A A : oi Oi 8 I 4 I 4 i 9 i i 9 i UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY PRINCIPLES OF CONVEYANCING: DESIGNED FOR THE USE OF STUDENTS, •WITH A>f INTRODUCTION ON THE STUDY THAT BRANCH OF LAW. BV CHARLES JV ATKINS, ESQ, OF THE MIDDLE TEMPLE. LONDON: PRINTED FOR J. BUTTER WORTH, FLEET-STREET.; PV O. WOODFALL, NO. 22, PATERNOSTER-ROW. 1 800. t T \too TO I 2 THE HONOURABEE , SIR FRANCIS BULLER, BART. ONE OF THE JUSTICES OF HIS MAJESTY'S COURT OF COMMON PLEAS, THE FOLLOWING ESSAY PRINCIPLES OF CONVEYANCING, MOST RESPECTFULLY INSCKISX9 ST HIS OBLIg£t> AKD OBEDIENT SERVAIfTj CHARLES WATKJNS.. MIDDLE TEMPLE> EASTER TERM, ISOO, n%3>^^1 CONTENTS, INTRODUCTION BOOK I. OfEjlates and Inter efts as they relate to Conveyances. CHAP. Pags 1 I. Of an Eftate at Will ^ ~. _ I 2. Ofa Term of Years — _ __ 13 3- Of an Eftate of Freehold — . _ 19 4- Of an Eftate pour autre Fie _ ,_ 21 5- Of an Eftate for Life — — ' 1 . 24v 6. Of an Eftate in Dower — — . 25 7- Of an Eftate by the Curtefy — — 31 8. Of an Eftate Tail — — _ 33 9- Of an Eftate in Fee Simple — — 41 lO. Of an Eftate in Parcenary — — 44 II. Of an Eftate in Joint-Tenancy — — 46 12. Of a Tenancy in Common — — . 49 J3- Ofa Remainder — — — ■' -— 51 14. Of an Executory Devife — — S7 15- Of a Conditional Limitation . — _ 60 16. Of a Reverfion — — — — 62 17- Of a Right — — — > — 67 18. OfaPoflibility — — _ — 69 19. Of an Equity of Redemption — — 70 20. OfUfesandTrufts — — >— 73 21. Of Powers — — — . -^ 81 22. Of Rents — — — -^ m-m. 88 BOOK CONTENTS. BOOK II. Of Conveyances as they relate to EJiates. Page CHAP. 1. Of aFeofFment — _ — 95 2. Of a Grant — — — — 99 3. Of a Gift __ _ — — 102 4. OfaLeafe _-__ — — 104 5. Of an Exchange — — — 107 6. OfaReleafe — — — — 109 7. Of a Confirmation — — — 112 8. Of a Surrender — — - — 113 9. Of an Aflignment — — — 115 10. Of a Defeafance — — — 116 11. Of a Covenant to ftand feized — 117 12. Of a Bargain and Sale — — 119 Of a Leafe and Releafe — — 1 20 OfaDevife — — — — 123 15. Of a Fine — — — — 125 16. Of a Recovery — — — 132 BOOK III. Of Conveyances ivitb RefpeH t» Parties. Page CHAP. 1. Of an Infant — — — — I37 2. Of Hufband and Wife — — H^ 3. Of a Feme Covert — — — 142 4. Of the King — — — — 144. 5. Of the Queen — — — — H5 * 6. Of Corporations — — — H^ 13- 14. INTRODUCTION. x\.MONG the many difcouragements liN^hich attend the liudy of the law, there is none more obvious, or more gene- rally complained of, than the want of method and diredlion. To take a young perfon from an univerfity or a fchool, where his mind ' has been occupied with other purfuitg, and to tofs him headlong in the prac- tice of the law, wholly unprepafed, or with little preparation, for fo arduous a fludy, is in itfelf fo abfurd, that we can only wonder at its occurrence. What jnuft be the embarrafTment of fuch a perfon, amid bufinefs of fuch a 4 nicety ii INTRODUCTION. nicety as to call forth the full exertion of the veteran in pra6lice ? — It is folly to ex- pe6t from the human mind what a mo- ment's refle6lion would tell us it would be impofsible for the human mind to perform. Conveyancing is not intuitive any more than the mathematics. The mind cannot draw conclufions without having been pre- vioufly furnirtied with premifcs. And however the individual may be pre- poiTeired in favour of a peculiar mode of fludy, there are, and, while the human mind continues what it is, there muft be general rules which ought to be attended to in the acquiring of knowledge. We muft be fenfible that we can adl with greater energy in proportion as our attention is confmed. That attention becomes weakened as it becomes divided. Wc muft analyze in order to comprehend with accuracy. Wc muft underftand the caufc before wc can embrace its conle- 5 quenccs. INTRODUCTION^. Ill quences. It Ihould feem to follow, there- fore, that in law, as in other fciences, we fhould begin with firft principles, and form a general outline before we defcend to the n limit i'^. A general outline the mind can eafily embrace, and the general principles of law it can cafily remember. AVhen acquainted with a whole we may difcern the fym- metry of the parts ; but an infulated po- iition will appear arbitrary, and its con- iie^lion will not be feen. As difficulties arife, or new matter prefents itfelf, a general principle will aiibrd us a rallying point ; and we fliall find ourf elves pof- fdfed of premifes from which we may argue. To a general outline and to general principles, then, iliould the ftudent be at iirli confined. To niih into mifcella* ueous and unconnecled reading is to. di- vide iv INTRODUCTION. vide and diftrad the intelledl ; is to weary the powers of the mind with un- necefTary, and with iifelefs, exertion. ■ It is to contradict tlie fuggeflions of com- mon fenfe and experience, and to violate tlic rules which nature herfelf has im- pofed. But, in dire6l defiance of principles fo obvious, how often do we fee Coke upon Littleton or a volume of Reports put into the hands of a young perfon on his en- tering, upon the profefsioii ! From the mifcellancous nature of tuch writings, an idea is often effaced as foon ^ as it is formed. The mind is hurried from fub- jc6l to fubjc<51, without being fuffered to dwell fufiiciently upon any. Points of the greatelt nicety and learning the moll abftrufe are fuddenly prefented to the view of a novice, which would perhaps puzzle the ableft head of the mofi: ex- perienced lawyer. Dcdu6lions and con- clufions INTRODUCTION. clufions are given when the principles from whence they flowed remain unex- plained and even unknown to the Itii- dent. — The obfervations on Littleio?i, by Lord CoAe, are wholly without method. Such a chaos of incoherent obfervation is by no means calculated for a regular perufal. Our attention is frequently called from an anxious confideratlon of a legal principle to a differtation on the Kc. of Littleton, to an account of Sir William Hearle, or to a quotation from Virgil or Horace. Indeed, the want of method in moft of this writer's works makes them more proper for occafional con- fultation than the perufal of the ftudcnt. His ftrange quaintnefs and excentricities may make one fmile ; but they divert the attention and withdraw it from the fubje6l to which we wilh it confined. That the Commeiitaiy upon Littleton contains a valuable fund of Common Law learning vi INTRODtJCTIdN* learning is certain : but the obfervations are thrown together without order. Great as Lord Coke may be, the prejudice in his favour may, perhaps, be extravagant. His induftry was aftonifhing ; but he fcems to have pofTefTed little of the fpirit of law : and whatever might have been his legal learning, the frequent iHlberality of his fentiments cannot be fufficiently re- probated* ; and the lUident ought to be cautioned againll it. A vo- * The manner in which he treated Sir Walter Raleigh may be feen in the State Trials ; and will be an objecl of execration while his name fliall con- tinue. In Calvin's cafe (7 Rep. 17. a.) he fays, " All infidels (among whom he reckoned the yews, 2 Injl, 507. are in law perpetui iniriiici^ perpe- tual enemies, for the law prefumes not that thev will be converted, that being remota potentia^ (a remote poflibility) for between them, as with the devils, zvhcjc fubjc^s they be, and the ChriftiaJi, there is INTRODUCTION. Vll A volume of Reports muft, from its very nature, be full of unconne6ted matter ; and, confequently, be Improper for early reading. The report of parti- cular cafes may, indeed, be read by the iludent with advantage ; but they ihould be cautloufly pointed out for his perufal, and carefully explained. is perpetual hoftility, and can be no peace." The illiberality of Lord Coke with refpe£l to the Jews has been defervedly condemned, and held up to de- teftation, in the cafe of Omychund v. Barker, which is reported in a very fuperior manner by Atkins (vol. I. p. II.) and which cannot be too ftrongly recommended to the reader's perufal. The argu- ment of the Solicitor-General, Mr. Murray, (after- wards Lord Mansfield) is a mafter-piece of it's kind } and thofe of the Lord Chancellor (Hard- wicke) and the three Chiefs who aflifted him ('Lee and Willes, C. J. J. and P.^.rker, C. B.) were worthy of Chriftians, as the fentiments of Lord Coke were difgraceful to him as a man, and much more fo as a profefTor of the Gofpel. The Till INTRODUCTION. The number of reporters and the man- ner in which many cafes are reported are mod ferious evils ; are evils which can- not be too much lamented nor fuffi- ciently expofed. The contradictory ftate- ments of the fame cafe, the confounding the arguments, nay, affertions of the counfel, with the decifions of the court, the obiter ^nd extra-judicial fayings of the Judges, with the grounds'of the judgment, the obfervations of the reporter with the points of the cafe, call aloud for the nicefl: and fcvereft difcrimination. I believe it will be found on examina- tion, that a deference to the aflertions of our predeceffors, whatever (lations thofe predeceffors might have filled, has been one oF the moft certain fources of error. Perhaps there is nothing which has fo fhackled the human intellect, nothing which INTRODUCTION. iX which has fo retarded • the progrefs of truth, nothing which ^as fo greatly pro- moted whatever is tyrannic, prepoflerous, or abfurd, nothing whicJb has fo much degraded the I'pecies in the fcale of being, as a deference to individual dicta. The blunders of one age (and blunders have occurred in all ages) cannot warrant the blunders of another. What was once expedient may now, by reafon of a change of circumflances, be improper. To ap- peal to matters of fa6l with refpecl to matters of right is, in itfelf, fo prepofterous, that we fliould have very great reafon in- deed to induce us to have recourfe to it. If we mult be bound by former decilions, let thofe decifions be given by the moft unequivocal authority. Let the flate- ment of fadls, the decifion of the court, and the grounds and reafons of that de- cifion, be drawn up by a proper officer, and figTied by tlie Judges who prcfide. 4 Let INTRODUCTION* Let not tlie crude notes of the dead he brought forward to miflead the living. Let not the reputation of thofe who have left us, and who are no Ioi;iger able to defend themfclves, become the prey of the fweepers of their clofets. V/e fliould confider that many who took notes in court did not take them with a view to publication ; but that they were fre- quently iifliered into public merely from the rapacity or avarice of thofe who furvived. Compare Rollers reports with his abridgment. Look at the undeter- mined cafes in Di/er. Confider how foon a quoted cafe becomes what is called authority, and confider how foon au- thority Ihoulders out common fenfe. It would not be difficult to point out many inftances in which the adherence to the reports of adjudged cafes has overthrown the acknowledged principles of the law of tlie land, and, in eftccl, repealed the folemn INTRODUCTIOK. x\ folemri a6ls of the leglflative body* ; though the Judges had fworn to ad- niiniflcr the laws inftead of receiving authority to controul or refcind them. If the acts of the leglflative body become incompatible with the manners of the times, let us apply to the leglflative body for their alteration or repeal, but let not the Judges become fuperior to the leglf- lative bedyi " ita lev fcripta cjl^"* is the cry of many a man who would be angry with another that exprefled a doubt Whether he pofl'efled ratiocination. About the time of pafslng the ftatute of ufes fome wife man, iii the ple- nitude of legal learning, declared that * In the celebrated Bewdley cafe, (which has been frequently recognized as law ! ) the practice of the Court for feven years was held fuperior to an Aa of Parliament! i P. JVms. 223. 2 Str, 755' 3 ^«^^- 1755. b there XU INTRODUCTIOK. there could not be an iife upon an ufe. This very wife declaration, ^\liich muft have furprifcd every one who was not fufficicntly learned to have loit hh common-fenfe, was adopted, and is ftill adopted ; and upon it (at kali chiefiy) has been built the prefent fyflem ot' ufcs and truils. Another, adopting juft fo much of an argument as anfwered his purpofe, and rejecting a conclufion which followed from the felf-fame pre- mifes, decreed that there fhould be rio dower of a trufl ; and Chancellor after Chancellor fubmitted to this flraniie af- fcrtion, and followed it in defiance of every tiling rational. " We are bound by precedent," fay they : but are wc not bound by principle alfo ? Can prece- dent releafe us iVoni a moral obligation ? If reports of adjudged cafes be Ire- qucntly found fuch as I have noticed, it furely INTRODUCTION. xLii fiirely will be fufficient to advert to them, in order to guard the ftudent from relyhig upon them where the reafon of the de- clfion is not apparent. When we argue from adjudged cafes, we argue from conclufions already drawn, and not from premifes by which thofe conclufions mult be warranted. The more we are removed from thofe premifes, the greater the probability of error in our con- tlufions muft neceffarily be. But fuppofing that a perfon Ihould be fo fortunate as to be able to extract fomething comprehenfible out of printed • contradiction, yet other contradicftions may make their appearance in inanic- fcript; and, overthrowing all his hard- earned knowledge, remind him once again of the glorious uncertainty of the law. Is the law of England to depend upon the private note of an individual, and to which b 2 an XIV INT'RODUCTIO-N. an- individual only can haveaccefs? Is a Judge to fay — '* Lo ! 1 have the law of England on this point in my pocket. Here 13 a note of the cafe, which contains an exa6l ftatement of the whole fiicls, and the decifion of my Lord A. or my Lord B. upon them. He was a great, a very great man. I am bound by his de- cifion. All you have been reading was erroneous. The printed books are inac- curate. I cannot go into principle. The point Is fettled by this cafe.'* — Under fueh circumfranccs, who is to know when he is right or when he is WTong ? If conclufions from unqueillonable principles are to be overthrown in the lalt ftage of a fulthy pri- vate memoranda, who can hope to become acquainted with the laws of England ? And who, that retains any portion of ra- tionality, would waile his time and his lal-ents in fo fruitlefs an attempt? Is a paper evidencing the law of England lo he. buttoned up in the fide-pocket of a INTRODUCTION. ^^ Jud^e, or to ferve tor a moul'e to fit upon in the dufty corner of a private library? If the law of England is to be deduced from adjudged cafes, let the reports of thofe adjudged cafes be certain, known, and authenticated. What an idea muft a foreigner form of our laws when he con- ceives them either founded upon, or lub- je(ft to be contradicted by, nobody knows what ? ^ I acknowledge the utility of publiOiing the folemn decifions of the Courts; but I fay again, let the reports of thofe decifions be faithfully given, and ftamped with au- thority; and let the grounds of fuch de- cifions be rational and apparent *. Let not the laws of England be picked out, * It Is but little confolation to fay, on the trial of a caufe, " That cafe is not law," after it has mi fled half the kingdom. b 3 like Kvi INTRODUCTION, like diamonds from a dung-hill, from among fuch crude and incoherent, fucli unintelligible and contradI61ory matter as now loads our flielvcs. Let us ferioufly confider the evils which mufi: arlfe from ftiffering abfurdity to be confecrated by ufe; and, when eftablifhed as a precedent, to interfere with, and perhaps to render nugatory, the undoubted principles of our laws. If the laws of England are to depend upon the decifion of a Judge, wc fhould remember that the decifion of a Judge may overthrow them. However well acquainted a perfon may be with adjudged cafes, he will foon find cafes occur In practice with which thofe already decided will not altogether ac- cord. In fuch clrcumftancc he can only have rccourfe to principle. The necefsity of an acquaintance with principle, thcre- 3 fore, INTRODUCTION. Xyil fore, is too apparent to be further in- fiftcd on. Another clafs of vvrlthigs which the ftudent Ihould avoid, or, at leall, read with extreme caution, is that of detached arsfuments on cafes which have been ad- judged. Arguments thiis pubUfhcd, when prcfentcd under the fancftlon of general reputation, and crouded with a profusion of legil reference, are too often calculated