UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY A IGEST OF THE EatDS of Cttglantj RESPECTING EAL PROPERTT. By WILLIAM CRUISE, OF Lincoln's inn, esq. barrister at law. VOLUME THE FIRST, CONTAINING ''itle 1. Estate in fee-simple 2. Estate in tail. 3. Estate for life. 4. Estate tail after possibilitv. ' 5. Curtesy. 6. Dower. Title 7. Jointure. 8. Estate for years. 9. Estate at will, &c. 10. Copyhold. 1 1. Use. AND 12. Trust. LONDON: printed by a. strahan, LAW-PHrNTER TO THE KINC's MOST EXCELLENT MAJESTY; FOR J. 3UTTERW0RTH, FLEET-STREET, J. COOKE, DUBLIN. 1804. THE RIGHT HONORABLE JOHN LORD ELDON, BARON OF ELDON, IN THE COUNrY PALATINE OF DURHAM, LORD HIGH CHANCELLOR OF GREAT BRITAIN, THIS WORK IS, WITH HIS lordship's PERMISSION, RESPECTFULLY DEDICATED. G93l>13 Uvy P R E F A C A LTHOUGH the Law of Real Property ^ ^ forms the mod extenfive and abftruf;: branch of our jurifprudence, yet no attempt has hitherto been made to reduce it to a diftincl and comprehenfive fyflem. A Diged of this part of the Law is therefore here offered to theProfeffion, in which a fyftematic diftribution is framed of the general principles of each title, fupported by abridgements of the cafes> in which thofe principles have been eilabliflied or confirmed. It is but of late years that this mode of treating legal fubjedts has been ad.)pted. Our abddgements and treatifes on particular titles ot the law, formerly contained little more than a colledion of the adjudged cafes that had been determined on cach title ; difpaied without a 3 much vl P^R E F A C E. much method, and without eftablilliing or de- ducing any general principles. There was, however, one eminent exception : the excellent Efiay on Contingent Remainders by the late Mr. Fearne. The perufal of that admirable work, firfl fuggefted to the author the idea of attempting to form a methodical arrangement of the general principles of the Law of Real Property j and upwards of twenty years fince he fubmitted to the Profeflion his Eflay on Fines_, written avowedly on that pbn. The favourable reception with Vvhich the Profeflion honoured that attempt, encouraged him to proceed in difcufling all the other titles belonging to this part of the law in the fame manner. In the profecution of this work he became every day more fenfible that the true mode of treating legal fubjecls, as well as other branches of fcience, is by a fyflematic diftri- bution of abftraft principles illudrated and fup- ported by adjudged cafes. In this idea he was fully confirmed by the authority of the late Sir William PREFACE. William "Jones ^ who has truly faid, ** If law be ** a fcience, and really deferve fo fubiimc a name, ** it mull be founded on principle, and claim an ** exalted rank in the empire of reafon. But if ** it be merely an unconne6led feries of decrees " and ordinances, its ufe may remain though ** its dignity be leflened : and he will become ** the greateft lawyer who has the ftrongeft " habitual or artificial memory*.' vu T'^ '> Although the portion of time which the au- thor has been able to fpare from the avocations of his profellion, has, for feveral years, been employed in the execution of this work, yet lie is confcious that many omifiions, and, he fears, errors, may be dilcovered in it. But fuch mufl: be the cafe in every attempt of this nature. Thofewho are mod converfant in our lav/, will be moft fenfible of the impofTibility of attaining, or even approaching to perfection. Such, in- deed, is the condition of human knowledge, that the fame obfervation is applicable to almoft every branch of fcience. * Law of Bailments. 34 A late vHi PREFACE. A late learned and reverend prelate has juftly remarked, that *' a fyftem arifing from the ** collection and arrangement of a multitude ** of minute particulars, which often elude the ** moft careful fearch, and fometimes efcape ** obfervation, when they are moft obvious, ** muft always ftand in need of improvement*/* ♦ Preface to Dr. Lowth's Grammar. ( ix ) ANALYSIS OF THE DIGEST. Pi w p^ o < Pi 13- 'i. Several Kinds. ' I . Corporeal or Land. Eltates therein : 'i. Quantity of Intcreft. Freehold. Lefs than Freehold. Equitable. On Condition. As a Pledge or Security. 2. Time of Enjoyment. PofTeffion. Remainder. Reverfion. Number and Connexion of the Tenants. 1. Severalty. 2. Joint-tenancy. 3. Coparcenary. 4. In Common. Incorporeal. fi. Advowfon. 2. Tithes. 3. Common. 4. Ways. 5. Offices. 6. Dignities. 7. Franchifes. 8. Rents. L2. 2. Title thereto. C I. Defcent. \ 2. Purchafe. Efcheat. { Prefcription. Alienation. Deed. Matter of Record. Special Cuflom. Devife. Uienat ( xi ) TABLE OF THE TITLES. Tide i. Eftate in Fee-Simple. 2. Eftate in Tail. 3. Eftate for Life. 4. Eftate Tail after Poffibility. 5. Cartefy. 6. Dower. 7. Jointure. 8. Eftate for Years. 9. Eftate at Will, Szc. 10. Copyhold. ii.Ufe. 12. Truft. 13. Eftate upon Condition. 14. Eftate by Statute Mer- chant, Sccw 15. Mortgage. 16. Remainder. 17. Reverfion. 18. Joint-tenancy. 19. Coparcenary. Title 20. Tenancy in Comr.ioa. 21. Advo\vfon. 22. Tithes. 23. Common. 24. Ways. 25. Offices. 26. Dignities. 27. Franchifcs. 28. R.ents. 29. Defcent. 30. Efcheat. 31. Prefcription, 32. Deed. 33. Private Aci. 34. King's Grant. $S- Fine. 36. Recovery. 37. Alienation by Cuft»in. 38. Devife. CONTENTS OF THE FIRST VOLUME. TITLE I. ESTATE IN FEE-SIMPLE. I. Of Real Property - Page X 3. Land - r • - - 2 ^. Manors . - - - 3 15. Money to be laid out in Land - 6 16. Heir Looms - ^ ^ - id. J 8. Of Eftatesin Land - id. 19. Eflatcs of Freehold . - - - 7 32. Tenure by which Freeholds are holden - IX 35. OfSeifin - - - 12 36. Where an Entry is ncceffary - id. 42. Abatement - - - H 45. OfDiffeifin - >i 47. Abeyance of the Freehold - « - i5 49. Eftates of Inheritance - 17 50. Eftate in Fee-fimple - id. 52. An Eftate in Fee-fimple is the entire Properly #• 18 56. Abeyance of the Fee - 19 58. All other Eftates merge In the Fee-fimple » 20 59. Incidents to a Fce-fimple - id. 60. Alienable - ? ? - id, 62. S lubjea CONTENTS. Page § 62. Subject: to Curtefy and Dower - - -21 63. Liable to Debts - - - - id. 6^. Forfeited for Treafon and Felony - - 22 66. And for Difclaimer - - - - id. 67. Of qualified Fees - - - 23 TITLE 11. ESTATE TAIL. CHAP. I. Of the Origin and Nature of EJla:-:: lull. § i. Of conditional Fees - - - 25 8. Of the Statute De Dents - - 29 12. Defcription of an Efiate Tail , - "3* 13. Eftates in Tail General and S^'clal - - d. 14. Eftates in Tail Male and Female - - 3a 17. E Prates in Frank Marriage - - ■ ^3 19. Modes of creating an Eftate Tail - - 'd. 20. What may be intailed - " " 34 26. Who may be Tenants in Tail - - 36 2:7, Tenant in Tail holds of the Donor - - :d, 30. Incidents to au Eftate Tail - "37 31. Power to commit Wafte - - - id. 54. Subjecl to Dower and Curtefy - " 3^ 35. Barrable by Recovery - - - id. 36. Not fubjeA to merger - - - id. 58. Tenant in Tail not bound to pay off Incumbrances 39 ^T. Has a Tight to the Ti-tle Deeds - - 40 CHAP. IL Df the Poiver of Tenant in Tail over his Efiate^ and the Modes of barring it, j t. Can only alien for his own Life - - "4* 4^ The Iflue not bound by his Anceftor's Afls - 4* rx. Unlcfs he confirms them - - -44 13. Alienations § 13- H- «7- iS. 21. as- 24. 26. 27. 29. 3>- 32. 35- 37- 44- ♦7- 48. CONTENTS. Fage Alienations by Tenant in Tail not ipfofaSo void • 45 Sometimes a Difcontinuance - - - id. Sometimes voidable by Entry - - 46 Tenant in Tail cannot create an Eftate to commence after his own Death - - - 47 Exception - - - - 48 The llJue not fubjeft to Incumbrances - » id. Except Debts due to the King • - id. A Tenant in Tail may make l.eafes - - 50 Subjeft to the Bankrupt Laws - - id. And to Forfeiture for Treafon - •51 But not for Felony - - - 52 Modes of barring Eftates Tail - - id. Warranty - - - "55 Common Recovery - " * 54- Fine - - - - - id. Which cannot be reftrained - - 56 Appointment to a charitable Ufe - » ^f How the Intail of Money to be laid out in Land may be barred - - - - id. TITLE m. ESTATE FOR LIFE. ^ I. What conftitutes an Eftate for Life 3. How created -» « 9. Tenants for Life hold of the Grantors to. Are entitled to Eftovers 13. But cannot commit Wafte 14. Different Kinds of Wafte 15. Felling Timber 24. Pulling down Houfes 25. Opening Pits or Mines 26. Changing the Courfe of Hun)andry 29. Deftruflion of Heir Looms 30. Permiflive Wafte ■• ^ 59 60 63 id, 6% ' id; id, 66 id. ' 67 68 id. 35- 0£ 3^-vi CONTENTS. Page § 35. Of the Aftion for Walte - - - 69 45. Court of Equity - - - »f2 49. The Timber belongs to the Perfon entitled to the In- heritance - - - . ^3 57. Of Wafte by Corporations Sole - - _ ^g 59. Of Accidents by Fire - - . «79 61. Of the Claufc without Impeachment of Wafte - 80 62. Does not extend to malicious Wafte - - id. 69. Is annexed to the Privity of Eftate - - 85 72. Of partial Powers to do Wafte - - 86 76. Tenants for Life are entitled to Emblements - 87 82. Tenants for Life may pray in aid - - 89 84. Eftates for Life are fubjeft to merger - - id. 86. Are not intailable - - - - 90 87. Subjeft to Payment of Intereft - r id. 88. But not to Principal - - - id. 89. Of Occupancy - - - id, ^^. Power of Tenant for Life over his Eftate - 93 97. What A£ls amount to a Forfeiture ^ - id. TITLE IV, ESTATE TAIL AFTER POSSIBILITY, &c. § I. How this Eftate arifes - - , . 97 8. It has fome Qualities of an Eftate Tail - "99 9. And others of a bare Eftate for Life - - 101 10. This Tenant is reftrained from malicious Wafte - id. 13. His Privileges cannot be granted over - - 102 TITLE CONTENTS. kvtt TITLE V. CURTESY. CHAP. r. Origin of EJates by the Curtefy, and Circumjiances required to their Exigence. § 1. Origin of Cui-tefy - - 6. Defcription of - - . 8. Circumrtances neceflary 9. Marriage - - - - 10. Seifin - - 19. IfTue - - - - 20. Il muft be born alive - - 21. In the Life-time of the Wife 22. And capable of inheriting the Eftate 26. Death of the Wife - - 27. Who may be Tenants by the Curtefy Page 104 106 107 id. id. Ill id. 112 id. 113 id. CHAP. IL Of what Things a Man may he Tenant hy the Curtefy, 1. Originally confined to the Maritagium of the Wife 2. Afterwards extended to all Eftates in Fee 7. Eftates Tail - - - 15. Eftates in Common, but not in Joint-tenancy 16. Truft Eftates 17. Money to be laid out in Land 20. Equities of Redemption 21. Incorporeal Hereditaments 22. What Things are not liable to Curtefy 23. Eftates not of Inheritance 26. Lands affigned in Dower 27. Copyhold Eftates - , - - 28. Nature of this Eftate - - Vol. L b 32. - "^ - 1 15 - 117 - 120 - id. - id. - 121 - id. - 122 - id. - 123 - id. - id. Punilh- xviii CONTENTS. Page § 32. Punifhable for Wafte _ - - 124 34. Subjedl to the Charges of the Wife - - 125 36. Forfeitable by Alienation - - - id, 37. But not for Adultery - - - id. TITLE VL D W E R. CHAP. I. Of the Origin and different Kinds of Dower. § 2. Origin of Dower. - - 127 II. Dower at Common Law - " 131 12. Dower by Cuftom - - 132 16. Dower ad Oft'ium Ecclefia - - 133 18. Dower ex AJfenfu Patris - - id. 20. Dower de la Plus Belle - - 134 21. Dower a moral Right - .' id. CHAP. ir. of we Requtfites to complete the Title to Denver , and tie Perfons entitled to it. § I. Requifitcs to Dower - - - 136 2. Marriage - - - - id. 4. How the Fa 61 of Marriage mud be tried - " ^37 9. Effedl of Divorces - - - * *39 12. Stifm of the Hufband - - - 140 27. Death of the Hufband - - - 145 28. Who may be endowed - - - id. 29. Who are incapable of having Dower • - id. 30. Aliens - - - « - id. 33. Jewefles -, - - - - I46 34. Women ftolen • - « - id, •" CHAP, CONTENTS. xiat CHAP. III. OJ what Things a Woman is c/owaikf and the Nature of this Ejiale. § I. Eftales in Fec-fimple - - - 4. Eftates Tail - - - 8. Qualified or Bafe Fees 10. Reverfions after Eftates for Years 11. Equities of Redemption of fome Kinds 12. Lands fcqueftered - . - 13. Eftates In Coparcenary, and in Common 14. Copyholds ■ _ . 15. Incorporeal Hereditaments -' 16. Where a Widow fliall have an Eleflion 18. What Things are not h'able to Dower 19. Eftates not of Inheritance 21. Eftates in Joint-tenancy 22. Wrongful Eftates 24. Lands afligned for Dower 2g. A Caftle or Fortrefs 31. Mortgages « - . 32. Ufes and Trufts 33. Where Dower ceafes with the Eftate 34. Nature of this Eftate 36. The Dowrefs entitled to Emblements 37. Reftrained from Alienation 39. And from Wafte - - 40. Not fubjeft to her Hufband's Incumbrances Page 147 148 149 id. id. 150 id. id. id. id. id. 152 id. id. 153 id. id. id. id. id* CHAP. IV. Of the JJfignment of Dcwer^ and the Modes of recovering it. § I. Necefllty of an Afljgnment - - . 1^9 5. Who may aflign Dower - - - i5o 10. How Dower is to be afligned . <; - l6t 23. Remedies againft an improper Afllgnraent - - l6j 28. Eftedl of an \ffignment of Dower - - 166 31. Of Anions for recovL-r.'ng DoWer ■>■ = 1G7 b 3 36. Of zx CONTENTS. Page § ^6. Of Damages in Aftions for Dower - - x6^ 42 . A Widow may now obtain her Dower in Chancery - 171 CHAP. V. By luhat Means Doiver may be barred. § 2. Attainder of the Hufband - - • 17^ 6. Attainder of the Wife - - - - 173 7. Elopement with an Adulterer - - - 174 17. Detinue of Charters - - - - 178 19. Fine or Recovery - - - - - 179 20. Bargain and Sale in London - - - id. 21. Jointure - _ . _ - id. 22. A Devife is no bar of Dower - - - id. 24. If expreffed to be in bar of Dower, the Widow muft make her Election - - - - 180 29. Cafes where the Widow is allowed to take both - 182 32. Modern Cafes, where a Devife has been held a Satif- faftion - - - - 185. 36. A Bequeft of the Refidue of Perfonal Eftate is no bar to Dower - - - - 193 TITLE VII. JOINTURE. CHAP. I. Cf the Origin and Nature of yointures. ^ I. Origin of Jointures - - - - ig6 4. Statute of 27 Hen. 8. c. 10. - - - 197 5. Definition of a Jointure - - - - 198 6. Requlfites to a Jointure -' - - -199 7. It muft take EfFeft from the Death of the Hufband - id. 10. And be for the Life of the Wife - . - 200 15. It muft be limited to the Wife herfelf - - 201 16. This Rule not in force in Equity _ - - 202 18. It CONTENTS. i8. It muft be in Satisfacllon of the whole Dower 20. And be fo exprefTed - - - 25. It muft be made before Marriage 26. From whom a Jointure muft come 27. Jointures which require the Acceptance of the Wife 32. Cafes where the Widow takes the Eftate and Dower 33. Power of a Joinlrefs ovtr her Eftate 37. A "Rent Charge is now ufually limited as a Jointure 38. A Jointure not forfeited by Attainder of the Hufband 39. Nor by Elopement of Ihe Wife 40. Who may take a Jointure 41. An Infant is bound by a Jointure Page 203 id. 205 206 id. 208 209 210 id, id. id. id. xx; CHAP. II. In what Cafa « Jointrefs is entitled to ihe Aid of a Court of Equity. \ I. A Jointrefs is protefted in Equity 6. Although (he elopes from her Hufband 9. Relieved againft a prior voluntary Conveyance - .10. And againft a Term for Years _ _ . II. Effedl of a Covenant that the Lands are of a certain Value - - - - 15. Negledl in a married Woman vvill not bar her 18. Wafte allowed to make up a Deficiency 19. Where Intereft is allowed for Arrears ?o. A Jointrefs is not bound to deliver up Title Deeds 2i8 220 221 id. id, 223 224 id. id. CHAP. III. What will operate as a Bar or SatisfaBion of a Jointure. \ I. The Huftjand cannot defeat a Jointure - - 226 2. Unlefs the Wife joins him in a Fine or Recovery - id- 4. A Devife is no bar to a Jointure - - - 227 10. But is fometimes confidered as a Satisfaftion - - 240 15, Elopement is no bar - - - - 242 b3 TITLE xxii CONTENTS. TITLE VIII. ESTATE FOR YEARS. CHAP. I. Cf the Origin and Nalure of EJlafesfor Tears. Page § I. Of Eftates lefs than Freehold - . - 243 6. Definition of an Eflate for Years - _ - 245 12. A Tenant for Years has no Seifm - - - 246 14. But mull: make an Entry . - _ . 247 17. Eftates for Years may commence /«yw/«ro - - 248 18. And may be afiigned before Entry - - - 249 21. An Entry before the Leafe begins is a DifTeifm - 250 24. A Term for Years is a Chattel - - - 25 r 30. EUattsfof Years muH have a fixed Period - - 253 31. May determine by Provifo - - - - id. 32. A Freehold cannot be derived from an Eftate for Years 254 CHAP. 11, Of the Incidents to an EJlatefor Years. § I, Eflovers . - - - _ 2^j; 2. Emblements - - - - - id. 4. Subjed to Simple Contrad Debts - - - 256 5. The Tenant cannot commit Wafte - - - id. J I. Accidents by Fire - - - - - 257 12. Claufe without Impeachment of Wade - - 238 17. May be limited for Life - . ■ - 259 18. Eut not intailed - - - - id. 21. Terms for Years involved in the fame Limitations with Freeholds - - - - 260 23. Merged by a Union with the Freehold - - 263 24. Exceptions - - - _ - 264 30. And alfo by Surrender - - - . 