devise all such estate as he was seised of in the same land, whether 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 maldng the will containing such devise. 4 Wm. IV., c. 1, s. 60. 13. Any will affectine land executed after the sixth day of March, one | thousand eight hundred and thirty-four, 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 subscribe their names in the presence of each other, although their names may not be subscribed in presence of the testator. 4 Wm. ly. c. 1, 8. 61 INTERPRETATION CLAUSE. Imp. Stat S ft 4 1^< I'he words and expressions in the foregoing sections and in the next Wm. r/^ c. lOOi seven sections numbered from fifteen to twenty-one inclusive, which in their j "' !• ordinary signifioation have a more confined or a different meaning, shall in all such sections, except where the nature of the provision or the context thereof I shall exclude such construction, be interpreted as follows, that is to say; the word " land " shall extend to messuages, and all other hereditaments, whether corporeal or incorporeal, and to money to be laid out in the purchase of land, and to chattels and other personal property trMismissible to heirs, and also to any share of the same hereditaments and properties, or any ^ I them, and to any estate of inheritance, or estate for any life or lives, or other | estate transmissible to heirs, and to any possibility, right or title of entry or action, and any other interest capable of being inherited, and whether the eame estates, possibilities, rights tities an interests, or any of them, shall be in possession, reversion, remainder or contingency ; and the words " the purchaser " shall mean the person who last acquirea the land otherwise than by descent or than by any partition, by the effect of which the land ahall have become part of or descendible, in the same manner as other land acquired by descent ; and the word " descent " shall mean the title to inherit land by reason of consanguinity, as well where the heir shall be an ancestor or colla- teral relation, as where he shall be a child or other issue ; and the expression " descendants of any ancestor " shall extend to all persons who must trace their descent through such ancestor ; and the expression " the person last entitled " to land " shall extend to the last person wno had a right thereto, whether he did or did not obtain the possession or the receipt of the rents and profiti thereof; and the word "assurance" shall mean any deed or instrument (otl:er than a will) by which any land shall be conveyed or transferred at law or in equity; and the word "rent" sliall extend to all annuities and periodi- cal sums of money charged upon or payable out of any land ; and the " person ^ through whom another person is said to claim," sliall mean any person by, through or under, or by the act of whom the person so claiming became entitied to the estate or interest claimed, as heir, issue in tail, tenant by the courtesy of England, tenant in dower, successor, special or general occupant, executor, administrator, legatee, husband, assignee, appointee, devisee or otherwise ; and every word Importing the singular number only, shall extend and be applied to several persons or things, as well as to one person or thine; and every word importing the masculine gender only, shall extend and be applied to a female, as well as to a male. 4 Wm. IV. c. 1, s. 69. DESCENTS BETWEEN 1st JULY, 1834, AND Ist JANUARY, 1862. 16. The tively to a foregoing sections of this Act shall not have operation retrospee- i period of time anterior to the 6th day of March, one thousand APPENDIX. 861 itator shall die seised or I , such will shall be valid ar may be acquired by the ne manner as if the title )f. 4Wm.IV.,c.l,g.49. will made by any person itisand eight hundred and ntended to devise all such ir fee simple or othervise e intended to devise only I seised of at the time of | 7., c. 1, 8. 60. sixth day of March, one I resence of and attested by f and effect as if executed and it shall be sufficient ice of each other, although the testator. 4 Wm. ly., SE. sections and in the next I i iaclusive, which in their I Ferent meaning, shtdl in all sion or the context thereof | 8 follows, that is to say; i idl otiier hereditaments, be laid out in the purchase by transmissible to heirs, and properties, or any (^ I • any life or lives, or other r, right or title of entry or herited, and whether the , or any of them, shall be ;y ; and the words " the id the land otherwise thai of which the land shall iner as other land acquired he title to inherit land by 11 be an ancestor or coUa- ssue ; and the expression ions who must trace their the person last entitled right thereto, whether he of t^e rents and profits any deed or instrument yed or transferred at law all annuities and periodi- y land ; and the " persoa ^ lall mean any person by, ison 80 claiming became |sue in tail, tenant by the cial or general occupant, !, appointee, devisee or umber only, shall extend ,s to one person or thine; ly, shall extend and w c. 1, 8. 89. Ilsi JANUARY, 1852, ave operation retrospeo of March, one thousand hundred and thirty-fonv, 80 as, by force of any of their provisions, to render any title valid, which in regard to any particular estate had prior to that day been adjudged, or has been or may be in any suit which was depend- |gg on that day adjudged invalid, on account of any defect, imperfection, patter or thing, which is by such sections altered, supplied or remedied ; but jg every such case the law in regard to any such defect, imperfection, matter or thing, shall, as applied to such title, be deemed and taken to be as if those lections of this Act had not been passed. 4 Wm. IV. c. 1, s. 60. 16. As respects every descent between the first day of July, one thousand hundred and thirty-four, and the thirty-first day of December, one thou- itnd eight hundred and fifty-one, both days included, and as respects any descent not included or provided for in the sections of this Act, numbered from twenty-three to forty-nine, both included, the following sections, num. bered from seventeen to twenty-one, both included, shall apply retrospectively to the first day of July, one thousand eight hundred and thirty -four, and also Kspectively, as the case may be, and shall be construed as if the same had n passed on the said first day of July, one thousand eight hundred and ihirty-four. See li A 16 Vic. c. 6, s. 1. 17. No brother or sister shall be considered to inherit immediately from Tmp. jus or her brother or sister, but every descent from a brother or sister shall ^P* be traced through the parent. 4 Wm. IV., c. 1, s. 4. ■* 18. Every lineal ancestor shall be capable of being heir to any of his issue. Imp. I ind in anv case where there is no issue of ttie purchaser, his nearest lineal ^P- ancestor shall be his heir in preference to any person who would have been ** " entitled to inherit, either by tracing his descent through such lineal ancestor, or in consequence of there beine no descendant of such lineal ancestor, so that the father dhall be preferred to a brother or sister, and a more remote I lineal ancestor to any of^his issue, otiier than a nearer lineal ancestor or his !8ue. 4 Wm. IV., c. 1, s. 6. 19. None of the maternal ancestors of the person from whom the descent imp, I ie to be traced, nor any of their descendants, shall be capable of inheriting Wm. nntil all his paternal ancestors and their descendants have failed ; and no '• ^' female paternal ancestor of such person, nor any of her descendants, shall be capable of inheriting, until all his male jpaternal ancestors and their descend- ants have failed, and no female maternal ancestor of such person', nor any of her descendants shall be capable of inheriting, until all hia male maternal I ancestors and their descendants have failed. 4 Wm. IV., c. 1, s. 6. 20. Where there shall be a failure of male paternal ancestors of the person Imp. rom whom the descent is to be traced, and their descendants, the mother of ^°'- I his more remote male paternal ancestor, or her descendants, shall be the'* ' heir or heirs of such person, in preference to the mother of a lees remote I male paternal ancestor, or her descendants ; and when there shall be a failure I of male paternal ancestors of such person, and their descendants, the mother ■ of his more remote male maternal ancestor, and her descendants, shall be the I heir or heirs of such person, in preference to the mother of a less remote I male maternal ancestor and her descendants. 4 Wm. IV., o. 1, 8. ?. 21. Any person related to the person from whom the descent is to be Imp. traced by the half blood, shall be capable of being his heir, and the place in Wm. I which any such relation by the half olood shall stand in the order of inherit- '* lance, so as to be entitled to inherit, shall be next after any relation in the I tame degree of the whole blood and his issue, where the common ancestor I shall be a male, and next after the common ancestor when such common I ancestor shall be a female, so that the brother of the half blood on the part I of the father, shall inherit next after the sisters of the whole blood on the ■part of the father and their issue, and the brother of the half blood on the [part of the mother, shall inherit next after the mother. 4 Wm. IV., c. 1, s. 8. DESCENTS FROM AND AFTER FIRST JANUARY, 1852. 21 The following sections numbered from twenty-three to forty-nine, both ^included, shall apply retrospectively to the first day of January, one thousand ''g;ht hundred and fifty-two inclusive, and also prospectively, as the case may Stat. 8 A 4 IV., e. 106, SUt. 8 A 4 IV., c. 106, Stat. 3 & 4 IV., c. 106, Btat. 3 A 5 IV., c. 10«, Stat 3 & 4 IV, c. 106, rN 1 fj1 tt [V ; 362 - P 1 I r APPENDIX. be, and shall be construed as if the same had been passed on the said first day of January, one thousand eight hundred and fitty-two. U dc 16 Vic. i 0. 6, s. 1. 'I 23. Whenever on or after the first day of January, in the year of our Lord one thousand eight hundred and fifty-two, any |)er8on shall die, seized in fee i simple or for the life of another of any real estate in Upper Canada, without having lawfully devised the same, such real estate shall descend or pass by way of succession in manner following, that is to say : Mratly — To his lineal descendants, and those oMmiug by or under thero, pertHrpea; ]x_i^ j c^ViVC^O^' 'MX {w^i C iy' \ Seeondl^—To his father ; Thirty — To his mother ; and Fourthly — ^To his collateral relatives ; Subject in all coses to the rules and regulations hereinafter prescribed, u & 16 Vic, 0. 6, 8. 1. 24. If the intestate shall leave several descendants in the direct line of lineal descent, and all of equal degree of consanguinity to such intestate, the inheritance shall descend to such persons in equal parts, however remote from the intestate the common degree of consanguinity may be. 14 1 15 1 Vic, c 6, f , 2. ' 26. If any one or more of the children of such intestate be living, and any I one or more be dead, the inheritance shall descend to the children who are I living, and to the descendants of such children as have di^d, so that each I child who Bhall be living shall inherit such share as would have descended I to him if all the children of the intestate who have died leaving issue, had | b' n living ; and dO that the descendants of each child who shall be di inherit in equal shares the share which their parent would have received | iving. 14 & 16 Vic, c 6, b. 8. 26. Tlie rule of descent prescribed in the last preceding section shall apply I in every case where the descendants of the intestate, entitled to share in the I inheritance, shall be of unequal degrees of consanguinity to the intestate, so I that those who are in the nearest degree of consanguinity shall take the I shares whi«h would have descended to them, had all the descendants in the| same degree of consanguinity who have died leaving issue, been living, i so that toe issue of the descendants wiLo have died, shall respectively tab I the shares which their parents if living would have received. 14 «& 15 Vlc,| c. 6, 8. 4. 2*7. In case the intestate dies without lawful descendants, and leaTingii father, then the inheritance shall go to such father, unless the inheritance came I to the intestate on the part of his mother, and such mother be living; aDdii| such mother be dead, the inheritance descending on her part shall go to the! father for liife, and the reversion to the brothers and sisters of the intestate I and their descendants, according to the law of inheritance by collateral reii-| lives hereinafter provided ; and if there be no such brothers or sisters, otl their descendants, living, such inheritance shall descend to the father. Ui| 16 Vic, c 6, fl. 6. 28. If the intestate shall die without descendants, and leaving no father, otj leaving a father not entitled to take the inheritance under the last precec section, and leaving a mother and a brother or sister, or the descendant of il brother or sister, then the inheritance shall descend to the mother during hnl life, and the reversion to such brother or sister of the intestate as may btl living, and the descendants of such as may be dead, according to the saml law of inheritance hereinafter provided ; and if the intestate in such ml leaves no brother or sister, nor any descendant of any brother of sister, tiit| inheritance shall descend to the mother. 14 <& 16 Vic, c. 6, b. 6. 29. If there be no father or mother capable of inheriting the estate, it s descend in the cases hereinafter specified to the collateral relatives of tlii| intestate ; and if there be several of such relatives, all of equal degrees ofl consanguinity to the intestate; the inheritance shall descend to tuemiil I pasBed on the Bald first fifty-two, U dc 16 Vic, ' J, in the year of our Lord ion shall die, seized in fee In Upper Canada, without shall descend or pass by »y: aiming by or under them, | ereinafter prescribed. U dants in the direct line of I inity to such intestate, the j al parts, however remote igmnity may be. 14 & 15 1 intestate be living, and any id to the children who are I as have died, so that each I i as would have descended I Kve died leaving issue, had ih child who shall be dead parent would have received 'eceding section shall apply I ,te, entitled to share in the I guinity to the intestate, bo I msangiiinity shall take the I all the descendants in the | ing issue, been living, 1 ied, shall respectively take] e received. 14 & 15 Vic, |descendants, and leaving 1 1 inless the inlieritancecamel \h mother be living; and if I >n her part shall go to the I land sisters of the intestatel leritance by collateral reitl ich brothers or sisters, oil iscend to the father. Ui| Is, and leaving no father, oil under the last precediii;| |ter, or the descendant of il to the mother during hsi the intestate as maybtl »d, according to the BaBel the intestate in such ml any brother of sister, tlnl 1 Vic, c. 6, B. 6. leriting the estate, it ( [callateral relatives oftixl ires, tdl of equal degrees of I shall descend to tnemii| A^INDISC. equal parts, however remote from the intestate the common degree of cousan- guinity may be. 14 tb 16 Vic, 0. 6, s. Y. 80. If all the brothers and sisters of the intestate be living, the inheritance sliall descend to such brothers and sisters ; and if any one or more of them be living and any one or more be dead, then to the brothers and sisters and every of them who are living, and to tlie descendants of such brothers and asters as have died, so that each brother or sister who may be living, shall inherit such share as wonld have descended to him or her, if all the brothers or sisters of the intestate who have died leaving issue had been living, and 80 that such descendants shall inherit in equal shares the share which their parent, if living would have received. 14 «fc 16 Vic, c. 6, s. 8. 81. Tlie same law of inheritance prescribed in the last section shall prevul as to the other direct lineal descendants of every brother and sister of the intestate, to the remotest degree, whenever such descendants are of unequal degrees. 14 A 16 Vic, c 6, s. 9. 82. If there be no heir entitled under any of the preceding ten sections, the inheritance, if the same shall have come to the intestate on the part of hid father, shall descend : F%rstl>/. — To the brothers and sisters of the father of the intestate in equal shares if all be living ; Secondly.— It one or more be living, and one or more have died leaving issue, then to such brothers and sisters as are living, and to the descendants of such brothers and sisters as have died, in equal shares ; Thirdly. — If all such brothers and sisters have died, then to their descend- ants ; 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. 14 & 16 Vic, c 6, s. 10. 83. 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. 14 & 16 Vtc.,c6, s. 11. 34. In all cases not provided for by the twelve next preceding sections* where the inheritance shall have come to the intestate on the part of his mother, the same, instead of descending to the brothers and sisters of the intestate's father, and their descendants, as prescribed in the preceding thirty-second section, shall descend to the brothers and sisters of the intes- tate's mother, and their descendants, as directed in the last preceding section ; and if there be no such brothers and sisters or descendamts of them, then such inheritance shall descend to the brothers and sisters, and their descend- ants of the intestate's father, as before prescribed. 14 <& 15 Vic, c 6, s. 12. 36. In cases where the inheritance has 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 of the intestate in equal shares, nnd to their descendants, in the same manner as if all such brothers and sisters had been the brothers and sisters of the intestate. 14 & 15 Vic, c. 6, 8. 18. 86. Relatives of the half blood shall inherit equally with those of the whole I blood in the same degree, and the descendants of such relatives shall inherit in the same manner as the descendants of the whole blood, unless the inheri- tance came to the intestate by descent, devise or gift of some one of his an- cestors ; in which case all thope who are not of the blood of such ancestors I shall be excluded from such inheritance. 14 & 15 Vic. c. 6, s. 14. 87. On failure of heirs under the preceding rules, the inheritance shall I descend to the remaining next of kin of the intestate, according to the rules I in the English Statute of Distribution of the personal estate. 14 &, 16 Vic. c. 6,8. 16. 868 ^'•^11 861 APPINDIX. f.i 88. Whenerer there akell be bat one person entitled to inherit according to the provialons of Ute twenty-eecond end following aectionB of this Act, he shall take and hold the inheritance solely ; and wherever an inheritance, or • share of an inheritance, shall descend to several persons under such provi. dons, they shall take as tenants in common, in proportion to their reapectivc rights. 14 A 16 Yic 0. 8, s. 18. 89. Descendants and relatives of the intestate begotten before his death, hot born thereafter, shall in all oases inherit in the same manner as if they had been bom in the lifetime of the intestate and had survived him. 14 A It Yio. e. 6, s. 17. 40. Children and relatives who are illegitimate shall not be entitled to inherit under any of the (Mrovisions of this Act 14 A 16 Yic. c. 6, s. 18. 