to mlflead. The lludent muft not be fa- tisfied with aflertion, or carried away by the name of an author. If he cannot confront argument with argument, and receive the neceflary data on both fides of the queltlon, he fliould fufpcnd his judge- ment: he muft not decide upon ex part^ evidence. Befides, fuch arguments are, for the mod part, on points of much nicety, and which feldom arife; and he fhould defer the confidcratlon of fuch till Ive has made himfelf mafter of principles b 4 more Xvlii INTRODUCTION. more general, and of propofitions more ob- vious and evident. When fuccefs has attended a peculiar mode of ftudy, it may be reafonable to fuppofe it to be jufi:, and warrantable to recommend it to others. I would, there- fore, advife the ftudent to begin with a general outline: he may fill it up at his lelfure, as he may find himfelf prepared for the undertaking: to confine himfelf at firfl flri(5tly to principles; and, when he meets with technical terms, to be con- lent with a mere explanation, and not purfue the fubje(5l of that term any fur- ther, as it will only withdraw his atten- tion from that which he meant to purfue. It is the great fiiult of our Law Dic- tionaries, generally, that they partake too much of the nature of abridgments. But a dictionary and an abridgment are very different things, and ought to be kept apart. It is much to be wiflied that a Law INTRODUCTION. XlX La^y Dictionary might be given which would comprehend merely tlie terms of art, and thofe obfolete words which occur in old legal or hiftorical writers. His general books may be F'mches Laxv, Blackston^s Commentaries^ Wynne'^s Eiiomus, Hale's Common Laxv, Reeves's History, ^Sullivan''s Lectures, Dalrywple on Feudal Property, Littleton (without the Commentary), the Freehold part of Gil- bert'' s Tenures, Select Notes of Mr. Butler to Co. Litt. Touchstone, and Fonhlanque on Equity, with Francis's Alaxims. Having gained a general view of the Law, and being taught to divide his fub- je6t, he may purfue it as tar as his in- clination may lead him. He may go up to Puffendorf or Grotius, or down to a volume of reports, or the fleeting publi- cations of the day. I r^- S* INTRODUCTION. I recommend the Commentaries of Blackstonc as a general book. The inten- tion of that ingenious writer was to give a comprehenfive outline ; and when we confider the multiplicity of do6lrinc which he embraced, the civil, the cri- minal, the theoretical and pra6tical, branches of the Law, we mufi: confefs the hand of a mafter. But in the minuti{^ be is frequently, very frequently inac-r curate. He fliould, therefore, be read with caution. The Itudent in reading him will often require explanation and corre(5lion from him whofe duty it is to inftru^l. Noys Maxims, in all the editions, are too incorrect to be entruftcd in the flu- dent's hands. Perkins has too many quacries; though Perkins may be gone through with advantage, if accompanied with oral explanation. The INTRODUCTION. . The following pages have been alfo found to yicM afsiftance to the ftudent ; and they are now prefented to the world in the hope that they may be ferviceable to others. The mode of reading them was this : — The ftudent, after being ac- quainted with fome general books (as be- fore recommended), read the work en- tirely through, that he might form a view of the whole. He then began again, and read chapter by chapter; confulting the books, or portions of books referred to, but confining himfelf ftrictly to the fubje6t of the chapter immediately be- fore him ; and the whole was accom- panied with oral explanation whenever he felt himfelf at a lofs. He paufed be- tween the chapters, when the connection was not immediate, that there might be no concufsion of ideas, or that an idea formed on one fubjecl might as little as pofsible be effaced by an idea on ano- ther. » The XXI XXII INTRODUCTION. The ftudy of the laws of a country^ and efpecially of laws which have been accumulating for many, many centuries, mufi: necefl'arily be attended with labour. But we fliould not intimidate the ftudent at the threfliold with unneceflary embar- raflinent. Much labour may be prevented by method, and much difgufl by a fa- vourable imprefsion. To prove that the profefsion of the law is an honourable profefsion, we muft fhew it to be enlarged in its principles, and liberal in its pra6lice. To have gentle- men and men of genius in the profefsion, we muft fhew the profefsion to be fuch as a gentleman and a man of genius may purfifc. Law fliould be confidered as a moral faience, as the rule of rational and ac- countable beings. The profefsion of the Law was inftituted merely for the further- ance INTRODUCTION. XXiH ance of juftice and the prefervatlon of right; (hall we pervert it, then, to the fupprefslon of what it was ordained to iuppoit ? Shall we reprelent it as incom- patible with any thing that is liberal, or manly, or ufeful ? If the profefsion can only be purfued by abandoning the rigid didlates of moral rectitude, the nicer feel-^ ings of humanity, or the exertion of the nobler powers of the mind, it is a pro- fefsion which it would be criminal in man to purfue. The condu6l of fome of its profeifors has, indeed, fubjecStcd it to much contempt ; and from thofc who mud regard it with contempt it is folly to expecl: admiration : and the condu61 of many who profcfs thcmfclves its friends, tends but little to remove tlie odium It has iliared. It is ridiculous to hear a perfon, who boafls that his profefsion is an honorary profefsion, talking incc/lantly of his fees. It XXiV INTRODUCTION. It is ridiculous to hear a perfon who, in a court of juftice, wilfully embarrafies a witnefs for the fake of gaining his caufc, right or wrong, call his profefslon an ho- nourable one. It is ridiculous to hear a ■ perfon talking of tJie honour of his pro- fefsion, who receives a funi of money for difcOvering a loop-hole in a title merely to enable his employer to creep through, that he might refcind a contract which he had entered into with his eyes open, and which every principle of moral recti- tude would oblige him to perform. AVe may talk as much as we pleafe about the honour of a profefsion of which a condu6l like this forms a part ; but, while a condu(5l like this forms a part of a profefsion, no man of common honefty or of common fenfe can ceafe to regard it with contempt. But INTRODUCTION. XXV But by fhovving that a condu(5l like this is only the perverfion of individuals; — that the profefsion, (o far from requiring it, is difgraced by a condu(5l like this; — that it affords field for the exertion o[ the moft tranfccndent abilities, and the mofl benevolent inclinations ; — that it is com- patible with whatever elevates or adorns the charad:er of man, — can we only hop« that the profefsion will own the Good and the Great. — It is by fuch means only that it can retain its wonted place in the fcale of fcience, and be rendered worthy of the human mind. If the day be not yet come, the day is very faft approaching, when knowledge Hiall be juftly appreciated; when fylle- matic pedantry fhall no more acquire the reputation of learning ; when thofe lite- rary purfuits, which incumber the me- mory without calling forth the exertion of XXVi INTRODUCTION. of intelle6l, or amending the heart, /hall be defervedly reprobated ; when prejudice iball melt away before the genial beams of invertigation and tmth ; and when learning iliall only be elteemed as it be- comes fubfervient to the virtue, and, of confequeuce, to the happincfs of man- kind. PRlNCIPLt:5 PRINCIPLES OF CONVEYANCING, &c. BOOK L OF ESTATES AND INTERESTS, AS TflEY RELATE TO CONVEYANCES. CHAP. I. OF AN ESTATE AT WILL. XjLN tllate at Will Is not bounded by 2 ^^^'^¥* ■, r • ^• • •! r n • Comm. ch. O. dennite limits with rel peer to time ; but p. 145, to the as it orignated in mutual agreement, fo ^"^^ ^ j^ it depends upon the concurrence of both ch. 8. and the / ■^ , ^ Comment. parties. As it depends upon the will of both, the dilFent of either may determine it. Such an eftate or intercft cannot, confcquently, be the fubje6l of convey-^ B ance. OF AN ESTATE AT WILL. ance. Could the leffte (for he is not a termor^ as a termor is co-relative with a term, or definite event,) convey the prc- mifes to another, he would determine his oian xvill to hold. He himfelf would be no longer a tenant ; for he cannot be a tenant and not a tenant at the fame time; and by the transfer he would part with his own interefi. As the tenancy is at will, it niufi:, of confcquence, be at the will of the leflbr as well as of the lefTee. Now, if the transferree could become a tenant, it would be independently of the will of the leffor, and confequently would not be a tenant at his will, and confequently it would not be a tenancy at will at all, as the will mull be in fuch cafes reciprocal. Should the lefTee introduce a ftranger into the tenancy with the aflent of the lelTor, it would not be a transfer of the lej]ee\ in* tereft or eilatc, for his intereft or eftate would be by the very a(5l determined ; but a new eftate at will would be created, iince the original leiTee would relinquiih or ab- dicate his Intcreft or eltate, and the ftran- ger would take an eftate, by the imme- diate OF AN ESTATE AT WILL. 5 diate adl of the leflTor, which had never been in the original leiTee. But as it is reafonable that a perfon „ „ _ , ^ Bull. Nlfi lliould reap what he has fown, and as i\iQ Prius, 84. greateft part, if not the whole, of the^'^/'ii7''3 year, is requifite for the purpofes of agri-^ BLComm. culture in its prefent ftate, the law does not favour an eftate at will ; and if the rent be referved yearly or half-yearly, it frequently takes the circumflance as evi- dence of a term ; i. e. of a leafe for a year, or from year to year. Yet as fuch a pre- fumption is merely for the furtherance of juftice, if fuch conftru^lion would, on the contrary, be productive of wrong, fuch conftruction cannot take place, ac- cording to the maxim that a conftruc- tion of law, as fuch, fliall do injury to none. As, for inflance, if a leafe from year to year would work a forfeiture;, there can be no reafon for conllruing fuch a de- mifealeafe for a year rather than an eftate at will. But a leflfee at will, though he cannot /;;>/. Seft. transfer his own intereft, is capable ol^c-+^°2,v^ Gcpting a releafe of the inheritance fromb. B 2 * his OF AN ESTATE AT WILL, his leffor, on fach leiree's entry into the premifes : for he has a notorious pofTef- fion on entry, and the reverfion or inhe- ritance may he releafed to fiich an one. The iludent fliould, however, he in- formed that there are cafes in which it has heen held, that an eilate at will does not, at this day, in reality exiil. But, in or- der to prevent his being mifled, the fol- lowing obfervations arc fubjoined, and re- commended to his confidcration. ' The exiilence of an eflate at will was acknowledged in the cafe of Doe d. Bree V. Lees, 2 J. Bladji. Rep, 1171. BulL Nijl Pri. 85.-2 BL Comm. 14(). An eftate ftriclly at will was, however, in lome inftances, found inconvenient, and accordingly tlie courts did not iavour it; hut if the cafe admitted of a dilVerent conftru6tion, they gave it a different con- flruc^ion, and declared the demife a de- ® mife OF AN ESTATE AT WILL. anife from year to year. They did not pronounce it an cftatc at will, and deny it the eflential of an eltatc at will : this was a refinement in abfurdity which fo- ture days were to acquire. But they faid This demife is not an eftatc at will, but from year to year. A clafs of cafes next came that cut the matter fliorter. In (lead of determining when the admifsion of an eftate of will was advifable, or not advifable, they de- nied its very exigence. See 5 Durnf. S( Eaji, 471, Doe d. Rigge v. Bell.— 8 D. SC E. 3. Clayton v. Blakey — and fee 3 Bur?\ 1609, in Timmins i;. Rowlinfon. In Doe d. Rigge v. Bell, Lord Ken- yon is reprefented as faying, " Though the agreement (for feven years by parol) be void by the ftatute of frauds c.s to the duration of the Icafe, it muit regulate the terms on which the tenancy fub/ijis in other refpedts, as to the rent, the ti77ie of the year when the tenant is to quit, &c. No\^' in this cafe it was agreed that the defendant Should quit at Candlemas, and though the 3 3 agreement OF AN ESTATE AT WILL. agreement is void as to the number of years for ivhich the defendant was to hold, if the leffor chufe to determine the tenancy be^ fore the expiration of the feven years, he can only put an end to it at Candlemas.** Now it would be no common exertion of the human intellect to conceive how a tenancy could fuhfifi in other refpe6tsy or in any refpe ^^^ ^^^^ limitations over will be ef- ^/•^«m,23i, feaually defeated. But no limitations are allowed of terms of years which would render them un- alienable beyond a life or lives in being, and twenty-one years afterwards, CHAP. [ ^9 ] CHAP. III. OF AN ESTATE OF FREEHOLD. xLSTy\TES at xvill and for years are con- 2 Bl. Comm. fidered by the law as only chattel interefts. Su/iiv. Lea. An eftate for one''s oivn life^ or the life of\^'^^j.^ ^^„ another perfon, or any greater eftate, is*^*^- deemed an eftate oijreeJiold, In the tenant to Co. Liu. of the /r///er eftate the feudal poffefsion or^ feifin is veiled; and the tenants of they^r- mer are regarded as only the bailiffs or farmers of their refpe6live leflfors. Hence livery of feifin muft be given on the creation of an eftate of freehold.^ though it cannot be given on the creation of an eftate at will or for years only, as th.e perfon intended to hold at will or for years is not to be put into the feifin., which muft remain in his leflbr; for if livery had been given, 'ii free- hold, of necefsity, would have pafled at c 2 common 50 OF AN ESTATE OF FREEHOLD. common law*. The tenant for life, or the immediate tenant of the freehold, is to anfwer to the precipe of flrangers, and to render to the lord the returns of the feud ; and hence it is that an eftate of freehold was not fufFered to commence m futurOy as there mud have been fuch an immediate tenant in a6tual exiftence. * But fince the Statute of Frauds, a freehold cannot pafs without yix'iim^. CHAP. [tl ] CHAP. IV. OF AN ESTATE POUR AUTRE FIE. x\N Eilate pour autre vie is an ellate odBl.Comm^ freehold, though it is the loweft or leaft ^^°/ t,^ i', eftate of freehold which the law acknow-5;5^/ .57- & Co. Litt. 41 • ledges. An eftate for the life of another isb.&c. not fo great as an eftate for one's own life. \i A. have an eftate for his own life, with p* ^'"' 4'* b. 42. a, remainder to B. for the life of B, A. is capable of taking a furrender from B. — A precipe quod reddat will lie againft a tenant pour autre vie; for he, bei?ig tenant of the freehold., muft anfvver to the claims of. ilrangers ; and hence it cannot be created to commence Infuturo. This eftate, being an eftate of freehold, muft be created by fome mode of con- veyance which win pafs the freehold in c 3 poflefsion; ^2 OF AN ESTATE POUR AUTRE VIE. poflefsion; and may be transferred, that is, conveyed, during the lives of the celles que vies, by the common mode of convey- ing freeholds. It may alfo be furrendered to the immediate reverfioner, though that reverfioner be only tenant for his own life. If an eftate for the lives of A. B, and C had been conveyed to D. without more, and D. had died, living celles que vies, the perfon who fir(t entered might have en- joyed the lands during the lives of A. B, Z9 Cay. II. and C. But now, by the flatutes of Car. 11. \?Geo!li. *^"^ ^^^' ^^* ^' ^""^y difpo^G of the eftate by his laft will (to be executed according to the Statute of Frauds, it being an eftate of freehold), or, if he die inteftate, it Ihall go to his executors or adminillrators, and be diftributcd amon2: the next kin. 20. 'a Carth. 376. But though this be an eftate of freehold, Oldham v. , i i- • i t-\ i • Pickerir.g. it may bc limited to D. his executors an4 yj^',;'[|,|j°,J''fi^/w/w///rrt/on", as well as to D. and his ///. Dower, lu'iys-^ tor the fucceifors of D. lake as fpecial occupaiitSy and not by defcent. And this mode of limitation is oilen prcfcrablr, as it J OF AN ESTATE POUR AUTRE VIE. 23^ it frequently faves the prcmifes or eflate from the inconveniences of a minority. Art eftate jwur autre vie may be Hmited ffar^.n. (5.) over byway of remainder \ and, in effe6l, ^^^a ''''* be entailed. But thofe who have interefts2^^«''''^'309< in the nature of an eftate tail may bar their iflfue, and all remainders over, by aliena- tion, without fine or recovery, as by leafe and releafe, furrender, &c. and the having ifTue is not eflential, as in the cafe of a con- ditional fee at common law. c 4 CHAP. [ 24 ] CHAP. V. OF AN ESTATE FOR LIFE. ^itt. . 