265 31. Merger of a Term for Years in a Term for Years - 266 32. Equity relieves againft Merger - - - id. 34. Vv'hat ii a Forfeiture - " ? - 267 TiTLE CONTENTS. ^xm TITLE IX. ESTATE AT WILL AND AT SUFFERANCE. CHAP. I. Of an EJlate ai VFill. Page § I. Defciiption of an Eftatc at Will - - - 269 9, It is at the Will of both Parties - ' - 271 10. Not grantable over - - - - id« 12. Tenant at Will entitled to Emblements -. - 272 17. What determines an Eftate at Will - - - 273 23. Half a Year's Notice to quit mull be given - - 275 24. Acceptance of Rent is not a waiver of Notice - - id. 26. Tenancies from Year to Yej^r . - - 276 35. Haifa Year's Notice to quit neceffary - - 279 38. A Diftrefs for Rent is a waiver of Notice - - 282 CHAP. II. Of an Eflatc at Sufferance. § I. Defcription of - - - - - 283 5. Half a Year's Notice to quit neceffary - - 284 6. Perfons holding over to pay Double Value - - id. 12. Perfons giving Notice to quit, and, after holding over, to pay Double Rent .... - 288 13. A Parol Notice 15 within the Sta^uti; - - 289 TITLE X. COPYHOLD. CHAP. L Of the Origin and Nature of Copyhohh. § I. Origin pf Copyholds - . , _ 293 8. Defcrjption of a Copyhold - » - 295 b 4 JO. Of XXIV CONTENTS. Page § lo. Of Free Copyholds - - - - 2g^ 17. Copyholders have a legal Intereft _ - _ 297 21. Circumftanccs neceflary to a Copyhold - - 299 32. A Manor -^ - - - - id. 26. A Court - - - - - 300 ■^3. The Lands muft be Parcel of the Manor - - 302 34. And demifed or demifable - - - - id. 41. What deftroys the Cuftom of granting Copyholds - 304 49. What may be granted by Copy - - - 307 53. What Intereft a Copyholder may hare - - 308 55'. Of Copyhold Cuftoms - - - - id. 61. Of Copyhold Jurifdidions - - - 310 CHAP. II. Of Copyhold Grants. § I. Nature of Copyhold Grants - - - "3^3 3. Neceffity of Admittance - - - - id. 4. All Lords of Manors may make Grants - - 314 1 1 . Provided they have a lawful Eftate - - -316 13. A Steward may make Grants - - - id. 17 To whom Grants of Copyholds may be made - - 31? 18. The Cuftoms of the Manor muft be purfued - - 318 26. Copyhold Grants take place of many other Eftates - 321 CHAP. III. Of the Incidents to Copyholds. § I. Copyholders fubieft to feveral Services [- - 323 4. Entitled lo Eftovers - - - - 324 9. But cannot commit Wafte - ► - - 325 16. Not entitled to Common . - - _ 326 19. Copyholds are defcendible ^ , - 327 31. But are not Aflets _ . - _ - 328 22. Cuftom of Free Bench • - - - id. 28. In what Cafes the Widow may enter - - 330 31. Can only be recovered by Plaint - - -id. 32. Forfeited by Incontinency - - - ' **^» 33. Barred CONTENTS. XXV Page § 33. Barred by a Jointure ... . 331 35. And by the Alienation of the Hufljand - - id. 43. And by Forfeiture - - - - 334. 44. And by Grant of the Freehold to the Hufband - 335 45. Not barred by Attainder - - - - id. 46. Cuftom of Curtefy - - - - - id. 49. Copyholders cannot vote at Eledions - - - 336 ^o. May alien by Cuftom _ _ - - 337 51. What Statutes extend to Copyholds - - id. 54. Where the Statute De Bonis affccls Copyholds - 338 CHAP. IV. Of Fines and Heriots. & I. Fines upon Defcent - - - - 341 3. Fines fometimes due by Tenants by the Curtefy, and in Dower ----- 342 4. Fines for Alienation - - - - id. 7. Fines due upon Bankruptcy _ - - 343 8. Fines due upon Devife - - - - id. 10. Fines only due on Admittance - - - 344- 16. Admittance of the Tenant for Life fufficient - - 346 19. No Fine due unlefs there is an Alteration of the Tenant 347 22. Fines on the Change of the Lord - - - id. 27. How much may be demanded as a Fine - - 35^ 33. No more than Two Years Value can be required - 355 36. Fines muft be affeired feverally - - - 35^ 37. When Fines are payable - - - - id. 38. Remedies for recovering Fines - - - id. 41. Of Heriots - . - - - 357 CHAP. V. Of the Forfeiture of Copyholds. § 2. Attainder of Treafon or Felony _ - - 361 5. Alienation contrary to the Cuftom - - 3^* 8. Making Leafes contrary to the Cuftom - - 363 11. A Covenant that a Perfon fhall enjoy is no Forfeiture 364 , 15. Wafte - - - - - 36^ 18. Dif- xxvi CONTENTS. Page § 1 8. Difclaiming Tenure - - ". . 366 20. Refufal to perform the Services - _ _ 267 25. Non-appearance of the Heir to be admitted - - 368 31. Non-appearance of a Surrenderee - - - 373 32. Non-appearance of a Devifee - - - id, 33. Refufal to pay Fines - - - "374 36. Refufal to pay Rent - _ • _ . ^75 39. Who may forfeit - - - - id. 41. Extent of Forfeiture _ - > _ 3^5 45. Where Prefentment is neceflary - . _ 37^ 46. What difpenfes with a Forfeiture - - - id. 52. Who fhall take Advantage of a Forfeiture - - 379 55, Where Equity relieves - - - - 380 60. Where Relief has been refufed , _ _ 382 CHAP. VI. Of the Extingu'ifcment and Sufpenjion of Copyholds. § 2. Surrender to the Lord - - - . 385 5. Releafe tc the Lord _ - - - 386 6. Conveyance by the Lord - • - - id. 8. Enfranchifement _ - - _ 387 15. When the Lands ceafe to bedemifableby Copy - 389 16. Sufpenfion of Copyholds - - - ^^o TITLE XL USE. CHAP. I. Of the Origin of Ufes. 1. Origin of Ufes _ - - . - 391 5. Of the F'idei Commjfum - - - - 393 II. Jurifdi£lion affumed by the Chancellors over Ufes - 395 13. Invention of the Writ of 5«^/<««fl - - - 39^ CHAP. CONTENTS. CHAP. II. Of the Nature and^alities of a Ufe, hefore the Statute 27 Hen. 8. Page $ I. Nature of a Ufe - - - - 4or 6. Eftate of the Feoffee - - - - 403 7. Neceffity of Confidence and Privity - - id. 8. Confidence In the Perfon . - - 404 1 1 . Privity of Eftate - _ - » 405 14. Who might be feifed to Ufes - _ - 407 19. What might be conveyed to Dfes - - 408 20. Rules by which Ufes were governed - - - id. 21. Could not be raifed without a Confideration - - 409 2!?. Ufes were aHcnable - - - - id. 26. No Words of Limitation neceffary - -- 410 27. Ufes might change by Matter fubfequcnt - - id. 28. Ufes were revocable - - - - 411 29. Ufes not an Objeft of Tenure - - - id. 32. Neither Dower nor Curtefy of a Ufe - - 412 33. Ufes not extendible - _ - - 413 34. Ufes were devifable - - - - id. 36. Ufes were defcendible - - - - id. 38. Inconveniencies of Ufes - - - - 414 39. Statutes made to remedy them - - - 4^5 CHAP. III. Of the Statute 27 Hen. 8. of Ufes. § I . Hiftory of the Statute - . - - - 4^7 3. Statute of Ufes _ - ^ - 4(9 5. Intention of the Statute - - - - 421 7. Circumftances neceflary to Its Operation - - 422 8. I ft, A Perfon feifed to a Ufe - - - Id. 9. What Perfons may be feifed to Ufes - - id. 13. Of what Eilate a Perfon may be feifed to Ufes - 424 14. Eftate Tail - - - - - id- 22. Eftate for Life ----- 427 25. What Kind of Property may be conveyed to Ufes - 428 29. 2d, xxviii CONTENTS. Page § 29. 2cl, A Cejluique Ufe in EJfe - « . 429 39. 3d, A Ufe in EJfe - - - - 43* 40. Saving of all former Eftates » . . 433 CHAP. IV, Of the modern Do^rine of Ufes. ^ 1. Conftruftion of the Statute - . « 43^ 3. Contingent Ufes - - - - 436 4. Ufes arifing on the Execution of Powers - - 437 8. Conveyances derived from the Statute of Ufes - 439 15. Whether a Devife operates by the Statute of Ufes - 442 1 6. Refulting Ufes - - - - id. 28. Ufes by Implication - _ _ . 445 33. No Ufe will refult inconfifient with the Eilate limited 447 38. No Ufe will refult againft the Intention of the Parties 448 43. No Ufe refults but to the Owner - - - 450 45. What Ufe refulis to a Tenant in Tail - "451 52. No Ufe refults on a Grant of an Eflate Tail, for Life or Years - • - - - - 454 56. No Ufe refults on a Devife - - - 456 TITLE XIL TRUST. CHAP. I. Of the Origin and Nature of Trujls. I. Origin of Trufts - - _ . . 4^g 3. Defcription of a Trufl: - - - - id. 4. A Ufe limited upon a Ufe - . . 4^^ 12. Limitation to Truftees to pay over the Rents and Profits 461 19. Trufl for the feparate Ufe of a married Woman - 465 24. Trufl to fell, or to ralfe Money - - _ 467 27. A Truft fir Payment of Debts vefls immediately - 469 28. Terms for Years limited in Truft - - - 470 29. Of refulting or implied Trufts - - -471 9 30. Contrad CONTENTS. xxix Page 30. ContratSl for a Purchafe - - - - 471 3 1 . Purchafe in the Name of a Stranger - - id. 33. Purchafe by a Truftee with Trull Money - - 472 35. Conveyance without Confideratioa - - 474 37. A Truft declared in Part _ . _ 47^ 42. Where no Appointment is made - - - 477 43. Purchafe by a Father in the Name of a Child - - id. c^, Purchafe in the Name of a Wife - - - 484 56. Renewal of a Leafe by a Truftee - - - id- 60. No Truft between a Leffor and Leffee - - 485 61. Where there is Fraud a Truft arifes - - id. 63. Trufts of Copyholds - - - - 486 68. Who may be Truftees _ - . . 488 72. All Trufts are executory _ - . 489 CHAP. II. Of the Rules hy ivhkh Trujl Ejlales of Freehold are governed. \ I. A Truft is equivalent to the legal Ownerflilp - - 491 2. Confidence in the Perfon ncceflary - - - 492 3. But not Privity of Eftate - - - id. 4. Cejluique Truft. deemed the real Owner - - 493 5. Trufts are alienable, devifable, and defcendlble - id. 6. Trufts are iniailable - - - - id. 7. May be Hmited for Life - - - - 494 8. Subjed to Curtefy - - - - id. 10. Exception — Truft for the feparate Ufe of the Wife - 495 12. But not to Dower - - - - 496 21. Subjedl to Forfeiture for Treafon - - 500 24. But not for Felony - - - - 501 26. Not fubjed to Efcheat . - - - 502 27. Trufts arc Aflets - - - - id. 3 1 . Merge in the legal Eftate - - - 503 32. Where an outflanding legal Eftate is a bar in Ejeflment id, CHAP. III. Of the Rules hy which Truft Terms are governed. ^ 2. Terms in Grofs . _ _ _ ^05 3. They arc not Aflets _ _ . _ ^©6 5. Terms XXX CONTENTS. P.ige § 5. Terms attendant on the Inheritance - - 506 ^ 7. How a Term becomes attendant _ . - ^09 15. When a Term is in Grofs - - - - 512 18. A Term attendant may become a Terra In Grofs - 515 19. Rules refpefling Terms attendant - - - id. 20. A Term attendant is real AfTets • - - id. 21. Only pafles by a Will duly attefted - - 516 22. Protcfts a Purchafer from Dower - - - id. 26. But does not protetl the Heir - - "53' 28. Nor the Affignees of a Baukrupt - - - 533 29. A Term only proteds a Purchafer, where it Is affigned to a Truftee for him _ - _ . 534 31. Curtefy not barred by a Term - - - 536 32. Where an outftanding Term is a bar in Ejeftment - id, CHAP. IV. Of the Eftate and Duty of Truftees^ § I. Eftate of Truftees - - , , - 539 6. No Aft of Truftees fhall prejudice the Truft - 541 8. Exceptions - - - - id. 9. Conveyance without Notice - - - id. T I . Where Purchafers from Truftees are liable to the Trufts 542 31. Attainder of Treafon - - - - 550 32. Death of the Truftee without Heirs - - id. 33. Truftees have equal Power - - - id. 34. Not to derive any Benefit from a Truft - - 55^ 35. Where a Truftee may purchafe the Truft Eftate - id. 43. Bound to relmburfe the Cf/?«/2^Kt Truft - - 554 47. Not allowed for Trouble - - ' 5S^ 49. But allowed for Cofts - - - '557 52. Where a Truftee refufes to accept a Truft, he muft releafe - - - - - id. 53. Truftees difcharged, and others appointed, by the Court of Chancery - - - - id. INDEX INDEX TO CASES IN THE FIRST VOLUME. 298 2tS A Page ABERGAVENNY v. Thomas Abraham t». Bubb - 102, Acherley ■:;. Vernon - 47 1 Ackland v. Auvell - 79 Adams i*. Savage - 44b! Altham v, Anglefea - 449 Allen IK Sayer - 541 Amand v. Bradburn - 557 Ambrofe v. Ambrofe - 490 Amrotts V. Catherick - 14;; Aiiderfon's cafe - 49 Anon. 102. 22f. 296. 335. 359 Aprice's cafe - 102 Armftrong v. Wolfeley 443 Arnold V. Kemftead . 1 86 Afherton v. Rooke - 32 Afhmead v. Ranger - 324 Aflilon's cafe - 206 Aflon V. Aflon - 83 Attorney General v. Burdett 57 •' 1'. Sands 501 ■ - V. Scott 460 Atkinfon v. Baker Auftin 1). Bennett Ayres -u. VViliis Ayray 1;. Billin^ham — V, Vincent 366 92 360 325 Pags Backs V. Andrews 480 Bagihaw V. Spencer 467. 489 Bdker v. Berisford 329 Banks V. Sutton 498. 525 .54! Eair.es ^'.-Corke 346 Bartlett v, Hodgfon 551 Baflett -T.V B-i;Tett 209 Balh v. Abney 344 Beable -u. Dodd 466 £c::rd v. ^^^jthall 224 Beckuottli', cuie 444 Bedingficld's cafe - 47 178 Benger v. Drew 486 Bennett v. Davis 488 Benfcn ij. ScoU ZZ% Berneford v. Packing ton 362 Bea V. Stamford 509 Birch. 1'. Wright 278 Blackburn -y. Graves 346 Blewit's cafe 317 Blithman'scafe 148 Blount T. Winter 221 Blunden ■v. Baugh 272 Boardman v. Moffman 5S^ Booth's cafe 257 Boothby 1;. Vernon 122 Boteler v. Allington 540 Bottomley v. Fairfax 496 Buwater -v. Elly 493 Bo) ''nton XXXll INDEX TO CASES. Page Boynton -y. Boynton 191 Bracebrid;;'.- v. Cook 264 Bradfliaw v. Lawfon - 388 Bragg's cafe - 299 Bray v. Frary - 7 1 Brickley v. Brickley 1^4 Bridge's cafe - 207 Broughton v. Errington 235 — — V. Langley 462 V. Randall 142 Brown "y. Gibbs - 53' n). Raindle - 334 — — V. Winford - 209 Coot 1). Berty - 178 Coots "u. Lambert - 162 Corbett ( iiir A.'s) cafe 62 . 245 Corfellis tT, Corfellis - 169 Cottrell v, Hampfon - 548 Page Cowper V. Clerk - 381 . V. Franklin 424. 426 Cox V. Higford - 382 Crawley's cafe - 427 Crewe -u. Dicken - 545 Crifp V. Trur - 275 Crowiher v. Oldfield - 296 Cudleysi;. Rundle - 270 Cudmore "D. Raven - 381 Culpepper v. Afton - 544 Cumberland's cafe - 65 Cunningham -u. Moody 121 Cutting V. Derby - 286 D Dalton V. Hammond Davie? V. Speed Denn 'u. Fearnfide Dench -u. Bampton De Grey v. Richardfon Digby V. Legard Dodfon 1). Hay Doe 1'. Batten ^. Bell V. Clare V. Luxton ■V. Pegg — — v. Porter — — V. Rivers 48 — V. Snowden ■ V. Staple V. Sybourn V. Welkr Douglas V. Waad Dowfe "u. Derival Dunch . Lefquire 182 Li max v. - 225 Lloyd V. Biildwin - 543 , v. Read - 4H3 TT. Spellett - 47^-475 London (Ep.) v. 'Rowe 304 . V. Webb 259 LongvUle's Cafe - 1O6 Lowe V. Burrow - ^c Lowther i). Raw - 352 Luck-y Trollop - 225 Lumbard (Ociavian)'s cafe 54 Luttrell V. Weilover - 364 Lutwich-y. Winford - 547 M Macliellt;. Clerk - 47 Maddon v. White - 278 Mardiner v. Elliot - - 326 Jvi art i n f. Sea more - 221 Marwood 11. Darell - 461 Matthews "y. Wheaton 364.379 Melevich 1'. Luther - 3C0 Meredith ly. Jones - 43 1 Middlcton "u. Jackfon 354 IViilfax V. Baker - 378 Montague "J. Maxwell 241 Montague'b cafe - 364 Moore V. Magrath - 44.6 Mordant -u. Choroid - 170 Morgan v. Scudamore - 335 Mumma v. Mumma - 478 Mundy V. Mundy - 121 N Nafh V. Derby - 380 Neale 1;. Jackfon - 300 Nevill V. Saunders - 465 Neville's cafe - 307 Nightingale -v. Fcrrcrs 452 Nod V. Jevon - 541 Norfolk -u. Browne - 474 Norrice v. Norrice - 358 North V. Langton Nugent -v. Gifford O Oland's cafe Paget's cafe Paine's cafe PapiUon ^■. Voice Parker v. Blicke -v. Combleford V. Con liable •V. Gage Harvey Pafcall V. Wood Paynell's cafe Peachey v. Somerfet Pearfo » v. Pearfon Pee s V. Piers Pelham v. Gregory Peuiberlon v. jarvell Penhay v. Hurrell Penrhyn v. Hughes Ptrrot V. Perrot Perry -j. Philips Pilkington v. Bayley Pimb's cafe Pitts 1/. Snovvden Piatt V. Sleap Pole V. Pole Popham V. Lancafter Porter v. Hammond Prime v. Stebbing Probart v. Morgan Pufey V. Pufey Pybus V. Mitford Pye V. George Pyne "v. Don R Radnor v. Vandebindy Rawley v. Holland Read and Morpeth v. Erring- ton Revett V. Joddrell Rex "y. Lord of Hendon Right I-. Derby Rolt v. Somerville Robins v. Crutehlcy Page 510 546 87- 330 71-73 118 40 333 358 274 360 222 378 lis 3«3 190 85 261 532 444- 90 73 555 • 4«5 423 185 265 482 - 354 53* 232 231 6 446 541 80 516 448 445 306 342 280 81 138 Rockley INDEX TO CASE3. kxjtV Rockley v. Huggins Roe V. Hicks — — V. Hillier — — V, Hutton ■■ " v. Newman V. Popham V. Rees Rogers v. Skillecorn Rolls V. Mafon Rous V. Artris Rous V, Barker Rofs v. Rofs Rowden v. Malfter Ryal V. Ryal Baffin's cafe Salford's cafe ialifbury v. Hurd Salisbury ( Lord )'s cafe Sanders v. Biimford Sandford v. Steeiiens Sands V. Drury Sands v, Hemfton Sangon v. Williams Saunder's cafe Savage's cafe Savage v. Humble Saville's cafe Scott V, Fenhouillct Scroop V. Scroop Seymour's cafe Shapland i/. Smith ^"or. Gen. are made denizens by the kmg s letters patent, or ^om. Proc naturalized by aft of parliament. jB^row.Aic. § 32. In confequence of the flat. 1 2 Cha. 2. c. 24. the Tenure by- tenure of all freehold eftates, whether held of the '\^J^^ ai-e jdng or of mefne lords, except lands held by religious Golden, corporations, is turned into free and common focage ; and where, in a grant of freehold lands, no fervices are referved, as is now generally the cafe, fealty is not- v/ithftanding incident to the tenure : and all lords, of Lit. f. 130, whom lands are holden at this day, may call upon i^j„ft. gg^j, their tenants to take the oath of fealty to them in their n, 5. 