41. The estate of the hnsband as tenant by the curtesy, or of a widow « tenant in dov/er, shall not be affected by any of Hm provisions of the last pre- ceding nineteen 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 feeelmple or for the life of another, is so held in trust for any other person, but all ewh estates shall remain, pass and descend, as if the last nineteen sections of thii Act, numbered firom twenty-two to forty, both included, had not been paaeed. 14 A 16 Vic. c. 6, s. 19. 42. If any chiH. of an intestate shall have been advanced by the intestate by settlement, or portion of real or personal estate, or both of them, and the same shall have been so expressed by the intestate in writing, or so acknow- ledged in writing by the onild, the value thereof diall he reckoned, for the {turposes of this section only, as part oS the real and personHl estate of each j ntestate descendable to his heirs, and to be distributed to his next of Uo according to law ; and if such advancement be eqnal or superior to the amomit of the share which such child would be entitled to receive of the real and Sersonal estate of the deceased, as above reckoned, then such child and his ascendants shaU be excluded from any share in the real and personal estate [ of the intestate 14 A 16 Yio. c. 6, s. 20. 48. If such advwucement be not equal to such share, such child and Ui I descendants shall be entitled to receive so much only of the personal estate, and to inherit so much only of the real estate of me intestate, as sludl be sufficient to make all the snares of the children in such real and persoul estate and advancement to be equal, as near as can be estimated. 14 d 15 1 Yic. c. 6, s. 21. 44. The value of any real or personal estate so advanced shall be deemed I to be that, if any, which may have been acknowledged by the child b^ any instrument in writing, otherwise each value shall be estimated aooordugto the value of the property when ^ven. 14 4c 16 Yio. c. 6, s. 22. 46. The maintaining or educating, or the giving of money to a child, with- out a view to a portion or settlement in life, shall not be deemed an advance- ment withing the meaning of this Act 14 law, had the said last mentioned sections of this Act not been passed, andhsli those persons preceding them respectively in the series of such preferaMj -been dead at the time or the death of the intestate. 47. The parties so authorized to make such partition, shall certify parties' I larly to the court in which proceedings for a partition may be commenced or I ^pending, the particulars of such offer or proposition for purchase, the natan^l 'fluantity and value of the estate or share proposed to be purchased, and wl»l tner they advise sooh offer or proposition to be accepted or rejected, andthdrj Tcasons therefor. edto inlierit aoeordingto aeotktns of this Act, he •evw ui inheritance, or a tenons under such provl- QfUon to their respective egotten before his death, s»me manner as if they d aoryived him. 14 4 16 ahaU not be entitled to [ A 16 Vic. c. 6, s. 18. curtesy, or of a widow h provisions of the last pre- lame affect any limitation Ithough held in fee-simple other person, but all ewh ; nineteen sections of tlus ided, had not been paseed. advanced by the intestate , or both of them, and the I in writing, or so acknov- (hall he reckoned, for the id persoRHl estate of sach Tibuted to hhi next of kio I or superior to the amonnt I bo receive of the real and d, then such child and his le real and personal estate share, suob child and Ut aly of the personal estate, t^e intestate, as shall be such real and penonil be estimated. 14 A 15 1 [advanced shall be deemed by the child by any [be' estimated aooordug to | lie. 6. 6, 8. S2. lof money to a child, with- \ot be deemed an adTaiii» | he 0. 6, s. 28. jiy such real estate accord- 1 entitled to a share of suciJ (hare or shares of the other 1 le person who would ban I and following sections rf I at-law, eiving such prefer- f ■ have Deen such heir-«t-,| not been passed, and hii I series of such preferaMi Jtlon, shall certify partial- 1 aon may be commenced or I for purchase, the natural be purchased, and tI»I pted or rejected, andtliati APPENDIX. 48. Any court authorised to make partition of real estate, may direct a sale Itfthe same if they think it right so to do, upon the lipplication of any of the Ipirtiet beneficially interested therein, giving, however, the preference at aU jSnes to the peMon who would have li^en the heir-at-law to such real estate [lid the twent^<4eeoad and following sections of this Act not been passed, lid after such neir«t-law, then giving such preference to the several persons iseocwivelv who would have been such heir-at-law, had the said laat-men- tioaed sections of this Act not been passed, and had those persons preceding tken respectively in the series of such preference been deisd at the time of Itbe death of the intestate. 49. Every such preference shall be upon and subject to such terms, security lad ooaditiona as the Court may think it right to direct. 14 A 15 Vic, o. 0, 60. In the last twenty-seven sections of this Act, numbered from twent}' three to forty-nine both uclusive, the term " real estate " shall be construed to inclade every estate, interest and right, legal and equitable, held in fee- tjiople or for tue life of another (except as in the fortieth section is before oeepted) in lands, tenements ana hereditaments in Upper Canada, but not to sttdi as shall be determined or extinguished by the death of the intestate leised or possessed thereof, or so otherwise entitled thereto, nor to leases for jears; and the terntt "inheritance," as therein used, shall be understood to ■ean resl estate as herein defined, deacedded or succeeded to, according to Ithe provisions of the said twenty-seven sections. 14 A 1-6 Vic., c. 6, s. 25. 61. Whenever, in the last twenty-eight preceding sections, numbered from jnty-three to fifty, both included, any person is described as living, it shall be anderstood that he was Uvlng at the tune of the death of the intestate from kom the descent or succession came, and whenever any person is described having died, it shall be understood that he died before such intestate. 14 16 Vic, c. 6, s. 26. (2. Whenever in any of the sidd twenty-eight sections the expressions where the estate shall have come to the intestate on the part ' of the father,' or 'mother,' " as the case may be, are used, the same shall be construed to elude every case where the inheritance shall have come to the intestate by !Tise, gift or descent from the parent referred to, or from any relative of the ~ of such parent. 14 A 16 Vic., c. i, s. 27, 365 CAP. LXXXIII., An Act retpeeting the Auuranee of Ettatet Tail. [ER MAJESTY, by and with the advice and consent of the Legislative Council and Assraably of Canada, enacts as fbllows: 1. In the construction of this Act, the word " lands " shall extend to advow- Imp. Stat. S ft 4 bns, rectories, messuages, lands, tenements, rents and hereditaments of any Wm. iv., e. 74, pure, and whether corporeal or incorporeal, and any undivided share there-'* i; and the word " estate " shall extend to an estate in equity as well as at kv, and shall also extend to anj interest, charge, Uc4i, or incumbrance in, lion, or affecting lands, either at law or in equity, and shall also extend to PT interest, charge, lien or incumbrance in, upon, or afHecting money subject I oe invested in tne purchase of lands ; and the expression " base fee " shall Van exclusively that estate in fee simple into which an estate tail is converted here the issue in tail are barred, but persons claiming estates by way of ununder or otherwise are npt barred ; and the expression " estate tail, in dition to its ^ual meaning, shall mean a base fee into which an estate tail B been converted ; and the expression " actual tenant in tail " shall mean Iclosivftly the tenant of an estate tail which has not been barred, and such pant shall be deemed an actual tenant in tail, although the estate tail ky have been divested or turned to a right ; and the expression " tenant in lail" shall mean, not only an actual tenant in taU, but also a person who, kere an eatAte tail has been barred and oonverted into a base fee, would M "''ril ii',: I', i ■■-\\ •'ila K'H 366 APPENDIX. Imp. Stat. 3 A 4 Win.IV.,c.74, 8.14. Imp. Stat. 8*4 Wm. IV., c. 74, i.U. Imp. Stat. 3 ft 4 Wm. IV., c. 74, s. 16. Imp. Stat. 3 ft 4 Wm.IV.,c.74, «.17. Imp. Stat. 3 ft 4 Wm.IV.,c.74, ■.18. have been tenant of such estnte tail if the ninne had not been barred ; an,] the expression " tenant in tail entitled to a base fee " shall mean a i^erion entitled to a base foe, or to the ultimate beneficial interest in a base fee, an,] who, if the base fee had not been created, would have been actual tenant in tail ; and the expression " money subject to be invested in the purchase of " lands " shall include money, whether raised or to be raised, and whether the amount thereof be or bo not ascertained, and shall extend to stoclcs and funds, and real and other securities, the produce of which is directed to b« invested in the purchase of lands, and the lands to be purchased with gQch money or nroduce shall extend to lands of any tenure out of Upper Canada, where sucb lands or any of them are within the scope or meaning of tLe trust or power directing or authorizing the purchase ; ana everv assurance already made or hereafter to be made, whether by deed, will, private Act of Tarlii ment, or otherwise, by which lands are or shall be entailed, or agreed or directed to be entailed, shall be deemed a settlement ; and every appointment made in exercise of any power contained in any settlement, or of any other power arising out of tne power contained in any settlement, shall be con- sidered as a part of snch settlement, and the estate created by such appoint- ment shall be considered as having been created by such settlement ; and, where any such settlement is or shall be made by will, the time of the death of the testator shall be considered the time when such settlement was made- but those words and expressions occurring in this clause, to which more thu one meaning is to be attached, shall not have the different meanings given to them by this clause in those cases in which there is anything in the subject or context repugnant to such construction. 9 Vic, c. 11, s. 1. 2. This Act shall operate and apply retrospectively to the eighteenth I day of May, one thousand eight hundred and forty-six, as well as prospec- tively, and shall be construed as if it had been passed on the said eigiiteeotb day of May, one thousand eight hundred and forty-six. 2. All warranties of lands made or entered into by any tenant in tti] I thereof, shall be absolutely void against the issue in tail, and all persom whose estates are to take effect after the determination or in defeasance of | the estate tail. 9 Vic, c. 11, s. 2. 4. Every actual tenant in tail, whether in possession, remainder, contiu- 1 gencv, or otherwise, may dispose of, for an estate in fee simple absolute, or for any less estate, the lands entailed, as against all persons claiming the lands entailed by force of any estate tail vested in or which might be claimed bv, I or which, but for some previous act would have been vested in, or misitl have been claimed by the person making the disposition, at the time of 1ml making the same, and also as against all persons, including Her Majesty, H«r I Heirs and Successors, whose estates are to take effect after the determination, I or in defeasance of any such estate tail; saving always the rights of all per I sons in respect of estates prior to the estate toil in respect of whichsudl disposition is made, and the rights of all other persona except those agaimtl whom such disposition is by this Act authorized to be made. 9 Vic, c. 11,1 8. 3. 6. Where, under any settlement made before the eighteenth of May, i»| thousand eight hundred and forty -six, any woman sh^l be tenant in ttXtil lands within the provisions of an Act passed in the eleventh year of ttKl Eeign of His Majesty King Henry the Seventh, intituled. Certain alienati(ml made by (he wife, of the lands of her deceased husband shall be void, the powsl of disposition hereinbefore contained es to such lands, shalF not be exereiNdl by her, except with such assent, as if this Act had not been passed, woti)'i,| under the provisions of the said Act of King Henry the Seventh, hiwl rendered valid a fine or common recovery levied or suffered by her of soil lands. 9 Vic, c. 11, s. 4. 6. Except as to lands comprised in any settlement made before tkl eighteenth day of May, one thousand eight hundred and forty-six, the siijl Act of the eleventh year of the Reign of His Majesty King Henry tkl Seventh, shall be of no force in Upper Canada. 9 Vic, c. 11, s. 6. •7. The power of disposition hereinbefore contAined shall not extend hi tenants of estates tail, who, by an Act passed in the thirty-fourth and thirty | APPENDIX. 867 £jlh yeftM of the Reign of His Majesty King Henry the Eighth, intituled, ,U Jirt to embar feigned recovery of lands wherein the King i$ in reverinon, or b,'»ny ot'^cf Act, are restrained from barring their estates tall, or to tenants I ui uil »ft«r possibility of Issue extinct. 9 Vic, o. 11, s. 6. a In every case in which an estate tail in any lands has been barred and tmv- Stat. 3 A 4 eonrerted Into a baao fee, the person who, if such estate tail had not been ^JJ- ^^•» "• '*' kured, would have been actual tenant in tall of the same lands, may dispose * of such lands as against all persons. Including Her Majesty, Her Heirs and Soccessors, whose estates are to take effect after the determination, or in defeasance of the base fee into which the estate tall has been converted, so u to enlarge the base fee into a fee simple absolute ; saving always the rights of til persons. In respect of estates prior to tlie estate tail which hos been (onrerted Into a base fee, and the rights of all other persons, except those igtinst whom such disposition Is by this Act authorized to be made. 9 Ylo. I til, s. 7. 9. Nothing In this Act contained shall enable any person to dispose of any Imp. Stat. 3 * 4 linds entailed In respect of any expectant Interest which he may have as ^"- ^^•» "• '•• I tKue inheritable to any estate tail therein. 9 Vic; c 11, s. 8. "' 10. If a tenant in tall of lands makes a disposition of the same, under this imp, gtat. 3 A 4 I Act, by way of mortgage, or for any other limited purpose, then such dispo- Wm. IV., c 74, sition shall, to the extent of the estate tlicreby created, be an absolute bar In •• 2** (qaitv, as well as at law, to all persons as against whom such disposition Is by th's Act authorized to be made, notwithstanding any Intention to the eoDtrary expressed or Implied In the deed by which the dlsposilion may be effected ; but If the estate created by such disposition be only an estate pur ik/k vie, or for years, absolute or determinable, or if, by a disposition under this Act by a tenant In tall of lands, an Interest, charge, lien or Incumbrance, be created without a term of years, absolute or determinable, or any greater esUte, for securing or raising the same, then such disposition shall, in equity, be » bar only so far as may be necessary to give full effect to the morl^age, or to such other limited purpose or to such interests, lien, charge or incum- Ibnnce, notwithstanding any intention to the contrary expressed or implied I in the deed by which the disposition may be effected. 9 Vic., c 11, s. 9. 11. If at the time there be a tenant In tall of lands under a settlement, and Imp. Stat. 3 A 4 , there be subsisting In the same lands, or any of them, under the same settle- ^^™- ^^•» "• '*> Bent, any estate for years, determinable on the dropping of a life or lives, or "' " uy greater estate (not being an estate for years) prior to the estate tail, then the person who is the owner of the prior estate, or the first of such prior estates, If more than one^ then subsisting under the same settlement, or who I wonld have been so if no absolute disposition thereof had been made (the I first of such prior estates, if more than one, being, for all the purposes of I this Act, deemed the prior estate), shall be the protector of the settlement, w far as regards the lands in which such prior estate is subsisting, and shall, for all the purposes of this Act, be deemed the owner of such prior estate, I iltliough the same may have been charged or Incumbered, either by the lowner thereof or by the settler, or otherwise howsoever, and although the ■ whole of the rents and profits be exhausted, or be required for the payment I of the charges and Incumbrances on such prior estate, and although such trior estate may have been absolutely disposed of by the owner thereof, or T or in consequence of the bankruptcy or insolvency of such owner, or by liny other act or default of such owner ; and an estate by the curtesy or in I dower, in respect of the estate tail, or of any prior estate created by the I same settlement, shall be deemed a prior estate under the same settlement, ■within the meaning of this clause ; and an estate by way of resulting use or Itrust to or for the settler, shall be deemed an estate under the same settle- Iment, within the meaning of this clause. 9 Vic, c 11, s. 10. I 12. Where two or more persons are owners, under a settlement within the Imp. Stat. 3 A 4 jmeaning of this Act, of a prior estate, the sole owner of which estate, if there W^- lV-> "• '*» Ihad only been one, woul(^ in respect thereof, have been the protector of such '" Isettleinent, each of such persons, In respect of such undivided share as he Icould dispose of, shall, for all the purposes of this Act, be deemed the owner |of aprior estate, and shall, in exclusion of the other or others of them, be the . t'f I. -Ma m '■ li'i 868 APPBMDIX. Pi, H ' iJf rt ' " Imp. Stet. 8*4 Wm. 17, c. 74, 8.24. Imp. StKt. 3 ft 4 Wm. IV, 0. 74, S.26. Imp. Stat. 3*4 Wm. IV., c. 74, 1.26. Imp. Stat. 3*4 Wm. IV., c. 74, i. 27. Imp. Stat 3*4 Wm. IV., c. 74, •.28. Imp. Stet. 3*4 Wm. IV., e. 74, 8.20. **^: < IT".'' Stat. '?' vvO- 3*4 .74, Imp. Stat. 3*4 Wm. IV., c. 74, 8.31. sole protector of sach settlement, to the extent of such nndiTided ahar* 9 Vic, o. 11, s. 11. •' 18. Where a married woman would, if single, be the protector of a settle. I ment in respect of a prior estate, which is not therebv settled or agreed or I directed to oe settled to her separate use, she and her hnsband toge4er| shall, in respect of such estate, be the protector of sach settlement, and Bhalli be deemed one owner; but, if euoh prior estate has by suoh settiement been I settled or agreed, or directed to be settled to her separate use, then, she I alone shall, in respect of sneh estate, be the protector of suoh settlement I 9 Vic, c 11. s. 12. ' 14. Except in the case of a lease hereinafter provided tar, where an estate I is limited by a settlement, by_ way of confirmation, or where the settlement! merely has the eflfeot of restoring an estate, in either of those cases, scchl estates shall, for the purpose of this Act, so far as regards the protector! of the settlement, be deemed an estate subsisting under such settlement I 9 Vic, c 11, s. 13. 