5 j-jy ^^ eflate/c>;- life, generally, is under- ^^f'i'-i^b. ftood an eftate for one's own life, and not ii!o. for the life of another. Like that, however, it cannot be made to commence infuturo, it being an eftatc of freeJiold\ and, for the fame reafon, it miift be created or transferred by livery of feifm, leafe and releafe, bargain and fale enrolled, &c. or be fuvrendered to him in reverfion. CHAP. [25 1 CHAR VL OF AN ESTATE IN DOWER. JJOWER is an eftate/or life, which the 2 Bi.Comm. law gives the widow in the third part o^Litt.h.i.c.^* the lands and tenements of which the ^^^^•- Pre/i.on%i, ' band wsls folel^/ feized, at ani/ time during'^-^-P-Si^r the coverture, of an eflate in fee or in tail, in pojjefsion, and to which eftate in the lands and tenements the iffiie offuch ividoio mi gilt, by pofsibiliti/, Jiave inherited. This eflate, though created by adl of law, may be conveyed or prevented by the a6l of the party. Before afsignment and a6lual entry, the freehold is not in the widow; and, by con- Tequence, the mode of pafsing her claim differs before and after entry. 5 Before 2(5 OF AN ESTATE IN DOWER. Before entry flie has only a right, which muft be conveyed by reledfe, and that to the perJo7i in pojfefsion of the lands, as to him only a releafe of right can be made. — After entry, the poffefsion or freehold of her third is in herfelf ; and, confequently, the proper mode of conveyance to the per- fon immediately in reverfion will then be a Jurrender', and to aftranger it may be con- veyed by feoffment, with livery ffecundum formam chartce), leafe and releafe, or bar- gain and fale enrolled. 1 Cruife. 179. During the life of her hufband the wife 2 Ibid. 96. }^ 1 • , t 237. may pafs, or rather bar, her right to dower, i'^. 195. ^y fi"^ or recovery; which are matters of Harg.N.{C.) record, and in the procefs of which fhe is to Co. Lttt. ' ^ 121. a. fecretly examined, to prevent or remove Flo'wd. 514.,^-.. . _ Eare-y.Snow. the luipicion ot any compiillion in the hufband. And as dower is claimable out of thofc lands and tenements of which tlie hufband was Icizcd at any time during the co- verture, the alienation of the hufband alone, after marriage, will not bar her claim; and, therefore, it is neceffary that care OF AN" ESTATE IN DOWER. ^21 care be taken in conveyances by a married man that the widow be effectually pre- cluded from her dower (if entitled) by her joining in levying a fine, or fuffcring a re- covery. Again ; as dower is only claimable in fuch lands and tenements of which tlie hufband "w^is foleli/ feized during the cover- ture, in fee-fimple or fee-tail in pofiefsion^ feveral modes prefent themfelves by which dower may be prevented or barred. And, in the firft place, it is requifite to dower that the liufband be folely feized ; and, therefore, dov/er is fometimes barred by conveying the ellate to the hiijband and another perjon in joint tena?ici/; in which cafe, as the hulband was not folely but jointly feized, the dower does not attach. •But this mode is very objectionable; for if-the ftranger or truftee die during the life of the hufband, the hufband will bc» come fokly feized, and fo the end of fuch conveyance be defeated. The 28 ' OF AN ESTATE IN DOWER. zBronu.C.C. The next requifite is that the hufband 630. Curtis , /. . , t r w. Curtis. Oe Jeizea ; and, conlequently, another mode of preventing dower is by creating a trujl% for a court of equity has not fuftered the widow to claim her dower in a trufl- ellate. But this mode is alfo obje6lIonal, as it puts the legal freehold out of the huf- band. A third requifite to dower is that the huiband mufl be feized of an eftate in fee- fimpk or fee-tail in possession; and, therefore, a third mode is to put the fee in remainder ; as to the hufband for life, with remainder to another perfon during the life of the hufband, with remainder to the huiband in fee or in tail. In this cafe, the intervening eflate to the other perfon prevents the remainder over from being executed in pofTefsIon in the huf- band; and he is only feized in pofsefsion oi the eltate for life. So if the eftate be limited to the huf- br.nd and a flranger for life, in joint te- nancy, OF AN ESTATE IN DOWER. 29 nancy, with remainder to the luifband in fee or in tail, the bufband fhall hold tlie eftate for life in joint tenancy with the flranger, and the remainder will be only executed fab modo, and not in poffefsion. But this manner of limiting the eilate is obje6tionablc, as before noticed under the firfl: mode, by reafon of the pofsibiiity of the hulband furviving the ftranger. The beft way is, therefore, to limit the Bu/L n. (i.) eftate to fuch ufes as the hujband Jliall ap- ^jg\, ^"' pointy which gives him the power over the ^ -^^'''^'■"f- 5 op- whole fee; fo that he may pafs it to a purchafer without any fine or concurrence of the wife or others; and the purchafer, on the execution of the power, ihall be in from the original conveyance, and fo pa- ramount the claims of the wife; and, in default of execution^ to the husband for llfe^ with remainder to A. J5. his executors and adminijirators, during the life of the faif- band, which will put the limitation over in tail or fee in remainder; and by limiting the eftate to the executors and adminijirators of A. B. it will be more likely to prevent the eftate falling into the hands of a minor, in SQ OF AN ESTATE IN DOWER, in cafe A. B. die before the hufband; and the eftate to A. B. being only an eftate Seeanfe. dn.four autve v'tc^ may (notvvithftanding its being a frccholcC) with equal propriety be limited to hh executors and admini/iratars as to his heirs, as they will not take by defccnt, but as fpccial occupants. Co.L'ttt.^6. A woman may alfo be precluded from Notes. claiming her dower in any lands of which z^Bl Comm. ^j^g intended hufband ihall be feized during 1 Atk. 563. ii^e coverture, by accepting a jointure ac- Hervey v. , ^^ i • i Hervey. cording to the liatute of Henry the Eighth. Litlle^.h!' So flie ihall be barred in equity by the ac- & the books ceptance of other conhderations, fuch as there reler- ^ red to. do not fall within that flatute, as a yearly CafeofDrury ^ r 1 1 1 i ^.Drury, 5 lum Of moucy, though not charged on any Br^o^ParLCaj: fp^^cific fuud^. Butl. n. 1. to If there be any cxifting term which was Co.Lift.zoS. created before marriaoe, there fliall, in cer- a. 8c addi- " ' '^ txonal note, tain cafcs, bc a cclJl't c.vccutio during the term. CHAP. t 31 3 '■>Sfif CHAP. vir. OF AN ESTATE BY THE CURTESY. X jlN eftate by the curtefy, like that mzBI.Comm. dower, arifes by a(5l of law, and is an eftate Linh.i. c.4. of freehold; and, confequentl}^, as it may ^ '''^^ ''^"^ be conveyed to a ftranger for the life of the tenant by the curtefy, it miifl: be con- veyed by thofe means whicli the law ap- propriates for the transfer of freeholds, as by livery, or under the ftatute of Ufes. It may alfo he furrendered to the heir or reverfioner. As an hufband fhall have his curtefy of a truft, the fame modes of prevention do not exift as exift with rcfpe6l to dower. But as he fhall not have his curtefy of a remainder or reverfion on a freehold, nor of 32 OF AN ESTATE BY THE CURTESY. of a freehold in poffefsion that is not alfr. of inheritance, the eftate by curtefy may be prevented by placing either the free- hold in pofTefsion, or an intermediate eflate of freehold, or the inheritance, out of the wife. CHAP [ 33 ] CHAP. VIIL OF AN ESTATE TAIL. w IIEN an eflatc is limited to a pci'fon z £1. Comm. line! Ids dcfc aidants, it is called an f/?a/e Zz>/'! b. i . c. 2 tail, as to a man or woman, or to a man ^'''^'^^'' '^'^** and woman, and the heirs of his^ her, or SuiU'v. Lea. tlicir body or bodies. u'atk. No. Ixxix. to Glib. Ten. If it be to a man or woman, and the4i8. &i . . . ^atk. Cop. heirs of his or her body, it is an eftate inch. 4. p. 147, tail generaU as any heir of his or her body 26^/ mav inherit : but if it be to Thomas and the heirs of his body by Jus wife Jane^ or to Jane and the heirs of her body by her liujband Thomas, or to Thomas and Jane and the heirs of their bodies, it is an eflate in fpecial tail ; and fo alfo if it be to the heirs male of the body of A. B. As, in the firlt cafe, no heirs of the body of Thomas can inherit but thofe who are born of Jane ; nor, in the fecond, any heirs of the body D of 34 OF AN ESTATE TAIL. of Jane by any other hufband than Tho- mas; nor, in the thhd, any heir of the body of Thomas who is not alfo heir of the body of Jane, nor of Jane who is not alfo the heir of the body of Thomas ; or, in other terms, no heir of the body of Thomas by any other wife, nor of Jane | by any other hufband, ihall fucceed. Hence if it be wifhcd to fettle lands fo that the entail may not be cut off by the parents, it may fometimes be heecirary to limit an efiate for life to one parent, and the inheritance to the heirs of the body of the other, as the entail would then be in neither. The firft taking only for life, and the other not taking at all ; but the heirs being in by jDurchafe. Or if the eftate be the hufband's, to limit to him for life, with remainder to the wife in tail, as he being tenant for life only, can- not dock the entail, and the wife is pre- vented from doing fo by the ftatute of Hen. 7. c. 20*. * But as hufband and wife may together bar the en- tail, this is not always aa efFedlual mode of preven- tion. ^ But OF AN ESTATE TAIL. 55 But as It is a rule, that " if the an- i. Cc. 104. " ceftor, by any gift or conveyance, takes ^fj^ ' " an eilate of freehold, and in the fame ^•.^''^•^•^'''^ ... Tr. 485, 550. " gift or conveyance an eftate is limited, -P'-c/?- '« ^^^ " either mediately or mimediatcly, iohis he's caje. *' or her heirs in fee or in tail, the words " the heirs'' are words of limitation, and *' not words of purchafe," care mud be taken, if it be intended that the entail ihall not vefl in the parents, to limit the eftates fo as not to be capable of uniting ; as to the parent for years^ as for ninety-nine years if he fo long live, which will only give him a chattel intereji that cannot coalefce with the eftate limited to his heirs, which is a freeliold ; or to give an equitable eftate only to the parent, and a legal one to the heirs ; for eitates mull be of the fame nature to be capable of uniting, as both freehold, or both legal : or to confine the particular eftate to one parent, and limit the remainder to the heirs of the body of both. And care muft alfo be taken that the whole of the particular eftate be difpofed of, lealt any eftate of freehold be capable of refdting H 2 to ^^ OF AN ESTATE TAIL. fo the anccf.or to xvhofe heirs the ejlate is Jimited. But the belt and moft ufual mode is to limit to the parent or parents for life, with remainder, not to the heirs of his, her, or their body or bodies, but to the Jon or fons (or children,) and the heirs of his, her, or their body or bodies, fo that the fon, or fons, or children, ihall take as purrl/ajers, as perlons particularli/ a?id e.v- prefsb/ defignated, and not as the /icir or heirs of the parent or parents. But if the fettlenient be made before the birth of fuch children, the remainders limited to them muft necellarily be contingent ones 2. Bl. Comm. till they come in ejje ; and confequently r.' ^/>{. 58i.fubje6t to dcltru<5lion, or to being de- Dare-^Hop" fcaicd by the parents ; and hence the uti- !&"/' da \^^y of appointing trujleesfor preferving tkcjii. to Co. Litt. The moft common mode of limiting thefe 271. b, and , 1 •«- • 1 n ^ 1 n. (2)10265, remainders to the iliue, is io the Jirjl and U inV' Other Jons ; but this mode is fometimes ob- i.Fearne. jcdionable, as it rcudcrs tlic eldeft fon in- (Scc index utTrujitrf-s.) dependent on his parents ; and it may, theretbre, be advifable to limit the eftate to J'nch Jo7i of the marriage as the parents, 3 or OF AN ESTATE TAIL\ 37 or furvivor of them, JJiall, by deed or will, appoint, and to the lieirs of his body ; and in default of fuch appointment, to the iirft and other fons, &:c. in tlie iifual liianner. An cftatc tail cannot be transferred io^o. i. to Co. ,1 , . ., , Lift. 331. a another; but, as the tenant in tail iias a& the books fee (though reariaed)in him, he may ^^r^^^L'-"^- convey a bafe fee to another, by leafe and''"«^«^^> ^^^ •^ . ' -^ «. (i.)toC'- b. 3. c. 10 long as the heirs or the tenant m tail 325. continue. And if the tenant in tail have "' "' alfo the reverfion in himfelf, he may con- vey an abfolute fee to another, or gain an abfolute fee in himfelf, by levying a fine ; for the fine pafles the reverfion, which is an abfolute fee, as well as the bafe fee ; and when both fees are fixed in the fame perfon, the bafe fee merges in the abfo- lute one, fo that the abfolute, or rever- sionary fee comes into poilcfsion. P 3 But 38 OF AN ESTATE TAIL. 1. Cra. 274. But as the tenant in tail (while tenant in tail) may charge tJie reverfion^ and as the fine when levied brings the reverfwn into pojfefsion, it is frequently prudent, 2. Gv^. 284. and, indeed, necefl'ary, in order to gain a good title, to fuffer a recovery, as a fine lets in the charges of the tenant in tail, and a recovery gives a clear and new fee*. 2. Bl Comm. Kcuce thcu is a recovery fufl'ered by the Vigg. 108. tenant in tail, in mofi: cafes, the befi and ^J^'r' „,o mofl effeduai bar-f; and this Ihould be fufiered with (at leaft) a double voucher, for if fuffercd with a fingle one, it only bars the eitate^/" xvhich the ie-nant in tail is * But a recovery will let in the charges of the per- fcn fufftring it, though not thofe of his anceftors. See 2 Cm. 284, 8. & pojl. B. 2. a 1 6. t In fome cafes indeed a fine is a more cfFeftual bar than a recovery ; as the former is declared an cftoppcl or bar hy the Stat. 32. Hen. 8. while it would be at leaft doubtful whether the iflue would be clloppcd merely by the vouching of the anceftor, who • had no eftate in the lands at the time to pafs. Po/L B. 2. C. 15? & C. 16. actually/ OF AN ESTATE TAIL. 3^ iictually feizcd at the time ; but if with a double or treble voucher it will bar every other intcrell he may have in the pre- mifes ; as will appear under the head of Recovery. A tenant in tail in poflefsion may alfo,See 2.^//rr. in fome inftances, bar both his own iflue ^°^^' ^' and thofe in remainder, by annexing a^- Bl. Comm, •warranty to his grant, as the warranty will defcend to his heirs, and, if accom- Gilb. Ten. panied wath affets, wall bar his own i^^Lie, J,^^\f^f^^p* and without affets will bar fuch of his4o=3^&c- heirs as may be in remainder or reverfion. i3ut the propriety of this mode depends upon much nice matter, and fhould b$ had recourfe to with much caution ; for ihould no affets actually defcend to the iffue, they will not be barred, nor will the re- mainder-man or reverfioner, nnlefs he he alfo the heir of the warrantor ; for, un- lefs he be tJie heir of the w^arrantor, he will not be fubject to the warranty. The warranty defcend ing on the iflue is a lineal warranty, as the heir cUims tJirough the tvarrantor ; and lineal warranty P 4 is 40 OF AN ESTATE TAIL. is no bar without afiets actually defcencl- ing. But the warranty dcfccnding on thofe in remainder or revcrlion is cotlaie- ral^ as they do not claim through the war- rantor^ hut immediate!]/ from the donor ; and collateral warranty will bar without aflets. Ko.