85 a. courts baron j which every lord ought to do, if it be n. 2. pnly for the reafon given by Littleton^ that when neglefted, 12 Title h EJlate in Fee. § 32 — 36. negleclcd, it will, by long continuance of time, grow out of memory, (as doubtlefs it frequently has done), whether the land be holden of the lord or not, and fo he may lofe his feignory, and the profits which may accrue to him by efcheats and other contingencies. Booth'." Real. § 33- Where it is no longer known of whom lands ^^' are mediately holden, they fliall be prefumed to be held of the king, as the great and chief lord. 2 Tnft. 66. ' § 34. In confequence of the ftatute ^ia emptores ^^ ' terrarian, no perfon can referve a tenure to himfelf, Bradfhaw v. where he conveys away the whole eftate : but the ^Ttrm'R. lands will, after fuch conveyance, be held of the next 443- immediate lord, by the fame fervices by which the feoffor held j or pro rata, if the feoffment be only of part. Of Seifin. § 35* The poflefTion of a feud was expreffed in law, by the woTdifeifm, which denotes the completion of that I Infl. 266^. inveftiture by which the tenant was admitted to the I Eiirr. Rep. feud. Upon the iiitrodudion of the feudal law into ^°7- England, this dodrine was fully adopted, and the word feifin was only applied to the poffefTion of an eftate of ilnft. 200^. freehold; in contradiflindion to that precarious kind ^^^- 503- of pofTefiion, by which tenants in villenage held their lands, which was confidered to be the pofTefiion of their lords, in whom the freehold of their lands con- tinued to be vefled. Where an § 3 6. Where an eftate is conveyed to a perfon by feoff- Entry is ne- . 1 ,. c r 'f c -L. r cefTary. ment, With livery or leifm, or by any or tnoie convey- ances I-^ I lull. Title I. EJiate hi Fee. § 36 — 39. ances which derive their efFecb from the ftatute of ufes, he acquires a feifin in deed. But where an eftate comes to a perfon by acl of law, as by defcent, he only ac- Lit. f. 448 quires a feifm in law, that is, a right to the poffeffion ; and he mud make an entry on the land, either in per- fon or by attorney, in order to acquire a feifm in deed. ^ "^J. The mere act of going on the land will not i Infl. 245^. amount to a legal entry, fufficient to vefl the adual 6Mod.^44. feifui in the perfon who has the right : for, in order to conftitute a legal entry, the perfon muft enter with that intent, and do fome a£l to fliow fuch intention. § 38. The entry of the heir upon any part of the i inih 252 h. eftate will give him a feifm in deed of all the lands lying in the fame county. For fnice the freehold in law is caft upon him by the death of his anceftor, and no perfon is in poifeifion, fo that no particular eftate is to be defeated, a general entry into part, will be fufficient to reduce the whole into adual poifeffion. But where the lands lie in feveral counties, there muft be an entry in each county. § 39. The entry of the heir is only neceffary where i Inft- 15 «• the lands are in the aftual occupation of his anceftor. ^21. 7 Term For if the lands are held under a leafe for years, and ^^P* 390; \ \ 8 rcrm Kep. the leifee had entered under his leafe, the heir will be 213. confidered as having a feifm in deed, before entry or receipt of rent ; becaufe the polfeflion of the leifee for years, is his polfeflion. § 40. Where 14 Title I. EJiate in Fee. §40 — 43. § 4c. Where lands are let on leafes for lives, the freehold is in the Icflees, and, confequently, the heir has no immediate right of entry, on the death of his anceftor. In this cafe, the heir is only entitled to the rent referved in the leafe ; by the receipt of which, he becomes feifed of the rent, and of the reverfion ex- pe6lant on the determination of the leafe. 3Wilf. Rep. S 41. The poiTeffion of a guardian in focage, is ^^'' the pofleiTion of the ward. So that, if a widow, hav- ing a fon on whom her hufband*s eftate defcends, con- tinues in poiTeffion after her hufband's death, the law will confider her as guardian in focage to her fon; and will therefore admit the fon to have had, by that means, a feifm in deed of the land. Abatement. § 42. The feifm in law, which the heir acquires on the death of his anceftor, may be defeated by the Pevk. f. 367. entry of a firanger, claiming a right to the land ; and 3Comm.i67. ^^^^^ entry is called an abatement. In a cafe of this kind, the only mode of regaining the feifm and pof- feffion, is, by an entry of the legal owner, which will reflore him to the poiTeffion of the land. 2Comm.i75. § 43. If the heir be deterred from entering by bodily fear, he may make claim as near to the eftate as he can ; which claim is only in force for a year and a day. And this claim, if it be repeated once in the fpace of every year and day, (which is called Continual Claim), has the fame effed as a legal entry. § 44. Where Title I. Ejlate m Fee. § 44 — 46. 1 5 § 44. Where a younger brother enters upon the l;,. {• ^g^ death of the anceflor, fuch entry is not an abatement. ^''^- '^"^"• 27. For it fhall be intended that the younger brother did not fet up a new title, but only entered to preferve the poffeffions of the anceftor in the family, that no one elfe fliould abate. And if the younger fon dies feifed, ftill the elder fon may enter : for, as the law will not intend the entry of the younger fon to be a wrongful acl, therefore, the poiTeffion of the younger brother becomes that of the elder ; fo that the defcent cannot make a right of pofTefiion diftind: from the right of property. § 45. Where a perfon is in the aftual feifm of an eftate Of DifTeifin. of freehold, he may lofe that feifm by a Granger's entering on the eftate, and forcibly oufling or dif- poffelTmg him of it, which is called a diffei/in ; and is thus defined by Littleton. " Diifeifm is properly Lit. f. 279. " where a man entereth into any lands or tenements, " where his entry is not congeable, and oufteth him " which hath the freehold." And Lord Coke^ in his comment on this paiTage, obferves, that every entry is not a difleifinj unlefs there be an oufter of the freehold. § 46. There is fcarcely a fubjefl in the Englijh law i In ft. 266^. fo obfcure and difficult as that of difleifm. The full "comm i6g effed: of diffeifms mufl formerly have been, not only a dipolTeffing of the freeholder, but alfo, a fubftitution of the diffeifor as tenant to the lord, and as one of the pares curia, in the place of the diffeifee. Now, as the confent of the lord was formerly neceffary to the ad- miffion 1 6 Title I. EJlate in See. § 46, 47. million of a new tenant into the feud, it is difficult to conceive, how a complete difleifm could take place without the confent or connivance of the lord. Hence 1 Bun. Rep. Lord Mansfield has juftly obferved, -that " the precife *'°' " definition of what conftituted a dilfeifin, which made " the difleifor the tenant to the demandant's praecipe, *' though the right owner's entry was not taken away, '^ was once well known, but it is not now to be found. *' The more we read, unlefs we are very careful to dif- " tinguifh, the more we fliall be confounded : for after '^ the affife of novel difieifin was introduced, the legif- '* lature, by many ads of parliament, and the courts " of law, by liberal conilrudions, in furtherance of " juftice, extended this rem^edy, for the fake of the *' owner, to every trefpafs or injury done to his real *' property ; if, by bringing his affife, he thought fit " to admit himfelf diffeifed '* Abeyance of § 47. "Where there is no perfon in ejfc, in whom the t e ree o . £-j,gg|^Qj^j jg vefted, it is faid to be in abeyance ; that is, in 2 Inft. 342 h. expe6:ation, remembrance, and contemplation of law. 2 Coram. 107. -g^j. jj. jg ^ principle of the highefl antiquity in the EngUjh law, that there fliould always be a particular owner to every freehold eftate, fo that the freehold Hob. 338. fhould never be in abeyance, if it could be avoided. This rule was eftablifhed for two reafons : i ft. That the fuperior lord might always know on whom he was to call for the military fervices that were due for the feud : for otherwife the defence of the realm would have been confiderably weakened, ^dly. That every ftranger, who claimed a right to any particular lands, might know agahift whom he ought to bring his praecipe, Title I. EJlateinlee. §48—51. , J 7 praecipe, or real a£lion, for the recovery of them ; as no real aftion could be brought againfl any perfon but the adual freeholder. § 48. In confequence of this doftrlne, it Is a rule of law, that a freehold eflate cannot be created to commence in futiiro \ becaufe, in that cafe, the free- ilnfl. 317J. hold would be in abeyance, from the execution of the conveyance, until the moment when the eilate fo cre- ated was lo commence. § 49. " Eflates of freehold," fays ?iix William Black- Edatesofln- .. ^, 'in r- 1 • n r heritance, *' Jlonc^ are either eltates or mheritance, or eitates not or 2Comm. 104. " inheritance. The former are again divided into in- *' heritances abfolute or fee fimpie, and inheritances " Hmited ; one fpecies of which we ufually call '' fee tail." § 50, " Tenant in fee-hmplc," fays Littkicn^ f. t. '^ is Eftate in " he which hath lands or tenements to hold to him and ^'"^ iimpe. *' his heirs for ever ; and it is called in Lctin^ feodujii " fimplcx ; for feodum is the fame that inheritance is, " and fimplex is as much as to fay, lawful or pure : *' and fo feodum fimplex fignifies a lav/ful or pure " inheritance." § 51. Littleton has been cenfured for annexing an Wr'crht's improper meaning to the word fee in this definition ; ^ ^"' ^^^' and it has been contended that the wofd fee fignifies land hoidcri of a fuperior lord, by military or other fervices. But although this Vv^as certainly the original meaning of the word, yet wheii ths feudal law vvas Vol. I. . C fully i8 Title I. EflateinFee. §51—53. fully eftabiifhed here, and it was univerfally acknow- ledged that all the lands in England were held medi- ately or immediately of the king, and that there was no allodial property left in the kingdom, the word fee became generally ufed to denote the quantity of eflate and intereft in the land. Thus it appears from Bradon, that the word feodum was often ufed, at the time he Bra!^. 2633. wrote, in both thefe fenfes. — " Et fciendum quod feo- " diim ejl quod quis tenet ex quacunque caufa ftbi et " hare dibits fids. Itejn dicitur feodum alio modo " ejus qui alium fcoffat^ et quod quis tenet ah alio, ut '"'' fi fit qid dicat talis tenet de me tot feoda per fervi- " tium militare" And it is evidently for the purpofe of denoting the quantity of intcrefl, that the word fee is ufed in pleading an inheritance in the king, viz. — Rex fcifitus fuit in dominico fuo vt de feodo ; where the I Inll. 1 h. word feodum cannot pofiibly import an eitate holden, the king not holding of any fuperior lord, but merely denotes an inheritance. .An EHate In § 52. An eftate in fee-fimple is the entire and abfolute ^The e"nure Property of the land ; from which it follows, that no Property. perfon can have a greater eflate or intereft : and when- \'^' ^\ ^ \\ ever a perfon orants away an eftate in fee-fimple, he V aiigli. K. ^ " •' 269, cannot make any farther difpofition of it, becaufe he has already granted the whole and entire property, and confequently nothing remains in him. § 53. An eftate in fee-fimple, created by a con- veyance deriving its effed from the ftatute of ufes, or by a devife, may however be rendered defeafible upon the Title I. Ejlate in Fee, § SS*— '5^» 19 the happening of fome future event ; of which an ac- count will be given hereafter. § 54. Tenant in fee-fimple is the abfolute mafter of all houfes and other buildings erected on the land ; and alfo of all trees growing thereon ; for trees are con- Vide i Ld. fidered as parcel of the inheritance, and the law does ^^"' ' ^ ' not favor the feverance of trees from the freehold and inheritance of the land, becaufe the trees would be thereby wafted and deftroyed. § 55. Tenant in fee-fimple is alfo intitled to all mines of metal and other fofiils which are under the land, and may work and difpofe of them ; except mines of gold and filver, which by the royal prero- Plowd. 315, gative belong to the king. §. ^6 We have feen that the law requires the freehold Abeyance of ihould never, if pofTible, be in abeyance : but where ^ ^ ^^* there is a tenant of the freehold, the reverfion may exift for a time without any precife or particular owner; i inft. %^2h. and, in fuch cafe, it is faid to be in abeyance. Thus, 2 Coram. 107. if an eftate be limited to A. for life, remainder to the right heirs of J, S. , the fee-fimple is in abeyance during the life of y. S. , becaufe of the maxim in law, ne?no cjl hares -viventis (^). And in the cafe of rec- tories and vicarages, the fee-fimple is always in abeyance. {a) It h^s lately been held, that In fome cafes of this kind the fee remain? in the grantor. Vide Fearne Cent. K.em, 513. 533. C a ^ S7' The 20 Title 1. Fjtate in Fee, § 57—60. Hargrave's % 57' ^^^^^ ^'^'^' however, does not even favour the la. 449. abeyance of the fce-fimple ; for, In that cafe, many operations of law are fufpended. The particular tenant Is rendered difpunifliable for wafle, as a writ of wafte can only be brought by the perfon entitled to the fee-fimple. The tiile, If attacked, could not be completely defended, for there was no one in being whom the tenant of the freehold could pray In aid, to fupport his right : nor could the mere right itfelf, if fubfifting in a (Iranger, be recovered in this interval ; for in a writ of right patent, a tenant for life cannot join in the mere right. A\\^, in modern times, the courts do not favour tlie abeyance of the fee-fimple, becaufe it would be a reflraint on alienation. AW other Ef- § 5 8. All Inferior eflates are derived out of the fee- *n thrFe^*^ fimple, fo that, v/henever a particular eftate, or limited Simple, interefl in land, veils in the perfon who has the fee- fimple of the fame land, fuch particular eftate or in- tereft is immediately drowned or merged in It ; upon the principle, that omne majm continet in fe ininus, Inclilents to § 59' The law has annexed to every eftate and intereft a ^ ce-bimp e. .^^ x^xah^ certain peculiar incidents, rights, and privileges, which, in general, are fo infeparably attached to thofe eftates, that they cannot be reftrained by any provifo or condition whatever. vMienable. § 60. Of the feveral Incidents infeparably annexed to Lit. f. 3f^o. an eftate in fee-fimple, the firft is an unhmlted power of alienation. Any reftriclion, therefore, of this power, 7 annexed I Inft, 222 a. Tilkl. EjlaiehiFee. § 60—63, 21 annexed to the creation of an eflate in fee-fnnple, would be abiblutely void. This unlimited power of alienation comprifcs, in itfelf, all inferior powers ; fo that a tenant in fee- fimple mav create any inferior eflate or intereft out of his own. And therefore a cuflom, that a tenant in SalfoiJ'scafe, fee-fimple cannot demife his lands for more than fix ^ Vef.jJn. ' years, is void ; becaufe it is contrary to- the freedom 325- of the eflate of one who hath a fee-fimple. § 6i. An ePtate in fee-fnnple will defcend to the Defcendible heirs-general of the perfon who was lafl feifed thereof, ^.^^.