16. Where a lease at a rent is created or confirmed by a settlement, the! person in whose favour such lease is created or confirmed, shall not, in I respect thereof, be the protector f BQch nndiTided share. I the protector of a aettle.! reby settled or agreed, or I id her hosband together I such Mttlement, and gh^l 3 by such settlement beat I r separate use, then, she I lector of luoh settlement I ided far, where an estattl a, or where the settlement I ther of those cases, ecchl as regards the protector I ig under snch settlements med by a settlement, the I ' conflrraed, shall not, hi » 9 Vic, 0. 11, p. 14. ept in the case hereinafter I made on or before the first! -six) no bare trustee, h y estate taken by him u| }r ossigQ) shall be the pro- 1 than one estate prior to ii I n the meaning of this Act; I or the two last preceJisjl >rotector of the settlement, I ttded from being the pi ite did not exist, would U I ector. 9 Yic, c. 11,8. 16.1 te thousand eight hundred I been disposed of, either I consideration or not,, the I the first day of January, [ been the proper person to writ for suffering • con^l iQt, shall, during the con- make the tenant to such ,ch settlement. Via, c |ie first day of Jnly, one valuable consideration or emainder or reversion in (h remainder or reversion, I inserted, have been th^ ire entailed in which Buoh leby be enabled to conciv Dh he could not have dont an who, before the fini I thirty-four, would h«T( lie writ of entry or oth« [ds, shall, during the con- lako the tenant to 8U(!b| Ich settlement 9Vie.,c. before the first dayo( >, the person who, if tlui >oper person to make tbt a oommon recovery of inch lands, for the purpose of barring any estate-tail or other estate under mch settlement, is a bare trustee, such trustee shall, during the continuance of the estate conferring on him the rieht to make the tenant to such writ of I entry or other writ, be the protector of such settlement 9 Vic, c 11, s. 19. 21. Any settlor entailing lands may appoint by the settlement by which imp. st«t. 3 ft 4 I the lands are entailed, any number of persons in e»se, not exceeding three, Wm. IV., o. 74, od not being aliens, to be protector of the settlement in lieu of the person "• ^^ fho would have been the protector if this clause had not been inserted, and either for the whole or any part of the period for which such person might liare continued protector ; and, by means of a power to be inserted in such lettlement to perpetuate, during the whole or any part of such period, the protectorship of the settlement in any one person or number of persons in (tie, and not being an alien or aliens, whom the donee of the power thinks proper, by deed, to appoint protector of the settlement, in the place of any one person, or number of persons, who may die, or by deed relinquish his or their office of protector ; and the person or persons so appointed shall, in case of there being no other person then protector of the settlement, be the pro- tector, and snail, in case of there being any other person then protector of the settlement, be protector jointly with such other person ; but the number of the persons to compose the protector by virtue or means of any such ippointment, shall never exceed three. 22. Every deed by which a protector is appointed under a power in a set- imp. Stat- 3*4 I tlemect, and every deed by which a protector relinquishes his office, shall Wm- IV., c. 74, be void unless re^nstered in the Registry Office of the County or Counties "" wherein the lands referred to lie, within six months after the execution thereof; and the person who, but for the last preceding clause, would have been the sole protector of the settlement, may be one of the persons to be ^pointed protector under that clause, if the settlor thinks fit, and shall, iiDless otherwise directed by the settlor, act as sole protector, if the other persons constituting the protector have ceased to be so by death or relin- iniishment of the office by deed, and no other person has been appointed in to place. 9 Vic, c 11, s. 20. 23. If any person, protector of a settlement, be lunatic, idiot, or of unsound imp. stat. 3 A 4 mind, and whether he has been found such by iniquisition or not, then the Wm. IV., c. 74, Court of Chancery, shall be the protector of such settlement, in lieu of the ■• ^ person who is such lunatic or idiot, or of unsound mind, as aforesaid ; ?r, if iny person, protector of a settlement, be convicted of treason or felony ; or, if any person not being the owner of a prior estate under a settlement, be protector of such settlement, and be an infant ; or, if it be uncertain whether snch last mentioned person be living or dead ; then the Court of Chancery ihtll be the protector of such settlement, in lieu of the person convicted as iforesaid, or of the person who is an infant, or whose existence cannot be ucertained as aforesaid ; or, if any settloi' entailing lands declares, in the lettlement by which the lands are entailed, that the person who, ns owner of a prior estate under such settlement, would be entitled to be protector of the lettlement, shall not be such protector, and shall not appoint any person to be protector in his stead, then, the said Court of Chancery shall, as to the lands in which such prior estate is subsisting, be the protector of the settle- nent during the continuance of such estate ; or if, in any other case there be ittbsisting under a settlement an estate prior to an estate-tail under the same lettlement, and such prior estate be sufficient to qualify the owner thereof to be protector of the settlement, and there happens at any time to be no pro- tector of the settlement as to the lands in which the prior estate is subsisting, the said Court of Chancery shall, while there is no such protector, and the prior estate is subsisting, be the protector of the settlement as to such lands. SVic, c 11, 8, 21 ; 9 Vic, C 10, 8. 1. 24. If at the time when any person, actual tenant in tail of lands under a jg,p g^^^ g<^ ^ [lettlement, but not entitled to the remainder or reversion in fee immediately wm. IV., c.''l4, kxpectant on the determination of his estate-tail, is desirous of making under uis Act a disposition of the lands entailed, there be a protector of such set- tlement then the consent of such p'*otector shall be requisite to enable such ictnal tenant in tail to (i^BpoBe of the lands entailed to the full extent to which 23 V I /:i •I!; ■ ■: ■ ' S'i 1.34. 370 APPENDIX. Imp. Stat 3 ft 4 Wm. IV., c. 74, 1.35. Imp. Stat. 3 A 4 Wm. IV., c. 74, B.30. Imp. Stat. 3 & 4 Wm. IV., c. 74, 8.37. Imp. Stat. 3 ft 4 Wm. IV., c. 74, ti.38. Imp. Stat. 3 ft 4 Wm. IV., c. 74, B.39. Imp. Stat. 3 ft 4 Wm. IV., c. 74, 1.40. ^* \ he is hereinbefore authorized to dispose of the same ; but such actual tenant in tail may, without such consent, make a disposition under this Act of the lands entailed, which shall be ^ood against all persons who, by force oi any ' estate-tail vested in or which might be claimed by, or which but for some Erevious act or default would have been vested in or might have been claimed y, the person making the disposition at the time of his making the same shall claim the lands entailed. 9 Vie, c. 11, s. 22. ' 26. Where an estate-tail has been converted into a base fee, in such case i so long as there is a protector of the settlement by which the estate-tail wa« i created, th^ consent of such protector shall be requisite to enable the person who would have been tenant of the estate-tail if the same had not been barred to exercise, as to the lands in respect of which there is such protector, the power of disposition hereinbefore contained. 9 Vic, c. 11, s. 23. 26. Any device, shift, or contrivance by which it is attempted to control I the protector of a settlement in giving hi^ consent, or to prevent him in any way from using his absolute discretion in regard to his consent, and also any agreement entered into by the protector of a settlement to withhold his con- sent, shall be void ; and the protector of a settlement shall not be deemed to be a trustee in respect of his power of consent ; and a Court of Equity shall not control or interfere to restrain the exercise of his power of consent, nor treat his giving consent as a breach of trust. 9 Vic. c. 11, s. 24. 27. The rules of equity in relation to dealings and transactions between the I donee of a power and any object of the power in whose favour the sarae mav be exercised, shall not be held to apply to dealings and transactions between the proprietor of a settlement and a tenant in tail under the same settlemeat, upon the occasion of the protector giving his consent to a disposition by i tenant in tail under this Act. 9 Vic. c. 11, s. 26. 28. When a tenant in tail of lands under a settlement has already created in such lands, or any of them, a voidable estate in favor of a purchaser for valuable consideration, and afterwards, under this Act, by any assurance other than a lease not requiring enrolment, makes a disposition of the lands in which such voidable estate has been created, or any of them, such disposi. tion, whatever its object may be, and whatever may be the extent of the estate intended to be thereby created, shall, if made by the tenant in tail with the consent of the protector (if any) of the settlement, or by the tenant in tail alone, if there be no such protector, have the effect of confirming such Told- 1 able estate in the lands therebv disposed of to its full extent as against alt I persons except those whose rignts are saved by this Act ; but if, at the time [ of making the disposition, there be a protector of the settlement, and such protector does not consent to the disposition, and the tenant in tail be not without such consent capable under this Act of confirming the voidable estate to its full extent, then such disposition shall have the effect of confirming such voidable estate so far ^s such tenant in tail would then be capable under tbij Act of confirming the same without such consent ; But if such disposition be I made to a purchaser for valuable consideration, not liaviiig express notice of I the voidable estate, then and in such case the voidable estate shall not be | confirmed ds against such purchaser and the persons claiming under Mm. 9 Vic. c. II, s. 26. 29. If a base fee in any lands, and the remainder or reversion in fee in the I same lands, were on the eighteenth day of May, one thousand eight hundred and forty-six, or at any time since have been or after this Act takes effect are united in the same person, and at any time after this Act takes effect there be no intermediate estate between the base fee and the remainder or reversion, then the base fee shall not merge, but shall be ipsofitcto enlarged into as large an estate as the tenant in tail, with the consent of the protector, if any, ml^4 have created by any disposition under this Act if such remainder or reversioB ] had been vestea in any other person. 9 Vic, c. 11, s. 27. 30. Every disposition of lands under thie, Act by a tenant in tail thereof I shall be effected by some one of the assurances (not being a will) by which I such tenant in tail could have made the disposition of his state were an estate at law in fee simple absolute ; but no disposition by a tenant in tail shall be of any force, cither at law or in equity, under this Act, unless made or . .w \ APPENDIX. 871 ; but sach actaal tenant a under this Act of the ] on* who, by force of any or which but for some I aaghi have been claimed j [>f his making the same, j ■I base fee, in such case, which the estate-tail was i isite to enable the person j lame had not been barred, ere ia sach protector, the j ., c. 11, 8. 23. t \b attempted to control I or to prevent him in any his consent, and also any nent to withhold his con- nt shall not be deemed to d a Court of Equity shall his power of consent, nor j c. c. 11, 8, 24. I transactions between the j hose favour the same may and transactions between inder the same settlemeut, isent to a disposition by a ement has already created 1 favor of a purchaser for Is Act, by any assurance I a disposition of the lands any of them, such disposi- lay be the extent of the I by the tenant in tail with it, or by the tenant in tail of confirming such Toid- full extent as against all- s Act ; but if, at the time I the settlement, and such Ithe tenant in tail be not irming the voidable estate le effect of confirming such hen be capable under this ;ut if such disposition be I having express notice of I jdable estate shall not be f pns claiming under him, I or reversion in fee in the I I thousand eight hundred ■ this Act takes effect are , Act takes effect there be I remainder or reversion, jicto enlarged into as large le protector, if any, raiijht Ih remainder or reversioB | Is. 27. „' a tenant in tail thereof! kt being a will) by which If his state were an estate 1 a tenant in tail shall be Us Act, unless made or Stat. S & 4 IV., c. 106, evidenced by deed ; and no disposition b^ a tenant in tail resting only in contract, either express or implied, or otherwise, and whether supportea by I valuable or meritorious consideration or not, shall -be of any force at law or in eqnity under this Act, notwithstanding such disposition be made or evidenced by deed ; and, if the tenant in tail making the disposition be a married woman, the concurrence of her husband shall be necessary to give effect to the same ; and any deed which may be executed by her for effecting die disposition sh«U be acknowledged by her as hereinafter directed. 9 Vie. c. 11, 8. 28. 81. No assurance by which any disposition of lands shall be eflTected under Imp. Stat. 3 4 4 this Act by a tenant in tail thereof (except a lease for any term not exceeding ^^J?" ^^•> ''• '^'^ twenty-one years, to commence from the date of such lease, or from any time "' " sot exceeding twelve months from the date of such lease, where a rent is thereby reserved, which, at the time of granting such a lease, shall be rack- lent, or not less than five-sixth parts of a rack-rent,) shall have any operation onder this Act unless it be registered in the Registry Office of the county or counties (or of the junior County or Biding of a County or Counties or of a City or Cities having a separate Registry Office established therein) wherein the lands referred to lie, within six months after the execution thereof. 9 Vic. c. 11, 8. 29—22 Vic. c. 96, s. 1. 82. The consent of the protector of a settlement to the disposition under Imp. Stat. 3*4 this Act of a tenant in tail, shall be given either by the same assurance by ^™' ^^-i *• ^*' which the disposition is effected, or by a deed distinct from the assurance, and *' ' executed either on or at any time before the day on which the assurance ia made, otherwise the consent lAall be void. 9 Yic. c. 11, s. 80. S3. If the protector of a settlement sives his consent to the disposition of imp. a tenant in tail by a distinct deed, it shall be considered that such protector ^Jl- has given an absolute and unqualiSed consent, unless in such deed he refers "' ' to the particular assurance by which the dispositvon is effiected, and confines his consent to the disposition thereby made. 9 Vic. c. 11, s. 81. 34. The protector of a settlement, who, under this Act, has given his Imp. consent to the disposition of a tenant in tail, shall not revoke such consent. ^^' 9Vic.,c. 11, 8. 32. ••**• 36. Any married woman,, being either alone or jointly with her husband, Imp. protector of a settl^nent, may, under this Act, in the same manner as if she ^m. were a feme-sole, give her consent to the disposition of a tenant in tail. 9 "' ^^' Vic., c. 11, 8. 88. I 36. The consent of a protector to the disposition of a tenant in tail shall, imp. if given by a deed distinct from the assurance by which the disposition is Wm. effected by the tenant in tail, be void, unless such deed be registered in the "' *^' Registry Office of the county or counties wherein the lands referred to lie, cither at or before the time of the registry of the assurance. 9 Vic, c, 11, 8. 34. 37. In cases of dispositions of lands under this Act by tenants in tail imp. thereof, and also in cases of consents by protectors of settlements to disposi- Wm. lions of lands under this Act by tenants in tail thereof, the jurisdiction of" Courts of Equity shall be altogether excluded, either on the behalf of a person claiming for a valuable or meritorious consideration, or not, in regard to the specific performance of contracts and the supplying of defects in the execution either of the powers of disposition given by this Act to tenants in tail, or of the powers of consent given by this Act to protectors of settle- ments, and the supplying under any circumstances of the want of execution of such powers of disposition and consent respectively, and in regard to giving effect in any other manner to any act or deed by a tenant in tail or protect2r of a settlement, which, in a court of law, would not be an effectual ('isposition or consent under this Act ; and no disposition of lands under this Act by a tenant in tail thereof, in equity, and no consent by a protector of a settlement to a disposition of lands under this Act, by a tenant in tail thereof, I in equity, shall be of any force, unless such disposition or consent would, in case of an estate tail at law, be an effectual disposition or consent under this Act in a Court of Law. 9 Vic. 11, s. 86. Stat. 3 4 4 IV., c. 74, Stat. 3 4 4 IV., c. 74, Stat. 3 4 4 IV.,c.74, Stnt. 3 4 4 IV., c. 74, r r ;*l ¥ Imp. atat. 3 ft 4 Wm. IV., c. lOfl, 8.48. lap. Stkt. 3 ft 4 Wm. IV., c. 74, 1.71. 872 APPENDIX. 88. In every OMe in which the Court of Chancery is the protector of a settlement, such Court while, protector of such settlement, shall, }n the motion or petition in a summary way, by a tenant in tail under such settle- ment, have full power to consent to a disposition, under this Act, by sach tenant in tful; and the disposition to be made by such tenant in tail upon such motion or petition as aforesaid, shall be such as may be approved of by the said Court, and Uie said Court may make such orders in tne matter as may be thought necessary ; and if such Court, in lieu of any such person as aforesaid, be the protector of a settlement, and there be any other person pro- tector of the same settlement jointly with such person as aforesaid, then and in every such case the disposition by the tenant in tail, though approved of as aforesaid, shall not be valid, unless such other person, being protector as aforesaid, consents thereto in the manner in which the consent of the pro- tector is by this Act required to be given. 9 Vic, c. 11, s. 86. Imp. Stat, s ft 5 89. In every case in which the said Court of Chancenr is the protector of Wm. IV., C.106, a settlement, no document or instrument, as evidence of the consent of such "' ^' protector to the disposition of a tenant in tail under such settlement, shall be requisite beyond the order in obedience to which the disposition has been made. 9 Vie, o. 11, s. 87. 