{i)\oCo. And fo cf}:abli(hed is the power of the ' ''^'^' ■ tenant in tail to deftroy the entail and alien by fine or recovery, that no con- dition reftriclive of Inch power is per- mitted to take eflecl. And note, that exprefs power is given by ftatute to Commifsioners of Bankrupt to convey lands entailed of the Bankrupt, by bargain and falc enrolled. CHAP. [ *• ] CIIAP. IX. Ch. 2- OF AN ESTATE I.N FEE SIMPLE; j-TXN Eltate in tec fimple is either ubfo- 2. Bl. Comm. lute, or quaitficd ox haj'e. An ellate in tec^,v/.'b. i. r.,. abjhlute is an eltate limited to a perion and J^^'^""^^' ^"'' his heirs, sreneral or indefinite. It is WkAP^eji. Eji, ch. confined to any partictdar line or fpeeics of heirs, but is limited to the lieirs gene- rally; and it is the highe.L citato which the law acknowledges. An eftate in i^c qualified oy bafe, is an eftate to A. and his heirs Uilt a certain event happen, or to be defeated if fuch an event occur : as to A. and his heirs tenants of the manor of Dale. Here fo foon as A. or his heirs ceafe to be tenants of that manor the eilate uill ceafe. The eftate in fee limple abfokite may be conveyed ad infinitum ; but it being an 42 OF AN' ESTATE IN FEE SIMPLE, an eilate ol" tVeehold in poliefsion (for we are not here to fpcak of reversions) the freehold mult actually pafs ; as by feoflf- ment, leafc and releafe, bargain and fale enrolled, &c. An cftatc in fee qualiiied or bafe may alfo be transferred by the fame means, fubjecft to the qualifications : but it can- not be conveyed difcharged of fuch qua- lification, unlefs by wrong, as by a feoff- ment in fee abfolutc, which would gain a fee abfolute by difleiiin*, and turn the reverfion (if wc may fo call it) to a right, and whicii right would be barred by a fine levied by the feoffee, unlefs the pcrfon having fuch right claim within tlie time allowed by the ftatute of lien. 8. I. Fearrtp, A baf|p or qualified fee may by pofsibility 54 ''7- continue for ever ; and the common law * An cftate ^a!/iefl by wrong is always a quaft fee : as tlie hw cannot take notice of a wrong, it can- not of conrcqiu'jice fct any limits to that wrong. See docs' OF AN ESTATE IN FEE SIMPLE. 43 does not permit any remainder to be limited on a fee either abfolute or bafe. A fee may, indeed, be limited on a fee by way of executory devife, or of JJiifting ufe ; of which limitations we ihall fpeak in fubfequent chapters. CHAP. [ 4^ ] CHAP. X. OF AN ESTATE IN PARCENARY. 2. 5/.a/«/«. C/OPARENCERS always take by de- Litt'.h.^^,c.i,icent; and, as tliey compofe but one menf ^'""' ^^^''*> ^^^^Y l^^^'^? ^s to fomc purpofcs, but And fee Co- one ficebold ; but, as to others, feveral ; myvs^ Dig. lit. Parceners, as hence they may convey to each other, *^l\j^^/(f"^' either by releafe, by feoffment*, or thisfubjea. finef. • Gill^. Ten. ' " " 1. I " y ■\ Touchft.iL, , n .^ n ii • iC^«. 104. A^ to Jirangcrs, they mult convey tlieir. refpe(ftive portions or fhares by the feveral modes of cgnvcyance which pafs the freehold ; as by fine, recovery, feoffment, leafe and releafe, or bargain and fale en- rolled ; or they may covenant to Hand feized. Touclji. 292. But they cannot exchange with each other 'till partition. If OF AN ESTATJe IN PARCENARY. 45 If there be two parceners, and they make partition by confcnt, they may releafe to each other their rcfpe6tive moi- eties, and there will be no necefsity for a Icafe for a year "(of bargain and falc), as the poffefsion at the time of partition would be in each. CHAP. [ ^6 1 CHAP. XI. OF AN ESTATE IN JOINT-TENANCY. 2.5/. a»;«. JOINT-TENANTS always take Z>7/pwr- ^LUt.h.'2,.c.'^.cJiafe', and the proper and beft mode of and theCo/w-^j.g^j-|j^™ an eftate in joint-tenancy is to limit " to A. B. and C. D. and their af- figns," if it be an eftate for life ; or " to A. B. and C. D. and their heirs,'* if in £utl. (0 to fee. The limitation fometimes made ^0. t • 5 ' u |-Q ^ ^ 2i^^ Q D^ and the furvivors of obje6lionable, as it has been fuppofed to give a contingent remainder to the furvivor ; for, though the propriety of fuch a fup- pofition may be queftionable, yet it would be prudent to avoid the doubt. But in the creation of a joint-tenancy it is not only neceilary that the eftate to the fevcrai perfons be limited by tlie fame deed, OF AN ESTATE IN JOINT-TENANCY. 47 deed, but the eftatc in tlicm mud vejl ato7ieSee Co. Utt. and the fame time ; for if an cftate be H- (i^.*) &*! mited to A. for life, with remainder to thef^^f^', 46°» heirs of B. and C. (B. and C. being fup-239,(3(iedO pofed to be living,) and B. die during the particular ejiate, when one moiety would veft in his heirs, and afterwards C. die, in the lifetime of A. when the other moiety would veft in Itis heirs, the heirs of B. and C. would take in common. But if the eftate be limited bi/ xvay of ufe it would be otherwife ; as the eitate would be in the truilee till the ufes arife ; and as they arife the ce/tui que ufe fiiall be in by the original feotfment or deed. As joint-tenants are feized per mie et ^^j iFent.yS. per tout they cannot grant (^a), nor b^rgaiii^'^^'^p";^^ and fell (a), nor Jurrender (b\ nor devife fc), 5^6, 7- V '^fouchjh 303, to each Other, nor can tln^y eichatige (^djfcj PoiueiJcn zvith each other, nor can one ^^ ^^^^X^ c7ifeoff ^^J'c^J^^la^ his companion {e). "cTjhlLT^, 73—4- But each may fever the tenancy at his pleafure by granting his portion over to a Itrangcr, either to the ufe of fuch ftranger or ,48 OF AN ESTATE IN JOINT-TENANCY. or in triift for hlmfclf, by the ufual mode of conveying a freehold, or compel a partition, by Itatute ; or one may rdcafe to his companion. But joint-tenants may, eitlier feverally .or together, exchange ici/h a //ranger, or furrcndcr to the immediate rcvcrfwner. CIX.' [ ^^ ] CHAP. XIL OF A TENANCY IN COMMON. X ENANTS III common take alfo bi/ i, sLComm, pitrchafe, but hold by diftin^l titles, andl^9i« ^^ have feparate freeJiolds, being not feized and the Com» per init ik per tout, as joint-tenants are : and the beft way to create a tenancy in common is either to limit one moiety of the premifes exprefsly to one, and the other moiety to the other, or to ufe the words " to hold as tenants in common and not as joint-tenants ;" as the law may otherwife conflrue it a joint eftate. As the pofTefsion of tenants In common is undivided 'till partition, they cannot exchange with each other, though they inay exchange, either together or feparately, with ajiranger*, B But 50 OF A TENANCY IN COMMON. Gi!b.Ten.T\. Biit as the feifin of each is diftin6l, and their eftates feveral, one may enfeoff the other ; or, if the other have a greater eltate, jurrender to him. So one may dc- vife his part to the other: but one cannot releafe to his companion, as fuch. Tenants in common may transfer their refpe6i:ive fliares to Jiraiigers by the ufual modes of conveying freehold property ; and they may compel a partition among tlienifelvcs. CIIAI\ [ 51 ] CHAP. XIII. OF A REMAINDER. xx Remainder is that portion of interefl: 2 BI. Comm. which, on the creation of a particular J'pearne eftate, is limited over to another. Remainders are either vejied or contin- See 3. Jd. tingent : a vefted remainder is that re;hich ^^^' ^^' is capable of being received in pofsefsion JJiould the particular ejlate happeJi to deter - mine ; as to A. for life, remainder to B. and his heirs : here, as B. is in exiftcnce, he is capable (or his heirs if he die) of tak- ing the poffefsion whenever A's death may occur. A contingent reynainder is when the par- ticular eftate may happen to determine before the perfon to zvhom the remainder is limited can take the pofsefsion ; as to A. for life, E 2 with 52 OF A REMAINDER. with remainder to the right heirs of B. Now, during B.'s hfe the remainder /.y contingent, as he cannot have an heir till his death ; and, therefore, ihould A. die before B. there could be no one to take the pollefsion. In the creation of remainders the fol- lowing rules mull: be obferved : 111, There mull: be a prefent, or par- ticular, eitate created, which, if the re- mainder be a vej'ted one, muft be, at leaft, for years', or, if the remainder be contin- gent, mull be an eftate of freehold, as a freehold cannot- commence in futuro by the common law. 2dl)^, The particular cfiate and the re. m'tainders mufl be created by tJie fame dud. :''dly. The remainder mufl vefl; in the grantee, during the particular eflatc, or the very inilant it determines. 4thly, OF A REMAINDER. 5S 4thly, And, it the remainder be con- 2 He/i. / •. r 1 I- • 1 . /- BlacM. 358. tingcnt, it mult be limited to lome one Pmcior v. that may, by common pofsibility, or po- Bath°and tentia propinqita, be in c/se at or before the Wells, ^«/. determination of the particular cftate. By the feudal law the freehold could not be vacant, or, as it was termed, i?i abcy- ancc. There muft have been a tenant to fulfil the feudal duties or returns, and againfl whom the rights of others might be maintained. If the tenancy once became vacant, though but for an inftant, the lord ^^•as warranted in entering on the lands, as the confideration on the part of the te- nant had ceafed ; and, confequently, as no returns were made, there being no one to render the fervices of the feud, the lord was entitled to refume it. The te- nant can only fubject his own eftate to his own limitations ; and, therefore, the moment that eftate ended, by the cef- iion of the tenancy, all limitations of that eftate were alfo at an end. E 3 The 94. OF A REMAINDER. The lord on the efcheat is in para- mount the tenant ; he is in of an eftate from wliich the tenant's was originally derived. Hence then the necefsity of an imme- diate eftate of freehold, or of a freehold in poffefsion, being vefted in fome per- fon actually in exiftence who may fulfil the duties of the feud, and who may an- fwer to the precipe of Grangers; and hence the necefsity alfo of the remainder taking effeft during the exiftence of fuch par- ticular eflate or co infianti that it deter- mine ; as a limitation of an eltate cannot take place when that eflate itfelf is no more. Co.Litt.z-jo. X vefted remainder maybe conveyed to \ h. n. (O- another by fine, by grant, by leafe and re-- 332, 455/' leafe, by bargain and fale enrolled ;or there-! maindcT-man may covenant to ftand feized.. But it cannot be granted to commence in See Poji.h.i.futuro. And, as the freehold is in the par- feiirmcnt. ticular tenant, a remainder cannot be the fubjed o^^ feoffment ; for a feoffment ope- rates on the poffefsion which the remain- der- OP A REMAINDER. 55 dcr-man has not to convey. For the fame See Po/f. b. 2. . - , Of aReco- reaion a lecovcry cannot be lultered 01 a very, remainder, as the precipe can only be brought againfl the tenant of the freeJiold in pojjefsion. But, if a prcecipe be brought againft the tenant in pofibfsion, and the remainder-man be vouched and enter into the U'arranty, he fluill be bound. A contingent remainder may be barred i Fearne.^^s, by eftoppel by matter of record, as a fine sand. 335, or recovery ; and if the contingent re- mainder is fuch as to be defcendible to the heirs of the perfon to whom limited, if he die before the contingency happen, it may be devifed, or puffed in equity : but not other wife. Contingent remainders may be de- ftroyed, and prevented from taking effect, by deftroying the particular eftate by which they were fupported ; and, there- See ^vte. . - . . c. 8. p. 34. fore, it is frequently necellary to limit the legal eftate to truftees for the purpofe of preferving them. E 4 If 56 OF A REMAINDER. 1 Feante, 49. If it be Intended in a fettlement to pre- 687! Wills & vent the parent, from whom the lands Palmer. move, from defeating a remainder limited to his heirs general or fpeeial, — care muft be taken that no particular cflate be limited, or be capable of refulting, to fuch parent ; as the ellates would, in fuch cafe, unite, and the parent have an eflate in fee or in tail in himfelf. CHAP. r 57 ] CHAP. XIV. OF AN EXECUTORY DEVISE. 4JLN executory dcvife differs from a re- zBlComm, xnaindcr (among other things) in this, that zFearne. a remainder nmfi Jiave a particular cjiatc to flipport it, while it is elFential to an exe- cutory devife that no particular c/laie be 2 SaunJ. Rep. in exijiencc ; it being a rule, that that ^. iJ^ogers.'^^ fliall never be conflrued an executory devife which can be fupported as a re- mainder. By executory devife a fee or lefs eftate may be limited after a fee either abfolute or bafe. Or a fee may be limited to commence infuturo'y as, till fuch fee take effc(5i, the inhe- 58 OP AN EXECITTORY DEVISE. inheritance fliall defcend to the right heirs of the teftator. ITai^.n.{^.) Remainders ('or at lead what we may to Co. Litt. )^ ^ J 20. a. here call remaniders) of chattels, either fajjim. real or perfonal, may be limiLed by exe- cutory devife, fo they be limited to a per- fon or perfons in being, or to veft within twenty-one years and a few months after the death of a perfon or perfons in being; but if the remainder be fuch as, if it were of freehold property, would amount to an ^ttante. (-z-exprefs entail, it fhall rell: in the perfon in whom it fo vefts, and be at fuch pei*fon*s difpofal, or to go to his reprefentative on his death. z Feartie. SI- An cxccutory devife cannot be barred &c. or deftroyed by any acl of the perfon taking the preceding fee, though by feoffment or matter of record. z Fearne. 53. j^ut tlic pcrfon entitled to the executory/ ejlate may bar his own claim by releafe to the firft taker in p(fscfmn\ or afsign it in equity 3 for OF AN EXECUTORY DEVISE. 53 far a valuable confideration ; or devife it by his laft zi'ill. So if the. per/on aititled to the executory ejlate comes in as a vouchee on a common re- covery; fo if he levy afine^ it Ihall bar him by eftoppel. CHAP. [ 60] CHAP. XV J Fearne. g. 414. Sand. Uj 182. &C. OF A CONDITIONAL LIMITATION. Vatei. Uji-s. "^^ Remainder is to commence when the particular efiaie IS, from its very nature, to determine', it is, as it were, a continuance of the fame eftate\ it is a part of the fame whole. A conditional limitation is not a continuance of the eftate firft limited, but is entirely a different and feparate efiate. It is 7iot to commence on the determination of the Jirft, but the firft is to determine ivJien the latter commences. It is ilie commence- incnt of the latter which refcinds and de- rtroys the former; and not the ceafing of the forviier which gives exigence to the lart. The particular eftate and remainders arc, in facV, as the very terms imply, but one and the fame eftate. The ellate fird appointed, and the conditional limitations, s^rc feparate and diftinct eftates. If OF A CONDITIONAL LIMITATION. 61 If an eftate tail is firfl limited, and then But this is a conditional limitation is made upon thatJ'/^wJr* eftate, a recovery hx^cvcd by the tenant in ^^^ ^F^^n;?. tail, before the event or condition happen on which the limitation is to arife, will bar the eflatc depending on that event or con- dition. As to the barring fuch conditional limi- tation by eftoppel^ and afsigning in equity, or deviling it, the law feems to be the fame as with refpe6l to an executory devife. CHAP. [ ^2 ] CHAP. XVI. OF A REVERSION.^ 2 Bl. Com7n. WJ 175- VV HEN a perfoii has an intereft in Co.Litt. Z2.h. Plo-wJ. 151. lands, and grants a portion of that intereft, ton^^.Tracy' ^^' ^^"^ other terms, a Icfs eftate than lie has in Jiimfelf, the polFefsion of thofe lands Ihall, on the determhiation of the granted interefi: or eftate, return or revert to the grantor. It muft here be remarked, that it is faid the pofsefsion of the lands ihall return to the grantor on the determination of the grant, for a prefent intereft remains even during the exiftence of the grant in the perfon making it; and this intereft is that which is called his reverfioni or, more pro- perly, Jiis right of reverter. ' This OF A REVERSION. 63 This right of reverter can only arife by the act of laiv ; it cannot be created by tJte act of the parti/, though it is a confequencc of his previous acl. If a perfun limit par- ticular eftates to ftrangers Vvith the ultl- niaic limitation to liimfclf in fee, or to his own right heirs, the latter limitation fhall not take ^{ftS. as a rcmamder, or by reafon iJatLo>iDi/c^ 168. of the exprefs limitation of the grantor ; but, as the law would have given to him or his heirs, as a confequer-je of the preceding- limitation, the fame intereil or eiiate as the exprefs words would have conveyed, thofe words Ihall be deemed wholly nuga- tory, and the grantor or his heirs Ihall be in in reverfion, or of the old efiaie. 10. I J I. A reverfion, being an immediate intereft^WutLon'Def:. may be conveyed to another perfon, though ' to an utter ftranger. The conveyance of it need not be confined, like the convey- ance of a right, to the a6f ual tenant of the freehold. The proper mode of convey- ing a reverfion is by grant^\ though .it * Mr. Fearne is reprefented as having been of opi- nion {Pojibum. TVorksy 28.) that the gra}it of a re- verfion, 64f OF A REVERSION. • See n. (i.) niay alfo be paffed by a leafc and releafe *, to Co. Litt. " ^ ' • _ • 270. a. & or bargain and f ale ^ fiich bargain and fale n.fi.) t027i. 1 • , , ,11 ^ c- b. f. iii. being regularly enrolled ; or the reverfioner Sand. Ufes. 450 — 5. 