^\^ whether male or female, lineal or collateral. And it is for this reafon that the word fimple is added to the word fee, importing an abfolute inheritance, clear of any condition, limitation, or reflriftion, to particular heirs ; in contradiflindlion to fome other kinds of eflates of inheritance, which are only defcendible to fome particular heirs ; of which, an account will be given in the next title. § 62. Eflates in fee-fmiple are fubjedl to curtefy and Sr.bjea to dower ; which fubjec^s will be difcuifed under thofe ^""^^^^^ '"^ titles. § 63. Eflates in fee-fimple are liable to the payment of Liable to all debts contracted by the tenant, for which he has ac- knowledged any fecurity on record, or for which he has bound himfelf and his heirs, by any inflrument under his feal. And his heir is bound to fatisfy fuch Buckley v, debts as far as the lands defcended to him from fuch j strl'lf!'^' C 3 . anceflor ^^5- 2 2 Title I. EJiate inFec. %^y^^S' ancePcOr will extend ; which fufficient lands are called, in law, ajfeis by defcent. It fhould, however, be ob- ferA'ed, that eftates in fee are not liable to the payment of fimple contract debts ; a do6lrine not very confo- nant with natural jufiice. § 64. By the common law, if the heir had aliened the afiets before an adion was brought againft him for the recovery of a debt due by his anceflor, the creditor was without any remedy. But now, by the ftatute 3 William and Mary, c. 14. it is enacted, " That in all cafes where any heir at law fhall be liable '* to pay the debt of his anceflor, in regard to any ^' lands, tenements, or hereditaments, defcended to *' him, and Ihall fell, alien, or make over the fame, " before any adion brought or procefs fued out againft ** him, that fuch heir at law Ihall be anfwerable for " fuch debt or debts in an action or a£tions for debt, «' to the value of the faid land fo by him fold, aliened, " or made over ; in which cafe, creditors Ihall be pre- " ferred, as in actions againft executors and admini- ^' ftrators j and fuch execution ftiall be taken out upon ^' any judgement or judgements fo obtained againft " fuch heir to the value of the fame land, as if the *' fame were his own proper debt or debts, faving ^' that the lands, tenements, and hereditaments, bond " fide aliened before the aftion brought, ftiall not be '^ liable to fuch execution." Torfeited for § 6^. Eftatcs in fcc-fimple are forfeitable on an attain- I slm-.y" ^^ ^^^ ^^ treafon : and the lands whereof a perfon attainted zHawk.p.c. dies feifed in fee, become a»^ually vefted in the king, ch. 4. f. I. • 1 X. v/ithout Title I. Ejlate in Fee. § 65—68. 23 without any office, becaufe they cannot defcend on account of the corruption of blood of the perfon laft feifed ; and the freehold lliall not be in abeyance. § 66, An eftate in fee-fimple is flill fo far confidered And for Dlf- as a ftrid feud, and the tenant thereof is fo far bound to perform the feudal duties and fervices which remain due, that, if he difclaims upon record to hold his land i Infl. 102 a. ^ . , , . .,, r r ■ r !_• n. ^ Finch, 270. of his lord. It will operate as a rorieiture ot nis eltate, and the lord may thereupon have a writ of right upon Booth's R. a difclaimer, for the recovery of the land. ^^' ^^^' But if the lord accepts of rent from the tenant after 2 Leon. 271. the difclaimer, he will be thereby barred of his writ. § 6j. Lord Coke fays, " Of fee-fimple, it is com- of Qualified " monly holden that there be three kinds, viz. fee-fimple ^ ^^^^ ^ y^ " abfolute, fee-fimple conditional, and fee-fimple qua- Jo Rep. 97 h, " lifted, or a bafe fee. But the more genuine and " apt divifion were to divide fee, that is, inheritance " into three parts, viz. fimple or abfolute, condi- " tional, and quahfied or bafe. For this word fimple " properly excludeth both conditions and limitations, " that defeat or abridge the fee." § 68. The nature of an eflate in fee-fimple abfolute, has been already ftated. But where an eftate of inhe- ritance has a qualification annexed to it, by which it is provided, that fuch eflate mufl determine whenever that qualification is at an end, it is then called a ^alifed o\' Bafe Fee. As, in the cafe of a grant to i luu. 27^. A, and his heirs, tenants of the manor of Dale j when- C 4 ever -^ Tit!: I. Ej}aieinFec. §6S— ;i. ever the heirs of A. ceafe to be tenants of the manor of Dale, their eftate determines. Id. n. 6. § 69. Lord Hak gives the following inftance of a qualified or bafe fee : '• King H^/zrv 3. dedit mane- *« rium de Penrith et Sourby Akxaiidro regi Scotia, " et haredibiu fuis, regibus Scotia.^' Ai\<\ Alexander having daughters, of which, one was married to the Earl of Huntingdon, died, not having any heir king of Scotland, et ea de caufa. King Edward the Firll reco- vered feifm, and the co-heirs oi Alexander were ex- cluded. loKep. 97^. S 7c. Where a perfon holds an eftate to him and Fiov.d. 557. j^., Yi^y.^^ 33 long as A. B. I as heirs of his body, this is a qualified or bafe fee, which will be treated of in the next title. § 71. The T)rcprietor of a qualified or bafe fee has the fame rights and privileges over his eftate, until the qualification upon which it is hmited is at an end, as if he were tenant in fee-fimple. With refpecl to con- ditional fees, thev will be treated cf in the next title. TITLE ( 2S ) TITLE II. ESTATE TAIL. CHAP. L Of the Origin and Nature of EJiates TaiL CHAP. IL Of the Power of Tenant in Tail over his EJlate and the Modes of barring it* 8 12. H »7 19 20 CHAP. L Of the Origin and Nature of Eftates Tail. Of Conditional Fees. Of the Statute De Donis. Defcription of an EQate Tail. EJiates in Tail general and fpecial. EJiates in Tail Male and Female. EJiates in Frank Marriage. Modes of creating an EJlate Tail. What may be intailed. i6. Who may be Tenants in Tail. §27. Tenant in Tail holds of the Donor. 30. Incidents to an EJlate-Tail. . 3 1 . Poiver to commit Wajle. 34.. SuhjeB to Dower and Cur- tefy. 35. Barrahle by Recovery. 36. Not fubjeB to merger. 38. Tenant in Tail not bound ta pay off Incumbrances. 41. Has a Right to the Title Deeds. Sedion i. "PXONATIONS of land were originally fimple and pure, without any condition or modification an- nexed to them ; and the eflates, created by fuch do- nations, were held in fee-fmiple* In courfe of time, however. Of Conditi- onal Fees. .^5 Title II. EJhite Tail. Ch. \. § 1—3. however, it became cuflomary to make donations of a more limited nature, by which the gift was reflrained to fome particular heirs of the donee, exclufive of others ; as to the heirs of a man's body, by which only his lineal defcendants were admitted, in exclufion of collateral heirs ; or to the heirs male of his body, in exclufion both of collateral heirs, and lineal femal* defcendants. Lib. ii. ch.6. § 2. ITius BraSlon, in treating of donations, fays, " Item ftcut ampliari pojfunt hcsredes, ficut pradidum " eji^ ita coardari poterunt per modum donationis, quod " omnes haredes generaliter ad fuccejjtoncm non vocan- " tur. Modus enim legem dat donationi^ et ?nodus ie- " nendus eji contra jus commune, et contra legem, quia " modus et conventio vincunt legem : ut fi dicatur do " tali tantam terram cum pertinentiis in N. habendum et " tenendum ftbi et haredibus fuis, quos de came fua et " uxore fibi defponfata pmcreatos habuerit, vel fic, do ^^ tali et tali uxori fua, 'vel cwn tali filia mea, ^c. ha- <* bendum et tenendu7n ftbi et haredibus fuis, de came " talis uxoris vel filia, exeuntibus, vel procreatis vel ^'^ , procreandis : quo cafu cum certi haredes exprimantur " in donatione, videri poterit quod tantum fit defcenfus '* ad ipfos haredes communeSi per modum in donatione *« appofitujn, omnibus aliis haredibus fuis a fucceffione ^' penitus exchfis, quia hoc voluit donator.''* § 3. The idea of thefe limited donations was evi- dently derived from the Feudum TallialujUy which is DaCangc thus defcribed by Du Cange :— « Feudupi Talliatum Gloff. voce 6 J dicitur verbis forenfibus. harsditas in quamdam cer- feodum, ./ -^ ... '^ iitiidmcm Title II. Ej}ate Tail, Ch. i. § 3—5. 27 " tifudinem limiiatay feufeudum certis conditio7iibus con- " ce/fiim. Verbi gratia, alicul et liberis ex legit imo " ?jiatnmo)iio nafciiiiris. Undeji is cuifeudum datum ejiy " moriatur ahfque liberis, feudum ad donatorem redit. *' TalUai-e eni?n ejl ad quamda7n certitudinem ponere^ vel " ad quoddam certain bizreditamentum limit are,''* § 4. Thefe limited donations were probably intro- duced into practice about the end of the reign of Hen. II. or that of one of his fons, in order to prevent the donees of fuch eflates from alienating them, as they could have done if the hmitation had been to them and their heirs in general. This opinion feems to be confirmed by the obfervation, that in Glanvilky who gives a very accurate account of the different Idnds of eflates that were known in his time, no men- tion whatever is made of a limited donation ; whereas we have feen that Bradon, who wrote in the reign of Fku, lib. iii. Hen, III. gives a very corre6t defcription of them. ^' ^5^ § 5. The general propenfity which prevailed about the time of Edward I., to favour a liberty of aliena- tion, induced the judges to conllrue limitations of this kind in a very liberal manner. Inflead of declaring that thefe eflates mufl defcend to thofe heirs who were particularly defcribed in the grant, accord- ing to the evident intention of the donors, and the flrid principles of the feudal law(^), and that the donees {b) Jus feudale non folum talliis non adverfari, fed maxime eia favers conflat ; non folum quod nuUas faeir.inas ad fucceilionem ad- jTiIttetj 2 8 Title II. Ejiate Tail, Ch. i. § 5. donees of fuch eftates fhould not, in any cafe, be en- abled by their alienation, to defeat the fuccefiion of thofe who were mentioned in the gift, or the donor's right of reverter ; they had recourfe to an ingenious device, taken from the nature of a condition. Now, it is a maxim of the common law, that when a condi- tion is once performed, it is thenceforth entirely gone, and the thing to which it was before annexed, becomes abfolute ?ind wholly unconditional. The judges, reafoning upon this ground, deter- mined, that thofe eftates were conditional fees ; that is, were granted to a man and the heirs of his body, Plowd. 241. upon condition that he had fuch heirs. And, there- fore, as foon as the donee of an eflate of this kind had iiTue born, his eftate became abfolute by the I Tnft. 19 fl. performance of the condition ; at leafl for thefe three 2lnft. 333; purpofes. ift. To enable him to ahen the land, and 7 Kep. 34*. * '^ ' thereby to bar not only his own iffue, but alfo, the donor of his right of reverter. 2d, To fubjedl him to forfeit the eftate for treafon, which, uptil iffue born, he could not do for any longer term than that of his own life ; leaft the right of inheritance of the iflue, and that of reverter of the donor, might be thereby defeated. 3d, To enable him to charge the lands with rents and other incumbrances, fo as to bind the iffue. mittet, fed multo magis, quod tenorem conceffionis femper fervan- dum jubi^at, hsereditatemque fecundum earn deferendam exprefle jubeat. Craig. De Jure Feud. lib ii. tit. i6. f. 3. § 6. Th^ ritle II. EJiate Tail Ch. I. § 6—^. 29 § 6. The donee of a conditional fee might alfo Id. alien the lands before iiTiie had ; nor could the donor have entered in fuch a cafe, becaufe that would have been contrary to his own donation, which limited the lands to the donee and his iffue. And if the donee had iifue born after the alienation, the donor was ex- cluded during the exiflence of fuch iifue : and the iffue were alfo bound by the alienation of their anceftor, though previous to their birth, becaufe they could only claim in the charafter of his reprefentatlves, and were therefore bound by his a61s. But where the donee of a conditional fee aliened before ilTue, fuch alienation did not bar the donor's right of reverter, whenever there happened a failure of iifue ; becaufe the fubfe- quent birth of iifue was not a fulficient performance of the condition, to make the precedent alienation valid. § 7. Where the perfon to whom a conditional fee 7 l^ep 34 i. was limited had iifue, and fuifered it to defcend to fuch iifue, they might alien it ; becaufe, having fuc- ceeded4)y defcent to the eflate of their anceftor, who had acquired a power of alienation by having iffue, they took the eilate in the fame manner, diicharged from any reftraint whatever. But if the iifue did ngt alien, the donor would ftill be entitled to his right of reverter ; as the eflate would have continued fubjetSt to the limitations contained in the original donation. § 8. From this mode of conflruing conditional fees, the ofthe Statute purpofes for which they were intended were fruflrated ; ^'^ ^om^. and therefore, the nobility, v/nofe objesSl it was to per- petuate their polfeiTions in their ov/n families, procured the 30 Title II. EJlateTail. Ch.i. § 8—10. the ftatute of Wejiminjier, 2d i-^^ Edward I. to be made, which, after reciting the right of alienation affumed by the donors of the conditional fees, proceeds thus : — " Dominus rex Jiatuit quod 'voluntas donatoris *' fecundum formam in charta donifui manifejie exprejfam " de ceteris obfervetur, ita quod non habeant illi quibus *' tenementum fic fuit datum fub conditioner potejlatem *' alienandi tenementum Jic datum, quo ?}iinus ad exitum '* illorum quibus tenementum Jic fuerit datum remaneat, " pojl eorum ohitwn ; vel ad donatorem, vel ad ejus " haredem (ft exit us dejiciat) revert at ur. iBurr.R.115. § 9- This flatute, as Lord Mansfield juflly ob- ferves, has only repeated what the law of tenures faid before, that the tenor of the grant lliould be obferved, 2 Inft. 335. And, therefore, the judges, in the conftruclion of it, determined, that where an eftate was limited to a man and the heirs of his body, the donee fhould not in future have a conditional fee, but divided the eflates, and created a particular eftate in the donee, fubje£t to which, the reverfion remained in the donor. § 10. In confequence of this conftrudion, eftates limited in this manner are not conditional ; nor is the right of entry of the donor, on failure of iffue of the donee, confidered as arifmg from a breach of the condition, but as a right accruing to the donor on the natural expiration of the eftate granted. The ftatute rejedls the erroneous opinion which had been held by the judges, that a donation of this kind created a con- ditional fee, and declares, that it vefts an eftate of in- '^' heritance in the donee, and fome particular heirs of 9 his, Title II. EJiaieTail. Ckl § 10—13. 3^ his, to whom it muft defcend ; and that the eflate of the donor is a reverfion expeftant on that eftate. § II. The ftatute De Bonis was made in the reign of a prince, who, from the great number and excel- lence of his laws, has juftly acquired the title of the Englijh Jujliniaii. It is, therefore, highly probable that he was induced by feme motives, unknown to modern times, to give his alTent to a law, which by allowing the nobility to intail their eflates, made it i Inft. 392 /'. impoffible to diminifh the property of the great families, and, at the fame time, left them all means of increafe and acquifition. § 1 2. An eftate tail may be defcribed to be an eftate of Dercn'ption inheritance created by the ftatute De donis conditionalihus^ ^^^^ which is defcendible to fome particular heirs only of Lit. f. 15. the perfon to whom it is granted, and not to his heirs general. It is called an EJiate Tail, or a Fee Tail, from its fimilarity to the feodum talliattwi, which appears to have been well known at that time, as it is mentioned in the 46th chapter of this ftatute ; and by which the feudal writers meant any mutilated or truncated in- heritance, from which the heirs general were excluded. § 13. Liiilcton fays, that tenant in tail is in two man- Efiatcs in ners : Tenant in tail general, and Tenant in tailfpecial. ^^^ fuecfai " Where lands are given to a man and the heirs of his ]jt. f, 13,14, body, without any farther reftri£tion, it is an eftate in tail ^-5- general : becaufe, how often foever fuch donee in tail be married, his iilue, by every fuch marriage, is capa- ble of inheriting the eftate tail. But if the gift is re- flrained 32 Title U. Ejiate Tail. Ch,\. § 13—16. flralned to certain heirs of the donee's body, exclufive of others, as where lands are given to a man and the heirs of his body on Mary his prefent wife to be be- gotten, it is an eftate in lail fpecial, and the iflue of the ^ grantee by any other wife is excluded. Eftates in § 14- If lands are given to a perfon and the heirs male - and l^tmlle. ^^ ^^^ body, this is called an Ejlatc in Tail Male, to Lit. f. 21,22. which the heirs female are not inheritable. On the other fiJe, if lands are given to a man and the heirs AHierton v. female of his body, this is c^.lled an Eftate in Tail Ab^-'c/ '"' F<-"^^^l--> fo which the heirs male o^ his body are not ilnit. 