40. Lands to be sold, whether freehold or leasehold, or of any other tennre, where the money arisingfrom the sale thereof is subject to be invested ui the purchase of lands to be settled, so that any person, if the lands were pur- chased, would have an estate tail therein, and also money subject to be invested in the purchase of lands to be settled, so that any person, if the lands were purcnased, would have an estate tail therein, snail, for idl the purposes of this Act, be treated as the lands to be purchased, and be con- sidered subject to the same estates as the lands to be purchased woold, if purchased, have been actually subject to ; and all the previous clauses in this Act, so far as circumstances will admit, shall, in the case of the lands to be sold as aforesaid being either freehold or leasehold, or of any other tenure, apply to such lands in the same manner as if the lands to be purchased with the money to arise from the sale thereof were directed to be freehold, and were actually purchased and settled ; and shall, in the case of money subject to be invested in the purchase of lands to be so settled as aforesaid, apply to such money in the same manner as if such money were directed to be laid out in the purchase of freehold lands, and such lands were actually purchased and settled; except that in every case, where under this clause a (Uaposition is to be made of leasehold lands for years absolute or determinable, so cir- cumstanced as aforesaid, or of money so circumstanced as aforesaid, such leasehold lands or money shall, as to the person in whose favour or for whose benefit the disposition is made, be treated as personal estate, and the assurance by which the disposition of such leasehold lands or money is e£fected shall be an assignment by deed, which shall have no operation under this Act unless registered in the Registry Office of the county or counties wherein the lands therein referred to he, within six months after the execution thereof. 9 Vic, c. 11, 8. 49. Imp. Stat. 3 ft 4 41. A married woman may in every case except that of being tenant m Y^- '^•> "• ^'^^ tail for which provision is already made by this Act, by deed, release or extinguish any power which may be vested in, or limited or reserved to her in regard of any lands of any tenure, or any such money as aforesaid, or in regard to any estate in any lands of any tenure or in any such money as aforesaid, as fully and efTectually as she could do if she were a feme-sole ; except that no such disposition, release, surrender or extinguishment, shall be valid and effectual, unless the husband concur in the deed by which the same is effected, nor unless the deed be acknowledged by her as hereinafter directed. 9 Vic, c 11, s. 60. Imp. Stat. 3 ft 4 42. The powers of disposition given to a married woman by this Act shall Wm. IV., c. 106, not interfere with any power which independently of this Act, may be vested ■• ^'* in or limited or reserved to her, so as to prevent her from exercisbg such power in any case, except so far as by any disposition made by her under this Act, she may be prevented from so doing in consequence of such power •.77. APPENDIX. 878 liiving been Bnepended or eztingnished by auoh disposition. 9 Yic, e. 11, 161. 48. Every deed to be e Jiecated by a married woman for any of the purposes Imp. Stat. 8 ft 4 of tbis Act, except such as may be executed by her in the character of pro- ^"^ ^^t «• W6, tector for the sole purpose of mving her consent to the disposition of a tenant •* In tail, shall be executed, produced and acknowledged by her as her act and deed, in manner and form prescribed by the Act enabling married women to convey their real estate. 9 Vic. c. 11, s. 62. 44. If a husband, in consequence of being a lunatic, idiot or of unsound Imp. Stat. 3 A 4 mind and whether he has been found such by inquisition or not, or from any ^"J- '^-j '• '*» other cause be incapable of executing a deed, or if his residence be not known, '* or he be in prison, or be liviuje; apart from his wife, either by mutual consent or by sentence of divorce, or m consequence of his being transported beyond ^e seas, or from any other cause whatsoever ; the Court of Queen's Bench for Upper Canada, or the Court of Common Pleas therein, may, by an order to be made in a summary way upon the application of the wife, and upon mch evidence as to the Court seems meet, dispense with the concurrence of the husband in any case in which his concurrence is required by this Act or otherwise ; and all acts, deeds or surrenders, done, executed or made by the fife in pursuance of such order, in regard to lands of any tenure, or in regard to money subject to be invested in the purchase of lands, shall be done exe- eated or made by her in the same manner as if she were a feme-sole, and whet done, executed or made by her, shall (but without prejudice to the rights of the husband as then existing independently of this Act) be as good ind valid as they would have been if the nusband had concurred ; but this clause shall not extend to the case of a married woman where under this Act, the Court of Chancery is the protector of a settlement in lieu of her husband. iVic, c. 11, 8. 68. /r AJ CAP. LXXXIV. An Act respecting Dovier HER MAJESTY, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows : WIDOWS TO BE ENTITLED TO DOWER IN CERTAIN CASES. 1. When a husband dies beneficially entitled to any land for an interest vhich 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. 4 Wm. lY., c. 1, ss. 13, 14, 16. 2. When a husband hath 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 had recovered possession thereof, she shall be entitled to dower out of the same although her husband did not recover possession thereof; but such dower Bh^ be sued for or obtained within the period during which such right of entry or action might be enforced. 4 Wm. lY., c. 1, s. 14. DOWER ABOLISHED IN CERTAIN CASES. 8. No widow shall be entitled to dower ad ostium ecclesias or dower ex mensupatris. 4 Wm. lY., c. 1, s. 18. HOW DOWER MAY BE BARRED. 4. A married woman may bar her dower in any lands or hereditaments in Upper Canada, by joining with her husband in a deed or conveyance thereof m which a release of dower is contained. 2 Yic, c. 6, s. 8. 8. A married woman may also bar her dower in any lands or hereditaments by 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. 81 Geo. III., c. 7, B. 1. • ^ '* 374 'H APPENDIX. 6. A married woman barring her dower by a deed or conveyance to which her husband is not a party, shall be examined by one of the judges of the courts of Queen's Bench or Common Pleas in Upper Canada, or the judg« of the County Court, or chairman or presiding magistrate of the court of Quarter Sessions, or two justices of the peace for the county in whicli she resides, or happens to be, touchi^ her consent to be barred of her dower 81 Geo. III., c. 1, 8. 1,— S Wm. IV., c. 9, s. 1,-2 Vic c. 6,-60 Geo. Ill c' 11, s. 1. 7. If such married woman upon being so examined gire* such consent, and the same appears to the Judge, Chairman or presiding Ma^trate, or Justices examining tier to be voluntary and not the effect of coercion on the part of her husband or of any other person, such Judge, Chairman, or presiding Justice or Justices shall certify on the back oi the deed to the followinz effect: 87 Geo. HI., c. 7, s. 2. ^ We, A, B. and 0. D., of the County of , in the Province of j Canada, Esquires, two of Her Majesty's Justices of the Peace, in and fur the said County, or, I, (a Judge, Ac, as the c — — Dated at S Wm. IV., c. 9, g. i 8. A married woman being within the United Kingdom of Great Britain and Ireland, or any of Her Majesty's Colonies, or the United StAtes of America, and there barring her dower by any deed or conveyance to whiclj her husband is not a party, shall be examined as mentioned in the sixth section of this Act, by the Mayor or Chief Magistrate of a City or Town if in the United Kingdom, or if in a Colony or in one of the United States, by a Judge of the Supreme Court of the Colony or State, and if she gives such consent and the same appears to the person so examining to be free and voluntary and not the effect of any coercion as aforesaid, such person shall certify on the back of the deed to the effect prescribed by the seventh section of this Act. 48 Geo. III., c. 7, s. 1. 9. Any certificate under the last section of this Act, shall, if granted bys Mayor or Chief Magistrate, be under the common seal of the (Sty or Town over which such Mayor or Chief Magistrate presides, or under the seal of office of such Mayor or Chief Magistrate, and if granted by a Judge, such certificate shall be verified by the seal of the person administering the govern- ment of the Colony or State of which the person certifying is a Judge. 43 Geo. III., c 7, ss. 2, 8. 10. No deed or conveyance of a married woman to which her husband u not a party, shall be effectual to bar her dower unless the directions contained in the sixth, seventh, eighth and ninth sections of this Act, {as the case may ht^ are complied with. 87 Geo. III., c 7, s. 1. 11. A fee of one dollar may bo demanded for any certificate under thu Act. 60 Geo. III., c 10, s. 2—3 Wm. IV., c 9, s. 2. STATUTE 24 Vic, Cap. 40. An Act for the better Assignment of Dower in Upper Canada. 16. This Act shall be confined to Upper Canada, and shall not affect cases where the right to dower has been consummate by the death of tlie husband before the passing thereof. 17. In estimating the damages for detention of dower, nothing shall be allowed for the use of permanent improvemeota made after the alienation by or death of the husband of the claimant. APPENDIX. 875 ly certificate under thu 18. No action for dower shall be brought but within twenty years from the death of th^ husband of the person claiming dower, nor until one calendar I month's notice in writing demanding the same has l^een given by the claimant I to the tenant of the freehold. 19. Nor shall any such action be hereafter brought in case the claimant I joined in a deed to convey the land or relp«»«e dowor therein to a purchaser, though the acknowledfirment required by law at the time may not nave been ]ai, or though any informality may have occurred in respect thereof. CAP. LXXXVII. An Act respecting Mortgages of Real Estate. HER MAJESTY, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: 1. Any mortgagee of freehold or leasehold property, or any Assignee of inch Mortgagee, may take and receive from the Mortgagor, or his Assignee, a release of the equity of redemption in such property, or may purchase the same under any power of sale in his mortgage, or any judgment or decree, without thereby merging the mortgage debt as against any subsequent mort- gagee [or registered judgment creditor] having a charge on the same property. Amended 24 Vic. \i& 16 Vic. c. 48, s. 1. e-*l- 2, In case any such prior Mortgagee or his Assignee takes a release of the equity of redemption of the Mortgagor or his Assignee in such mortgaged property, or purchases the same under any power of sale in his mortgage, or any judgment or decree, no subsequent Mortgagee or his Assignee [or regis- Amended 24 Vic. terea judgment creditor] shall be entitled to foreclose or sell such property, *• *^' without redeeming or selling, subject to the rights of such prior Mortgagee or his Assignee, in the same manner as if such prior Mortgagee or his Assig- nee had not acquired such equity of redemption. 14 <& 1 6 Vic. c. 46, s. 2. 8. This Act shall not affect any priority or claim which any Mortgagee [or Amended 24 Vic. judgment creditor] may have undfer the registry laws. 14 <& 16 Vic. c. 46, s. 3. "' * 4. On any proceeding for foreclosure by or for redemption against an Assignee of a Mortgagee, the statement of the mortgage account, under the oath of such Assignee, shall be sufficient />nma/acie evidence of the state of such account, and no affidavit or oath shall be required from the Mortgagee or intermediate assignee, unless the Mortgagor or his Assignee, or the porty proceeding to redeem, denies the correctness of such statement of account by oath or affidavit. 14 dc 16 Vic. c. 46, s. 4. 6. When any person entitled to any freehold or leasehold land by way of mortgage, has departed this life, and his executor or administrator is entitled to the money secured by the mortgage, or has assented to a bequest thereof, or has assigned the mortgage debt, sucli executor or administrator, if the mortgage money was paid to the testator or intestate in his lifetime, or on payment of the principal money and interest due on the said mortgage, may convey, release and discharge the said mortgage debt, and the legal estate in the land ; and such executor or administrator shall have the same power as to any portion of the lands, on payment of some part of the mortgnge debt, or on any arrangement for exonerating the whole or any part of the mortgaged lands without payment of money, and such conveyance, release or discharge shall be as effectual as if the same had been made by the person having the legal estate. 14 «fe Vic. c. 7, s. 8. CAP. LXXXVIII. An Act respecting the Limitation of Actions and Suits relating to Heal imp. Stot. 3 A 4 Property, and the time of prescription in certain cases. Wm. iv., c.«., HER MAJESTY, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows : 1. No person shall make an entry or distress, or bring an action to recover jj^-^ g^^^^ ^^ ^ any land or rent [charge] but within twenty years next after the time at 376 APPENDIS. if:' I m;] !! ,5 If; i ■i ; I IS ■ which the rtglit to make such entry or distress, or to bring snch action, shall have first accrued to some person through whom he claims ; or if such right shall not have accrued to any person through whom he claims, then wi^io twenty years next after the time at which the right to make such entry or distress, or bring such action, shall have first accrued to the person making or bringing the same. 4 Wm. lY., c. 1, 8. 16. Imp. Stat 1. 3. 2. In the constmction of this Act, the right to make an entry or distress or bring an action to recover any land or rent [charge], shall be deemed to have first accrued at such time as hereinafter is mentioned. 4 Wm. ly, c. 1, s. 17. 1. When the person claiming such land or rent [charge], or some person through whom ne claims, shul, in respect of the estate or interest claimed, have been in possession or in the receipt of the profits of such land, or in receipt of such rent [charge], and shall, while entitled thereto, have been dispossessed, or have discontinued such possession or receipt, then such rignt shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent [charge] were or was so received. 4 Wm. IV., c. 1, s. 17. 2. When the person claiming such land or rent [charge] claims the estate or interest of some deceased person who shall have contmued in such posses- sion or receipt, in respect of the same estate or interest, until the time of his death, and shall have been the last person entitled to such estate or interest who shall have been in snch possession or receipt, then such right shtJl be deemed to have first accrued at the time of such death. 4 Wm. IV,, c. 1, s. 17. 8. When the person claiming such land or rent [charge] claims in respect of an estate or interest in possession, granted, nppointed, or otherwise assured by any instrument other than a will, to him or some person through whom he claims, by a person being in respect of the same estate or interest, in the possession or receipt of the profits of the land, or in receipt of the rent [charge], and no person entitled under such instrument shjill have been in possession or receipt, then such right shall be deemed to have first accrued at the time at which the person claiming, as aforesaid, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument. 4 Wm. IV., c. 1, s. 17. 4. When the estate or interest claimed shall have been an estate or interest in reversion or remainder, or other future estate or interest, and no person shall have obtained the possession or receipt of the profits of such land, or the receipt of such rent [charge], 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. 4 Wm. IV., c. 1, s. 17. 6. When the person claiming such land or rent [charge], or the person through whom he claims, shall have become entitled, by reason of any for- feiture or breach of condition, then such right shall be deemed to have first accrued when such forfeiture was incurred or such condition broken. 4 Wm. IV., c. 1, s. 17. 8. In the case of lands granted by the Crown, of which the grantee, his heirs or assigns by themselves, their servants or agents, have not taken actual possession by residing upon or cultivating some portion thereof, and in case some other person not claiming to hold under such grantee has been in possession of such land, such possession having been takea while the land was in a state of nature, then unless it can be shewn that such grantee or such person claiming under him while entitled to the lands had knowledge of the same being in the actual possession of such other person, tlie lapse of twenty years shall not bar the right of such grantee or any person claiming under him to bring an action for the recovery of such land, but the right to bring such action shall be deemed to have accrued from the time that such knowledge was obtained. 4 Wm. IV., c. 1, s. 17. tap. Stat 8. 4. 4. When any right to make an entry or distress, or to bring an action to recover any land or rent [charge], by reason of any forfeiture or breach of APPENDIX. Lodition, shall have first accrued in respect of any estate or interest in I reversion or remainder, and the land or rent [charge] shall not have been li«covered by virtue of such right, the right to make an entry or distress, or I bring An action to recover such land or rent [charge], shall be deemed to I lure first accrued in respect of such estate or interest at the time when the Imae shall have become an estate or interest in possession, as if no such for- Ifeiture or breach of condition had happened. 4 Wm. IV., c. 1, s. 17. {. The right to make an entry or distress, or to bring an action to recover Imp. Iiniland or rent [charge], shall be deemed to have first accrued in respect of I IB estate or interest in reversion, at the time at which the same shall have I become an estate or interest in possession, by the determination of any estate or estates in respect of which such land shall have been held, or the profits thereof or such rent [charge] shall have been received, notwithstanding the person claiming such land, or some person through whom he claims, shall, at my time previously to the creation of the estate or estates which shall have determined, have been in possession or receipt of the profits of such land, or I in receipt of such rent [charge]. 4 Wm. IV., c. 1, s. 17. 6. For the purposes of this Act, an administrator claiming the estate or jujn, interest of the oeceased person of whose chattels he shaU be appointed idministrator, 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 I of administration. 4 Wm. IV., c, 1, s. 18. 7. When any person shall be in possession or in receipt of the profits of Imp. I iny land, or in receipt of any rent [charge] as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to Dilce an entry or distress, or to bring an action to recover such land or rent, [charge], shall be deemed to have first accrued either at the determination of nch 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 I determined. 4 Wm. IV., c. 1, s. 19. 8. No mortgagor or cestui que trust shall be deemed to be a tenant at will I within the meamng of the last clause of this Act to his mortgagee or trustee. UWm. IV., c. l.s. 19. 