469. verilon, in conflderation of money^ tvould require en*- rollment under the Jiatute of Henry VIII. But he was evidently miftaken if he entertained fuch opinion, as the ftatiite of 27 Hen. VIII. c. 16. is exprefslv con- fined to conveyance by bargain and fale only.^ and doeS not embrace grants, which have nothing to do with a bargain and fale. Befides, that ftatute has an imme- diate and manifeft relation to the ftatiite of ufes ; and was ordained in order to prevent fecret transfers.^ which might have been efFe£ted by a bargain and fale, as the bargainor would ftand feized to an ufe, and that ufe would have been immediately executed by the ftatute, as, at this time, is the cafe of a bargain and fale of a chattel intereft, or leafe for a year. The bargain and fale were, therefore, ordered to be enrolled ; but a grant of a reverfion was not^ at the time of that ftatute, Sifecret conveyance^ as it was not good without Oiiutoi-vmenty attornment.^ which was a matter of publicity, and an- 81 k. t-'o'} ' fwcrcJ the fame purpofes as livery did on a feoff- b. 2. c. 2. mcnt. 2 Vent. 149. And the only cafe which Mr. Fearne has referred to ^<^- .is that o'i Lade v. Baker, which cannot apply to the fub- jcct at this day, fmcc the ftatute of Ann has rendered attornment unneceflary. niiV OF A REVERSION. 65 may covenant to ftand feiz€d'\-; but a re- 1 2 Co. 15. Wifeman's vcrfion cannot be granted to commence in cafe. /> , 4. X IVatk. qW JutlirOp De/c.lXU n. (t.) But, even anterlally to the ftatute of frauds (29 Car. II.), a reverlion could not be conveyed by parol \ it muil have been bi/ deetU as it lay not in livery. For where the. pofsefsion did not pafs, the law required a deed, or a folemn inltrument under feal, when there was no matter of record, as the evidence of the transfer. A reverfion may alfo be charged by the pcrfon entitled to it. If an eftate tail be created, the reverfion, See/jv.v. r. s. unlefs it be in the crown, may be barred c. 16. or deftroyed by the tenant in tail fuffering a recovery of tlie premifcs by virtue of the ftatutcs of Hen. VII. & VIII. The reverfioner continues tenant to the lord during the exiftence of the particular eftate ; and the particular grantee fhall hold of thereverfioner; and, as a neceffary F Qonie- 66 OF A REVERSION. confequence or incident, the rent, fealty, &c. Ihali always follow the reverfion. Plo'ivd. 153. As the creation of a particular eftate is of abfolute necefsity to give exiftence to a reverfion, fo the continuance of the re- verfion depends upon the continuance of the particular eflate; for if, by any means, as by forfeiture, furrender, or regular ex- piration, fuch particular eftate determine, the intereil of the grantor ceafes, of ne- cefsity, to be an eftate in reverfion, and be- comes an eftate inpofsefsion, and into which he may immediately enter. CHAP, [ 67 ] CHAP XVII. OF A RIGHT. V-/NE perfon may have the actual pof-^^^^-'^'^"-^^' r^. \ . &c. 37. &C. fefsion of certain lands, and another \.\\q z Bl. Comm. right of poJseJsio?i, or the right of propriety, ^ as, if a perfon enter wrongfully into my lands, he will have \\\q actual pollefsion; hut I may enter and ouft hmi if I pleafe, as the right of pofsefsion is in me. If, how- ever, I do not exert that right, and enter within a limited time, my power of enter- ing is taken away, and I am driven to ray action to recover the poflefsion ; and if I do not avail myfelf of my poffeliory aclion, I ihall have only a right of pro- prictT/, or jnere right, Icl't. * • 7 • ,11^ 'A. * 10 Co. \6.h. A right IS not grantable * over ; it can Lampeu's only be e.vtinoiti/hed. It cannot be cvcn^^}^;. ^ •' tD J n-(i'j to Co. furrendered -h ; nor will it pafs to a ftranger Lm. 265, a. ' + Co. Litt. F 2 by 338. a. 6S OP A RIGHT. * ToucM.i\.\)Y fifi^'^ tkoueh by fuch fine the rieht 2C0. ss- S^- . Buckler's would be barred, as the coenizor cannot r claim a right againft his own fine, which is a matter of record, and, by confe- quence, an eftoppel; as by that fine he has ac/mowledged the light to be in another. Ple-wd. 485. It is not devifable. The proper mode of extinguifliment is that of a releafe, or fine fur cognizaiice de droit tantinn, to the per- fon in actual poffefsion of the lands. CHAP. [69] ^ CHAP. XVIII. OF A POSSIBILITY, A Pofsibllity cannot be on a ^ofs'ihi- i^) ^Co.^oh, llty (rt). A pofsibllity may be releafed (Jj); 132. z jtk. is devifable (c) ; is afsignable by coimnifsioners ^^?\ ^^^ of bankrupt {d). It may be barred by fine ^ Blackji. 30. by way of efloppel (c) ; but it fhould feem Eaji 88. not otherwife (f). So it is afsignable in ^^2. 2 JtL equity, at leafl: if accompanied with an in- |^°" . tereft (s^Y; fo an asjreement to fettle lands 50- a. in poisibiiity mail be decreed, ir they 390. afterwards defcend (h). f^^^ ^^^^^^ Comm. 290. (h) I Ch.Rtp. 158. ^ 3 CHAP. [ 70] CHAP. XIX. OF AN EQUITY OF REDEMPTION. z. Bl. Comm. l^-p g^ perfon convey lands to another on Fcm-el/ cf! conclition, as a fecurity for money, and ^«//.n.(i.) to the condition be broken, lie may, under 3 ''■^^ ^J^j" ?°^J certain circumftances, redeem ,the pre- 208. a. mlfes ; and this priv^ilege is denominated his equity of redemption. Sucli equity of redemption may be re- leafed to the perfon in poifefsion. Some- times, indeed, the conveyance called a Icafe and releafe is adopted ; but then the latter fpecies of conveyance does not ope- rate as a leafe and releafe with refpecSl to the equity, as a perfon cannot be feized of an equity to an ufe; and, confequently, as no ufe arlfcs by the bargain and fale, the releafe can only operate, with refpecl to 4. the OF AN EQUITY OF REDEMPTION. 71* the equity, as a mere or proper releafe ; juft as it would have done without fuch a bargain and fale, or leafe for a year. The conveyance by leafe and releafe is, therefore, adopted for caution only; as, in cafe there he an equity only in the perfon intending to convey, fuch releafe will operate as a common releafe, and fo pafs it, notwithllanding the bargain and fale; and, in cafe tJtere be any legal freeJiold, intereji, or eflate, left in the mortgagor, by reafon of any defect in the mortgage deeds, then the bargain and fale will operate on fuch legal intereft or eftate, and, with the re- leafe, pafs that alfo. In like manner, as a court of equity confiders a mortgage, though in fee, mere- ly as a fecurity for money till the time oiSee^Bto.Ch. " Ca. 28(j. redemption be pair, the mortgagor n-e- Trafh v. quently difpofes of his own equity, or right of redemption, to another. This can properly be only by way of afsignment, grant, or clevife; for he ca?i?iot pafs it by feoffment, bargain and fale, nor, confe- F 4 quently, '72 OF AN EQUITY OF REDEMPTION. quently, by leafe and releafe, as the feifin, or legal eftate, is in the mortgagee-, though the leafe and releafe are often adopted for the reafon before noticed with refpec?!: to the conveyance of fuch an equity to the perfon in poiTefsion, CHAP. [ 73 ] CHAP. XX. OF USES AND TRUSTS, ^i^ It is neceflary to the creation of fuch an^t BL Comm. life as may be executed by the ftatute, |ti^/.n.(i.')to that there be 2Lperfon iojiand feizccl of certain ?°;^^"' ^7'' i ^ ^ J J b.(i.)t0 290. hereditamejits to fuch an nfe; that there be t>- 384- ^- '-^ a perjon capable oj taking that uje\ and u\?XBootVsOpin. there be privity of ejiate and priviti/ o/w^'&i'n per fan. * ^°^^' J"""'^- ^ '' 421. Sand. Ufes. 1ft, There muft be a pcrfon fcized ; for a corporation cannot ftand feized to an ufc; and, therefore, if a corporation convey, it muft be by feoffment, leafe (with an actual entry) and releafe, &;c. though the courts 5«?/^. 446. will, if pofsible, fupport a bargain and fale by a corporation, as fome other fpecies of conveyance, rather than that it fliould avoid its own ad:, 2dly, Th^re 74 OF USES AND TRUSTS. 2dly, There mud be a perfon fcized of hereditaments ; for chattels, whether real or perfonal, are not within the ftatute: though a perfon may ftand feized of the freehold . to the ufc of another for a chattel interefi: ; as A. B. being feized in fee, may covenant to ftand feized to the ufe of C. D. for years; and fuch ufe will be executed by the ftatute. And this is every day feen by the leafe, or, more properly, by the bargain and fale, upon which a releafe is grounded. But chattel interefts may be conveyed fubje6l to certain trufts, as com- monly pra6lifed. 3dly, There muft be a perfon capable of receiving the ufe; and, therefore, a limi- tation to the ufe of a corporation would not be good without licence, as it would be within the Ihitutes of Mortmain. 4th ly, There mufl: be privity ofeflate; for lie \\\\o comes in in the poff, or para- mount the perfon limiting, fhall not be fubjc'jl to it. 5thlv, There OF USES AND TRUSTS. 75 5thly, There mull be ^ priviti/ of per- \Fearne,i\.-j^. Jon ; for a purchafer xvithout notice lliiill not hold charged. Tlicre cannot be an ufe upon an ufe. If an eflate be Hmlted to A. B. and his heirs, to the ufe of C D. and.his heirs, to the ufe of E. F. and his heirs, the flatute ihall execute only the firft ufe^ or that to C. T>. and the limitation to R, F. will be only a triift in equity *. Upon * If the limitation to E. F. and his heirs be in- tended as a trujl^ it would be prudent to give the eftate to A. B. and his heirs, to the ufe of C. D. and his heirs, to the ufe of, or in truft for, E. F. and his heirs; for if it be given to A. B. and his heirs, to the ufe of hlmfelf (a. b.) and his heirs, to the ufe of, or in truft for, E. F. and his heirs, it might be open to the ob- jedlion, that A.B. would be in by the common laiv,. and fo the limitation of the ufe to him and his heirs be nugatory; and that, confequently, the limitation to E. F. would, in fuch cafe, be, in faift, the prjl ufe, and executable by the flatute ; and, confequently, that E.F. would take the legal cjlate to him and his heirs. — > Now, whether fuch objedlion could be fupported or not, it would be highly proper to obviate it by limit- "i«g the eftate to A, B. (an indifferent perfon) and his heirs, 1G OF USES AND TRUSTS. zBLComm. Upon this principle, however abfiird 111 itlclf, many important doctrines are founded. Hence, if it be wifhed that a perfon fliall have only a truji ejlaie, care Ihould be taken to limit a preceding, and at leafl: commenfurate, life, fo as to be executed by the llatute; as, " to A.B. and his heirs, to the ufe of him and his heirs during the life of C. D. and from and after the deceafe of the faid C. D. to the ufe of the heirs of the body of the faid C. D. ;'* when the eftate limited to C. D. would be a truft only ; and the remainder to the heirs of his body would be a proper ufe, executed by the flatute the momerrt he died. And the eftate to him being equit- able, and that to his heirs legal, could not unite ; and fo the latter would not be barrable by him. heirs, to the ufe of cv). and e. f. (the truftees) and their heirs^ to the ufe of, or rather in truft for, G. H. and his heirs, as then the ufe to the truftees would be executed, and the legal cftate would, unqueftionably, be in fuch truftees ; and, confcquently, any fubfequent limitations would be inexecutable by the ftatute. Hence OF USES AND TRUSTS. 77 Hence alfo an ufe cannot be limited on a bargain and fale to any but the bargainee\ for, till cnrollmentjthe bargainee h imfelf has but an ufe, and he cannot be feized of an ufe to the ufe of another perfon; and the limi- tation over would be a trufl: and fo as to a covenant to ftand feized. If, therefore, it be intended that a third perfon Ihoukl take an ufe executable by the ftatute, fome other fpecies of conveyance (as Tifine, feoffment, or leafe and releafe^ fliculd be had recourfc to. An ufe need not take effect immediately on the creation of the deed, like an eflate of freehold. It may commence in futiiro ; for the freehold remains in the truftee, or covenantor, or bargainor, who is to an- fw"er to the precipe of others, and perform the feudal duties. But the contingency upon which the ufe is to arife mufi: be fuch as may happen within a reafonable period, as a life or lives in being, or 21 years afterwards; and ufes fo limited are called contingent or fpringing ufes, which may be \Fearne,\zS' deftroyed or defeated bi/ dejiroying the ejlate out of ivhich they are tofpring. An io OF USES AND TRUSTS. See as to An life may alfo be limited (o as to fecond\ftate ^^^'^o-? ^///^r e.recuiioii, to anol her per/on; on the accef- j^s to the ufe 0^ B. for life, remainder to i:on to the .... famiiyeftate, firft and othcr fons in tail, remainder in z/«.327.b. fee; provided that if there be no ijfue living ^"^* at ttie death of B. then to tlie rio'ht heirs of C. for ever, iind this is called 'A fliifting or fecondary ufe; but, like the latter, it muft take effect, if at all, within a life or li^'^es in being, &c. ■)^i\] If fuch ihiftins: w^c be limited on an eftate in fee, it cannot be dejlroi/ed or barred hi) the previous tahr; but, if on a limitation in fail, it may. iFean!e,2cs. And fo vvith rcfpe^l to trujh: fomc arc completely eftablidied, and fo as to take efiCc^L immediately, l)y the very deed v.'hich conveys tlic Ic^al eftjitc to the trullcc, and are, therefore, frequently called trufls executed', while others arc to be carried into execution by fome future a6l to be done by the truftee; and thefc are often denominated trufls executonj. 'r[ie7///'^*fpccies of trulls have the fame con- firurtion as kgal cftctCs-, while the latter ate OF USES AND TRUSTS. 79 are carried into execution fo as heft to anjwer the intention of the perfon creating them. When an life is wliolly or partially un- difpofed of, it fliall rcfalt to the grantor. The ccjiui que truft may transfer his inle- P''gg°'^ i©4- rclt over to a Itranger ; and it Inch ccjtui que 214. tnijl be tenant in tail in poffefsion, he j , J_ ""' may even fuffer a common recovery^ though ^ ^'""' ^^7- there be no legal tenant to the pr^cvpc, fo he may levy a fine. In certain cafes the ceftui que truft may \Fearne,\%i. call in the legal eftate; and, by a bill in^^"^" '^'• equity, oblige the truflees to convey. In fome cafes it is proper to keep the legal eftate outflanding, in order to guard againil mefne incumbrances, Kc. This is iifual with refpedl to terms of years, whicli - fliould, generally, be kept on foot for the fecurity of the purchafer, and, in fucli cafes, carefully afsigned to a perfon of his own nomination in truft to attend the freehold or inheritance. If 80 OF USES AND TRUSTS. Watk.onDejc, If a truft and legal eftatc unite in the 2 Ves.Jun. fame perfon, the former, generally fpeak- '"o ^j'l^^^in^j becomes merged or extin2:ui(licd. In conveyances creating trufts there ihould be claufes enabling the truftees to deduct expcnccs; and fometimes an ex- prefs allowance ihould be given them far their time and trouble; that thev fl-jall not be anfwerable for monies not actually re- ceived by them, or for what fliall be lotl without their fault. It is frequently ne- ceffary alfo to give them power, cither with or without confent, to fell or ex- change the lands, or transfer (lock, he. CHAP, [ SI ] CHAP. XXI. OF POWERS. J\ POWER IS an authority exprefsly re-SutL n. (i.) r, • to Co. Lift. ferved to the grantor, or exprelsly given ^^^z.h. 8t aJJ. to anotlier, to be exercifed over lands, &c. ^gj/^'^o/zw. granted or conveyed at the time of the ^5 ^^,V"f °^ creation of fuch power. Coll. Jurid. 421. Po-well on Powers are either collateral or relating ^0 ^FJarw? 334, the land', and thofe relatinsr to the land are ^*^- '«"«'*• ^ Sand.Vfa. cither appendant (or annexed to the eftate) 288, 303, r 531 — S5S* or in grojs, ^^ '^' Collateral powers are thofe which are given to ftrangers ; that is, to perfons who have neither a prefent Jior future eftate or in- tereft in the la?ids, G Powers 82 OF POWERS, Powers relating to the land are thofe re- ferved or given to pefons who have either a prefent or future eftate ar inter eft in the lands, Thofe appendant^ or annexed to the eftate, are where a perfon has an eftate in the land, and the eilate to be created by the power is to take effect in pofTefsion during the continuance of the eftate to which the power is arinexed ; as to make leafes. Thofe in grofs are where the perfon to whom they are giren has an eftate in the land, but the eftate to be created under, or by virtue of, the power, is not to take eftecl; till after the determijiation of the eftate to which it relates ; as to jointure an after- taken wife. Great care ftiould be taken in the crea- tion of powers, as the appointer can only a<5t according to the authority given. If power be given to liujhand and wife, the furvivor cannot appoint ; and, therefore, if it be intended that the furvivor fhould ap- point, fuch power ihoiild be exprefsly given " to the furvivor of thon.'