25 a. inheritable. n. 1. Lit. f. 24. g i^. In all iniiances of fpecial intails, which limit the lands to one particular clafs of heirs, no defcend- ant of the donee can make himfelf inheritable to fuch a gift, unlefs he can deduce his defcent through that particular clafs of heirs, to which the fuccefTion of the lands was firfl limited. Tiierefore if lands be given to a man and the heirs male of his body, and he has iiTue a daughter, who has iffue a fon; this fon can never inherit the eftate : for, being obliged to claim through the daughter, he mud neceiTarily ihew himfelf out of th- words of the gift, which limited the lands to the heirs male only of the donee, which the daughter cannoi be. 1 Inft. 25 5. § 1 6. Por the fame reafon, if lands be given to a man and the heirs male of his body, remainder to him and the heirs female of his body, and the donee has iffue a fon, who has iffue a daughter, who has iffue a fon J Title IL EJiate Tall. Ch. i. § 16—19* 33 foil ; this fon cannot inherit either of the eftates, becaufe he cannot deduce his defcent wholly, either through the male or the female line. § 17. It was formerly a practice for a perfon to give Eftates in lands to another^ as a marriage portion, with his daughter riage. or coufm, to hold to them in Frank Marriage, by which Lit. f. 17. they became defcendible to the iiTue of fuch marriage. Thus Glanville fays : — " Liberum dkitur maritagiwn Llb.vli. c. 18, " qiiando aliqids liber horno^ aliquam -partem terr!«• SU- body iffuing ; yet if lands be given to a perfon and his 25?' ' ^'^' heirs, and if the donee dies without heirs of his body, that it lliail remain to another, this fliall be an eflate tail by the equity of the flatute, although it be cut of Vol. I. D the 34 Title 11. EJlateTail Ch.i, § 19 — 22. the words. For the makers of the aft did not mean to enumerate all the forms of eftates tail, but to put thefe as examples ; fo as all manner of eftates tail, general or fpecial, are within the purview of the a£t. At common law, the intent of the donor was infringed and eluded, which was contrary to right and good confcience, and therefore the ftatute being made to reftrain that vicious liberty of breaking fuch intents, which was fuffered by the common law, fhall be ex- ■* tended by equity. What may ^20. With refpecl to the kind of property that was be in tailed. ^ . r r / I Inft. 19 b. meant as the object on which the ftatute De donis was to operate, the only word in the ftatute itfelf is Tit. i. f. I. Tenemenium^ which has been ftated to fignify every thing that may be holden, provided it be of a perma- nent nature ; fo that not only lands may be intaiL^d, but alfo rents, commons, and all other profits arifmg from lands. § 21. A truft eftate may be intailed, as will be fliewn under Title xii. ; and a copyhold may alfo in fome cafes be intailed, as will appear under Title x, 1 Inft. 20a. S 2^» -^^^ ii^t'g^^-''^^ obferves, that " two things ^' ^' " feem effential to an intail within the ftatute De donis: " One, that the fubjeft be land, or fome other thing " of a real nature ; the other, that the eftate in it be 1 Inft. 20 a. " an eftate of inheritance." It is not, however, necef- fary that the thing to be intailed fliould ilfue out of lands ; for if it is annexed to lands, or in any wife concerns lands, or relates to them, it may be intailed. § 23. It Title II. EJiate Tail Ch. i. § 23—25. ss § 23. It has been dated, that money direfted to be Tit. i. laid out in the purchafe of land, is confidered in equity as land. In fuch a cafe, if the land to be purchafed is directed to be conveyed to a perfon in tail, he will be confidered as tenant in tail of the money, until the purchafe is made. § 24. As to inheritances merely perfonal, which iiaft. 20^. neither ilfue out of land, nor relate to land, or fome certain place, and which are not demandable ut tene- mental in a pr houfes by pulling or proflrating them down. Opening Pits § 25. A tenant for life cannot dig for gravel, lime, """."^a"''' / clav, brick, earth, (lone, or the like, unlets for the 1 Inlt. ^l if' ' 54*- reparation of buildings, or manuring of the land; i ' nor Title III. Ejiaiefor Life. § 25 — 28. 67 nor can he open a new mine ; but he may dig and take the profits of mines that are open. And, in a SanRder's modern cafe, Lord Chancellor Ki7ig faid, that a te- ^l'^^[ ^ ^^' nant for life Ihall no more open mines than cut down 2 P. Wms. 242. timber trees : for they are part of the inheritance. But, in a fubfequent cafe, his Lordfhip faid, that a ciaven'ng v. tenant for life of coal mines, may open new pits or p^ w'S' fliafts for working the old vein of coals, for other- s^S. wife, the working the fame mines would be imprac- ticable. ^26. The converfion of one fpecies of land Into Changing tlie "^ , ~ . , Courie ot another, as the changing of meadow into arable, is Hu/bandry. alfo wafle. For, as Lord Coke fays, it not only {)^.",.' ^'"^^^ * <:hanges the courfe of hulbandry, but alfo the evi- 2 Roll. Ab. 814. dence of the ellate. 2 Bofimq. Rep. 86. § 27. The Court of Chancery will award a perpe- tual injundion to reftrain walle by ploughing, burn- ing, breaking, or fowing of down land. § 28. Mr. Wof^ey being tenant for life of a farm Worfiey \r. and lands in Do?'fef/hire, which confided of 320 acres - ]j,o. Pari. of poor arable land and a Iheep walk, and about 400 *^"- 377- acres of down land, under the will of Lady Stuart, who alfo left a writing under her hand, forbidding Mr. WorJIcy from ploughing fuch lands as ought not to be ploughed, ploughed up, broke, and burnt part of the down land : a perpetual injunftion-was awarded and confirmed by the Houfe of Lords. F 2 § 29. As 68 Title IlL T.jlatcfor Life. § 29— 3 2^ Dcflruaion S ^9* ^^ ^om^ chattels are deemed, in law, to bs \.ooml ^ P^^'- °^ ^^^ inheritance, and called heir hems, fo Tit. !. f. i6. the dellruclion of them is wafle. Thus, if a perfon 2 n t. 304. jg tenant for life of a park, vivary, warren, or dove- houfe, and he kills fo many of the deer, fifh, game, or doves, that there is not fufficient left for the (lores, having regard to the number that were there when his cftate was created, it is wafle. PermifTivf ^ ^q^ Permlllive wafle chiefiv confifls in fuffering Wafte. " . ^ the buildings on an eflate to be uncovered, whereby 1 " ^' ^* ''• the fpars or rafters, planchers, or other timbers of the houfe, are rotten. But if the houfe be uncovered when the tenant comes into it, there is no wafle in fuffering it to fall down. Ftl, 54 L § 31* If a houfe be ruinous at the time when the tenant for life obtains the poffeflion, he is not punifh- able for fuffering it to fall down ; for, in that cafe, he is not bound by law to repair it. And yet, if he cuts down timber growing upon the ground and therewith repairs it, he may juflify ; and the reafon is, (fays Lord Coke), that the law doth favour the fupportation and maintenance of houfes of habitation for mankind. 2 RoH.Ab. § 32. It is a general rule, that wafle which enfues Ero." Ab. Tit. from the a<5l of God, is excufable ; fo that, if a houfe Condiii©n 4c. f;^\\^ Jn confequence of a tempefl, the tenant ihall be excufed in an adlion of wafle. But where a houfe is uncovered by tempefl, the tenant is bound to repair it, within a reafonable time before the timber grows rotten. ntle III. EjUicfor Life. § r:^-'^^. 69 ^ 'xi. If the banks of a river are deftroyed by a f Ini^t. 53^. \ . n T. .r , , 1 , M0.60.P.187. fudden flood, it is not vvafte. But it the banks on the river Tr€?it are unrepaired, it is wafte ; becaufe the Trent is not fo violent, but that the leiTee, by his in- duftry, may well enough preferve the banks, and make the w^ater run within its bounds. § 34. The Court of Chancery will not decree a Wood v. c ^•r ' ' ■ ' .11- Gaynon, tenant tor lite to repair, or appoint a receiver with di- Amb. 395. regions to repair. § 35. By the common law, where lands were grant- OftheAdion for \Vh1[^ ed to a perfon for life, he was not liable to an aftlon for wafle, unlefs he was reflrained, by particular words in his conveyance, from committing wafle : becaufe it 2 Ind. 145. was in the power of the perfon who created the edate, to impofe fuch terms on the tenant as he thought proper. But although this dodrine might appear fuf- ficlently rational in theory, yet it was found extremely inconvenient in pra(^ice ; as fach tenants took advantage of the ignorance of their landlords, and, availing them- felves of this defed in the law, frequently committed ads of wafle and depredation on their lands, not only injurious to the owners of the inheritance, but alfo of great detriment to the public. § 36. To remedy this grievance, the flatute of Mar/bridge, 52 Hen. 3. c. 24., gave to the owners of the inheritance an adion of wafle agalnfl tenants for life; in which, they were entitled to recover full da- mages for the wafle committed. But as the rccoul- 2 Jnd. 144. pence given by this flatate was frequently inadequate F 3 to 70. Title III. Ejlatefor Life. § ^6 — 4c. 2 liifl. 299. to the lofs fuftained, the ftafute oi Glouccjlcr, 6 Ed. i. c. 5., increafed the punifliment, by dechiring, that the place waited fliould be recovered, together with treble damages, as an equivalent for the injury done to the inheritance. » Tn'> 54fl(. § 37- Lord Co/'i? fays, that, if wafle be doney/)^;_y$";« in a wood, the whole wood iliall be recovered, or {o much wherein the walle fparfim is done ; and fo in houfes, fo many rooms'' fhall be recovered, wherein there is wafte done. But if wafte be done fparfnv. throughout, all fhall be recovered. 2 Irid. 304. g 28. Where a perfon is tenant for life of a park, vivary, warren, or dovehoufe, if he deftroys the deer in the park, the filh in the vivary, the game in the warren^ or the doves in the dovehoufe, it is wafte : and the perfon entitled to the inheritance, fliall re- cover the park, vivary, warren, or dovehoufe. ; 306. § 39. The perfon entitled to the reverfion may either enter himfelf, or appoint a perfon to enter for him^ on lands held for life, to fee if any wafte be done. Infi.53^. ^ 40. No perfon is entitled to an aftion of wafte againft a tenant for life, but he who has the imme- diate eftate of inheritance, expedant on the determi- nation of the eftate for life. If, between the eftate of the tenant for life, who commits wafte, and the fubfequent eftate of inheritance, there is interpofed an eftaie of freehold to any perfon in cj]e, then, during the continuance of fuch interpofed eftate, the aO:ion of Title III. Ejl ate for Life. §40 — 43. 71 of wafte is fufpended : and if the fir(l tenant for life dies during the continuance of fuch interpofed cftate, the adion is gone for ever. ^ 4.1. It was refolved in -i s' & ^6 FAiz. in the Com- P<5?ct's Cafe, mon Pleas, that if there be tenant for life, the re- Brayv. Frary» mainder for life the remainder in fee; if the tenant for life commits wade in trees, and afterwards he in remainder dies, the action for wafte is maintainable for wafte done in the Kfe of him in remainder for life ; for it was to the difmheritance of him in the re- mainder in fee ; and now the impediment, which was the mean eftate for life, is taken aw^ay ; " ct remoto impcdimento emergit acJic.'* And as it w^as there Iiiid, fo it was adjudged in 9 Eliz. the fame law, if he, in remainder for life, after the wafte, furrender his eftate to him in the remainder or reverfion in fee. 5 42. Mr. Serjeant WiUiajiu, in his excellent notes aSaund. 252. on Saunders Reports, obferves, that the adlion tor wafte is now very feldom brought, and has given way to a much more expeditious and eafy remedy by an adion on the cafe in the nat are of walte. It has diis advantage over an adion of wafte, that it may be brought by him in the reverfion or remainder for life or years, as well as in fee or in tail : and the plaintiff" is entitled to colts in this adion, which he cannot have in an ad:ion of wafte. § 43. Lord Mr fays, that after wafte done, there ilTi.^,^ is a fpecial regard to be had to the continuance of the F 4 reverfion 7 a Title III. Ejiaiefor Life. § 43 — 46. reverfion in the fame flate that it was at the time of the wafle done ; for if, after the wade, the reverfioner grants it over, though he takes back the whole eilate again, yet is the wafle difpunifhable, t Inil. 302, § 44* Where a tenant for life or years commits wafte, and afterwards affigns over his eflate, yet an aftion of wafle may be brought againfl him. Becaufe, - in the eye of the law, he is tenant as to the aflion, and againfl him who was the wrong doer, did the aftion accrue, which he cannot avoid by his alTign- ment. Court of g 4^. It is faid in i Roll^s Ah. 377. p. 13. that if there be lefTee for hfe, the remainder for life, the reverfion or remainder in fee, and the lefTee in poflfelTion wafles the land, though he is not punifhable by the common law during the remainder for life, yet he may be reflrained in Chancery : for this is a particular mifchief ; and in Moor 554. PL 748. Lord Keeper Egerton is reported to have faid, that he had feen a precedent in the time of Rich. 2., where, in fuch a cafe, it was decreed in. 3 Aik. 723. Chancery, by the advice of the judges, on complaint of the remainder man in fee, that the firft tenant fhould not commit wafle ; and an injunftion was granted. § 46. In modern times, courts of equity have in- terfered in cafes of wafle, by granting an injundlion pendente lite, which is found to be more effeftual than Gibfon V. the ancient writ of eflrepement. And Lord Hardivicke J S2. '' ^ ' ^'^^ ^'^'^•y ^^-^^ ^t i^ ^o^ necefTary the plaintiff fliould wait till Title III. EJfaiefor Life. § 46 — 49. 73 till the wafte is adually committed ; for, where an mtention of committing wafte appears, and the de- fendant infifts on his right to commit wafte, the court will grant an injunction. § 47. The Court of Chancery has alfo frequently granted an injundion againft wafte, where no action of wafte lay at law. § 48. Thus, where a tenant for life in remainder Perrotv. Pcrrot 'Z A tl^ filed a bill againft the tenant for life in pofleflion, for 04. an injunction to ft ay wafte. Lord Hardwicke granted it ; and faid, that if truftecs to preferve contin- gent remainders had brought a bill againft the te- nant for life to ftay wafte, they might have fup- ported it. In another cafe, his Lordfhlp faid, that he would 3Atk. 211. have no fcruple to grant an injunction to ftay wafte in favour of an unborn child. § 49. Although no aCtion of wafte lies where there The Timber is an intermediate eftate, yet if wafte be done by felling Perfon entit- timber trees, the perfon entitled to the inheritance may \^'^ ^° ^^^ ^"' * ^ hentance. feize them, or may bring an aCtion of trover for the re- » 1 Kep. Sx b, covery of them : for a tenant for life has but a fpecial Paget's Cafe, intereft or property in trees growing on the land, fo long as they are annexed to the land ; but if the tenant for life, or any other perfon, fevers them from the land, the property and intereft of the tenant for life in them is thereby determined, and they be- come the property of the owner of the inheritance. § 50. Where 74 Title III. E/laie for Life. §50,51. § 50. Where an eftate is limited to feveral pef- fons for life, with remainder to their firft and other fons in tail, the firfl tenant in tail who is born, becomes entitled to any timber felled by the tenant for Hfe. irvedale v. A. feoffment was made of land to the ufe of A. for 2 Roll. Ab- ^^^^? remainder to his firfl and other fons in tail, re- *^5' mainder to B. for life, remainder to his firft and other fons in tail ; and B. had ilfue a fon, whereby he was tenant in tail in remainder, and afterwards A.