9. When any person shall be in possession or in receipt of the profits of Imp. my land, or in receipt of any rent [charge] as tenant from year to year or other period, without any lease in writing, the right of the person entitled intiict thereto, or of the person through whom he claims, to make an entry I orCstress, or to bring an action to recover such land or rent [charge] shall deemed to have first accrued at the determination of the first of such I years or other periods, or at the last time wh^n "ny rent payable in respect of such tenancy shall have been received, (which shall last happen.) 4 Wm. |lV.,c. 1,8. 20. 10. When any person shall be in possession or in receipt of the profits of Imp. I iny land, or in receipt of any rent [charge] by virtue of a lease in writing, by which a rent amounting to the yearly sum of four dollars or upwards shall be reserved, and the rent reserved by such lease shall have been received by some person wrongfully claiming to be entitled to such land or rent in rever- I lion, immediately expectant on the determination of such lease, and no pay- ment in respect of the rent reserved by such lease shall afterwards have Seen made to the person rightfully entitled thereto, the right of the person entitled to such land or rent [charge] 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. 4 Wm. IV., c. 1, s. 21. 11. No person shall be deemed to have been in possession of any land Imp. witliin the meaning of this Act, merely by reason of having made an entry thereon. 4 Wm. IV., c. 1, s. 22. 12. No continual or other claim upon or near any land shall preserve any Imp. I right of making any entry or distress, or of bringing an action. 4 Wm. IV., c. 1, 8. 28. 877 SUt, 1. 5. Stot. 8. «. Stat 1. 7. Stat. 1. 8. Stat. 8. 0. Stat. 8. 10. Stat.r .. 11. 1 'i m\ 878 APPINDIX. W I Imp. 8Ut. •.19. IS- When »ny one or more of Mreral pemont entitled to any land or renl as ooiHtrceners, joint tenants or tenants in common, iliall have been in u^ session or receipt of the entirety, or more than his or their undivided tliari. or shares of such land, or of the profits thereof, or of snch rent, for his on their own benefit, or for the benefit of any person or persons other than tli3 person or persons entitled to the other share or shares of the same land on rent, such p^Msession or receipt shall not be deemed to have been the poiHi sion or receipt of or by such last mentioned person or persons, or any of then 4 Wm. IV., 0. 1, s. 24. Imp. Stat. 1. 13. 14. When a younger brother or other relation of the person entitled, at heii to the possession, or receipt of the profits of any land, or to the receipt of ani rent, sliall enter into the possession or receipt thereof, such possession oil receipt shall not be deemed to be the possession or receipt of or by the penog entitled as heir. 4 Wm. IV., c. 1. s. 2fi. Imp. Stat. B. 14. 10. When any acknowledgment of the title of the person entitled to an; land or rent shall have been given to him or to his agent in writing, eignecl by the person in posisession or in receipt of the profits of such land, or 1d| receipt of such rent, such possession or receipt of or by the person liy TrliomT such aclcnowludgment shall have been given, shall be deemed, according M the moaning of this Act, to have been the possession or receipt of or by th« person to whom or to whose agent such acknowledgment snail have beenL given at the time of giving tlie same, and the right of such last mentionedl person, or any person claiming through him, to make an entry or distress, orl bring an action to recover such land or rent, shall be deemed to have fint| accrued at and not before the time at which such acknowledgment, or the ] of such acknowledgments, if more than one, was given. 4 Wm. IV., c. 1 , s. 2(.l Imp. Stat 8.34. jg. At the determination of the period limited by this Act to any personj for making an entry or distress, or oringing any action or suit, the right andl title of such person to the land or rent, for the recovery whereof such entrT,[ distress, action or suit respectively, might have been made or brought witbul such period, shall be extinguished. 4 Wm. lY., c. 1, s. 87. Imp. Stat. a. 35. i*;. Tlie receipt of the rent payable by any tenant from year to year, orl other lessee, shall, as against such lessee or any person claiming under himT but subject to tlie lease, be deemed to be the receipt of the profits of the laadl for the purposes of this Act. 4 Wm. IV., c. 1,8. 38 ARREARS OF DOWER, RENT AND INTEREST. 18. No arrears of dower, nor any damages on account of such arrears, Bblll bo recovered or obtained by any action or suit for a longer period than six years next before the commencement of such action or suit. 4 Wm. IY,J c. 1, s. 44. 19. No arrears of rent, or of interest in respect of any sum of money chargosequent mortgage or incumbrance, may recover 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. 4 Wm. IV., c. 1, s. 45. MORTGAGES. 21. When a mortgagee has obtained the possession or receipt of the profit) I of any loud, or the receipt of any rent comprised in his mortgage, the mort-l Imp. Stat. B. 41. Imp. Stat. ■. 42. Imp. Stat •. 28. APPKNDIX. 879 Irtgor or any person claiming through him, shall not bring a suit to redeem m mortgage, but within twenty years next after the time at which the Lort^oe obtained such posaeasion or receipt, unless in the mean time an Ijcknowledipnent of the title of the mortgagor, or of his right of redemption, 1^ been given to the mortgagor or to some person claiming his estate, or to Ithe »gent of such mortgaeor or person, in writing, signed by the mortgagee Ipr tho person claiming through him, and in such case no such suit shall be Ibroaght but within twenty years next after the time at which such acknow- lledirment, or tho last of such acknowledinnents, if more than one. was criven. lifm. IV., c. 1, 8. 86. ^ 2. In case there be more than one mortgagor or more than one person Imp. Stat. §. 28. Illuming through the mortgagor or mortgagors, the acknowledgment men- Uoned in the last section, if g^ven to any of such mortgagors or persons, or liitor their agent, shall be as effectual as if the same had been given to all Inch mortgagors or persons. 4 Wm. IV., c. 1, s. 86. 8. In case there be more than one mortgagee, or more than one person Imp. Stat. i. 28. I cl«iniing the estate or 'nterest of the mortgagee or mortgagees, the acknow- kdgment mentioned in the twenty-first section, signed oy one or more of LcD mortgagees or persons, shall "be effectual only as against the party or I parties signing as fiforesaid, and the person or persons claiming any part of Ithe mortgage money, or land or rent, by, from or under, him or them, and any ienon or persons entitled to any estate or interest, to take effect after or in efensance of his or their estate or interest, and shall not operate to give to I the mortgagor or mort^^ora a right to redeem the mortgage as against tho person or persons entitled to any other undivided or divided part of the money, or land or rent; and when such of the mortgagees or persons afore- uid who have given such acknowledgment are entitled to a divided part of the land or rent comprised in the mortgage, or some estate or interest therein, uH not any ascertained part of the mortage money, the mortgagor or mort- ars Bhall be entitled to redeem the same divided part of the land or rent, on payment with interest, of the part of the mortage money which shall I bear the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent shall bear to the value of the whole of the land or rent comprised in the mortgage. 4 Wm. IV.,c. 1, s. 86. 24. No action or suit or other proceeding shall be brought to recover any Imp- S***- »• *o. nm of money secured by any mortgage, judgment or lien, or otherwise charged upon or payable out of any land or rent at law or in equity, or any legacy, but within twenty years next after a present right to receive the tame shall have accrued to some person capable of giving a dischai^e for or release of the same, unless in the mean time some part of the principal monay I or some interest thereon shall have been paid, or some acknowledgment of- the I right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or big igent ; and in such case, no action, or suit, or proceeding shall be brought, but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one was made or given. 4Wm. iV., c. 1, 8. 43. 26. Any person entitled to or claiming under a mortgage of land, may Ipp- ^^^'J. ^. make an entry or bring an action at law or suit in equity to recover such ^r™' • **'' land, at any time within twenty years next after tho last payment of any part of the principal money or interest secured by such mortgage, although more than twenty years may have elapsed since the time at wlacli the right to make such entry, or bring such action or suit in equity, shall have first accrued. 16 Vic, c. 121, 8. 1. 26. The last preceding section of this Act shall not be held to affect any title, possession, interest or case which was in litigation, ou the twenty-third day of May, one thousand eight hundred and fifty-three. 16 Vic, c. 121, 8. 1. i1. Whereas the law of England was at an early period introduced into Upper Canada, and continued to be the rule of decision in all matters of con- troversy relative to property and civil rights, while at the same time, from the want of an equitable jurisdiction, until the fourth day of March, one thou- C.28. 880 APPENDIX. Imp. But. 8*4 Wm. IV., e. 27, 1.21. Imp. St. a. 22. B*nd eicht hundred and thirty-seven, it wm not in the power of mor to forecloae, and mortgagors ont of possession were nnable to avaii^tli'^ selves of their equity of redemption, and in consequence of the want of thcwi remedies the rights of the respective parties, or of their heirs, executors, admiiiJ istrators or assigns, may be attended with |)eculiar equitable considerations td well in regard to compensation for improvements, as in respeot to the rishtl to redeem, depending on the circumstances of each case, ana a strict appifeJl tion of the rules established in England might be attended with inJuatio«-| Multteli'liM^D *^® ^°'"'* ■**■*' ^*^* authority in every case of mortgage, where, before th«| St. e. 12, 1. 1. 69, B^id fourth day of March, one thousand eight hundred and thirty-seven, th«| 00. estate had become absolute in law, by fiailure in performing the eondition, tol make such decree in respect to foreclosure or redemption, and with re^i^rd tol compensation for improvements, and generally with respect to the rights udl claims of the mortgagor and mortgagee, and their respective heirs, executon,! administrators or assigns, as may appear to the Court just and reasontbltl under all the circumstances of the case, subject, however, to appeal by either f party. 1 Wm. IV., o. 2, s. 11. BAR OF ESTATES TAIL BY WANT OP ENTRY. 28. When the right of a tenant in tail or any land or reut [charge] tol make an entry or distress or to bring an action to recover the same, shill I have been barreJ 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 I be made or brought by any person claiming any estate, interest or right I which such tenant in tail might lawfully have barred. 10 A 11 Vic., a S I ■.9. 29. When a tenant in tail of any land or rent [charge] entitled to recorer the same shall have died before the expiration of the period limited by thii I Act, no person claiming any estate, interest or right which such tenant io tail might lawfully have barred, shall make an entry or distress to brtn? la action to recover such land or rent, but within the period during which if such tenant in tail had so long continued to live, he might have made sach { entry or distress or brought such action. 10 & 11 Via, c. 6, s. 10. 80. When a tenant in tail of any land or rent [chai^^ has made an assnninet I thereof, which shall not operate to bar an estate to take effect after or in defeas- ance or his estate tail, and any person shall by virtue of such assurance atth« | time of the execution thereof or at any time afterwards, l>e in possession, or I in receipt of the profits of such laiid or in the receipt of such rent, and the same person or any other person whatsoever, (other than some person entitled | to such possession or receipt in respect of an estate which shall have taken effect after or in defeasance of the estate tail,) shall continue or be in such pot- session or receipt for the period of twenty years next after the commencement of the time at which such assurance if it had been executed by such tenant in tail or the person who would have been entitled to his estate tail, if sod assurance had not been executed, would without the consent of any other person have operated to bar such estate or estates as aforesaid, then at the expiration of such period of twenty year?, such assurance shall be and be deemed to have been effectual, as against any person claiming any estate, interest or right to take effect after or in defeasance of such estate tul 10 & 11 Vic, c. 6, a. 11. LIMITATION OF SUITS IN EQUITY. 81. No person claiming any land or rent in equity shall bring any suit to recover the same but within the period during which by virtue of the pro- visions hereinbefore contained he might have made an entry or distress, or brought an action to recover the same, respectively, if he had been entitled at law to such estate, interest or right, in or to tne same as he shall claim therein equity. 4 Wm. IV., c. 1, s. 32. 82. When any land or rent shall be vested in a trustee upon any express trust, the right of the cestui que trust, or any person claiming through him, to bring & s>nt gainst the trustee, or any person claiming through liim, to recover such land or rent, shall be deemed to have first accrued, according to the meaning of thia Act, at, and not before the time at whidi such land or Imp. St a. 23. Imp. St 1. 24. Imp. St a. 2S. ▲ppiNmx. 881 l^t ihall have been conreyed to » purchaser for ft valuable consideration. Igd shall then be deemed to have accrued only as against such purchaser and Lj person claiming through him. 4 Wm. IV., o. 1, s. 88. I 33. In every case of a concealed fraud, the rigttt of any person to bring a imp. St. i. 30. Init in equity for the recovery of any land or rent of whicn he, or any person jliough whom he claims, may have been deprived by such fraud, sliall be l^med to have first accrued at, and not before the time at which such fraud 1^), or with reasonable diligence might have been first known or discovered. liWm. IV., 0, 1, B. 84. (4. Nothing in the last preceding clause contained shall enable any owner imp. 8t. s. 20. L lands or rents to have a suit in equity for the recovery of such lauds or I note, or for setting aside anv conveyance of such lands or rents, on account U fraud against any bona fiae purchaser for valuable consideration, who has jiot tssisted in the commission of such fraud, and who, at the time that he yttAv the purchase, did not know and had no reason to believe that any such I had had been committed. 4 Wm. lY., c. 1,8. 84. S5. Nothing in this act contained shall be deemed to interfere with any jnp. St i. 27. jnle or jurisdiction of Courts of Equity in refusing relief on the ground of qiiiescDce, or otherwise, to any person whose right to bring a suit may not rred by virtue of this Act. 4 Wm. IV. c. 1, s. 86. \ liNuiesi IbeWr PRESCRIPTION IN CASES OF EASEMENTS. 86 No claim which may be lawfully made at the Common Law by custom, imp, gttt. 3 A a pitMription or grant to any profit or oenefit to be taken and enjoyed from or Wm. IV., e. 71| ipon any land of our Sovereign Lady the Queen, Her Heirs or Successors, or •• *• i toy ecclesiastical or lay person or body corporate, except such matters or liiinn as are hereinafter specially provided for, and except rent and services dull, where such profit or benefit shall have been actually taken and enjoyed bvany person claiming right thereto, without interruption, for the full period N thirty years, be defeated or destroyed by showing only that such profit or benefit was first taken or enjoyed at any time pHor to such period of thirty jein, but nevertheless sncn claim may be defeated in any other way hj vhich the same is now liable to be defeated ; and when such profit or benent shill have been so taken and enjoyed as aforesaid for the full period of sixty Tears, the right thereto shall be deemed absolute and indefeasible, unless it ihtU appear that the same was taken and enjoyed by some consent or agree- wnt expressly made or given for that purpose by deed or writing. 10 d( 11 Tie., c. 6, s. 1. 37. No claim which may lawfully be made at the Common Law by custom, ;,„p_ ^^^^ ^kZ prescription or grant to any way or other easement, or to any water-course, or Wm. IV., c. 71, the nse of any water to be enjoyed or derived upon, over or from any land •• 2. or water of our said Lady the Queen, Her Heirs or Successors, or being the property of any Ecclesiastical or Lay person or body corporate, when such vijor other matter as herein last before mentioned shall have been actually enjoyed by any person claiming right thereto without interruption for the fall period of twenty years, shall be defeated or destroyed by shewing only that such way or other matter was first enjoyed at any time prior to the I period of twenty years, but nevertheless, such claim may be defeated in any other way by which the same is now liable to be defeated, and where eucn way or other matter as herein last before mentioned shall have been so enjoyed as aforesaid for the full period of forty years, the right thereto shall be deemed absolute and indefeasible unless it shall appear that the same was enjoyed by some consent or agreement expressly given or made for that pur- I pose by deed or writing. 10 «b 11 Vic, c. 6, s. 2. 88. When the access and use of light to or for any dwelling house, work- j„,p ^^^ ^kZ shop, or other building, shall have been actually enjoyed therewith for the Wm, IV, c. 71, fall period of twenty years without interruption, the right thereto shall be ■• Z, deemed absolute and indefeasible, unless it shall appear that the same was enjoyed by some conbent or agreement expressly made or given for that pur- I pose by deed or writing. 10 . 43. When any land or water upon, over or from which any such way or I other easement, water-course or run of water shall have been or shall bi enjoyed or derived, or may be held under or by virtue of any term of lite or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last befor* mentioned during the continuance of such term shall be excluded in the computation of the said period of forty years, in case fhe claim shall within three years next after the end, or sooner determination of such term, be | resisted by any person entitled to any reversion expectant on the determina- tion thereof. 10 A 11 Vic, c 6, s. 7. 44. Nothing in the thirty-sixth to the forty-first sections of this Act shall I support or maintain any claim to any profit or benefit to be taken or enjojed from or upon any land of Our Sovereign Lady the Queen, Her Heirs and Successors, or to any way or other easement, or to any water- course or the use of any water to be enjoyed or derived npon, over or from any land or water of our said Lady the Queen, Her Hein and Successors, unless such APPENDIX. 