* If a power be given OF POWERS. *5 given to A.B.to appoint by deed, he cannot ^owp.^ 260.^^ appoint b]/ ivlll ; and, therefore, if- it be ington v, meaned that he Jliould appoint by will, it fhould be fo faid. If the power be fimply to defignate a perfon, or the like, it fhould not be clog- ged with many ceremonies; but, if col- lufion or influence is feared, it would be proper to throw certain ceremonies in the way; as to require three or four witnefTes, " not being menial fervants^'' or the like. Again ; it fhould be confidered whether the eftates to be taken under the power, when executed, are to be eftates in pof- fefsion, or mere trufts: if the former, the eftates fhould be conveyed by the deed creating fuch power to the truftees and their heirs, to fuch ufes crs A. B. fJiall ap- point':, and then, on the appointment, the ftatute will execute the ufe; if the latter, the legal eftate fliould be placed in the truftees ; as to A, and his heirs, to the ufe of B. and C, (the truftees) and^ their heirs, to and upon fuch trufts, and for fuch eftate or eftates, ends, intents, and purpofes, as D. G 2 fhall 84 OF POWERS. , iliall appoint, as the ufe would then be executed in tJie tniftees, and the eilates taken under the appointment would be truft e I tales only. zFes. 640. By a power to appoint to children, the Alexander.^ appointcr Cannot give an eftate to grand- cliildrcn. If the grand-children are to take therefore, it fliould be provided for: That, in cafe any or all of the faid children die before the power be executed, leaving ScciVes. lawful ifllie, then to appoint among the Routiedgei/. children then living, and the iirue of fuch children who fliall then be dead, in fuch Ihares, &c. So if the appoinler die before execution, the power, as to difcretion, Ihall ceafe ; and, therefore, in fome inllances, it may be prudent to provide for that event: as, in cafe the faid A. B. fliall happen to die in the life-time of C. D, or before there be iifue of E» F. &c. without making any appointment, or only a partial or defec- tive appointment, then the like power as given to the faid A. B. ihall be veiled in (/'. II. ^c. Though when an execution is pre- OF POWERS. 85 prevented by death, which is an a(5l of God, a court of equity will aid, if it be not merely dependent upon perfonal dif- cretion. So it is often proper to make the power more general than is fometimes done: as to fuch ufcs, and for fuch eftates, &c. as A. B. fliall //-o?//. time to time appoint, &c. Powell, 263, as A. B. may then execute his power at different times, and over different parts of the lands. So provifion fliould be made in cafe of no appointment, or of a defective or partial appointment: as, and in default of fuch appointment, then as to fuch part or parts of the faid premifes, or to fuch portion or portions of interell of and in the fame, to which fuch appointment Ihall not extend, to the ufe, &:c. So if it be intended that A. B. ihould revoke his appointment, and re-appoint, power fhould be exprefsly given him, from time to time, either tvholl?/ or partially, to re^ VokefucJt appointment, and limit new nfes, G 3 In 8ff OF POWERS. In the execution of a power it is moflly proper to recite it, and always to ma/ie it apparent on the face of the inftrimient that it is the appointer'^s intention to execute and act under the power-, and, therefore, re- ference fliould be made to the premifes by defcription, &c. And it is befi: to fay ex- prefsly, that iinder and hy virtue of fuck power, fo given, SCc, and in execution of it, the f aid A. B. doth appoint, SCc. Too great care cannot pofsibly be taken in the execution, to comply with and fol- low the requifite ceremonies: as, if it be given to C. D. to appoint, with the ap- probation of her hulband, teftified by his being party to and executing the deed in the prefence of three witneffcs, &c. the approbation of the hujhand, his beiiig a parti/, his executing the deed in the prefence of three tvitneffes, 8cc. muft be fcrupuloufly com^ plied with, and may be even Itated. And as the exc(fi only, in the execu- tion of an appointment, will be bad, and a deficient execution cannot be extended, it is prudent io be very full in the execution, as OF POWERS. 87 as the furplufage fhall not vitiate what would otherwife be good. If power of revocation and re- appoint- 2 ^«rr. 1148. , . , , . Preced.Chanc. ment be given, and the appointer execute, 47^. he fhould referve in fuch appointment a ?«€?£' ^"^f^],'/^''" power of revocation, laith poxver alfo to appoint ^P"- '^^'^^' 7iew ufes; as, without this exprefs reiervation jurid. of future revocation and new appoint- ment, the firfl: may often be abfolute. Powers appendant may be deftroyed by ButL n. (i.) leafe and releafe, bargain and faie, ic- 2'7uh.j[.iv, offment, fine, or recovery; thofe i?i grofs by the three latter fpecies of convey- ance, or they may be releafed. Powers collateral cannot be deltroyed by the a(^l of the perfon to whom they are given. And note, as the appointer is merely an 2 i^es. 78. inftrument, the appointee Ihall be in by ^g' b'n.(i.) the orieinal deed. \ ^"''■«^' 99> ^ &c. 2 Burr. 879. G 4 CHAP. [ S8 ] CHAP. XXIL OF RENTS. 2- Bi. Comm. J\. Rent (ReditusJ is, properly, a fum cilb.tnRentsM moncy, or other thing, to be rendered periodically, in confequence of an exprefs refervation in a grant or demife of lands or tenements, the reverfion of which is in the grantor or perfon demifing. A rent, therefore, neceflarily fiippofes a reception of fuch lands or tenements from another, to whom they primarily belonged, and in whom the ultimate property is (till vefled : hence it follows, that, if lands or tenements were not de- rived from another, as anciently when lands were held in allodio, or if no other jicrfon has fuch ultimate property in him, there can be no rent. It' OF RENTS. 89 If a perfon, confequently grants over his xvliole property in certain premifes to another, the other, (or grantee) paying to fuch perfon and his heirs a certain funi annually for ever, fiich annual fum will not he properly a rent, as the grantor has no ultimate property or reverlion in him. Such annual payment is, indeed, com- monly denominated a rent charge or rent feck ; but it is not ftri(5tly and in reality a rent ; and the law accordingly refpedied it differently, as it gave the grantor no power of diftrefs without a fpeciai ilipu- lation. Again, if a perfon grants an annual fum to be iffuing out of his lands to ano- ther and his heirs for ever, without part- ing with any property in the lands them- felves, it will be no rent^ as it is no re- , turn^ no compejifation, fnice the grantee has no lands in confequence of fuch grant for Avhich to render or return a compen- fat ion. As^ however, the fum ftipulated to be paid is an annual, or, at leaft, a periodical fum, and 90 OF RENTS. and to be iflliing out of lands, it is, by reafon » of its analogy to the proper rent, deno- minated a rent charge, or a r€7it feck, ac- cording as the power of diflrefs was or was not given. Again, as a proper rent is a compenfa- tion or return for the enjoyment of a par- ticular eftate, it follows that when the particular eftate determine the rent muft alfo ceafe. As the returns of the feud were condi- tions, on the breach of which the feud reverted to the lord, fo the non-payment of rent occafioned a forfeiture of the lands out of which it v^^as to\ iffue. The rigour of the feudal law with re- fpe6l to forfeiture, in the cafes of non- payment of rent, was foon, however, abated. It was thought unreafonably fe- vere to infift on an abfolute forfeiture of the premifcs on non-payment of rent at the very day on which it was referved ; and the law of didreries was, therefore, adopted from the civil code. But, as the 5 diftrefs OF RENTS. Ql diftrefs was merely a fubliltute for the feudal forfeiture, it follows that It could only take place where that was allowed. If a perfon had no right of reverter, there- fore, as in the cafes where the lands out of which the annual payment was to ifl'ue had not moved from him, or where he had parted with his ultimate property in the lands which had originally moved from him, there could be no forfeiture to him of the lands or tenements ; and con- fequently he could not be entitled to a diftrefs w4nch was merely fubftituted for the former remedy. If the particular eftate for which the rent was to be ren- dered had expired, there could pofsibly be no forfeiture ; as the eftate which only could have been the fubjedf of forfeiture had ceafed to exifl ; and, confequently, there could be no diflrefs. In the two former cafes, indeed, a power of diftrefs miglit have been cxprefsly created, birt then it was, as the terms import, a private liipulatlon between the partfcular parties, and not a remedy given by the law. The law, however, has been altered in 92 OF RENTS. this refpeci", by flatute 4- Geo. 2. c. 28 ; and in the cafe of the expiration of the term by the ftatute 8 Anne, c, 14. If the leflbr be feized in fee fimple, the proper rent fliould be referved to hhn, *' his heirs and aj'signs ;" if he have only a chattel intereji, to hiiji, " his executors, ad- 8 Co. 71. a. viinijirators, and ajh'gjis.'^ Though the i6i.^" befl way of referring fuch rent is to re- Gi/LRents, f^j-yg [^ gencraUi/, without exprefsing to whom ; as " yielding and paying there- fore, yearly, during the faid term, the fum of, &c." as the law will give it to the perfon who fliall be, from time to time, entitled to the immediate reverfion, which the rent will always follow ; for as the rent is only a compenfation for the lands, it fhall go to him who would have been entitled to the lands in cafe the compenfation failed. Though the fiatutc, 4 Gee. 2. has given the fame power of diflrefs in cafes of rents feck as in thofe of rent charge, it is (till uiual to infcrt a fpccial power of ililtrcfs in the grants of rent; and fuch fpecial OF RENTS. S3 fpecial power is generally accompanied alfo with a claufe of entry on non-pay- ment, with power to enjoy till the arrears be fatisfied. Rents charge or feck may be created Santi, 332. by Jine^, recovery^ bargain and f ale ^ Icafe and releafe, covenant to Jiand feized, or grant ; and may be limited to one in tail with remainders over. They may alfo be releafed to the perfo7iSand. 163. feized of the lands ; or conveyed to a ftranger^o Co.'iVt. by grants and that even to commence in ^9^' ^* futuro^ or under thejiatute of ufes ; as a per- fon may be feized of a rent to an ufe, which ufe will be immediately executed ^'^f- 97- '' 1. Cm. 120, by the ftatute. So a fine or recovery may 248. 2. ibid. be of a rent. If a Rent be limited to A. B. in tail with Pigg. 97. remainder over in fee^ A. by fuffering .1 to Co^'utt. recovery, may bar his iffue and the^^^'^* remainder over, and gain a clear and But not by a fine executed. See i. Cru. 62. ah fu lute 9^ OF RENTS* ahfahite fee in it : But if a rent be granted de novo to A. in tail xvitliout a remainder over, and A. fnffer a recovery, ' he ihall only acquire a bafefee deternninable on failure of his ijfuc. PRIN- PRINCIPLES OF CONVEYANCING, &c. BOOK II, OF CONVEYANCES AS THEY RELATE TO ESTATES. CHAP. I. OF A FEOFFMENT. Xjl Feoffment is a conveyance which 2. Bi. Comm. operates by tranf mutation of poffefsion : it is |-'°*^^ eflential to its completion that the feifiii^ ^"-f- "• (0 to be palled. Hence it can only be adopted b. in cafes where the feifin may be, and is 258.' a6lually to be, conveyed ; as in the trans- fer of eflates of freehold in poffefsion. In See iVatL^' the transfer of chattel intere/h there is no ^:,^^l^- ^° "^ ^ ^ (jiio. Ten. feifm to be conveyed, as the feifin remains in 96 OF A FEOFFMENT- in the freeholder : hence a term of years cannot be conveyed by feoffment. In the transfer of revcrfions or remainders on a freehold, the actual or corporal feifin Is not concerned, as it continues in the par- ticular tenants : Hence they cannot pafs by feoifment, but by grant. So of equit- able inter efts ^ &c. Hence, too, feoffments can only be made by a perlon in the actual feifin to a G/7<^.7^». 72. perfon who is not in the actual feifin : and, therefore, one joint tenant cannot enfeoff his companion, becaule his companio7i has the feifm already ; each joint tenant being feized per mie et per tout. But, as tenants in common and coparceners as to fome purpofcs, have feveral freeholds, they viay enfeoff their companions of their re- fpe6tive lliares. Scei. Burr. But a feoffment by a perfon having no right of property in the lands is good, becaiife tlic moment he enters to give feifm he gains the fcc fimplc in poflbfsioii by wrong. This 92. OP A FEOFFMENT. 9*1 This mode of conveyance is, in many Touc/^ji. 203. inftances, the moll adviiitble, as it clears all diircifins, &c. and turns all other eilates into riohts, fo that a fine, levied bv the ^'^^^- '^''• ^ . Comm. 357. feoflor to the feoffee, or by the feoflce to r Sa/L 3+0, a ftranger, will bar them, if not avoided 2 z,f!x, 52. within the time prefcribed hy the (latute. The giving of livery, indeed, is often attended with inconvenience and ex- pence when the feoffor refides at a dif- tance from the lands : but this may be eafily prevented by executing a power of attorney : and we may remember that cor- porations mult always make attornies, under their common feal, to deliver feifin. A feoffment therefore is incompatible with any conveyance operating by way of ufe. A feoffment and bargain and fale cannot be made by the fame perfon, of the fame lands, at the fame time ; for the feoffment conveys the feifm or pof- fefsion to the feoffee, while it is abfo- lutely effential to the efficacy of a bar- sain and fale that it remain in the bar- gainor. Now the poffefsion cannot be in, n aucj 9B OF A FEOFFMENT. and not In, the feoffor at the fame time. If the feoffment take effect, the poffef- fion vii(fi be out of him by the very a6l of livery ; and if the poffefsion be out of him\ he cannot be feized to the ufc of the bargainee. A bargain-and-fale is a con- tra6l to convey, and not an abfolute con- veyance as a feoffment. A perfon cannot contract to fell what he has actually parted with. If he conveys the poffefsion to another he can have none in himfelf to fupply the life, z^Bl.Ccmm. A claufc of zcammtT/ is ufually added GiikTenAy^, io a feoffment ; but it is preferable to in- II. Liv. fert a covenant by the feoffor, " for him- felf, his heirs, executors, and adminiftra- tors," as the warranty only binds the heirs having ajjels. Yet it may be fome- timcs prudent to infert a claufe of war- ranty in addition to the covenants, as it may pofsibly bind a reverfioner or re- mainder-man when no affets defcend,-^ and be even a bar to a latent entail. CHAP. [99] CHAP, ir. OF A GRANT. A Grant is appropriated to the con- 2 BI. Comm. veyance of things 7iot in pofsefsion^ as re-|-^^^^^ 228 verfions and remainders, and other incor-^"'"''- "• (0 , , , . to Co. Lift. poreal hereditaments, as rents, advow-384. a. -s«w^. fpns, &c. of which no livery can, of '^^^' ^^^* courfe, be given. Hence the law divided eftates into thofe which lay in livpy and thofe i?i grant. As livery of feifin was a matter of noto- riety, it was effeiitial to the transfer of whatever that livery could be made. It was, indeed, of itfelf, fufficient to effec- tuate fuch transfer ; and no farther evi- dence of the conveyance was required than the evidence of fuch livery. But, as livery could not be made of in^ incorporeal hereditaments, interefts, or rights, the law, even before the flatute H 2 of 100 OF A GRANT. of frauds, required the transfer of them to be in writing under feal. In many G27^.7>«.8i.cafes alfo, it ordained that attoimment fhould be made ; as in the conveyance of a reverlion or a feigniory ; and that for the following reafons : Ifl, That the tenant in poffcfsion might not be fubje6ted to a flranger, or a new lord, without his own approbation and confent. 2dly, That he might know to whom he was to render his fervices, and diftin- guifh the lawful diftrefs from the tortious taking of his cattle. 