^ not having any fon, cut down timber trees, and fold part of the timber ; and ^.'s fon feifed the reft, and A. re- feifed it. It was held, that the fon of ^. might have an adion of trover againfl A. for all the timber ; for the mere property of the trees was in him who had the immediate inheritance of the land, at the time of the cutting of them. And though the remainder for life to B. was an impediment to an action of wafte during his life, yet it was not any impediment to C. as to the pro- perty of the trees, being fevered from the land, which B. could not have for the debility of his eflate. And the polTibility of the eflate which might come to the fon of A. , if he Ihould have one, was not any impedi- Vide Garth V. ment, inafmuch as it was a mere poffibility, which Tit. 16. never might happen, and was nothing in law till it happened, and might be deflroyed by the feoffment oi A. § 51. The timber growing on an eflate, whereof a perfon is tenant for life, may be cut down if in a ftate of decay, by order of the Court of Chancery, for the benefit Title III. Efiate for Life. §51,52. 75 benefit of the perfons entitled to the inheritance. But no damage mud be done to the tenant for life. ^ C2. A. was tenant for life, remainder to B. in Whitfield v. tail, as to one moiety, remainder as to another moiety, 2 P. Wms, to an infant. There was timber upon the premifes ^^°' greatly decaying^ft whereupon B. , the remainder man, brought a bill, praying that the timber that was decay- ing might be cut down ; and that the plaintiff, the re- mainder man in tail, together with the other remainder man, the infant, might have the money arifmg by the fale of this timber. On the other hand, the tenant for life infilled to have fome fhare of the money. Lord Chancellor Talbot^ — '' ift. The timber, while " {landing, is part of the inheritance ; but whenever " it is fevered, either by the a£l of God, as by tempeft, *' or by a trefpalfer and by wrong, it belongs to him *' who has the firft eflate of inheritance, whether in <^" " fee or in tail ; who may bring trover for it : and this *' was fo decreed upon occafion of the great windfall " of timber on the Cavendijh eflate. " sdly. As to the tenant for life, he ought not to *' have any lliare of the money arifing by th^ fale of '' this timber ; but fince he has a right to what may '' be fufficient for repairs and botes, care mufl be taken " to leave enough upon the eflate for that purpofe ; *' and whatever damage is done to the tenant for life, " on the premifes by him held for life, the fame ought f ^ to be made good to him. 76 Title in. Ejlaie for Life. §52—54. " 3dly. With regard to the timber plainly decaying, " it is for the benefit of the perfons entitled to the *' inheritance, that it fliould be cut down, otherwife it " is of no value ; but this fiiall be done with the appro- " bation of the mafler ; and trees, though decaying, ** if for the defence and fhelter of the houfe, or for " ornament, fliall not be cut down. jB., that is the te- " nant in tail (and of age) of one moiety, is to have a " moiety of the money, fubjeft to fuch dedu£lions as *^ aforefaid ; the other moiety, belonging to the infant, " mufl be piit out for the benefit of the infant on " government or real fecurities, to be approved of by *' the mafler.** § ^1^. The Court of Chancery has alfo permitted the timber growing on an eftate, whereof a perfon was tenant for life, to be cut down for the purpofe of paying of legacies, which were charged upon the inheritance. ClaxtoB V. § 54. A perfon devifed his eftate to his widow for 2 Vern.icz. ^^^*^> remainder to A. B. and his heirs, upon condition that he fhould pay feveral legacies, at the times appointed in his will ; and if he did not pay them accordingly, remainder over to another perfon. A. B. filed his bill in the Court of Chancery, dating that there was a great quantity of timber on the eftate which belonged to him ; that he was willing it fhould be fold, and the legacies paid ; but that the widow, who had barelv an eflate for life, and could make no profit thereof herfelf, in combination with the other remainder Title III. E/iate for Life. §54 — 56. 77 remainder man, defigning to make the plaintiff forfeit his eflate by non-payment of the legacies, had refufed him permifTion to fell the timber, though he offered fatlsfadion for any damage Ihe fliould thereby fullain : and therefore prayed that he might have liberty to cut down and carry off the timber, and fell it for payment of the legacies. The court thought it reafonable that the plaintiff Ihould have liberty to cut down and take off the timber, making fatlsfadion to the widow for break- ing the ground, ^c. ; and referred it to the mailer to fee what quantity of timber was neceffary to be felled for payment of the legacies, and what might be con- veniently fpared. S 55' Where the tenant for life has alfo within him- felf the next exiftent eftate of inheritance, fubjei!^ to intermediate contingent remainders, he fliall not take advantage of his own wrong, by cutting down timber ; but the Court of Chancery will preferve it for the benefit of the contingent remainder men. ^ ^6. The Duke of Bolton was tenant for life, with WlUIama v. contingent remainders to his firft and other fons, re- g^i^^J] mainder to Mrs. Orde for life, remainder to her firft 3 P- Wn^s. 268. note I. and other fons, with other contingent remainders over (with eftates to truftees to preferve all the contingent remainders), remainder to the Duke in fee. Mrs. Orde had a fon born, who died in a fev/ days after his birth. All the contingent remainders being yet in expedancy, the Duke cut down timber. Mrs. Orde had afterv/ards another fon, who was a defendant in the caufe. On the 78 Title III. f.Jlatefor Life. § S^-> SI' the queftion to whom this timber fhould belong, the Lord Chancellor was of opinion, that as it was not competent for the Duke to cut down timber, in refpedl of his life eftate, he fhould not take advantage of his own wrong. That the timber, although by feverance became perfonaky, was yet bound, as far as it could be, to the ufes of the realty. That the adminiflrator of Mrs. Orders firft: fon was certainly not entitled, the child being dead at the time of the timber cut ; neither could her fecond fon claim it, for although he had a veiled eftate of inheritance, yet fuch eftate was liable Vide Garth to be devefled by the Dukc*s having a fon ; his Lord- Tit. 1 6. * ^^^P therefore thought nobodv entitled at prefent, but directed the Duke to pay into Court, to the credit of the caufe, the money for which the timber had been fold, and the interefl thereof. Of Wade by § ^7. With refpeft to wafle by corporations fole. Corporations .. ,._ _ . t r ^ r Sole. luch as a bilhop, parlon, or vicar ; it luch perions cut down trees upon the lands of the church, unlefs it be for reparations, they may be punilhed for the fame in the ecclefiaftical court, and alfo by writ of pro- 1 1 Rep. 49 a. hibition. Lord Coke has cited a cafe where, upon complaint to the king in parliament that the bilhop of Durham had committed wafte, by deftroying the timber belonging to his church, a prohibition had iifued Stockman v. againft him. And in another cafe. Lord Coke is re- Roll Rep. 86. P'^^'te^ to have faid, that if a bifhop cut dow'n and fold trees, and did not employ them for reparation, and any one would move it, he would grant a prohibition out of the Court of King's Bench. § 58. The Title III. Efiatefor Life. % 58--60. 79 § 58. The authority of this di6lum of Lord Coke has Jtfferfon v. been doubted 111 a modern cale, ni which it was de- , j^of. and P. termined by the Court of Common Pleas, that that ^°^* Court had no power to iflue an original writ of pro- hibition, to rcflrain a bifhop from committing wade in the polfciTions of his fee, at leafl at the fuit of an uninterefted perfon ; and the Court feemed alfo to lioubt whether even the Court of King's Bench had fuch a power. It appears, however, that the Court of Chancery has this kind of jurifdidion ; for a cafe is reported in 2 Roir^ Ah. 8 1 3. in which Lord Keeper Coventry grant- Ackland v. ed a prohibition, at the fu";; of a patron, againfl a pre- bendary, for having wafted the trees of his prebend. § 59. At common law, tenants for life were not of Accidents anfwerable for damages done by fire, whether it arofe ^ " ^* from accident or negligence. But when the ftatute of ' " ' - ' ^' Glouccjier rendered tenants for life anfwerable for wafte without any exception, it rendered them anfwerable for damages done by fire. But now, by the flatute 6 Aim. c. 31. all perfons are exempted from adions for acci- dental fire in any houfe. § 60. By the feventh feclion of this ftatute it is pro- vided, that nothing in the ad fliall extend to defeat or make void any contract or agreement made between landlord and tenant. In confequence of this claufe it has been held, that Chcrxerfield where a tenant for life, under a fettlement, covenanted ^'ctn!° r to 6^6. So Title III. EJlatefor Life. % 60—63. to keep a houfe in good and fufficient repair, and the houfe was burned down by accident, he was bound t(> rebuild it. 6 Term Rep. It is now become ufual, where it is intended that ^5*- the tenant ihall not be liable to rebuild in cafe of accidental fire, to except it in the covenant to repair, OftlieClaufe §61. It has been long ufual, where eftates for life r.'l^i!! ,„r'r are limited by exprefs words, to infert a claufe that Walk. the tenant for life fliall have the lands " without im- 4 Rep. 62 b. peachment of wafte.*' This claufe is of great antiquity, and it was originally held, that it only exempted the tenant for life from the penalties of the flatute of Marlebridge, but did not give the property of the thing I Inft. 220a. wafted. It was, however, afterwards determined, that I Vcf.' 265. * thefe words gave the tenant for life power to cut down all forts of timber trees, and to convert them to his Pyne v. Don, own ufe : and alfo, that where timber, parcel of a build- ing, or timber trees were blown down, they became the property of the tenant for life- 1 Term R. 55 Does not ex- § 62. This claufe does not, however, enable the tious Waiie. tenant for Hfe to commit wafte malicioully, by pulling down houfes, or cutting down timber, which ferves for ornament or fhelter, or which is not fit to be felled ; for, in that cafe, the Court of Chancery will reftrain .the tenant for life by injundion. Vane v. Ld. § 6 1. Lord Ber7iard, on the marriage of Ills fon, 2 Ve'n,.'738. fettled Raby caftle on himfelf for Hfe, without Im.peach- raent of wafte, remainder to his fon for life, ^r. Lord Title III. EJlate for Life. % St^—^S- ^ Lord Bernard having taken fonie dillike to His fon, get 200 workmen together, and ilripped tl^e caftle of the iron, lead, doors, l^c. to the value of 3000/. The Court of Chancery immediately granted an injundion to ftay committing of wafte, in pulhng down the caflle ; and upon the hearing of the caufe, decreed not only the injunction to continue, but that the caftle Ihould be repaired, and put in the fame condition it was formerly in, at the expence of Lord Bernard. § 64. A bill was brought by a remainder man, Pccklfnjrtoa V k oclcliri'^'- to reftrain a tenant for life, without impeachment of ton, c BcTc. wafte, from cutting timber in Wejiwood "^-^x^^ improper ^^' 4-9 ^• to be felled. The Lord Chancellor granted an injundion to re- ftrain the defendant from cutting timber which ferved for ftielter or ornament ; and alfo any other timber in the park, which was not of proper growth to be felled. And his Lordfhip declared, that courts of equity had, in this refped:, eftabhfhed rules much more reftriftive than thofe of the common law, which gave tenant for life, without impeachment of wafte, as large a power over the timber, as tenant in fee-fimple j that timber might be had for the public ufe. § 65. The huftDand of a lady, who was tenant for Roit v. T orJ life, without impeachment of wafte, pulled down feveral SomernilLS - 2 Ab. Lq. nouies and outbuildings, and fold the fame ; took up 759. lead pipes, and cut down feveral groves of trees, that were planted for the fhelter and ornament of the manfion-houfe. Vol- L G A bill Bz Title III. Ejlatefor Life. § 6$, A bill was brought to compel the tenant for life fo account for the money thus raifed, and to put the eflate in the fame plight and condition that it was before. The defendant demurred, infilling that this wafle was committed by a tenant for life without im- peachment of wafle, and therefore he was not Hable to be called to an account, either at law or in equity for what he had done. Lord Hardwicke^ — " Though an a£lion of wafle " will not lie at law for what is done to houfes or "' plantations for ornament or convenience, by tenant " for hfe without impeachment of wafte, yet this Court «' hath fet up a fuperior equity, and will reftrain the ^' doing fuch things on the eflate. Ante, f. 6%. '* In Lord Bernard's cafe, the Court reilrained him *' from going on, and ordered the eflate to be put in *' the fame condition. In Sir Blundel Charletoir's cafe, ** the Mafler of the Rolls decreed, that no trees fhould *' be cut down that were for the ornament of the *' park ; but Lord Chancellor K'mg reverfed that, " and extended It only to trees that were planted in " rows. My only doubt is as to the trees that have *' been cut down, for if this bill had been brought ** before fuch trees had been cut down, as were for the *' ornament or fhelter of the eflate, this Court would ** have interpofed ; but here the mifchief is done, and ** it is impoffible to reflore it to the fame condition, '* as to the plantations ; and therefore it can lie in '* fatisfadion only ; and I cannot fay the plaintiff is " entitled to a fatisfadion for the timber, which is a " damage Title III. Efiatefor Life. § 6$, 66. 8^ *' damage to the inheritance : yet as to the pulling " down the houfes and buildings, and taking up the " lead pipes, they may be reflored, and put in as good " condition again." The demurrer was allowed, as to fatisfa£lion on ac- count of timber, but over-ruled as to the reft. § 66. A bill was brought againft a lady, who was Aflon v. tenant for life without impeachment of wafte, to en- i Vef! 264. join her from committing further fpoil and deftrudion, and for fatisfaftion for the damage flie had already done ; fuggefting fhe had cut down fuch timber, as was not fit even for repairs, as young faplings, tsfc* not leaving a twig on the ellate. Lord Hardwicke, after ftating the general dosElrine, fays, " It is therefore inferred, that the Courts ought " in general to grant an injundion againfl tenant for *' life without impeachment of wafte, for cutting " down any timber not full grown, or proper for " building ; or any, the doing of which might be a " fpoil to the eftate in future. Something of that '* kind might be wiftied for, but it is, in general, dif- ** ficult to attain, and inconvenient to do it ; nor does *' it fall within the reafoning of the cafes cited. Was " the court to take fuch large ftrides, refort muft *' always be had to a court of equity ; for no certain. " rule can be laid down, as it cannot be taken " from the value of the trees, which will differ ac- " cording to the fort and circumftances : nor from *' the purchafe of eftates ; and fome timber may be ** fit for one kind of building, not for others. But G 2 « the •If 8^ Title III. EJiatefor Life. § 66, 67. " the reafoning of the cafes of pulling down farm or " manfion-houfes, or trees for ornament or fhelter, " does not come up to this ; for the confequence of " cutting down timber, perhaps too young, does not " tend to the deftruclion of the thing fettled, although " it tends to its prejudice for a time ; for timber will " grow again in a few years : not fo of houfes. Nor " will young trees planted in avenues pulled down, *' ferve for the purpofes as before ; for, having been '' put there for the convenient enjoyment of the houfe, " they are confidered as appurtenant thereto, and can *' no more be deftroyed by fuch tenant for life, than " the houfe itfelf. But it would be very dangerous *' for the court to ufe fuch a latitude as to extend this " to the taking away the profits of the eftate by te- " nant for life, to the prejudice of the remainder " man ; which his eftate for life, without impeach- ^' ment of v/afte, gives him liberty to do.'