388 l|ind, way, easement or water-course or other matter shall lie and be situate Ifithin the limits of some town or township, or other parcel or tract of land holy surveyed and laid out by proper authority. 10 dc 11 Vic, c. 6, s. 8. 2. — In cases of Zand or Hent. 46. If at the time at which the right of any person to make an entry or imp. St. 8 ft 4, fetrcBS, or to bring an action to recover any land or rent, shall have first Wm. IV, e. 27, Ijccrued, as hereinbefore mentioned, such person shall have been an infant ■•^^* I under coverture, an idiot, lunatic, of unsound mind or absent from Upper I Canada, then such person, or the person claiming through him, may, notwith- 8ec. 26 Vic. c. 20. landing the period of twenty years hereinbefore limited shall have expired, "'''erved no I make an entry or distress, or bring an action to recover such land or rent, at jtjf*'" <«'«»o'i- linytime within ten years next after the time at which the person to whom Lch right shall have first accrued, as aforesaid, shall have ceased to be under Ly such disability, or shall have died, (which shall have first happened.) 4 IWm. IV., c. 1, 8. 28. 46. But no entrjf, distress or action, shall be made or brought by any j^p gj 3 4 4^ E' erson who, at the time at which his right to make an entry or distress, or to Wm! IV., c, 27, ring an action to recover any land or rent, shall have first accrued, shall be •• 17. I under any of the disabilities hereinbefore mentioned, or by any person claiming ough him, but within forty j'cars next after the time at which such right lihallnave first accrued, although the person under disability at such time I nay have remained under one or more of such disabilities during the whole lof 8Kch forty years, or although the term of ten years from the time at which IhesKall have ceased to be under any such disability, or have died, shall not I hare expired. 4 Wm. IV., c. 1, s. 29. 47. When any person shall be under any of the disabilities hereinbefdre Imp. Bt. 3 A 4 I mentioned, at the time at which his right to make an entry or distress, or to ^J*- ^^f <'• ^> I bring an action to recover any land or rent, shall have first accrued, and shall '" * [depart this life without having ceased to be under any such disability, no I time to make an entry or distress, or to bring an action to recover such land I or rent beyond the said period of twenty years next after the right of such I person to make an entry or distress, or to bring an action 'to recover such Und or reut, shall have first accrued, or the said period of ten years next after the time at which such person shall have died, shall be allowed by reason of any disability of any other person. 4 Wm. IV., c. 1, s. 30. 48. When the right of any person to make an entry or distress, or to bring iQ,p, gt. 3 a 4 I an action to recover any land or rent to which he may have been entitled for Wm. iv., 0. 27, u estate or interest in possession, shall have been barred by the determina- ■• mo- tion of the period, hereinbefore limited, which shall be applicable in such case, and such person shall, at any time during the said period have been entitled to any other estate, interest, right or possibility, in reversion, re- mainder or otherwise, in or to the same land or rent, no entry, distress or action, shall be made or 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 shall have been recovered by some person entitled to an estate, interest or right, which sliall have been limited or taken effect after or in defeasance of such I estate or interest in possession. 4 Wm. IV., c. 1, s. 31. INTERPRET A.TION CLAUSE. 49. The words and expressions in this Act mentioned, which in their ordi- imp. St. 3 A 4 I nary signification have a more confined or a different meaning, shall in this Wm. IV., c. 27, Act, except where the nature of the provision or the context of the Act shall '* exclude such construction, be interpreted as follows, that is to say : the word "land," shall extend to messuages, and all other hereditaments, whether corporeal or incorporeal, and to money to be laid out in the purchase of land, (and to chattels and other personal property transmissible to heirs), and also I 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 transmissible to heirs, and to any possibility, right or title of entry or action, and any other interest capable of being inherited, and whether the same estates, possibilities, rights, titles and interests, or any of them, shall be in /-'^ 884 APPENDIX. ten' pn possession, reTersion, remainder or contingency; and the word "assurance"! shall mean any deed or instrument (other than a will) by which any lanjl shall be conveyed or transferred at law or in equity; and the word "rent"! shall extend to all annuities and periodical sums of money charged upon or I payable out of any land. 4 Wm. IV., c. 1, s. 69. 60. The eighteenth section of the Interpretation Act of the Upper Canada I Consolidated Statutes, is not to apply to this Act, unless th« context requires! a construction in accordance therewith. Imp. St. S A 9 Vic, c 106. m Imp. St. 8 ft 9 Vic, c 106, 1, a. Imp. St. 8 ft 9 Vic, c. 106, B. 3. Imp. St. 8 ft 9 Vic, c 106, 8. 3. Imp. St 8 ft 9 Vic, e. 106, I.e. Imp. St. B ft 9 Vic, c. 106, B. 8. Imp. St. 8 ft 9 Vic, c. 106, 1. 9. Imp. St. 7 ft 8 Vic, e. 66. CAP. XC. An Act respecting the tranter of Real Property^ and the liability of\ certain interests therein to execution. HER MAJESTY, by and with the advice and consent of the Legislative | Council and Assembly of Canada, enacts as follows : 1. The words and expressions hereinafter mentioned, which in their ordi- nary signification have a more confined or a different meaning, shall in this i 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: the word " Land" shall extend to messuages, lands, tenements and hereditaments, whether corporeal or incorporeal, and to any undivided share thereof, and to I any estate or interest therein, and to money subject to be invested in the purchase of land or of any interest therein ; the word " Conveyance" shall extend to a feoffment, grant, lease, surrender, or other assurance of land. 12 Vic, c 11, 8. 1. 2. All corporeal tenements and hereditaments shall, as regards the con- veyance of the immediate freehold thereof, be deemed to lie in grant as well I as in livery. 14 <& 16 Vic, c 7, s. 2. ' 3. A feoffment, otherwise than by deed, shall be void at law, and no feoff- ment shall have any tortious operation. 14 dc 16 Vic, c, 7, s. 3. 4. A partition and an exchange of any land, and a lease required by law to be in writing of any land, and an assignment of a chattel interest in any land, and a surrender in writing of any land not being an interest which might by law have been created without writing, shall ba void at law, unless made by deed. 14 «b 16 Vic, c 7, s. 4. 6. A contingent, an executory, and a future interest, and a possibility I coupled with an interest in any land, whether the object of the gift or limita- tion of such interest or possibility be or be not ascertained, also a right of entry, whether immediate or future, and whether vested or contingent into or upon any land may be disposed of by deed, but no such disposition shall by force only of this Act defeat or enlarge an estate-tail, and any such dis- position by a married woman shall be made conformably to the provisions of the Act enabling married women to convey their real estate. 14 & 16 Tic, [ c. 1, s. 8. 6. A contingent remainder, which existed at any time between the thirtieth ] day of May, one thousand eight hundred and forty-nine, and tlie second day of August, one thousand eight hundred and fifty-one, shall be deemed to have ] been capable of taking effect, notwithstanding the determination by for feiture, surrender or merger, of any preceding estate of freehold. 14 4 15 1 Vic, c 7, 8. 6. 7. When the reversion expectant on a lease of any land merges or is snr rendered, the estate which, for the time being, confers, as against the tenant under the same lease, the next vested right to the same land shall, to the extent of and for preserving such incidents to and obligations on the same | reversion as but for the surrender or merger thereof would have subsisted, be deemed the reversion expectant on the same lease. 14 <& 16 Vic, c. 7, 8, 1 8. When the reversion of any land, expectant on a lease, has merged in any remainder or other reversion or estate, the person entitled to the estate into which such reversion has merged, his heirs, executors, administrators, APPENDIX. 385 [d the word "aesarance"! will) by which any land I 7; and the word "rent"! money charged upon or I Act of the Upper Canada I aless th« context requires! ty, and the liability of\ 'Mtion. msent of the Legislative I lows: led, which in their ordi- ent meaning, shall in tbia I > the context of the Act! ows, that is to say: the! iments and hereditaments, ided share thereof, and to ject to be invested in the ord " Conveyance" shall other assurance of land. | hall, as regards the con- led to lie in grant as well I void at law, and no feoff- ic, c, 7, 8. 3. a lease required by law I f a chattel interest in any being an interest which lall be void at law, unless | tterest, and a possibility! iject of the gift or limita- icertained, mso a right of ested or contingent into [ no such disposition shi e-tail, and any such dis- 1 ably to the provisions of | al estate. 14 <& 16 Tic, ime between the thirtieth line, and the second day shall be deemed to have I s determination by for- Eite of freehold. 14 (& 15 1 jnccessora and assigns, shall have and enjoy the like advantage, remedy and l)enefit against the lessee, his heirs, successors, executors, administrators and jjsigns, tor non-payment of the rent, or for doing of waste or oth^ir forfeiture, jr for not performing conditions, covenants, or i^eements contained and (xpressed in his lease, demise or grant, against the lessee, farmer or grantee, liis heirs, successors, executors, administrators and assigns, as the person jho would for the time being have been entitled to the mesne reversioo jhich has mei ged, would or might have had and enjoyed if such reversion lad not so merged. 12 Vic, c. 11, s. 12. 9. The bona fide payment of any money to and the receipt thereof by any imp. St. 7 4 8 I person to whom the same is payaole upon any express or implied trust, or for Vic, c. 66. any limited purpose, and such payment to and receipt by the survivors or jurvivor of two or more mortgagees or holders, or the executors or adminis- trators of such survivor, or their or his assigns, shall effectually discharge the person paying the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary be expressly declared by I the instrument creating the trust or security. 12 Vic, c 71, s. 10. 10. Neither of the words "Grant" or " Exchange," in any deed, shall imp. st. 8 A 9 I create any warranty or right of re-entry, or covenant by implication, except Vic, c. 106, b. 4. I in cases where by any Act in force in Upper Canada, it is declared that the word " Grant " shall have such effect. 12 Vic, c V, a. 6. 11. Any estate, right, title or interest in lands which, under the fifth section Amended 24 Vie. of 'Ma Act, may be conveyed or assigned by any party, [shall be bound by c. 41, b. 8. the Judgments of any Court of Record, and] shall be liable to seizure and sale under Execution gainst such party, in like manner and on like conditions as lands are by law [bound by judgments and] liable to seizure and sale under execution, and the Sheriff selling the same may convey and assign the game to the purchaser in the same manner and with the same effect as the party might himself have done. 12 Vic, c. 71, s. 13, — 14 A 16 Vic, c 7, s. 9. 12. The foregoing sections of this Act shall not extend to any deed, act or thing executed or done, or to any estate, right or interest created before the first day of January, one thousand eight hundred and fifty, but they shall extend to and have operation and effect on and from that day. 12 Vic, c 71, 8, 14. 13. Any Corporation aggregate in Upper Canada, capable of taking and conveying land, shall be deemed to have been and to be capable of taking and conveying land by deed of bargain and sale, in like manner as any person in his natural capacity, subject nevertheless to any general limitations or restrictions and to any special provisions as to holding or conveying real estate which may be applicable to such Corporation. 4 Wm. IV., c 1,8. 46. 14. No deed of bargain and sale of land in Upper Canada, executed subse- quent to the sixth day of March, one thousand eight hundred and thirty -four, shall require enrolment or registration to supply the place of enrolment, for the mere purpose of rendering such bargain and sale a valid and effectual conveyance for passing the land thereby intended to be bargained and sold ; but this shall not affect any question of priority under the Registry Act. 4 Wm. IV., c 1, 8. 47,-13 4 14 Vic, c 63, s. 8. 24 land merges or is snr ^rs, as against the tenant | same land shall, to tl obligations on the same lof would have subsisted, 14 A 16 Vic, c 7,8.: a lease, has merged in son entitled to the estate ecutors, admiuijitrators, i 1 rt [ 1 (' 1 4\ \ 1 r r T ■ -t ^ 1.1 r ^ Ik ! J ^ : 1 1 s ^ 1 S i I 11' i 1 ff 1 INDEX. A. I ABATEMENT, 197, 208. ABEYANCE, 68. I ABOLITION of fines and recoveries, 886. of real and mixed aotiona, 202, 205. I ACCOUNT, by joint-tenant and tenant in common, 123, 130. ACCUMULATION, trusts for, 852. ACKNOWLEDQMENT, to prevent Statute of Limitations, 217, 218. ACTS of Parliament, private, 804, 805. I ACTIONS, droiturel, 202. possessory, 201. real and mixed, abolished, 202, 205. I ADVANCEMENT of children, 167, 168. ADVERSE possession, 206. ADVOWSON, 26, 26, 122, 282, 240. AFFIDAVITS sworn in Great Britain may be used in Courts here, 21. AGENT, 217, 256, 269, 279, 284. authority to, 217, 279, 284. purchase by, from principal, 269, 829. AGREEMENT for lease, 279.— See Gomtbact. AIDS, 43, 47, 48, 49, 64. I ALIAS fi. fa. lands need not have a year between teste and return, 821. ALIENATION, 179. by deed, 264. — See Comyxtanoks. by devise, 846. by matter of record and under execution, 804. by the feodal law, 248. fines on, 46, 49, 65. forfeiture by, 286, 241. in mortmain, 236. of lands purchased allowed earlier than of lands descended, 249. of title by, 248, 263. progress of, 249. reciprocal consent of lord and vassal required to, 89, 248. restraint upon, 249. ALIENE, how one may, 268. who may, and to whom, 250. ALIENED, what may be, 260. • ALIENS, at common law no descent to or from, 181, 189. could they transmit by devise 1 188. denization and naturalization of, 183. might take by devise, 188. relieved by statutes, 182, 183, 184. right of at common law to hold and transmit, 185. right of, at common law, to maintain ejectment, 187. right of, to curtesy or dower, 189. «1 ■ 1 ,■:;■: \4 l-\ 388 INDEX. ALIENS, right of widow of, to dower, 187. who are, 182. ALIQUOT part of a year, payment of rent with reference to, 94. ALLODIAL property, 88, 62. ALLODIUM, 41, 62, 68. ALLUVION, 196. ALTERATION of deed, 267, AMBIQUITT in a deed, 269. AMELIOBATINQ waste, 246. ANCIENT English tenures, 41. ANNUITIES, 26, 28, 67. ANTENUPTIAL settlement, 88, 84, 86, 86. APPENDANT, 282. APPLICATION of purchase money, 268. APPOINTMENT by tenant in tail, to charitable uses, 71, 885, 847. powers of, 87, 818, 847, 849. APPORTIONMENT of rent, 76. APPURTENANT, 232, 259, 260. ASCENDINQ line could not inherit, 187, 188, 166. may now inherit, 138, 166. ASSETS by descent, 176, 178, 262. ASSIGNEE, at common law, could not enforce corenants, 29, 287. bound and entitled during privity of estate, 285, 287. ASSIGNMENT, 269, 286. of contingent interests, 117, 819. of dower, 82. of right of dower, 82. of right of entry, 102, 108, 819. ASSIGNS, 249. ASSIZE, 201. of bread, 17. ASSURANCES, common, 253. ATTAINDER, 168, 190. consequences of, 191. corruption of blood on, abolished, 192. forfeiture on, abolished, 192. ATTAINTED persons incapable of conveying, 250. ATTESTATION of deeds, 266, 266. of wills, 348,851. ATTORNMENT, 46, 248, 249. * AUTRE yie, tenant pur, 73, 74, 90, 188, 185. may devise, 195. AUGMENTATION of poor livings, 239. B. BANKRUPT laws, 14, 15, 21. BARGAIN and sale, 298. corporations could not formerly convey by, 800. disadvantages of, 298. invalid without enrolment, 299. objections to at present day, 300. operation of at common law, 299. requires money consideration, 800. «' BARGAIN and sell," 295. BASE fee, 65. enlarged, 888, 839. BASTARD, eigne, 181. BASTARDS, cannot inherit, 180. can have no collateral heirs, 181. BATTEL, wager of, 208. BILLS of exchange and promissory notes, when payable, 90. BLOOD, oorraption of, 191. taken away, 158, 192. statutes respeotiog, 192. BOOK land, 66. BOND, 801. defeazanoe on, 802. forfeiture of, 802. how avoided, 801, 802. eatisfaotion and discharge of, 802. to the crown, 824. BOROUGH English, 63. BOTES, 27, 74, 91. BRITISH Parliament, 11. subjects, 10, 11. BURGAGE tenure, 52. 889 C. CANADA, 12. Lower, 18. tenure in Upper, 18, 50, 66, 60. Upper, 12. CANADIAN right of legislation, 13. CANCELLING of deed, 267. CANONS of inheritance, 187. CAPACITY to purchase or convey. — See Aliinb. CAPITA, snocession per, 161, 162, 167, 169, 174. CAPITE, tenants in, 44, 46, 46, 49, 249. CARTA magna, 86, 47, 49. CART bote, 27. CERTAIN services, 42. CESTUI que trust, 295, 297, 307. use, 289, 290, 291, 292, 295, 807, 808. vie. 74, 198. Tie, fraudulent concealment of death ofj 118. CHARGING lands, power of, 249. CHARITABLE uses, 240. CHARTER or deed. 254. CHATTELS, real, 92, 308. CHILDREN in womb. 111, 116. CHIROGRAPH, 254. CHIVALRY, tenure in, 42, 48. CHURCH of England, 240. of Rome, 13, 241. CIVIL death, 74. rights, 16. society, ends of, 9. CLEARING wild lands, 88. waste by, 88, 246. CLOSE -rolls, 305. COGNIZANCE, fine sur, 880. 334. COQNIZEE of a fine, 829, 330. COGNIZOR of fine, 329, 330. COLLATERAL heir at common law, 145. relations, 143. COLONIES, 4. acquired by cession, 10, 11. by conquest, 10, 11. by occupancy, 10, 11. laws in force in, 10. North American, 12. COMMERCE, regulation of, 20. 1 1 890 INBIZ. iif . M ■' i COMMON of «ttoTen, 27, 74, 91. reooT«riea. — See Rrootuit. tenant in, 120, 128. COMMONS, 26, 27. COMMUNION of property, 2. COMPUTATION of time, 89. CONCESSIT, fine ear, 830. CONCLUSION of a deed, 268. CONCORD in a fine, 829. CONDITION, 66, 262. breach of, 100, 248. broken right of entry for, not assignable, 108, 819. estates npon, 99, 100, 104, 106. expressed, 100. how aToided, 108, 801, 802. illegal, 108. implied, 99. impossible, 103, 801, 802. in deed, 101, 216. in law, 101. in restraint of marriage, 102 n. of reentry on breach of coTcnant gone on license, 288. precedent, 100. subseqaent, 100, 102 n. fbid, 102, 801. CONDITIONAL fee, 65. limitation, 101, 102 n., 216. CONFIRMATION, 269, 283. CONQUEST, 10, 11. signification of the word, 84, 177. CONSANGUINITY, 185, 170. compatation of by ciyil law, 186, 170. by common law, 184, 146, 170. CONSIDERATION, 255. good or yaluable, 266. CONSTITUTIONS giren to Upper and Lower Canada, 18. CONSTRUCTION of deeds and dorises 852, 868, 854. of the King's grants, 805, 806. CONTINGENT interests, assignment of, 117, 260, 819. devise of, 847, 848. remainders, 110, 112. CONTINUAL CLAIM, 199, 278. does not presenre right of entry, 206, 273. effect of, abolished, 217. bar of dower in equity on, 84. CONTRACT bar of dower in equity on, 84. by tenant in tail, 887. contained in deeds &yoided by cancellation, 267. of sale, dower on, 87. to convey lands converts them into personalty in equity, void under Statute of Frauds, when enforced, 279. CONVERSION in equity, 88, 850. CONVEYANCES at common law, 269. by aliens, 268. by attainted persons, 260. by corporations, 800. by idiots, 250. by infants, 260. by insane persons, 260. by lunatics, 251. by married women, 262. by married women tenants in tail, 887. by sheriff, 822, 828. 