3dly, That by fuch attornment the grantee of the reverfion or feigniory might be put into the poil'efsion of it, and that others might be apprized and informed of the transfer. The reafons, however, for attornment having, in a great meafure, ceafcd from the change of manners, and the decline of OF A GRANT. lOl of feudal principles, attornment is now S/at. 4. ^««^ rendered unnecefTary to the completion io,L'& i^ of a ojrant. Geo,2.c.ig, The operative word in this fpecies of conveyance is " grant.'* H 3 ' CHAI*. [ 102 ] CHAP. IIL OF A GIFT. 2. B'lXomm. Jt\. Gift is, propcrly, a voluntary convey^ Touchfi.zzj. ance; that is, a conveyance 7iot founded on the confideration of money or blood* The operative word in it is " gwe7i,^* It is, at this day, a fufpicious f^ecies of conveyance, as being without what the Seci^.Fin. law denominates either a good or valu- 22 //,„.'^^,"/ able confideration. It is void as to Voluntary thofe who wcrc Creditors of the donor Convey. at the time of it's being made, though valid as to fubfequent creditors. If it be of an ellate in poil'efslon, it re- quires livery to perfec5l it : For, as it has no confideration either of blood or mo- ney, no ufe arifes on it ; and, confe- -qucntly, livery is Hill necciiary. ♦. 3 Originally OF A GIFT. 10$ Originally feoffments were confidered 2- -2/. Cww;». as gifts. The term Gift now, how- ever, is generally appropriated to the creation of an ejiate tail: hence the per- fon creating an eftate tail is denominated the donor, and the perfon taking it the donee : hence the iflue of a tenant in tail is faid to take per formam doni, and the^.iV^. j?.2ii, 212 writ given him to recover his eftate is called the formedoru H 4 CHAP. [ ioi ] CMAP. IV. OF A LEASE. 2. Bl Comm.-tj^ Leafe is the grant of the poffefslon of V-'^'-n lands, or other things, to a perfon for Ch. 14. life^ years, or at will. Bacon on Lefifes,ScAnte ' ^* ^'^' On a leafe for life, as it goes to the feifin as well as to the poffefsion, livery muft be made, as on a feoffment ; unlefs it be created by nay of ufe, or devife. A leafe for life, therefore, is a freehold inte- reft, and muft be pafied by livery, Sec. as any other eltate of freehold. But a leafe iox years, pafsing only the right of jmfscfsion as contradiftinguiflied from the feifin, is completed by the entry of the lefsec ; I'or even before the entry, an i7ite- reft paffcs to him (called his interefse ter- mini) which the Icifor cannot rcfcind. A///, s. 459. 2j\y;j;.j, entry, liowever, the Icftce cannot bring OF A LEASE. 105 bring an action of trefpafs ; nor is he, till entry, if he takes at common law, and not by way of ufe, capable of receiving a re leaf e of the reverfw7i. A leafe for a chattel intcreft is ftill good by parol, fo it exceed not three years from the making ; but, if it be tor a longer term, or for an eftate of •freehold, it mult be by deed or note in writings lign^d according to the ftatnte oi^9Car.z, Srauds. A leafe is ufually and properly in con- sideration of a yearly reiit ; and the belt way of referving fuch rent is to referve it generally, as " yielding and paying, there- ^^^^^'^''^•^ • fore, yearly, during the faid term, the rents), fum, &c." as the rent fhall follow the rev^rlion. A leafe may be a/signed i that is, ihQi.BLComm. * ^26 7. Xi'hole mlercft of the lefeee may be conveyed i)o„p. "187. to another ; or the leiiee may underlet, that i^'J^l^\^] is, convey for a lefs term than he himfelf^'^"'^^^^^- 1 . , , . .... 1- Str. 405, has m the lands. II, theretore, it is in- Pouhncy v. tended, that he (hall not do fo, an exprefs2)^.'$l- s^^j^ provirion'^'^''-f-'-^- 10^ OF A LEASE* 2.5/rfl.i22i. provlfion or covenant fliould be inferted to Naih" ^ reftrain him. But this covenant does not * 3 Bro.cc. come within what the hiw denominates 632.Hender- , ^ , ^ foni/.Hay. the iijuul covejia7its*. Again, a leflbr is not obliged to renew the leafe (unlefs by cuflom) ; and, there- fore, if it be intended that the lefTor ihall be compelled to do fo, a covenant 2. Bro. c.c. for that purpofe ihould be alfo inferted, Tritton'x/. But if the leffor covenant to renew under ^^** cy " the like covenants J' it will not extend 295- to a further covenant for raicxvaL Baynham f. Guy's Hofp. Co.i///.53.a. -^ lefiee for years is compellable to re- pair, &c. and, therefore, if it be not in- tended that he fhould do fo, a covenant from the leflbr Ihould be inferted. The operative words in a leafe are " dcjfiife, leafe, and to farm lett.'* z.Bl.Comm. See Aiite, book 1. ch. 2. of terms for ^I'ouchji. 280, years. And as to leafcs by hufband and ^Bac 9nLcafcs,^^^^ °^ ^^^ wifc's lauds, ccclefiaflical per- ^- funs, corporations, guardians, &c. the books cited in the margin. CHAP. [ 1^7 ] CHAP. V, OF AN EXCHANGE. -/xN Exchange is a ?nulual grant of ^ -B^- Comm. equal intereftSy the one in confideratlon ofTeiuhfi.C.iS. the other. No livery was neceilary on an exchange at common law; but entry p^^^'^^'5°3^ by each party was abfolutcly neceilary to effccluate it. If both parties die before entry, the exchange is void ; and if one die, his heir may avoid it. Hence the heft mode of exchansfe fexcept as to corporate ^*^''-) n. (i.) > , , to Co. L:tt. bodies, or others who cannot Hand 271. b. s. 3. feized to an ufe,) is hy a conveyance founded on the ftatute of ufes, as hy leafe and releafe ; which does away the necef- fity of entry. An 108 OF AN EXCHANGIi!. 3. Wilf. 483. An e^vchange can only be between to Co.' Lit t. ^^^'0 parties, though the number of perfons 5®* ^' is immaterial. The word ^* cichajige^* is the only operative word, and therefore indifpeniible, and it impUes a mutual ivarrantif. CHAP. [ 109 ] CHAP. VI. OF A RELEASE. A right or inteielt in lands or tenements to ^^/^'. 7-^^, RELEASE is the relinquiflinient of :izBl.Comm, 53- another who iias an eftate i?i pofjefswn in ^^'"'^¥- •^ "^ c. 19. p. 320. the fame lands or tenements. Litt. ch. 8. f. 444, &c. There are five fpecies of releafe: Ifl, hi/ way of enlargement', as if he in remain- der in fee releafe to the particular tenant in poffefsion. 2dly, By way of pafmg an • eftate; as when one coparcener or joint- tenant releafes to the other. 3dly, B?/ xcay of pafsijig a right ; as \\hcn a diflciffee releafes to the dilleiffor. 4thly, By way of extinguifJmicnt \ as if my tenant for life makes a greater eftate than he is warranted in granting, and I releafe to liis grantee ; or if the lord releafe to his tenant his fcigni- 110 OF A RELEASE. feigniorlal rights. And 5thly, By way of entry and feoffment ; as when a diflelffee re- leafes to one of two diiTeifTors. But, in order to give operation to a re^ leafe, it is neceiTary that the releafee have the feifm, or at lealt poiTefsion, of the premifes, either by livery, by the flatute of ufes, or by a6lual entry ; and, therefore, if any coftvey by leafe and releafe, who cannot ftand feized to an ufe, as a cor-* poration, the leafe on which the releafe is to be grounded muft not be in the com-, mon way of bargain and fale, but by way of demife and leafe at common law, tviih actual entry by the leffec. Care mull: alfo be taken that the pre- mifes in the leafe, or bargain and fale, be at Icaft commenfurate with thofe in the I releafe, as the releafe is only of the right to, or cilate in, the premifes of which the releafee is in actual poffcfsion ; and, con* fequently, no more can pafs. A releafe is tlic proper mode of cx- linguliliing or conveying a right to, or an equity, OF A RELEASE. Ill equity, or contingency, or pofsibillty, in the lands of the releafee. The operative words ui a rcleafe are, *' remife, releafe, and /or ever quif claim and dij charge'' CHAP. [ U2] CHAP. VIL OF A CONFIRMATION. Bl. Comm. 325. A CONFIRMATION differs efTentlally ^J^,^^/'i'/,^/ from a releafe, as it only validates and Litt.ch.g. eftabliflies that eflate or intereft which f. 5iS,&c. the tenant alreadi/ has ; whereas a releafe is the relinquifliment of a right whicli the tenant had not before. So far as the par- ticular eflate is i?icrec/fed, it is not a con- firmation ; it is not ih^Jirengthening ef the tenant'' s cjiatc^ but the giving him a greater one. The operative words arc, " ratified and confirmed ;'* though, from fafety, it is ufual and prudent to infert the words, " given and granted,^^ alfo. CHAP. [ 113 ] CHAP. VIII. OF A SURRENDER. I\ SURRENDER is the yielding up, or 2 B/.Comm. returning, or relinquiihing, of a f^nallcrj^^^lj^n^^^^ ejlatc, to him who has a greater efiate in ^7- p- soo- the fame lands, in remainder or rever- fion immediately expectant upon fuel i [mailer eft ate : for if there be an eftate to A. for life, remainder to B. for life, remainder to C in fee, A. cannot furrender to C by reafon of BJ's mediate or intervening eftate. 1^ A. pafs his eftate to C it will not be a furrender, any more than if made to a jftranger who had nothing in the lands. As a furrender is, generally, for the ad- vantage of tlie furrcnderee, the law will often prefumc his alfent to it; for the par- ■ ticular tenant cannot enforce it upon him nolens volens^ and fo get rid of his obliga- I tions ; IJi OF A SURRENDER. tions : but it is always prudent to make the furrenderee a party, and exprefs his confent, that it may be apparent on the very face of the deed, A furrender might have been by parol ; but now, by the ftatute of frauds, it muft be by deed or note in writing. Sand- Vjh, The Operative words in a furrender are, '* furrmdcrcd and yielded up ;" though they are ufually preceded by the word ♦* granted'* CHAR [ 115 ] CHAP. IX. OF AN ASSIGNMENT. -lXN Afsignment Is, properly, the trains- ^ £L Comm. fer of one's whole interefl in a?i?/ ellate ; but it is now generally appropriated to the transfer of chattels, either real or perfonal, or of equitable interefts. An afsignment of a term differs from an Ante. b. 2. undej'-leafe, in that the for?ner is the part-^'''" ing with the zvhole, and the latter with a portion only, of one'^s iniei^eft or eftate. The operative words are, " afsigned, transferred, and fet over ;" thoiigli ufually the word " granted" is inferted ; and, in the afsignment of chattels, the words " bar- gained ajidfold'* alfo. I 2 CHAP. [ ^^^ ] CHAP. X. OF A DEFEASANCE. 2 BL Comnu -^ DEFEASANCE is a collateral deed, V^ouchfl ch ^'^'^^^ ^^ the fame time with a feoffment 22. p. 396. Qj. other conveyance, containing certain conditions, upon the performance of which the eflate then created may be defeated or totally undone. A defeafance is now, however, feldom reforted to, as it is much preferable to make the conditions apparent in the deed,: fo that the deed lliall be complete in itfelf. CHAP. [ nv ] CHAP. XL OF A COVENANT TO STAND SEIZED. COVENANT to fland feizcd to the ^ BI. Comm, A life of another mufl: be by deed ; for a cove- Touch/. 5ii> nant cannot be by pajvl. It mufi: be by a ^^^^) ^^^ perfon feized of lands or tenements; and, SS^- ^ -^ ' ' See alfo Cow. confequently, cannot embrace an equity, Dig. Cov. or right, or contingency, &c. though it may be of a reverfion, or vefted remainder ; for the reverfioner or remainder-man is in the feifin. It cannot be by a corporation ; for a corporation cannot be feized to an "ufe ; or by a tenant in tail, except as to his own life. It muil be in confideration of marriage or blood ; for a covenant to ftand feized to the ufe of a ftranger v^ould be ' void. It mufl not be in confideration of money ; for that would be a bargain and fale. • But it is not neceffary that the con- I 3 fideratioa 118 OF A COVENANT TO STAND SEIZED. lideratioii of blood be expreffed ; the nam- ing the covenantee or ceftui qui ufe as the zvife,f(m, Sec. of the covenantor, is enough. A perfon may covenant to ftand feized to an ufe infuiuro, as from Chrilimas next; or, if he be feized in fee-fmiple, that his heirs fhall ftand feized after his deceafe. The proper word is " covenant ;" but other words may be tantamount ; as, if a perfon " bargain and Jell' ' in confidera- tion of blood or marriage^ it will be good as a covenant to ftand feized. As foon as the ufe is raifed, it is executed by the ftatute without any enrolhnent, though the ufe be in fee. CHAP. 1 11^ ] CHAP. xir. OF A BARGAIN AND SALE. A. BARGAIN and Sale differs from the 2 ^/. C*/«n. covenant to ftand felzed, as it mud be in y-^^'^^.c. lo. confideration of money ^ though that con-P'^Y'/jf iideration be only nominal. If the ufe to 404' be raifed by it be for a freehold intereft, it mull be enrolled. In this, as in the laft fpecies of conveyance, there muft be a perfon to ftand fcized ; and, therefore, in the cafe of a corporation, fome other mode fliould be adopted. There muft be an cftate in him of which he has the feifin^ as an ejlate of freehold in poffefsion, reverfion^ or 7^emai7ider ; not a ?}iere light, contingency, or pofsibility ; and there muft be a perfon cc- pahle of taking the ufe. The operative words are, " bargained a7id fold.'* I 4 CHAP. [ ^-^ ] CHAP. xiir. OF A LEASE AND RELEASE. W zBl.Comm. VV E have already remarked, that a re- lanii. u/es. leafc caii only be made to a perfon in the 'biu'i n (i) po^efslon or feifin of the lands ; and, Co.Litt, therefore, if a conveyance of the freehold is intended to be made to a flranger, with- out the formalities of livery, an eftate for a year, or other definite time, may be made to him in order to give him fucli polTefsion or feifin, and fo make him ca- pable of receiving a releafe. This may be done by a conveyance at common law, or under the ftatute of ufes. If an eftate for a year be granted at common law, the Icflbe Should make an actual OF- A Lease and release. 121 actual entry 171 to the hmds before the rcleafe be made to him; and this fliould always be done when a corporation is the grantor, as a corporation cannot be feized to an life. If, however, the grantor can iland feized to an ufe, he may, to avoid the trouble of an aclual entry by the grantee, make a bargain and falc, in confideration of money (though for a nominal fum only, as for DS. which is never intended to be paid), to the purchafer for a year : an ufe then arifes which the (tatute immediately executes without enrollment; and, when the purchafer is thus in pofi'efsion or fciiin (for a bargain and fale may be made as Bud. n. (3) well of a reverfion or vefted remainder as 270. a. of an eltate of freehold in poliefsion), a releafe may be made to him. The proper words in the inftrument on which the releafe is to be grounded are, if the inftrument is intended to operate ^7^ a leafc with entiy, " demifed, leafed^ audio farm letteii ;" if otherwifc, " bargamcd and foldr In 122 OF A LEASE AND RELEASE. In the former Cafe, a rent {hould be re- ferved, though it be a nominal one only; as a pepper-corn, if demanded. In the latter cafe, the refervation is not material, «s the confideration of 5s. is fufficient to raife the ufe. CHAP* [ 123 ] CHAP. XIV. OF A DEVISE. i^UCH are the ])rm€lpal inflrumenls of^Bl.Comm. conveyance wliicli are amicable and not Poxveii on forenlic, and to take effecl in the maker's j-^^^'^^^*c. 23, life-time; what we are now to fpeak of isP-399-^c. a vokuitary conveyance, but not to take effect till the maker's death. Till that time it may be altered or revoked, either exprefsly or by implication. It is, as the law terms it, ambulatory till the tcftator's deceafe. Though it does not receive its confummation till the death of the teftator, yet it fhall relate, as to fome purpofes, to the time of its being made. It cannot embrace any freehold pro- perty which was not in the teflator at the time of its publication. If the tedator, there- 124? OP A DEVISE. therefore, afterwards purcbafe lands, or do any a6l which might be conftrued into a revocation of fuch will, care Ihould be taken to have it repubhflied. The fame ftri^lnefs of exprefsion is not of necefsity in wills as in deeds, with re- fpe6t to limitations, &c. but, in the mak- ing of wills, too much care cannot be taken in purfuing thofe defcriptions which th.e law has given, and in ufmg technical terms in a technical fenfe. Statute of A devife of freehold lands need not be Frauds, 29 ^^^^^y. r,^^ ^g ^ ^lecd, but muft be in writ- Car. li. ^'3* *' ing, and figncd by the party devifing, or fome other perfon in his prefence and by his exprefs directions, and attefled and fubfcribed, in the prefence of the devifor, by three or four credible witnefTes. CHAP. [ 125' ] CHAP. XV. OF A FINE. J\ FINE is the compromife of a ficlitloiis 2 ^^- G""""- ■^4.8. fuit, and operates either hy pafsing an in- Touchji. c. 2. terefl, or by way of eftoppcl. g.