* An in- junction was notwithllanding granted, Stratlimore § 67. An injundllon was moved to reftrain Mr. ^*B Re Bowes, the hufband of Lady Sirathmore, who was te- ^8. nant for life without impeachment of wafte, from cut- ing timber, or doing any wafte in the rides or avenues to the houfe, or cutting timber that was for fhade or ornament to the houfe, and trees unfit to cut as timber. Sir Lloyd Kenyoriy M. R. granted the injunction, faying, it ought to include every thing ufeful or ornamental to the houfe. A ride through a wood is more conftitu- tive to the beauty of the place ; and he thought him- felf bound to grant an injunction as to the ornamental trees, though they fhould not be planted trees, but trees^ . Title III. EJiate for Life. § 68-— 71. 85 trees growing naturally, and to extend it to cutting Vide Piers young faplings, and trees not fit to cut as timber. ,'Vef 521. § 68. A tenant for life without impeachment of 2 Atk. 383. wafte, is, notwithllanding, obliged to keep tenants houfes in repair, and (hall not fuffer them to run to ruin, § 69. The privilege given by the words, without Ts annexed to impeachment of wafte, is annexed to the privity of gftate^^' ^ ^ eflate, and determines with it. Thus, Lord Coke fays, 1 1 Rep. 33 h. if a leafe is made to one for the term of another's life, without impeachment of wafte, the remainder to him for his own life, now he is puniftiable for wafte, for the firft eftate is gone and drowned. § 70. It is laid down by the Court of Common W. Jones,5i. Pleas, in 22 Jac.^ that if a tenant for life without impeachment of wafte, makes a leafe for years, and the leffee for years commits wafte, the perfon in remainder (hall not have an adion for wafte ; for this leafe was derived out of the eftate for life privileged, and if wafte lies, it ftiall be brought againft the tenant for life who 'made the leafe ; and he was difpuniftiable. § 71. Where the claufe without impeachment of Dickens R. wafte is reftraincd by the words, " except voluntary wafte," the tenant is puniftiable for wilful wafte ; and has no intereft in the timber, otherwife than the maft and fhade, and necefiary botes. Per Lord Hardwicke, G 3 § 72' Some $6 T;;.VIII. £ r.:;:-/r L;/>. § 7:— 74. Or"p:;rr:-l § -z. S:~\t czici have ariien where efiate? for life ^' \v_;... have been devhed. ■with partial powers oi committing waiie ; a::d the Court cf Chancen- has LnreTpofed to reihra:;: ::.- ' "i.'ees iTom abufing fuch powers. Hzi^i : V. Hcvvl -) A=:.b 5- ? § - ;. Lands were devifcd tr a perfrn for life, with power to cut down fuch :r;.c; as fcur perfons, named in the will, ihould all':v- c:. cr direct bv wTi-inj. All the trultee? beinc dc:.i, L:rd X::-:':--:: : decreed, that the p:wer cf cutting timber rem.ained, but the C:'.:r: wru.i ^re:;r'."c :ae cavc^-t ; ana taeretore it was rcjifrred to the maimer to fee what trees were fit to be cut ii'^r::. Cbambcrfain <^ "u. Mr. D:r"-{r devifed his eflate at Cr^':b:^r\ to V. Dummer, I Bro. i65. {-: f:: iife. and in a codicil hirs, '* Whereas, by • mv wdll, miv wife cannot cut any timber, now m.y • will a:td mind is. that ihe mav, durin;: i, \--: time • as lihe m.av continue mv widcv.-, cut tinfoer tor her • own Mit and benent, at feafonable timies in the • vear.' ^-Irs. £):< ^■-—.vr, under this power, m.ade contracts for, und beran to fell timber. The perfcn in reverfion applied fcr an i:v.nf:::n to ftav the cutting of orna- men::.! hmrer, cr fu:h :o ferved for fhelter to any of the manfion-hcufes, and ahb of ycung trees not come to ma:v,r::y. The ^hAzr cf the Rolls ex parU, made an r:i-;r to ft ay the cuttin^ cf any timber vrhatever, unu- uiuweri 0-1 Title in. EJaiefor Life. § 74—77. S7 On a motion to difcharge this order, Lord Thurhw utterly rejecled the idea that fhe was to cut for her own ufe on the eftate, or for eflovers only ; and thought that fhe was entitled, not merely to cut timber which would fuffer by flanding, but ever}- thing which could fairlv be called timber ; although fhe could not cut fuch (ticks as would only make paling or faplins, not proper to be cut as timber. § jy Lord Hardwicke has faid, that where there is 3 -^'dc. 210. tenant for life, -without power of committing wafle, re- mainder to another for life, without impeachment of wafle, remainder in fee ; the Court ■will not fuffer an agreement bet^veen the two tenants for life to commit wafle, to take place, againfl the remainder man ; before the time comes when the fecond tenant for life's power commences. § 76. Another incident to an eflate for life is, that Tenants for in cafe the tenant dies before harvefl time, his executors t'itle?to^°' will be entitled to the crop then growing on the lands, Ejiibkments, as a return for the labour and expence of tilling the ^ ' •^- ' ground ; which the law calls emblements, %']']. This rule extends to eveiy cafe where the id. eflate for life determines by the ad of God, or by the act of the law ; but not to thofe cafes where the eflate is detei-mined by the act of die tenant. Thus, if a oiand'sCafe, woman holds lands durante mduitatc, (which is an sR^P-'i^^' eflate for life), and fows them, and after\^-ards marries; {he will not be entitled to emblements, becaufe her eflate determined by her ovrn acl. G 4 , S 78. If 88 Tit/em. EJiate for Life. §78—81. jdcm. §7^* ^^ ^ li^^i-^t be made to a huftand and wife during the coverture, and the hufband fows the lands, and afterwards they are divorced caufa pracontracluSi > the hufband will be entitled to emblements ; for al- though the fuit is the acl of the party, yet the fentence which diffolves the marriage, is the judgement of the law, et judicium redditur in invitum, I Inft. ^s ^' § 79' The under-tenants of perfons feifed for life have dill greater advantages, refpefting emblements, than even their leflbrs ; for in cafes where an eft ate for life determines by the ad of the tenant, the under- tenant Ihail notwitliifanding have the crops which he has fown. J Jem. § So. The word emblements only extends to fuch vegetables as yield an annual profit ; fo that if a perfon, who is tenant for life, plants young fruit trees, or young oaks, afhes, elms, ^c, or fows the ground with acorns ; his executors will not be entitled to l.atliam v. them. But it has been determined, that if a tenant Afwood ^ j.^^ ^.^^ j^^ Jn^i/Ji, before feverance of the hops, his executors fliall have them^ though growing on ancient roots. §81. The advantage of emblements is extended to the parochial clergy, (who are all tenants for life) by the ftatute 2S He?L 8. c. 11. f. 6. which enafts, that in cafe any incumbent happens to die, and before his death hath caufed any of his glebe lands to be manured, and fown at his proper cofts and charges, with any corn or grain ; that then all and every the fame in- cumbents Title III. EJlate for Life. §81—85. cumbents may make and declare their teftaments of all the profits of the corn growing upon the fame glebe lands, fo manured and fown. ^i. If the incumbent dies inteflate, whether his adminiftrator will be entitled to the emblements ? 89 § 82. In all real aftfons, a tenant for life may pray Tenants for in aid, or call for the aflillance of the perfon entitled prayhl^Aid. to the inheritance, to defend his title ; becaufe the gg^^^ Real tenant for life is not fuppofed to have in his cuftody ^^' ^°- the evidences neceflary to cftablilh the right of the inheritance. § 83. It is laid down in a modern cafe, that when Hicks v. deeds are in the hands of a tenant for life, the Court jji'^j^^'^g ^ of Chancery will not take them out of his hands ; 650. but when they are not in his hands, the court will not order them to be delivered to him. § 84. Another incident to an eftate for life is, Eftates for that it is fubje6l to merge in the inheritance; and, fubfeftto therefore, whenever the tenant for life acquires the '"^''g^''- abfolute property or inheritance of the land, the Vide 15 Vin! eftate for life becomes merged, ' and loft in the fee- ^^' ^^^' fnnple. § 85. An eftate pour auter vie, will alfo merge in an eftate for a man's hfe, the latter being the moft valuable. Thus, if an eftate be limited to a perfon for Dyer, 10^. the life of another, remainder to him for his own life, " ^P* 3 • the fir ft eftate is merged. 86. An 90 Are not In- tallable. Tit. 2. Low V. Barron, 3 P. Wins. 262, Fearnes ex. Dev. 317. Dot V. Lux ton, 6 Term Rep. 291. Subjecl to Payment of Intereft. Tracy v. Hereford, 2Brc.R.i28. Penrhyn v. Hughes, 5 Vef. jun. 99. 7///. fcended to his fifter Jlice Richard/on, who w^as mar- \^^^ ^°^'^' ried, and had iflue. The eftate was let on leafes for years, and the rents were payable at Michaelmas and Lady Day ; but the tenants were greatly in arrear at the death of H» SewelL Alice Richard/on did not receive any of the Lady Day rents, though fhe lived four months after that time, nor did any other perfon receive rent during her life. The queftion was, whether her hulband was entitled to be tenant by the curtefy. Lord Hardwicke obferved, that the poffelTion of the leflee for years being the pofleffion of the brother, he died feifed ; and his fifter became alfo feifed, immedi- ately on his death. If fhe had died before Lady Day^ there no Title V. Curtefy. Ch. L § 14, 15. there would not have been a doubt of the hufband's right to Gurtefy, becaufe he could do nothing until ilnft. 15 «. the rent became due. And Lord Cokf fays, if land? let for years defcend on an elder brother, who dies before entry or receipt of rent, yet he has fuch a feilin or poj/ifflofratris, as will make the eftate defcend to Vide Tit. 29. a fifter of the whole blood, in exclufion of a younger brother of the half-blood, becaufe the pofleffion of the lelTee for years is the poffeffion of the elder brother, fo that he is adtually feifed of the inheritance : and the cafe of half-blood is conftrued more ftridly than that of curtefy. The only objeflion arifes in the neg- ledl of the hufband in not diflraining for the rent, which became due at Lady Day. The receipt of rent would have amounted to an aftual feifni ; and if the reprefentatives of the brother had received any rent during the life of the wife, it would have been a ma- terial objeftion, but no part of the rent which accrued after the death of the brother was ever received by the wife, or by any other perfon ; fo that the poffeffion of the leffee was the poffeffion of the wife, nor could there be any other, wdthout making the hufband a trefpaffer. It was decreed, that the hufband was entitled ta be tenant by the curtefy. Tit. 3. f.8. § 15. It has alfo been ftated, that a devife to exe- cutors for payment of debts, does not prevent the de- fcent of the freehold and inheritance : from whence^ it follows, that in a cafe of this kind, the hufband vrill be entitled to curtefy. § 1 6. A perfon Title Y. Curtefy. Ch.l § 16—20. m § 16. A perfon who had ilTue a daughter, devifed Guavara's his lands to his executors for the payment of his debts, g j^^,^ ,^5'^ and until his debts were paid. The executors entered. The daughter married, had ifliie, and died. It was refolved that the hufband fhould be tenant by the curtefy. § 17. Where the eflate of the wife is let for life i ^n^- ^9'^- before the marriage, the hufband cannot acquire a feifin thereof, and will not therefore be entitled to curtefy. If a rent is refer ved, it feems doubtful whe- ther the hufband will be entitled to it ; for, in a fimi- Vidt Tit. 6, lar cafe. Lord Coke was of opinion that the wife flioukl not have dower, § 18. With refpeft to the feifin which is neceffary in incorporeal hereditaments to give a title to curtefy, it will be ftated under Title 21. Advowfon, and the fubfequent titles. § 19. The third circumftance required to the exid- ]{fue. ence of an eftate by the curtefy, is ilFue ; after which, 1 ir.ft. 30^3. the hufband was formerly allowed to do homage alone, ' ** and was called tenant by the curtefy initiate. Such iflue muft, however, have the ^following quahties to entitle the hufband to curtefy : ift, It muft be born alive ; 2d, It muft be born in the life-time of the mo- ther ; and, 3d, It muft be capably of inheriting the eftate. § 20. By the old law, it was deemed neceffary that It muft be the child ihould be heard to cry j and this circumftance g^.^^ j ^^ was 112 Titled. Ciiriefy. Ch.i. § 20 — 23. was to be proved by perfons who aciually heard it, and not by thofe who learned it from hearfay only. Little- ton appears, however, to have doubted, whether it was neceiTary to prove that the child cried. And iTnft. 29^. 'Lord Coke deduces an argument from the form of Dytr' 2tb'. pleading in cafes of this kind, to prove, that it would Ecnl. R. 25. be fufiicient to give any other evidence of the child's being born alive. In the T ife- § -I* The lifae muft be born in the life-time of the ^■:J^.l ^'' ^'^^ wife. So that, if the wife dies in childbed, and the iifue Wife. 3 Inft 3 3 is taken out of the womb by the Casfarean operation, § Rep. 35a. the hufband will not be entitled to curtefy. For, at the inflant of the mother's death, he was clearly not entitled, as having had no iifue born ; but the land defcended to the child, while in his mother's womb ; and the eftate being once fo veiled, ihali not be taken from him. And capable § -2. The iiTuc muft be fuch as is capable of inhe- ot mheniing j-jj-jj^gr the eftate. So that, if lands are g-iven to a wo- thc Eliate. . . ^ . ^ man and the heirs male of her body, and fhe has iffue Lit. 1. 52. ^ \ iui\.2C)b. 2. daughter only, and dies, her huiband will not be 8 i 119 cafe the eftate of the wife was determined, and yet the hufband lliould be tenant by the curtefy, for that was Doft.&Stud. c 28 tacite implied in the gift. And therefore, that the huf- * band was entitled in this cafe to hold the eftate tail during his life as tenant by the curtefy ; for the eftate by the curtefy was not derived merely out of the eftate of the wife, but was given to the huft)and by the pri- vilege and benefit of the law ; for as foon as the huf- band had iffue, his title became initiate, and could not afterwards be defeated by the death of the ilfue, which being the a6: of God, ought not to turn to his pre- judice. § 12. If a woman, who is tenant in tail, departs with her eftate fo as to reduce herfelf to be only tenant for life, and after\vards marries, her huft^and will not be endtled to an eftate by the curtefy. § 13. A woman tenant In tail, previous to her mar- Doe v. riage, conveyed her eftate, by leafe and relcafe, to truftees ^ xerm R. to the ufe of herfelf till the marriaee, then to the huf- ^76. \T'A T^'f "» band for life, remainder to herfelf for life, remainder c^. ?. f. 22*. to the firft and other fons of the marriage. The wo- man died in the life-time of her huftjand ; and it was determined, that the huft)and could not take as tenant by the curtefy, becaufe, the inftant the marriage took effecl, the eftate was vefted in the huft^and during the joint lives of himfelf and his wife, and, confequently, there never was one moment during the coverture, when the wife was feifed of an eftate tail in poffefTion, which is neceifary in order to make the hufband tenant Vide Tit. 6. by the curtefy. I 4 § 14. Curtefy I20 Title V, Curtefy. Ch,u. §14 — 18. I Inft. 224 a. 5 14. Cuitefy is an incident fo infeparably annexed tp. 4.1 a. ^^ ^^ eflate tail, that it cannot be reflrained by any provifo or condition whatever, Eftates in § 1 5. A man may be tenant by the curtefy of eftates Common but . , . r n • not Joint- i^ Coparcenary and m common, but not of eftates m tenancy. j^jj^j- tenancy ; of which, an account will be given under thofe titles. Trufl Eftates. § 1 5. Truft eftates are liable to curtefy, and the Court of Chancery will aftift a tenant by the curtefy in removing a truft term for years ; of which, notice will be taken under Title 12. Trufts. Money to be § 1 7- It has been ftated to be a rule in equity, that. Land ^"^ '" m.onsy agreed to be laid out in the purchafe of land, TiL J. f. 15. ^^li he confidered as land to all intents and purpofes ; and upon this principle it has been determined, that a -. . man may be tenant by the curtefy of money agreed to be laid out in the purchafe of land, Sweetapple § 1 8. A perfon devifed 300 I. to her daughter i'V''"n c'^6. Mary, to be laid out by her executrix in the purchafe of lands, and fettled to the only ufe of her daughter Mary, and her children : and if fhe died without iflue, the lands to be equally divided between her brothers and fifters. The plaintiff married Mary the legatee, and had ilfue by her ; but fhe and her children being dead, and the money not laid out in land, the bill was, that the plaintiff might either have the money laid out in 7 the Title V, Curtefy. Ch.n, § 18—21. 