860. INDIX. 891 CONVEYANCES by tenant in tail, 826. hj the Crown, 806. ooTenants in, 262. deriratire, 269, 281. innocent, 241. introdootion of written, 271. origin of, 268. original, 269. should be pleaded according to legal effect, 274. to defeat execution, 820. to religious houseo made Toid, 287. to uses devised hj the clergy, 288. to uses to bar dower, 86, 87. under the Statute of Uses, 289. Toluntary, 266. warranty in, 262, 827. which may operate at common law, or under Statute of Uses, opera- tion of, 274. COPARCENARY, 126, 128 See Paeobner. COPYHOLDS, 66, 68, 69. CORNAOE, tenure by, 47. CORODIES, 25. CORPORAL inreBtiture, 87. OORPORATIONS, 66. not within Statute of Uses, 800. on dissolution of, lands roTcrt to donor, 193. CORPOREAL hereditaments, 63. CORRUPTION of blood by attainder, 191. statutes respecting, 192. taken away, 158, 192. COUNTERPART, 254. COURTS-BARON, 56, 59. COVENANT, at common law assignee could not enforce, 287. damages on breach of, 802. express, 286. how far express covenant runs with the land, 236. implied, 274, 286. implied, binds during priyity of estate, 286. implied, is controlled by express, 286. implied, runs with the land, 286. in conveyances, 262. necessity for express, 286. real, 262. to stand seised, 298. writ uf, in a fine, 829. CRIMINAL law of England introduced, 21. CROSS-REMAINDERS, 854. CROSS, sign of in deeds, 263, 264. CROWN, authority of, 11, 12. barred by Nullum Tempus Act, 208. barred by Prescription Act in certain eases, 234. debtors, from what time their lands bound, 824,325. not affected by Statute of Limitations, 208. registration of debts due to, 324, 825. CURTESY in estates tail, 69. in equity, 88. requisites to tenancy, by, 76, 77. right of alien to, 189. tenant by, 76. tenant by, liable for waste, 88, 246. CUSTOM', distinction between prescription and, 230. fMDM. :f — ii. gf^Hf^ ; I D. DAMAGE by fire or tempest, 248. tentnti UMHtj on, 244. DATE of » deed, 268, 266. DAY, fraotion of, 90. legal oompuUtioa of, 90. DEATH, oWil, 74. fraudulent conoealment of, 118. DEBTS, liability of deTisees on epecialty, 861. of exeoutora and adminietratora on, 262. heirs on apeoialtj, 176, 178, 262. DEGREE in Chancery, 268. DEDIMUS potestatum, writ of, 829. DE doniB oonditionalibus, sUtate of, 67, 70, 71. 828, 880, 836, 886. DEED, alienation by, 264. •Iteration of, 267. ambiguity in, 269. attesUtion of, 266, 266. oaneelling of, 267. claasifioation of parties in, 268 eonoluBion of, 268. oondition in a, 262. consideration of, 266, 268. construction of, 862. covenants in, 262. date of, 263, 266. • definition of, 264, 269. delivery of, 266. destruction of, 267. disagreement to. 268. discharge of, 268, 269. estoppel by, 117, 264, 258. exceptions in, 260. habendum and tenendum in, 260, 261. how avoided, 267, 268, 269. inconsistent clauaei in, 260. indented, 264. inter partes, 268. must be on paper or parchment, 266. mast be written or printed, 266. names of parties, 268. necessity for order in, 267. operative words in, 268. parcels in, 269. poll, 264. precedents in, advantsges of following, 257. premises in, 257. punotuetion in, 267. reading of, 268. receipt in, 258. reddendum in, 261. requisites of, 255. reservation in, 262. sealing of, 268, 266. signing of, 264. tense in, 259. voluntary, 266. warranty in, 262, 827. what persons can take by a, 258. DEEDS of revocation of uses, 801. to charge or discharge lands, 801. to lead uses, 801, 804. INDIX. 898 DKFEAZANCE, 269, 288, 802. DEFORCEMENT, 197, 198. DELIVERY of a deed, 266. DEMESNE, 62. 68. DEMISE, implied ooTmant in, 28, 827. DENIAL of laadlord'a title in ^eotmeat, 248. DENIZATION, 188. DERELICTION, landt by, 196. DERIVATIVE oonteyaneei, 269, 281. DESCENT, 186. allowed earlier than rigkt of devisiog, 7« at eommon law, 187. eanons of, 187. oast formerly toolc away entry, 200. oast doei not now take away entry, 206. coald not be traced flrom aliens, 189. deflnidon of, 136. differenee between tracing from person last seised and firom nerson last entitled, 188, 161 169. differenoe between tracing from person last entitled and from persoii from whom he inherited, 161. difference between taking by descent and by pnrohase, 176, 177. half blood in, 147, 167, 168, 167, 169, 170. importance of knowledge of the law of, at each period, 184. law of, Taried at different times, 188. no longer traced from purchaser, 169. of an estate by prescription, 282. of estates par autre Tie, 169, 169. of estates tail, 169, 168. of freehold estates of inheritance, 183. of realty and succession to personalty compared, 171. of separate property of married women, 171. per capita, 161, 162, 164, 166, 166, 167, 169. 171, 173, 174. per stirpes, 142, 148, 161, 162, 164, 166, 166, 167, 169, 171, 178, 174. traced from person last seised, 187. traced from purchaser, 189, 150. traced from person last entitled, 160. under statute 4 Wm. IV. o. 1, 160. under statute 14 k 16 Vio. o. 6, 159, 160, 141. under statute of Victoria, analogous to suooeSBioi to personalty under statute of distribution, 162. DESTRUCTION of deed does not revest estate, 267. DETERMINABLE flreehold, 78, 74. DETERMINATION of (.states at will, 92. for years, 91. DEVISE, 268. alienation by, 846. allowed of lands held in socage, 846. attestation of, 848, 849, 350, 351, 362. by married women, 846. by virtue of & power, 849. construction of, 852, 853, 864. contingent interests pass by, 847. credibility of witnesses to, 850. executed abroad of lands here, construction of, 849. «ze«ution of, 848, 849. executory, 113, 852. " feodal restraint upon, 846. is in nature of a declaration of uses, 351. must be in writing, 348. of a fee without words of inheritance, 64, 864. of a fee tail without words of procreation, 68, 864. i'W I. 894 INDIX. DEVISE, rerooation of, 840, 860. rights of entry paas by, 847. labjeot to rnle against perpetuities, 114, 862. to Church of England, 847. to corporations, 847. what estate pastes by, 862. when after acquired lands pass by, 862. DEVISEE, liability of, for debts, 861. DISABILITIES under Statute of Limitations, 228, 224. under Statute of Prescriptions, 284. DISABLING statutes, 276. DISAQREEMENT to a deed. 26». DISCLAIMER by trustees, 268. or tenure, 242. DISCONTINUANCE, 197, 198, 208, 242. DISPOSSESSION, 197, 208. DISSEISIN. 197, 198, 208. DISTINCTION between custom and prescription, 280. DISTRIBUTIONS, statute of, 169, 162, 164, 166, 167, 168, 169, 170, 171, 174. DOMESDAY book, 86. DOMICIL, law of, 849. DOMINIUM, 62. DONE, grant et rendrt,fine tur, 820. DOWER, 77. action of, 82. arrears of, barred by Statute of Limitations, 222. assignment of, 82, bar of, 80, 82, 83, 84, 86, 86. oonTeyances to defeat, 86, 87. bow a wife may be endowed, 81. how lost, 191. in estates tail, 69. in equity, 82, 87, 88. in lands in mortgage, 81, 104. in the United States, 161. of what a wife may be endowed, 78, 79, 80, 81, 87, 88. requisites of tenant in, 79. right of alien widow to, 78, 187. right of, assignable in equity, but not at law, 82. right of widow of alien to, 78, 187. tenant in, 77. tenant in, liable for waste, 88, 246. the different species of, 81, 82. who may be endowed, 78. DROITUREL actions, 202, 203. DRUNKENNESS, how contracts affected by, 251. DURESS, deeds obtained by, are avoidable, 260. but may be confirmed, 251. E. EASEMENTS. 284, 269.— See Peksoription. EJECTMENT, 94, 95, 202. by alien, 187. by joint tenant and tenant in common, 128, 180. ^ denial of landlord's title in, 248. by purchaser under;?. /a., 808, 821. proof in, by euch purchaser, 821. r ^ ELEGIT. 806, 807, 808, 311. EMBLEMENTS, definition of, 75, 91. tenant at sufferance not entitled to, 96. tenant at will entitled to, 92. INDIX. 896 19, 170, 171, 174. EMBLEMENTS, t«n»nt for life •ntitled to, 74. tooftnt for yoan entitled to, 91. ENABLINQ tUtate, 276. ENGLAND, Uw of, 8. ENGLISH Ungnago, judgments, &o., to be In, 266. Uw introduoed, 12, 18. 14, 21, 22. ENTAILS, 66, 66, 67, 68, 69, 70, 71, 72, 76. after poaeibilitj of iasae extinct, 76. barred by appointment to oharitable use, 71, 835, 847. barred by common recovery, 69, 882. barred by deed under Vic. o. 11, 71, 826, 886. barred by fine, 70, 828. barred by Statute of Limitations, 226, 226. barred by warranty, 69, 71, 827. do not merge in rcTersion in fee, 119, 889. effect of Bankrupt laws on, 72. effect of judgments on, 72. equitable as well as legal within the Stat, of Vic, 843. female, 68. bow oreated, W. incidents to, 69. in incorporeal hereditaments, 67. in flranit marriage, 69. male, 66, 68. not within Statute 14 & 16 Vic. o. 6, 169, 168. of which reversion in the Crown net barred by common recoTery, 71. origin of, 67. special or general, 67, 68. to what charges liable, 71, 72. ENTRY, 199, 271. effect of, abolished, 217. necessary in leases for years, 272. of one joint tenant entry of all, 180, with force, 97, 98, 200, 201. writ of, 201.— See Right or Emtkt. EQUITABLE estates descend as legal, 169. waste, 244. EQUITT of redemption saleable under j!. fa., 818, 814. when apparent on mortgage, 816. See MoKiaAQx, MoBTOAais, MoBTOAaoa. ESCHEAT, 46, 66, 188, 179, 260. upon attainder, 190. upon attainder, distinction between forfeiture and, 190. ESCROW, 266. ESCUAGE, 47, 48. tenant by, 48, 49. ESTATE, 61. at sufferance, 94. at will, 92. by elegit, statute staple, and statute merchart, 105. by the ourteay, 76. for life, 78, 75. for years, 90. from year to year, 93. in common, 120, 128. in coparcenary, 120, 125. in dower, 77. in fee simple, 62. in fee tail, 65. — See Emtaixs. in frank marriage, 127. in joint tenancy, 120. in lands, 61. t\ f 896 ^INPXX^ I* ' 4 1 il f 1 ^ M ^SVfl K ' ^ ^KsH ESTATE, in mortgage, 104. in possession, remainder, and seremioo, 106. ' in severalty, 120. less than freehold, 89. of freehold of inheritance, 62. of flreehold not of inheritance^. 78i pur autrt vie, 78, 90, 188, 185, 195. ESTATES in futuro, 108, 272. not revested by destraotion of deed» 267. pur autre vie are within Stat. 14 & 16 Vio>, o. 6» 158, 169. pur autre vie may be devised and will, defloeai aa a.fee siiaple, 195. ESTOPPEL, 117, 264, 268. ESTOVERS, 27, 74, 91, 127. EVIDENCE, affidavits sworn in England may bet used here in, 21. in ejectment by purchaser under >£. /a., 321, 822. recitals in 2heriff's deed are, 829. EXCEPTIONS Arom Grant, 260. in Con. Stat. o. 88, 848. in Statute of Prescription, 284 EXCHANGE, 6, 269, 280. creates no warranty, 827. must be by deed, 280. EXECUTION, alienation under, 804, 806.— See Fiebi Faous. EXECUTOBT devise, 118, 298. a fee mvy b« linuted on a fee by, 114. doea not need particular estate to support it^ 118. Bubjeot to rule against perpetuities, 114', term of years may be limited after life estate by, 114< EXECUTORS and administrators, liability of on debts^ 262. lands of deceased may be sold undier a fi. fa. against, 62, 175, 809, 810. pleadings as to lands of deeeased in actions against,. 810» proceedings against, as to landa of deceased, origin of, 18, 175. EXPECTANT heir, dealings with, 119. EXTENT, writ of, 824, 826. FARM, 275. FARMER, 90, 275. FEALT7, oath of, 82, 85, 87, 64. tenant by,^ 48. FEE, base, 65. conditional, 65. meaning of the word, 62, 68. qualS^ifid, 66. simi't". 62. tail, 6v,— See Entails. upon a fee, 114. words necessary to create a, 64, 68. FEMALE pjj.njjlj.„^^„_155_ ,5,. FEME covert.— See Mabbixd Woman. FEOFFMENT, 269. must be by deed, 278. FER.£ aatursa, animals, 9. FEUD (or fief), change in nature of, 40. corporal investiture in, 87. fealty and homage in, 37. honorary, 89. how held at first, 88. INBtX. m FEUD (or fief), how held afterwards, 89. maxim of tenure in, 87. military, 89. mode of grant of, 87. nature of, 87. not assignable without lord's assent, 89. proper and improper, 40. serrioes in a, 37. FEUDAL system, 82. consequences of «dopUon of, 36. effects and policy of, 83. establishment of, 84, 85. grierances caused by, 86. progress of, 84. received in England, 84. FEUDUM, antiquum, 1 j^g ... novum, J ' ' opposed to allodium, 62. FIEF.— See Faro. d'haubert, 48. FIERI facias, 806, 807, 308. Fi. Fa. goods, 807. ejectment by purchaser under, 308. from what time it bicds, 809, 312. operation of, 808. priority of, 00, 328. sale under, within Statute of Frauds and Registry Aet, 808. sheriff cannot dispossess under, 808. what pereonal interests in lands may be sold under, 92, 808. Fi. Fa. lands, 18, 176, 809, 811. alias need not have year between teste and return, 821. binds lands acquired after delivery to sheriff, 813. contingent interests saleable under, 817, 319. conveyance by sheriff under, 322. conveyance by sheriff under may be set aside, 323. conveyance by sheriff within Statute of Frauds and Registry Act, 322. court may sta; conveyance under, 828. duty of sheriff on sale under, 816. duty of sheriff to enquire for lands, 824. ejectment by purchaser under, 321. evidence in such ejectment, 321, 822. equity of redemption saleable under, 313. from what time lands bound by, 311, 312, Z\t. given by statute 6 George II., 18, 175, 809, 811. inception of execution of, 322. incumbrances prior to delivery of, 314. interests reached in equity which cannot be toQOhed by, 319, 820. irregularities under, 821. priority of, 90, 320 n., 823. rights of entry saleable under, 817, 810. seizure and sale under, 822. sheriff cannot dispoBsesB under, 321. what interests affected by, 02, 311, 813. what interests aot saleable under, 818. when it may issue, 821. when sheriff to sell under, 821. FINE for alienation, 46, 49, 65. FINES, of land, 69, 70, 804, 806, 326, 328. abolition of, 887. force and effect of. 330. how levied, 828, 829. parties levying must have had a flreehold, 831. 898 INDKX. ;: FINES, who boand by, 880. FIRE, aooidcats by, 9d4. bote, 27, 7/ 91. tenant's liability on damage by, 244. rrSHERY, seTeral, 196. FOLKLAND, 66. FOOT of a fine, 829. FORCIBLE entry, 97, 98, 200, 201. FORECLOSURE, 104, 106, 219, 814, 816, 816. FORFEITURE, 76, 91, 104, 106. 179, 189, 286, 260. by alienation, 230, 241, by attainder, 190, 192. by breacli ^f oondition or ooTenant, 248. by dieolaimer, 242. by lapae, 243. bj' waste, 248. dijtinotion between escheat and, 189. of title by, 286. the degrees and means of, 236. FORMEDON, 202. FRANCHISES, 26. FRANK, almoign, 49, 60, 60. marriage, 127. tenement, 61. FRAUNKE, ferme, 61. FRAUDS, statute of, 266, 308, 822, 848. FREEHOLD, 61. estates, 61, 73. cannot at common law commence in fataro, 91, 107, 272. determinable, 74. in fttturo, 107, 108, 272. lies in grant as well as in livery, 110, 273. FRENCH law introduced, 12, 14. FUTURE estate, 108, 109. 1 •V |1 private acts of, must l-e pleaded, 805. PARLIAMENTARY conveyance, 218. PARTITION, 124, 126, 127. 129, 168. deed of, 269, 280. must be by deed, 281. sale in proceedings for, 127, 130. PATENT letters, 1 „fv, rolls, I '*"^- PATERNAL rolations take before maternal, where lands descend from fathers side, and vice versa, 148, 163, 164, 166, 167, 169. PERPETUITIES, 114. different expressions of the rule against, 116. how period within the rule against, fixed, 116. limitations by way of springing use within rule against, 116. INDEX. 405 ID FBB9<3niPTIOM. nd from fathers side, le against, 116. PERPETUITIES, restraint against, 114. rale againut, considered, 114. time allowed by rule against, 114, 115. PERS0NALT7, suooession to, 170. succession to, compared with descent of realty, 171, 172. will of, construed according to law of domioil, 349. PETIT sergeanty, 52. PISCARY, common of, 27, 127. PLEADED according to their legal effect, instruments must be, 274, 282. PLEADING in actions against executors and administrators as to lands of deceased, 310. of title by prescription, or by non-existing grant, 228, 229, 230, 231. PLOUGII-BOTE, 27, 74, 91. POSSESSIO fratris faoit sororem esse beeredem, 148. POSSESSION, 6, 181, 202. doctrine of non-adTcrse, 205, 208. of co-tenant, 180, 216, 217. of tenant, that of landlord, 90. of tenant for years, is possession of remainderman or reforaioner, 79. of younger brother, 180, 216, 217. right of, 131, 202. POSSESSOilY Actions, 201, 202, 829. POSSIBILITY not assignable at Common Law, 250. now assignable under fi. fa., 319 POSTHUMOUS child. 111, 116, 137. POTENTIA propinqua, 111. remotissima. 111. POWER to charge lands, origin of, 249. POWERS cannot be grafted on a bargain and sale, 800. of appointment, 87, 818, 849. of sale in mortgages, 105, 315, 816. PRECIPE in a fine, 829. in a recovery, 332, 833. tenant to, 883, 834. PRECEDENTS in a deed, advantages of adhering to, 257. PREMISES of a deed, 257. PRESCRIPTION, 27, 179. ct common law, 228, 230. crown barred by statute of, 234. descent of an estate by, 232. disabilities and exceptions under statute of, 234. distinction between custom and, 280. does common law prescription exist in Canada ? 280. easements and light under statute of, 234. •'enjoyment" in statute of, meaning of, 233, 234. evidence of, 228, 229. how defeated, 229. how time of calculated, 233. in a que estate, 230, 232. in whom to be laid, 231. interruption to claim by, 233. less than 30 years will not give title by, 234. limitation of, 230, 231. manner of, 231, 232. necessity for knowledge of former law of, 234. object of the statute of, 232. of title by, 197, 227. plea of, and of non-existing grant, 228, 229, 284. policy of the statute of, 235. profits a prendre in statute of, 282. thirty years give title by, 232. what may and what may not be claimed by, 281, 232. 'PRIMARY conveyances, 269. 1 !U I I. 406 INDIX. 0-1 IS- i PRIMER seisin, 44. 48, 49. PRIMOGENITURE, 8, 89, 141, 106, 174. PRIVITY of contract, 268, 286. 287. of estate, 268, 286, 287. PROCLAMATION on fine, 829, 880. of 17G3, 12, 16. PROPERTY, 0. communion of, 2. existed in moToables first, 8. origin of, 1. right of, 1, 182, 202. transfer of, 6. PROTECTOR to the settlement, 884, 840, 841. analogous to tenant to the prsDoipe, 834. deed by which appointed most be registered, 841. how appointed, 841. who nay and who may not be, 841. PROVINCES, union of the, 19. PROVISO for re-ontry. — See Right of Entbt. PUNCTUATION in deeds, 257. PUR auter vie, tenant, 74. PURCHASE, by feudists called oonqaeit, 177. definition of, 176. e£feot of acquiring an estate by, 140. effect of taking by, taried by statute 14 & 16 Vie, e. 6, 168, 17ft. money, application of, 258. of title by, 176. PURCHASER at common iaw, 140. on devise, heir talces as, 158, 164. right heir, or " heir of the body" taking as, 189, 164, 16& under oonTeyance by himself, person taking as, 118. under fi. fa., ejectment by, 821. under statute 4 ^Vm. IV., 160. under statute 14 & 16 Vie., 168, 178. QUALIFED fee, C5. QUEBEC, province of, 12, 13. surrendered, 12. QUE estate, prescribing in a, 230, 282. QUEEN Anne's bounty, 239. QUIA emptores, statute of, 80, 67. RACK rent, 81. RASURE in a deed, 267. READING of deeds, 263. REAL and mixed actions abolished, 202, 205. REAL property, 23. RECITALS in a deed, 257. in sheriff's deed, 322. RECOGNIZANCE, 802. defeasance on, 802. RECORD, alienation by matter of, 804. RECOVERY, common, 69, 804, 806, 326, S32. abolished, 886. deeds to declare the uses of, 834.. force and effect of, 888. how suffered, 832. in value, 882, 888. nature of, 882. XNDBZ. 