-J^^ ,„ Fines. Hargr. n. I. In order to pafs an intereft, the cognizor (^ ) to Co. or cognizee mull have an eftate of freehold in the premifes, either in poflefsion, re- mainder, or reverfion, or be ceftiii que triift in tail or in fee ; for, othervvife, a perfon not bound by elloppel might vacate the fine by pleading p«?'ife^^«c^ nihil habueriint. But vi^hether the freehold be in the cog- nizor or cognizee, either by right or by wrong, is of no confequence ; and hence, when a fine is to be levied in order to flrengthen a title, a feoffment may often be neceffary, as the cognizor or cognizee 4 would 126 OF A FINE. would then, at leaft, have the freehold in him by dijjeifm. If there be no interefl in the perfon levying the fine, none can of confequence pafs. The fine, in that cafe, if it operate at all, can only operate by conchijion or eftoppel. All parties to a fine, whether any interefl pafs or not, are concluded, as every one fhall be concluded by his own deliberate a6l. Hoh. 333. Privies (who are alfo eftopped) are either privies in eftate^ as the donor and donee ; in blood, as the heir and anceftor ; or in Imc, as the lord and tenant, &:c. Strangers to a fine are all perfons who are neither parties nor privies. In order to bar an efiate tail by fine, the privies muft be privies ineftate-, that the iffue be privies in blood only iy not enough. The iffue, to be barred by a fine, mufi: claim the eft ate from the perfon levying it, or derive liis title through him. 5 If OF A FINE. 127 If lands, therefore, be given to A. and the \\€\x?, female of his body, and he have a fon and daughter, and the Jon levy a fine and die, the daughter fhall not be bound ; for though (he be heir to the fon, and fo privy in blood to him, yet fhe is not privy to him in eftnte, as (he does not claim it from or through him. But if lands were given to A. in tail general, and his elded fon, in the life-time of A. levy a fine, the entail will be barred on the death of A* whether the fon furvive him or not ; for the i(rue of A, will be privies both in blood and eftate to A.'s eldeft fon. If a contingeJit reniaifider be limited to iFearne,^^^, A. in tail, and, before the contingency happen, he levy a fine, his ifiiie (liall be barred ; for though A. was never feized of an eilate of freehold in the lands fo en- tailed, yet, as whoever claims fuch lands by virtue of the entail muft claim f7wn him as the firft taker, they muft be privies both in blood and eftate to him, and fo be bound by the ftatute. So 128 OF A FINE. i^Fearne,s2i, §0 if Uiiids bc glvcn Xo A. and JB. and &i lee Buil. . ^ "^ n. (I.) toCo. the heirs of the body, of the furvivor, and Liu. igi.z. ,1 .... . , ., .,, they 70m in levying a nne, the entail will be barred ; as the ifiiie, who, would claim' the entail, mufi: be privy both in blood and: efhite to one or:other of the'm ; and tliey were both bound by the fine. 2Crui/e,i6i. gQ to hufband and wife and the heirs SCo. 72. of their two bodies, and the huiband alone levy a fine ; the iffue would, at leaft before the itatute S^Hai. 8. c. 28. yi 6. liave been barred, as they muft be privy both in blood and eftate to the hulbandasweil as to the.wife. 2Cru.i62, A widow is prohibited by Itatute from levying a fine of lands moving from h^r luifband. A fine is no bar to a remainder or re- vcrfion which is in another perfon, lo he claim within the time prcfcribcd by the ftatutcs; for the remainder-man, or the reverfioncr, claims paramount the cog- nlzor: l)i!t, if the tenant In tail have the rcv(;rlion in himfclf, he may pafs'a clear fee. The operation of a fine, in the lalter cafe, would be this: — The tenant in tail would. OF A FINE. 129 would, by fiich fine, pafs a bafe he to the \ ^^^^' 338- cognizor, derived from the eftate tail, Cudmore. and alfo a clear and abfolute fee of which Eaft.\Q<). he was feized in reveriion; and, as two note. fees cannot fubfift together in the fame perfon, the bafe fee Ihall merge in the abfolute one, which would, confequently, come immediately into poffefsion. But a^ a tenant in tail may charge his Cru. on F!m: reverfion with leafes, debts, &c. care muft ^^J'^„2?fcov. frequently be taken how the reverfion b6 ^^^• brought into poffefsion^ as the charges would immediately attach. It may, therefore, often be prudent to fuffer a re- covery ; v/hich would give a new fee not fubjed: to thofe charges. But, even in the cafe of a recovery, the eftate will be chargeable as to the acts of the recoveree himfelf upon the principle that no man fhall be permitted to defeat his own charges by an a6l of his own. A recovery, there- fore, only lets in the charge of the perfon fuffering it, while a fine will let in the charges oUhe ancef tors feized of the reverfion^ as well as thofe of the cognizor » As 130 OF A FINE. As a recovery immediately bars remain- ders over in another, which a fine will not do, as well as prevent the charges of the an- cellor of the recoveree from attaching, it is generally the moft effedual affurance. A fine, however, is fometimes the preferable one, and often the only one to be adopted. A fine will, in certain cafes, bar hy eftoppel where a recovery will not do fo. A fine may be levied of an entail in re- mainder without the concurrence of the perfon having the freehold ; but a reco- very cannot be fuffered but by the a6t of the perfon having the freehold in pof- fejmn. I Cru. 151. But, in order to bar an eflate tail, whe- &c. ther in poffefsion or remainder, the fine mufi: be with proclamations, according to the ftatute ; for otherwife it will only work a difco7iti7mancc. Hargr.n. I. \ f^jic bars a married woman, it bcins: Litt. 121, a. a matter ot record, as the comj^romife of a fuit; and, in levying it, the woman is cixiimincd apart from the hufband, that any OF A FINE. 131 any compulfion on his part may, as much as pofsible, be avoided. A fine, therefore, is efTential to give validity to her convey- ance of freehold lands (except where a*i'/ow^.5i4. i^\ J • n Earcv.Snow. recovery is reqiured^;, and is molt com- monly levied for the purpofe of barring her claim to dower. As an ufe immediately arifes on a fine, fuch ufe is immediately executed by the llatute, and may be led qr declared as the parties pleafe. K *2 CHAP. [ 132 ] CHAP. XVI. OF A RECOVERY. V. BL Ccm^. J\^ a Vme is the compromife of a ficflitious Touchj}. c. 3. fuit, fo a recovery is a fi6i:itious fuit canied Pjll'uReco-u.on lojudgmmt. ■2 Cruifc, By the common law, the perfon who had the immediate freehold, or freehold . in pofTefsion, was to anfwer the claims of Grangers. Again ft him the writ, ox pracipe^ was brought. Hence, to this day, no re- covery can be fiiffered, unlcfs the recoveree has the freehold in pofsefsion in him ; as the recovery, or fuit, is founded on Xh^ pracipe^ which can only be fued out againft the . tenant of the freehold. A perfon, therefore, who has an eftate tail in remainder^ cannot fuffer "a recovery alone ; OF A RECOVERY. ISS alone; the tenant of the particular eftate of freehold in poOefsion muft concur, a* gainit whom, or againll whofe alienee, the praecipe mull be brought; and the remain- der-man muft come in by voucher. A re- covery may, indeed, be now fufFered of g z q^^ ^.^ truji ejlate^ without the concurrence of the perfon in whom the legal eftate is vefted ; but this is only from necefsity, and to preferve an analogy in the aflurance, or mode of deftroying an eftate tail, The perfon againji whom the writ is brought is called the tenant^ as he was al- ways the immediate tenant of the freeliold. The perfon filing the writ is called the de- mandant, as lie claims or demands the pre- niifes as his right and inheritance, alleging that the tenant had difseized him, or at leaft had come in under the dif seizor, or in the pojl. The tenant then calls on the remainder- man, or the perfon under whom he claims^ to warrant his title, which is denominated vouching the perfon, who is thence called the vouchee. The vouchee either vouches over, or makes default. On default made, judgment is given that the demandant re- K 3 covei: i^* OF A RECOVERY. ^bver againft the tenant, and that the tenant recover againft the vouchee or war- ranter, and fo on, which is called the re- covery in value, or rccompe?ice, and is al- ways fuppofed to go as the lands tvould ■ ^hdve ^dne if they had not been recovered. ^yhen the pr<^cipe is brought immediately againji the tenant in tail, it only bars him of the eftates of which he is tlien actually feized. It is, therefore, ufual for him to convey an eftate of freehold to another per- fony that the precipe may be brought a- gainft fuch perfon (who is called the tenant to the pi'cecipe), a?id that fuch perfon tnay vouch the tenant in tail-, for if the tenant in tail comes in as vouchee, it bars every latent right and intercll: which he may have in the lands. If the precipe be brought immediately " dgainfl the tenant in tail, and he vouches over the comfnon ImiChee, it is called a re- 'covcry v/\\\\ fingle voucher', if again ft /Ac tenant of the frechol'd, and he vouch over (he tenant in tail, and the tenant in tail vouch over OF A RECOVERY. 135 over the common vouchee, it is called a re- covery with double vouchej- ; and fo on, ac- cording to the number of perfons vouched. And it is always proper to fuffcr a reco- very with at leaft a double voucher, if an entail is to be barred, for the reafons be- fore alleged. A recovery bars not only an eftate tail. Ante. b. 2. but all remainders or reverfions expe6lant^* '^' upon it if they are not in the crown. The recoverer always gains a clear and abfolute fee on his recovery of the pre- mifes, not fubje6l to any charges but to thofe of the recoveree. Hence it is pre- ferable, in fome cafes, to a fine, though a fine might bar the eftates, as a fine lets in the incumbrances of the anceftors as well as thofe of the cognizors. In fome inftances, however, a fine is preferable to a recovery, as the former is an cftoppel by Pig. Reco-j. the flatute, where a recovery would not ^^ci-l^T^u' eftopp, K 4 A re- 136 OF A RECOVERY. A recovery may be fuffered by a tenant in fee-fimple, in order to ftrengthen the title. So as it is a fuit, in the progrefs of pioivd. 514. which a feme covert is fecretly examined, ' ^* ' it will bar her of her claim to dower. PRIN- PRINCIPLES OP CONVEYANCINa &c. BOOK IIL Of CONVEYANCES WITH RESPECT TO PARTIES. CHAP. I. OF AN INFANT. x\N Infant may take by purchafe, as he co.LUt.z.h. may do any thing which is manifeftly for his advantage ; and, if a feoffment be made, livery may be given to him in per- fon, or even to another whom he fhall i Roll. Abr. 720. appoint as his attorney; though the 2i^- Enfant. (J).) pointment of an attorney by an infant is^ee^\g„^^, not valid in itfelf at Jaw. 1794- &c. 4 But 138 OF AN INFANT. Co. Lift. 2. b. But he may wave fuch conveyance when he comes of age ; or, if he do not then ac- tually agree to it, his heirs may wave it after him. Touchji. 2^2. All conveyances, however, bij an infant, Cru. Fines, arc voidablc by him or liis licirs, except a }:nt'. Reco'u. ^"^ ^•* i*ecovery, which are only voidable ^44- during; his minority. All thefe convev- ^Burr. 1794. ^ "^ , ^ "^^ Zouch t;. ances are, neverthelcfs, if they tend to his benefit, good till ai5iually avoided ; but as to fines, the affidavit of acknowledgement by dediyjius potcftateni runs now, by rule of court, that " the parties were of full age;" and, before that rule was ordained, the commifsioners were fubje6l to an at- tachment if they took the acknowledge- ment of an infant. An ad: of an infant, Zouch«z-'. w^hich ca7mt}t h^io his advantage, is void /.p. ipfo facto. ■ - rt Cru. Recci; 'It vvas' florhierly the pra6tice to petition *"^ the King for a privy-feal to enable an in- fant to fuficr a recovery; but this is now difufed, and rccourfe is had at this day to an act of parliament. An OF AN INFANT. 139 An infant truftee or mortgagee may be ordered to convey even by fine, if not by recovery (See 3 Atk. 16.), by a court of equity, under the ftatute of the 7th Ann. \Watk.Copyb. cap. 19. and that a6t extends to the con- veyance of copyholds. So an infant may, in fome cafes, exercife Po--wenon , , . . Po-Lvers, 4"?— a power, as where he is a mere injtrument\ 54. & 1 yet. but it fhould feem not otherwife. ^^^' And an infant may be bound by a fair ^ ^''^- C.c. Williams 1 Com. Dig. grant or take but by matter or record %■ i.'^c^a. 98. ^s by deed enrolled. He may take hy fine., 2. Cru. 144. thoueh he cannot be a coojnizor ; no^ Pigg. 74. ^ can he be a party to a recovery, for the King cannot be fued. Sand.UfesM. Nor can the King be feized to an ufe* Com. Dig^ But the King may afsign certain things, Affignment. as a chofe en actio?iy &c. which the fub- ^^^- jecl cannot. ' 2. Cm. 255. A recovery by the fubje(5t cannot af- Efiatcs.'fB. fc6l the iiiue in tail or any remainder, 3'-) when the ultimate remainder or reverfion is in the crown. CHAP. I 1*5 ] CHAP. V. OF THE QUEEN. A HE Queen may alien and purchafe i Bl. Com. without the concurrence of the King. ^^^^. 232. She may levy a fine, as any other fub-^- ^'^^/^jg je<5l: but it is faid, that Ihe cannot be feized to an ufe. CHAP. [ 146 ] CHAP. VL OF CORPORATIONS. \Jt their capacity to take. See 1 Bl. Comm. Chap. 18. 478-9. t)a'vys*'s Rep: Grants by Corporations miift be by deed under their common feal ; and fuch iieQ(}i, fo fealed, is good without delivery. I. Salk. 193. But they may bind themfelvcs by a mcttter of record without their fea!. Cokeys Read. Corporations nggregate cannot levy a en Fines, jiyig^ ^g \\^^y (^^n oiily appear by attorney ; I. Crw, 118, and a fine muft be levied in pcrfon. Though it is faid that a corporation /^/e may be a cognizor, for he may appear perfon- ally : but corporations of either kind may i78. be cognhees. But OF CORPORATIONS. 1 '1-7 But a corporation cannot be feized to an^^^^^'^-^''^^- lue ; and, tbereiorr', it cannot covenant to b. i.ch. 20. fiand feized, or niclke a bari^ain and fale. And, therefore, if a leafe and rcleafe be made by a corporation, the inftruinent, on which the releafe is to be grounded, mufl : not have the words — " doth ^r/r- gain 'ithd'fell,''* but thofe of " grant and dcniiJeX^ as it muft dperate 'ds 2L ieftfe, i\r'iH\y, and 7wt as a bargain and ^fale : and pn fuch leafe the lefiee miiJL actually ento' into the lands ; for, before ./entryj, he can have no poffefsioiv^on vv-hi©h^the«re- leafe can operate. Ecclefiaftical corporations are jeftrained 2 Bi. Camm. 7fes from aUening, except for certain terms, ^.^^'^''i^^y^^. by 'ftattite. E. F. G. H. THE END. London : Printed hy G, Woodfalh No. 22, Paternofier-RoiM^ Lately puhlijiiedy by the fame Author ; I. An Essay towards the further Elucidation of the Law of Descents. II. An Enquiry into the Title anq Powers OF HIS Majesty as Guardian of the Duchy of Cornwall during the late Mi' nority of its Duke. III. Reflections on Government in Gene- ral, with their Application to the British Constitution. IV. The Law of Tenures} by the late Lord Chief-Baron Gilbert j with an Histo- rical Introduction on the Feudal System, and copious Notes and Illustra- tions. V. A Treatise on Copyholds ; in two Vo- lumes : Vol. I. containing the Do£lrine of Ma- nor iy Grants^ Surrendersy Entails^ Remainders^ Executory Interefts and Trufts^ JdmiJfionSy FineSy Forfe'ttureSy Bxtinguijhment and Sufpenjioriy and Enfranchifement.—^Yo\. 11. Courts y CuftomSy Free- bench and Curtefeyy Guctrdianjhipy LicencCy He- riotSy Suity RentSy Corporal Services, and the Ap"» plication of the Statute Law to Copyhold Property, VI. An ENqyii^v into the Question, whether the Brother of the paternal Grandmother Jhall Juc~, ceed to the Inheritance of the Son, in preference to the Brother of the paternal Great-Grandmother ? The Affirmative having heen advanced by Mr. Justice Manwoode, acceded to by Mr. Jus^ tice Harper, Mr. Justice Mounson, and the Lord Dyer ; and adopted hy Lord Bacon LordHale, and the LordChief Baron, Gi l HER r i and the Negative maintained by Mr. Robinson, (the late Chief Justice of Gie- raltar) and Mr. Justice Blackstone. Laldy publijlied, 1. A TREATISE ON THE LAW OF EXECUTORS AND ADMINISTRATORS. BT S. TOLLER, ES^ Price 8j. Boards. 2. THE MODERN PRACTICE OF LEVYING FINES AND SUFFERING RECOVERIES. BT WILLIAM HANDS. Price 4y. 6d. Boards. 3. SUPPLEMENT TO VTNER*S ABRIDGMENT, Volumes I and II. Price 1/. 8x. Boards. 4. ROPER ON THE LAW OF LEGACIES. Price 4J. 6(1. Boards, 3. POWELL'S LAW OF MORTGAGES. NEW EDITION, 2 Vols. iZs. Boards. 6. POWELL'S LAW OF POWERS. Price 10/. ()d. VI Has Da^i is jmblijtiedj, A TREATISE CONSTRUCTION OF THE STATUTES 13 El. c. 5. and 27 El. c. 4. 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