407 I. 6, 163, 17S. REC0VER7, common, origin of, 70, 238. ▼oaoher in, 832, 833. REDDENDUM, 261. BEENTRT on breaoh of oOYonant, oondiUon of, 288. BEQISTBT, 808. neoessary to oonToyance by tenant In tail, 887. neoesBary to deeds by which protector appointed, 841. neceuary to deeds of conreyanee to religiou nses, 240, 241. of jadgmeuts, 818. of Judgments abolished, 810. of judgments, adrantsges of, 818. REOISTERED judgments, executions on, 820 n. REGISTRATION of debts to the Crown, 824, 826. BELEAiE, 269, 281. invalid as snoh may operate in an other character, 282. operation of, 281, 282. RELIEFS, 44, 48, 64. REMAINDER, 106. 260. contingent, 110, 111, 112, 118. contingent freehold, how limited, 112. contingent, how defeated, 112. creation of, 272. cross, 864. expectant on life estate, descent of, 189. may be sold under fl. fa., 817, 819. must pass on creation of particular estate, 109. particular estate necessary to support, 107. possession of tenant for years, is possession of him in, 79. rules to be observed on creation of, 107. trustees to preserve contingent, 112, 118. what estate will support a, 109. vested, 110. when remainder must vest, 110. RENT, 26, 28, 40, 48. apportionment of, 76. charge, 80. definition of, 28. different meanings of, in Statute 4 Wm. IV., o. 1, 206, 208. distress for, 29, 80, 31, 96, 97. double, 96. effect of payment of, under a void or expired lease, 94, 279. lands relieved from, after six years, 222. origin of, 40. personal liability for, under covenant, not altered by Statute 4 Wm. IV., 222. rack, 81. seek, 81. service, 29. REPRESENTATION, right of, 146. taking by 142. RESERVATION in a deed, 262. RESTRAINING Statutes, 276, 277. RESULTING use, 256. REVERSION, 117, 250. definition of, 11 f. expectant on 1) a estate, descent of, 139. incidents to, 117, 118. merger in, 29, 80, 118, 284. possession of tenant for years is possession of him in, 79. purchaser of, must give reasonable value, 119. saleable under fi. fa., 317, 819. Buirender of, 29, 80, 118, 284. REVOCATION of a will, 849, 360. , 1 ; i 408 IMDXX. RIGHT oifil and natural, 7, 16. heirs, 164. of entry, 97, 98, 199, 200, 201, 288. of entry assignable and detisable, 108, 819, 847, 848. of entry of mortgagee, 1U4, 219, 220, 221, 222. of entry tor oondition broken not assignable, 108, 819. of entry for non-payment of rent or breach of oovenant, 07,- 98, 288. of entry not assignable nor devisable at oommon law, 102, 819, 847. of entry on breach of oondition subsequent, and on ooaditiooal limitad^a,, distinction between, 216. of entry, penalty on assignment of, 819. of entry saleable under fl. fa., 817, 810. of possession, 181. of property, 1, 182. of possession and of property might be distinct, 202. of succession to personal estate, 170. of way, 27, 28 n. RIOHT to real property, 1. writ of, 202. writ of, abolished, 204, 205. writ of, proceedings on, 208. RULE in Shelley's case, 176. RULES of descent illustrated, 149. for oonatruotion of deeds and wills, 352, 858, 864. m '''ii'. ■^^ — 8. SAXON chronicle, 85. SCUTAGE, 47. SEA, dereliction or encroachment of, 198. SEALING of deeds, 268, 279. SEALS, antiquity of, 268, 264. SEIGNIORY not assignable withont Tassal's assent, 89, 248. SEISED, equivalent to " entitled to," 160. SEISIN, livery of, 270, 272. necessary to constitute stock of descent, 187, 189, 271. SEPARATE property of married women, 171, 252. SEQUESTRATION, writ of, 808. SERVICE, feodal, 88, 42, 48, 47. in socage, 42, 50, 51, 54. Knight, 48. Tillein, 42, 57, 58. SETTLEMENT antenuptial, to bar dower, 83, 84, 85, 86. protector to the, 884, 840, 841. strict, 112, 889. SEVERAL, fishery, 195. SEVERALTY, estates in, 120. SHELLEY'S case, rule in, 176. SHERIFF'S duty to enquire what lands liable to execution, 824. sale under execution. — See Fikbi Facias. SHIFTING use, 293, 294. SIGNING of deeds, 264, 279. of wills, 348, 349. SOCAGE, 42, 48, 49, 50, 51, 52, 54. lands in Upper Canada to be held in, 13, 50, 55, CCK SOCIETY, ends of civil, 9. law of, 8. SPECIAL occupant, 195. SPECIALTY debts, heir Uable fo ' 75. 178; devisee liable lor, 851. SPECIFIC performance, 279. IMDIX. 409 SPRING INO nn, 208, 204. STATUTES of Jeofails, 19, 22. of limitations, 19, 22, 204, 205. of Mortmain, 14, 16, 240. Magna Oliarta, 86, 47, 49, 266. 9 Hen. III. Great Charter of Hen. III., 86, 47, 249. 20 Hen. III., c. 8, 204, 286. 21 Hen. HI. 89. 62 Hen. III., c. 28, (Marlbridge), 247. 8 Ed. I., c. 9. 204, 285. 0. 22 (Westminster 1), 44, 128. c. 86 (Weatm. 1), 41. 6 Ed. I., 0. 6 (Gloucester), 245, 247. 0. 7 (Gloucester), 82. 7 Ed. I., Stat. 2, 288. 18 Ed. I., 0. 1 (■Westm. 2, do donls conditlonalibus), 67, 69, 70, 71, 110, 828, 830, 836. 836, 889. c. 18 (West. 2), 249, 806, 807, 811. e. 82 (West. 2). 288. 18 Ed. I., Stot. 1, 0. 1 (Quia Emptores), 80, 67, 60, 193, 238, 249, 261, Stat. 4, 8*29, 830. 26 Ed. I., 00. 5 & 6, 47. 27 Ed. I., Stat. 2, 288. 84 Ed. I., Stot. 8, 288. 12 Ed. 11., Stot. 1, 0. 2, 266. 18 Ed. III., Stat. 8, o. 8, 289. 26 Ed. III., 0. 11, 44. Stat. 2, 182, 186. 27 Ed. III., 0. 9, 249. 6 Rio. II., Stat. 1, 0. 8, 200. 16 Rio. II., 0. 6, 289, 289. 1 Hen. IV., 0. 6, 806. 8 Hen. VI., c. 9, 200. I Rio. III., 0. 1, 291. 4 Hen. VII.. o. 24, 830. II Hen VII., 0. 20. 888, 848, 844. 28 Hen. VIII., o. 6. 249. c. 10, 239, 240. 27 Hen. VIII., o. 10 (Uses). 81, 82, 88, 84. 85, 86, 91, 107, 108, 120, 122, 187, 140, 241, 274, 289, 291, 292, 293, 297, 29R, 299, 800, 801, 836, 346. 27 Hen. VIII., c. 16 (Enrolments), 299, 888. 81 Hen. VIII., c. 1, 124, 126, 129, 280. 82 Hen. VIII., o. 1 (Wills), 117, 140, 188, 846, 347. 0. 2, 204, 231. 0. 9, 18, 319. 0. 28. 70, 276. 278. 844. 0. 82, 124, 126, 129, 280, 286, 287, 288, 819. C. 84, 29. 102, 108. 0. 86, 70, 71, 830, 881. 0. 89, 324. 33 Hen. VIII., o. 89, 71. 84 Hen. VIII., c. 5. 84 & 35 Hen. VIIL, c. 20, 71, 833, 844. 1 Ed. VI., 0. 12, 78, 191. 6 &6 Ed. VI., c. 11, 78. 191. 1 & 2 P. & M., c. 8, 239. 1 Elix., 0. 19, 277. 16 Elis., 0. 11, 78. 8 £Uz., 0. 4. 324, 825. 0. 6, 255. ill i; 4 410 INDEX. STATUTES : ih f'4^t I'Ai; '4 f^lrM '< I '■"I 8EHz.,c. 10, 277. 14 Eliz., 0. 8, 884. 0. 11, 277. 0. 14, 277. 18 Eliz., 0. 1, 78. 0. 6, 278. 0. 11, 277. 27 Eliz., 0. 4, 255. 81 Eliz., 0. 11, 200. 48 Eliz., 0. 4, 71, 847. 0. 29 277. 21 Jao. I., 0. 16 (LimitAtions), 199, 202, 204, 228. 16 Gar. I., o. 20, 46. 12 Car. II., 0. 24, 48, 50, 62, 64, 66, 69, 60. 17 Car. II., 0. 8, 289. 22 & 28 Car. II., c. 10 (Distributions), 186, 162, 167, 168, 169, 170, 174, 176. 29 Car. II. o. 8 (Frauds), 196, 256, 257, 264, 265, 266, 267, 269, 279, 281, 238, 284, 297, 298, 802, 807, 808, 809, 812, 817, 322, 848, 849, 860. 0. 30, 170, 171 (Distributions). 1 Jac. II., 0. 17 (Distributions), 164, 170, 171. 8 & 4 Wm. & M., 0. 14, 861. 4 & 5 Wm. & M., 0. 16, 106. 0. 20, 812. 7 & 8 Wm. III., 0. 22, 21. 0. 87, 289. 8 & 9 Wm. III., 0. 26, 78. 10 & 11 Wm. III., 0. 16, 111. 11 & 12 Wm. III., 0. 6, 183, 189. 2 & 8 Anne, o. 11, 289. 4 Anne, c. 13, 128, 180, 881. 4 & 6 Anne, c. 16, 199, 249, 886. 6 Anne, o. 18, 98, 118. 0. 81, 244. 7 Anne, c. 6, 182. c. 21, 192. 4 Geo. U., 0. 21, 182. c. 28, 81, 96, 96, 97. 6 Geo. II., c. 7, 18, 176, 809, 811, 812, 818, 821. 7 Geo. II., 0. 20, 106. 9 Geo. II., 0. 86 (Mortmain), 17, 240, 847. 11 Geo. II., 0. 19, 93, 96, 249. 14 Geo. II., c. 20, 196, 334. 16 & 16 Geo. II., 0. 28, 78. 17 Geo. II., 0. 89, 162. 22 Geo. II., 0. 46, 17. 26 Geo. II., 0.6, 851. c. 89, 188, 189. 87 Geo. n., c. 119, 809. 5 Geo. III., 0. 17, 277. 6 Geo. III., c. 12. 19. 7 Geo. III., 0. 46, 20. 9 Geo. III., 0. 16 (Nullum tempus), 196, 208. 12 Geo. III., 0. 73, 244. 18 Geo. III., c. 21, 182. 14 Geo. III., c. 78, 244. 14 Geo. III., 0. S3, 12, 18, 14, 17, 18, 21. 18 Geo. III., 0. 12, 20. 24 Geo. III., 0. 6 (Ordinance of Quebeo), 18. 26 Geo. III., 0. 2 (Ordinance of Quebec), 18. STAl INDEX. 411 STATUTES : 8. !, 167, 168, 169, 170, 266, 267, 269, 279, 281, JOS, 809, 812, 817, 322, 81 Geo. III., 0. 81, 18, 18. 60, 66. 82 Geo. III., c. 1 (Stat, of U. C), 13, 14, 16, 16, 17, 18, 192, 811. 0.2 (Stat. ofU. C.),14. 87 Geo. III., 0. 8 (Stat, of U. C), 299. 39 Geo. III., 0. 98 (Stat, of U. C), 192. 39 & 40 Geo. III., o. 98 (Stat, of U. C), 862. 40 Geo. III., c. 1 (Stat, of U. C), 14, 21. 48 Geo. III., 0. 6 (Stat, of U. C), 886. 54 Geo. III., 0. 9 (Stat, of U. C), 188. 59 Geo. III., 0. 12 (Stat, of U. C), 183. 0. 46 (Imp. Stat), 208. 1 Geo. iV., c. 87 (Imp. Stat.) 96. 2 Geo. IV., 0. 1 (Stat, of U. C), 19. 9 Geo. IV., c. 21 (Stat, of U. U.), 188, 184, 185. 0. 83(Stat. ofU. C), 17. 2 Wm. IV., 0. 7 (Stat, of U. C), 183, 184, 185. 2 & 3 Wm. IV., 0. 71 (Imp. Stat.). 205. 8 Wm. IV., 0. 4 (Stat, of U. C), 192. 8 & 4 Wm. IV., 0. 27 (Imp. Stat.), 205, 223. 0. 42 (Imp. Stat.), 202, 223. 0. 59 (Imp. Stat.), 21. 0. 74 (Imp. Stat.), 886, 838. 4 Wm. IV., 0. 1 (Stat, of U. C), 64, 77, 79, 82. 118, 124, 127, 129, 183, 184, 188, 140, 160, 158, 159, 161, 163, 164, 165, 168, 173, 174, 176, 179, 180, 192, 199, 204, 205, 247, 271, 273, 299, 300, 326, 829, 836, 848, 849, 850, 352. 5 & 6 Wm IV., 0. 62 (Imp. Stat), 21. 1 & 2 Vio., c. 110 (Imp. Stat), 72, 307, 813, 318. 8 Vic, c. 74 (Stat, of U. C), 26, 240, 847. 8 & 4 Vio., 0. 86 (Imp. Stat), 19, 20. 4 & 5 Vio., 0. 7 (Stat, of Canada), 183, 184, 185. 6 & 7 Vic, 0. 73 (Imp. Stat.), 17. 7 & 8 Vic, c 12 (Imp. Stat), 185. 8 Vio , c 107 (Stat, of Canada), 183. 8 & 9 Vic, 0. 106 (Imp. Stat), 299, 819, 827. 9 Vio., 0. 11 (Stat of Canada), 69, 71, 826, 334, 836, 844. 0. 84 (Stat of Canada), 299, 818, 820. 10 & 11 Vio., c. 5 (Stat, of Canada), 27. 0. 83 (Imp. Stat.), 185. 12 Vic, c 10 (Stat of Canada), 89. 0. 71 (Stat of Canada), 103, 113, 819. c 78 (Stat of Canada), 813, 816, 818. c 197 (Stat, of Canada), 78, 188, 184, 185, 189, 190, 846. 12 & 18 Vic, c 106 (Imp. Stat), 21. 13 & 14 Vic, c 68 (Stat of Canada) 299, 318, 820. 14 & 15 Vic, c. 6 (Stat of Canada), 128, 183, 184, 136, 141, 143, 154, 169, 160, 161, 162, 163, 164, 166, 166, 167, 168, 169, 171, 172, 173, 174, 175, 178, 179, 180. c 7 (Stat, of Canada), 61, 82, 103, 107, 118, 198, 819, 820, 337, 348. c 9 (Stat, of Canada), 284, 824. c 45 (Stat of Canada), 314. 0. 73 (Stat of Canada), 250, 817, 820. c 99 (Imp. Stat.), 21. 16 & 16 Vic, c 76 (Imp. Stat), 95, 96, 97. 18 Vic, c 6 (Stat of Canada), 183. c 127 (Stat of Canada), 818. 19 & 20 Vio., 0. 140 (Stat of Canada), 19. 22 Vic, 0. 1 (Stat of Canada), 183. c 84 (Stat of Canada), 252. 0. 85 (Stat of Canada) 252. Ea 412 INDEX. STATUTES : 0. 93 (Stat, of Canada), 65, 850. 24 Yio., 0. 40 (Stat, of Canada}, 82. 83. 0. 41 (Stat, of Canada), 72, 811, 819, 820. 24 & 25 Vie, 0. 134 (Imp. Stat), 21. 27 Vic , 0. 18 (Stat, of Canada), 817. 0. 15 (Stat, of Canada), 175, 810. STATUTES of Canada, Consolidated, o. 8, 184, 846. STATUTES of Upper Canada, Consolidated, o. 6, 89, 802, 824, 825. 0. 9, 19. 0. 12, 65. 0. 16, 860. c. 21, 119. c. 2:s, 308, 818, 815, 321, 822. 0. 24, 808. c. 27, 95, 96, 97, 105, 127, 129, 132, 200, 202, 206, 243, 247, 326, 329. 0. 42, 90. c. 44, 217. 0. 69, 241, 278. c. 73, 171, 172, 252, 308, 840. 0. 74, 65. 0. 78, 29, 207, 217, 222, 226, 226. 0. 82, 64, 118, 120, 128, 129, 130, 139, 160, 161, 163, 164, 165, 156, 157, 168, 176, 182, 196, 848, 349, 350, 852. 0. 88, 66, 69, 71, 226, 278, 326, 336, 844. c. 84, 79, 8;^. 88, 84. c. 85, 252, 2T8, 281, c. 86, 125, 127, 129, 180. 0. 87, 313, 316. c. 88. 27, 106, 130, 182, 197, 199, 205, 273, 306. 0. 89, 72, 818, 818, 820. 0. 90, 80, 61, 82. 94, 108, 107, 108, 110, 118, 117, 198, 250, 268, 273, 274, 279, 280, 281, 283, 284, 288, 295, 297, 300, 317, 819, 827, 343, 348, 0. 91, 260. c. 116. 168. 192. STIRPES, sucMBsion per, 185, 186, 189, 142, 143, 169, 161, 162, 166, 167, 169, HI, 173, 174. STRICT settlement. 112. 889. SUBINFEUDATION, 56. abolished, 56. SUCCESSION, 8. to personalty, 170. to personalty compared with descent of realty, 171, 172. «' SUCCESSORS," word of inheritance, 65. SUFFERANCE, estate at, 94. SUIT and service, 88. SUPERSTITIOUS uses, 240. SURRENDER, 91, 118, 269, 284. as to subleases, effect of merger by, 284. in law, 284. the Statute of Frauds as to, 283. SYNGRAPHA, 264. INDEX. 413 , 815, 321, 822. , 252, 308, 840. 71, 226, 278, 326, 130, 182, 197, 199, 205, , 162, 166, 167, 169, IIIJ T. I TAIL.— See Entails. TAXATION by Imperial Parliament, 20. TEMPEST, liability of tenant for damage by, 244. I TENANCY at will under Statute of Limitations, 210, 211. from year to year, 94, 279. from year to year, stipulations applicable to, 94. in common, 120, 128. in common incidents to, 129.* in common, how created, 120, 129. in common, how dissolved, 180. TENANT at sufferance, 94. attornment by, 46, 248, 249. at will, 92. by grand sergeanty, 47, 52. by homage, fealty, and escuage, 48, 49. by knight service, 42, 48. by petit sergeanty, 52. could not alien without lord's assent, 39, 248. for life, 74. for years, 89, 91. from year to year, 93, 94, 279. holding over, remedies against, 95, 96, 97, 98. holding over, security for costs and damages by, 96. in capite, 41. in common, 120. in common, account, ejectment, and trespass, against co-tenant by 130. in coparcenary, 125. in dower, 77, 87, 88. in fee, 62. in frankalmoign, 49, 50, tiO. in frankmnrriage, 69, 127. in morfgage, 104. in tail, 65, 66, 67, 68, 69— See Entails. in tail, after possibility of issue extinct, 75, 76. in tail, conveyances by, 326. in tail, conveyances by, must be registered, 837. in tail, effect of warranty by, 328. in tail. Equity cannot aid defective dispositions by, 342. in tail, mortgage by, 338. joint, 120. joint, account, ejectment, and trespass, against co-tenant by, 123. liability of, for damage by fire or tempest, 244. lord could noi alien without assent of, 39, 248. pur autre vie, 73. 90, 133, 1.36, 195. pur autre vie may devise, 195. TENEMENT, 23, 41. TENEMENTAL lands, 56. TENENDUM in a deed, 280. useless, 261. TENURE, 41. in Borough English, 53. in Burgflge, 52, 53. in chivalry, 42. in cornage, 47. in escuage, 47. in gavel kirn), 53. in grand sergeanty, 47. in petit sergeanty, 62. in villennge, 42, 55, 56, 67, 60. services in, 42. in Upper Canada, 13, 50, 55, 60. I 414 INDEX. 5r ■ TENUHES, ancient English, 41. modern English, 60. TERM, 90, 91. of years may commence in faturo, 91 . of years not within Statute of Uses, 295. TERRE tenant, 67, 117, 289, 292. TESTAMENT, 7, 8. THELLUSSON ACT, 852. TIME, oomputation of, 89, 90. TITHES, 25. • TITLE, 181. by alienation, 248, 804. by descent, 183. by forfeiture, 236. by occupancy, 194. by prescription and by nonolaim, 197, 227. by purchase and escheat, 176. TRANSFER of property, 6. TREASON, corruption of blood by, 190, 191, 192. forfeiture by, 190, 191, 192, 286. TREASURE trove, 6. TREATY of Paris, 12. TRESPASS, 94, 123. for mesne profits, 95. TRIAL by jury, 13, 14. by battel, 203. TRUST, cestui que, 215, 296, 297, 807. cestui que, not tenant at will within Statute of Limitations, 216. TRUSTEES, renunciation by, 268. TRUSTS, advantages of, 269 n. equivalent to the legal ownership, 297. express and declared, 215. liable to curtesy and dower, 77, 87, 298. liable to debts, 298. liable to executions, 298. liable to forfeiture, 298. liable to leases, 298. may be aliened, 298. will descend, 297. TURBARY, common of, 27. ♦•TWELVEMONTH, TWELVE USES VALT] VEND VEND VEND VENT vest: VILLI VILLI VOLUl vouc: WAGE WARE WAKE SMONTH, a»\ „«»„,„„„# m MONTHS, / ™e"^°8 < 89. tl. UNCERTAIN services, 42. UNION of the Provinces, 19. USE and occupation, 95. cestui que, 289, 290, 291, 292, 296, 807, 808. seisin to a, 289, 292, 296. ^ upon a use, 294, 295. upon a use, is a trust in equity, 295. USES and trusts, 289, 295. complaints against, 290. could not be ridsad without a consideration, 290. deeds to declare, 801, 834. deeds of revocation of, 801. devised by the clergy, 288. devises to charitable, 847. distinction betwe<3n limiting uses on a common law coaveyanoe, and on one operating under the Statute of, 165, 297. establishment of, 289. future or contingent, 293, 294. wast: WATE WAYS, IVELLi ffILL, MLDl INDEX. 415 USES how executed when the inBtrament can operate as at oommon law or tuder the Statute of, 274, 276. introduction of, 289. resulting, 293, 294. retocation of, 294. shifting or secondary, 298, 294. springing, 293, 294. tenant in tail could appoint to charitable, 71, 885, 217. were assignable or devisable, 290. were made subject to Statutes of Mortmain, 239. were not liable to curtesy or dower, 291. were not liable to elegit, 291. were not liable to feodal burthens, 291. USES, Statute of, 291, 292. effect of the, 292. object of defeated, 296. term of years not within, 296. will apply though the word "trust" be used, 296. loayeyanee, and on out V. VALUABLE consideration, 256. VENDITIONI exponas, 808. VENDOR and vendee on contract of tale, how affected by Statute of Limitations, 210. VENDOR'S lien, 258. VENTRE sa mdre, 111, 115. VESTED remainders, 110. VILLEINS, 67, 58, 69. manumission of, 58. YILLENAGE. 42, 55, 56, 57, 60. VOLUNTARY conveyance, 256. VOUCHER, 832, 338. W. WAQER of battel, 208. WARDSHIP, 44, 48, 49, 65. WARRANTY, 262. by tenant in tail, 71, 320. by tenant in tail abolished, 326. by tenant in tail bound the heirs, 827. by tenant in tail in possession, effect of, 828. express, 827. implied at common law, 326. superseded by covenants for title, 262. WASTE, 69, 74, 88, 243, 244. ameliorating, 245. equitable, 244. how far English law of applies as to clearing wild lands, 88, 245. permissive, 243. present remedies for, 247. punishment of, 247. voluntary, 243. who are liable for, 88, 246. writ of abolished, 247. ATER, 8, 24. AYS, right of, 27, 28, n. ELLS, 8. ILL, 8. (Sii DiviSE.) estates at, 92. of personalty, construction of, 849. of personalty, distinction between devise of lands and, 862. ILD lands, title to, how affected by Statute of Limitations, 226. 416 INDXX. WILLS, Statute of, 846. WITNESS to a deed, 266, 279. to a will, 848, 849, 860, 861. WORDS of inheritance and of procreation necessary in deeds to create a fee tail, 68. and of procreation not necessary in wills, 68, 864. necessary in deeds to create a fee, 64. not necessary in wills, 64, 864. WRIT of ooTenant real, 829. of dower, 201, 206. of elegit, 808, 811, 812, 818, 818. of entry, 201. of extent, 824. of right, 202, 208, 204. of waste, 247. f EAR, meaning of, 89. to year, tenancy from, 98. YEARS, esUtes for, 90. ERRATA. ^ Page 18, line 2, for "81 Geo. III." read " 82 Geo. III." " 18, noteb., for " Baldwin r. Quesnel, 0. S. 166," read " Baldwin et. aL v. Roddy 8 O. S. 166." " 27. note a., for " Surdy v. Pigot," read " Sury r. Pigot." " 87, lino 4, for " Westm., 8," read " Westm., 2," " 99, " 27, for "bride" read "bribe." " 182 note a,, for " Hay's" read " Hayes'." " 162, margin, for "Cooper v. Francis," read " Cooper v. France." ** 183, line 41, for " 28 Geo. c. 89," read " 28 Geo. II. c. 39." " 211, margin, line 12, for " now" read " new." " 228, line 88, for " will prevent this eection," Ac, read " will not preyent this section," <&c. " 808, note c, for " Clarh v. Bonnycastle," read "Qark v. Bonnycastle." W. C. COEWETT a CO,, PBINTEKS, KIKQ STREET EAST, TOBONTO. to create a fee tail, 68. Ills, 68, 864. ' Baldwin et. aL t. Roddy raace. » I " will not preyent this j Bonnycastle." ♦i ! kST, TORONTO.