121 the purchafe of land, and fettled on him for life as tenant by the curtefy, or might have the intereft of the money during his hfe. The court obferved, that, if this had been an immediate devife of land, Mary the daughter would have been tenant in tail, and, con- fequently, the hufband would have been tenant by the curtefy. It was therefore decreed, that the money Ihould be confidered as land, and that the plaintiff Ihould have the intereft and produce thereof, during his life, as tenant by the curtefy. § 19. A fum of money was agreed, by marriage Cunnin^haflB articles, to be laid out in the purchafe of lands, to be ^^tTi^l. fettled to the ufe of the hufband and wife for life, re- mainder to the children as they fhould appoint, and if but one child, then to that child, in tail. The marriage took place, and there was but one child, a daughter, who married ; and the truflee paid the money to her, and her hufband. It was decreed, that Dodfon v. this payment was not fufficient to make it be confidered ^^^^^ °^' as money, but that the hufband ihould be tenant by 404- the curtefy of it. ^20. An equity of redemption is fubjeft to Equities of •^ ^ ^ ^ . . ^ . Redemption. curtefy; of which an account will be given in Title Mortgage. 5 21. Some incorporeal hereditaments, fuch as ad- incorporeal vowfons, tythes, commons, and rents, are liable to "^''^di'^a- ' "^ ' ' ' ments. curtefy ; of which an account will be given under thofe yefpedive titles* § 22. Having 122 Title v. Czirte/y. Cb,u. §22 — 25, What Things § 22. Having ftated the different kinds of property tl^Curi^ty ^ which are Hable to curtefy, it will now be proper to examine what things are not fubje6t to this right. Eftates not of § 23. No interefls in land are fubjed to curtefy but Inhentancc. gf^^teg ^f inheritance, in poffefiion. For an eflate by the curtefy is a condnuation of the inheritance ; and, therefore, there can be no tenancy by the curtefy, unlefs the children take an inheritance. For it is ab- folutely neceifary that the moment the hufband takes as tenant by the curtefy, the inheritance fhould defcend upon the children. Eoothby v. ^ 24. Lands were devifed to Ann Boothby and her 9 Mod. '147. affigns for her life, and if fhe married and had iflue male of her body, living at the time of her death, then to fuch iffue male, and his heirs male for ever. Ann Boothby married and had iflue, and died in the life-time of her hufband. It was determined, that the inherit- ance, never having been veiled in the wife, during her life, her hufband could not, for that reafon be tenant by the curtefy. Sumner v. § 25. Lands were devifed to A* and her heirs, and 2 Aik. 47*. ^^ ^^ ^^^^ before her hufband, he to have 20 /. a year for life, remainder to go to the children. The wife died before her hufband. The Court faid, it was a rule in the cafe of a tenancy by the curtefy, that the eflate ihall come out of the inheritance, and not out of the freehold ; and, therefore, the hufband was ?iot entitled to curtefyo 5 26. A perfon Title V. Curtefy. Ch.u. §26 — 29. 123 § 26. A perfon cannot be tenant oy the curtefy of Lands af- lands which are affigned to a woman for her dower. Dower, of which the reafon will be given in the next title. J,"""" *^H' '^/'^* '-' J enantbythc Curtefy, ic, § 27. Copyhold eftates are not liable to curtefy by Copyhold the common law. But there are many manors in q-jI^^ which the hufband of a female copyholder is by par- 160. ticular cullom entitled to his wife's eftate, in cafe he furvives her ; of which an account will be given under the Title Copyhold. It fhould, however, be obferved, that a man may be tenant by the curtefy of the rents and fervices due for copyholds, where his wife was feifed of the manor (a), § 28. "With refpect to the nature of this eftate, it is Nature of no more than a bare eftate for life j nor has the tenant *^'^ Eftate, any more privileges than a mere tenant for life. And by the cuftom of Normandy, it was determinable upon the marriage of the tenant, which is ftill the cafe in gavelkind lands. § 29. An eftate by the curtefy Is confidered, in 3 Rep. 22 h. many refpefts, as a continuation of the wife's eftate ; and, therefore, the huft^and is entitled to all thofe rights and privileges which his wife would have had if ftie were alive, and which were annexed to her eftate. (a) With refped to the cafes where curtefy ceafes with the eftate, they will be dated in Title vi, Dov/er, § 30- No. 124 'T'ii^^ ^' Curtefy. Ch. ii. § 30 — I't^, § 30. No entry is neceflary to complete this eflate ; for, on the death of the wife, the law adjudges the freehold to be in the hufband immediately, as tenant by the curtefy. 8 Rep. 36 a. § 3 1- The tenant by the curtefy fhall be attendant on ^ " ''^^^' the lord paramount for the fervices which are due in refpecl to the lands which he holds by this title. Punifhable § S^' ^^ appears to have been fomewhat doubtful, forWafte. whether a tenant by the curtefy was punifhable at 2 Inrt. 145. common law for wade. And, therefore, it was enaded l^^- 35 J- i^y |.|^g flatute oi Gloucejier, 6 Edw. i. c. 5. that a writ of wade fhould lie againfl him, and that he fhould incur the fame penalties for committing wafte, as any other tenant for Hfe. 2 Inft. 301. § ?)'^- There is fuch a privity between tenant by the 2 Bac. Ab. curtefy and the heir, that at common law, although ^3°' both had as it were by confent granted away their eftates, Fitz. N. B, y^t ^o a£lion of wafte would lie againft any other perfon. S^' But now, by the ftatute of Gloucejier, c. 5. a remedy is provided for the grantee of the reverfion, againft the tenant by the curtefy, fo long as he continues his eftate ; or againft his afTignee, if he affigns it over. But fo long as the heir keeps his reverfion, the tenant by the curtefy is liable to his aftion of v/afte, notwith- ftanding any affignment j the ftatute having provided no remedy for this cafe. \'ide I Inft. It feems to be fomewhat doubtful, whether tenant 57 a. n. I. Y)y the curtefy is within the ftatute 6 Ann. c. 31. re- fpeding accidental fire. § 34. An Title V. Curtefy. Ch/\i, §34 — 37. 125 § 34. An eftate by the curtefy is fubjeft to the Subjeatothe charges of the wife ; fo that if a woman, tenant in tail, ^hc^ w^ife° acknowledges a ftatute, and afterwards marries, has Dyer, 5 1 b. iiTue, and dies, the lands may be extended in the hands "' * of the hufband holding as tenant by the curtefy. % ZS' Where an eflatc, of which a man is tenant by i Atk. 6c6. the curtefy, is charged with the payment of a fum of money, the perfon entitled to the inheritance can oblige the tenant by the curtefy to keep down the intereft, as well as any other tenant for life. ^ -26. If a tenant by the curtefy aliens in fee, or in Forfeltableby . . r r • r t_ • Alienation. tail, or for the life of the grantee, it is a torteiture ot his eftate ; and the perfon in reverfion may, by the ftatute 2 Inft. 309. of Wejlminjler 2. c. 24. have a writ of entry in con- Jimili cafu. ^ %7, A huft)and does not forfeit his rieht to an But not for . .P ,. . * . Adultery. eftate by the curtefy, by leaving his wife and living m 3 p. Wms. adultery with another woman. ^J.^g r^j^ ^ TITLE ( 126 ) TITLE VI. D O W E R. CHAP. I. Of the Origin and different Kinds of Dower, CHAP. II. Of the Reqidfites to complete the Title to Dower ^ and the Perfons enlitled to it. CHAP. III. Of what Things a Woman is dowable, and the Nature of this Eftate. CHAP. IV. Of the AJfignment of Dower ^ and the Modes of recover" ing it, CHAP. V. By what Means Dower may be barred. CHAP. I. Of the Origin and different Kinds of Dower. § 2. Origin of Doaver. 1 1 . Dower at Common Law. 12. Donver by Cujlom. l6. Dower ad OJiium Ecclefie. ^ l8. Dower ex AJfenfu Patrh. 20. Dower de la plus Belle. 21. Dower is a moral Right, Section i. TT^HE third eftate for life derived from the law, is that which a widow acquires in a certain por« tion of her hufband's lands, tenements, and heredita- ments. Title Vl. Dower. Ch.i. § i — 3. 127 ments, after his death, for her fupport and mainte- nance 5 which is called Dower, . § 2. Dower, like many of our other ancient cuf- Origin of toms, is derived from the Germans^ among whom it ^°^^'"- was a rule, that a virgin fhould have no marriage portion, but that her hufband fhould allot a part of his property for her maintenance, in cafe flie furvived him. '* Dotein non uxor ?narito, fed uxort maritus Tacitus de « offertr When the Germans eftablifhed themfelves ^I°'' ^"* in the fouthern parts of Europe, and reduced their cuftoms into writing, they fixed the quantity of pro- perty, which a hufband was allowed to allot to his wife, for her dower. The Longobardic code directed, d,, Cano-e that it fhould confifl of a fourth part of the hufband' s ^"f ^Zl' ^ 15aluz. V. 2. eftatcj the Gothic^ of a tenth; and, in procefs of 4H- 937- time, regular forms were invented for the purpofe of conftituting dower, of which, a great many have been Marculphi coUeaed by the French antiquaries. ^"j"*- ^'^- ^' § 3. As women were not originally capable of pof- feffing feuds, on account of their inability to perform military fervices, it followed, that a woman could not be endowed of a feud : but this circumftance was not produdive of much inconvenience ; for, when feuds were firfl introduced, the quantity of allodial property was fo great, that lands held by that tenure were not wanting for the endowment of women. And in mofl of the old charters conftituting dower, it is exprefsly mentioned, that the land of which the wife is en- dowed, is allodial. An alteration, in this refped, was WrigKt's however made by the Emperor Frederick 2., who ^*^^' ^^^- ■''- direded 128 Title VL Dower. Ch.'i. §3 — 5. directed that women fnould be thenceforth endowed of feuds. Ten. 193. § 4. Sir Martin Wright fays ; " We find no foot- *' fleps of dower in lands, until the time of the Nor^ " mans : but, on the contrary, provifion is made by *' one of the laws of king Edmund for the fupport of *' the wife, furvlving her hufband, out of his goods '^ only.'* This, however, appears to be a miftake ; 195. for, in the appendix to Mr. Somnerh Treat if e of Gavel- kind, there is a Saxon charter, intituled, " Chirogra^ " phum pervetitjium de nuptiis contrahendis, et dote " conftituenday^ in which particular lands, together with thirty oxen, twenty cows, ten horfes, and ten bondmen, are appointed for the wife's dower. § 5. The notion of dower is by no means taken from the civil law ; in which, dos figniiies the portion which the wife brought the hufband ; over which he only acquired a right of enjoyment, or ufusfrudus, during the marriage, whether it confided of land or moveables : and it reverted to the wife on his death. So that there was no impropriety in denying her a fhare of her hufband's property. This law, though appa- rently jufl and fimple, would not have fuited the manners and fituation of the northern nations. The Romans were an opulent and a civilized people, and, as the daughters were;, by the Roman law, entitled to an equal portion with their brothers of their fathers and mothers property, it could feldom happen that a Roman virgin was entirely deflitute of property ; fo that fhe could not fail of a maintenance after her hufband's death : Title VI. Dower. Ch.u §5,6. 129 death : whereas, we have feen that no portion was given to a Gennan virgin in marriage ; and, therefore, the only mode of providing a maintenance for widows^ was, by giving them a right to a certain portion of their hufband's lands during their widowhood. As the relation of hufband and wife is the firfl that takes place in fociety, it follows, that a refemblance in the laws refpefting marriage, and the rights acquired by it, is a ftrong proof of a fimilarity of origin. Now, it was the general cuftom of all the nations who emigrated from Germany^ that a woman fhould bring no fortune in marriage, but fhould acquire a right to fome of her hufband 's property, in cafe (he furvived him. This praftice is to be found, not only in Tacitus ^ but alfo, in the codes of almofl all the Germa?i nations. Where- Hein. Elem. as among the original inhabitants of Gaul^ women ^^^' ^^J^^- ufually brought fortunes in marriage, and regular fet- tlements were made on fuch occafions. Thus Caefar De Bello fays : " Viri quantas pecutiias ab uxoribus^ doiis nomine r ^ g " accepcrunt, tajitas ex fuis bonis, ajiimatione faSla, ** cum dotibus communicant ; huj'us omnis pecujii^s con- " jundim ratio habetur, frudiifque fervantiir ; liter " eorwn vita fupei'avit ad eum pars utriiifque^ cum *' fruSibus fuperiorum temporum pervenit.'* It is alfo obfervable, that the cuftom of dower was unknown in England until the arrival of the Saxofis ; for the Welcb were unacquainted with it before the ftatute of Rut- land ; nor was it eftablifhed among the Irijh, until they Davfcs Rep. adopted the E?iglijh laws* ^3"^' § 6. By the ancient cuftoms of Noi'mandy, v/idows Grand Con- were entitled to one-third of the fiefs whereof their ^"i^T' Vol, I. K hufbands ijo Title ^L Doiver, Cb.'l 5 6—8. hufbands were feifed at the time of their marriacre 1 and no hufband could endow his wife of more than a third of his lands, though he might endow her of lefs. § 7. There is every reafon to fuppofe, that, upon the eftablifhment of the Normam in England^ their cufloms refpe6ling dower were adopted ; but it appears that, at this time, widows forfeited their dower byin^ continency, or a fecond marriage : for, by the charter oi Hen. i., the condition of widowhood and chaflity was only required in cafes where there was iifue. r Black. Tra. " Etji mortuo viro, uxor ejus remanferit etjtne liberii " fuerit, dotan fuam, ei maritatio'nem habebit^ et earn " non dabo mar Ho nifi fecundum velle fiiunu Si vera ** uxor cum liberis remanferit^ dotem quidam et warita- ** tionem habebit, dum corpus fuum legitime fervaverit^ et ** earn non dabo, n't/t fecundum velle fuum** 5 8. When Glanvllle wrote, which was in the reign Gianv. lib. 6. oi Hen. 2., the law of dower ftood thus. Every man was bound, both by the civil and ecclefiaftical law, to endow his wife at the time of his marriage, either by naming the dower in particular, or by endowing her generally, of all his lands. If he endowed her gener- ally, then the wife was entitled to her dos rationabilis ^ which was one-third of her hufband's liberum tenemen- turn. If he named a dower which amounted to more than a third, it was not allowed, but was reduced to a third. Nor was the wife entitled to a dower out of liny of his future acquifuions, unlefs he fpecially en- gaged C. I, 2, &C. Title VL Dower. C/^i. § 8— ii. 131 ^aged before the priefl, to endow her of them. And thefe regulations are exactly fimilar to thofe contained in the loift chapter of the Gra7id Conjiumier of Normandy. § 9. Nothing is mentioned concerning dower in king John's Magna Charta^ or the charter of Uen. 3. But in the charters of 121 7 and 1224, it is provided, that dower fhould confift of a third part of all the lands which the hufband held during his life, unlefs the" wife had, previous to her marriage, accepted a fmaller portion of them. " AJfignetur antem ei, pro dotefua, 2 Inft. 16. *' iertia pars totius terra maritifui, qua fuit fua in vita *' fudy nift de minori fuerit dot at a ad ojiium ecclejia.^* § 10. The principle, that no perfon fhould endow his wife of more than a third of his lands, was fo ilriclly adhered to, that the queen of Navarre, who was the widow of Ed?nond Duke of Lancq/ler, brother Rot. Pari. oi Eduiard i., having petitioned parliament for more ^ j ^ *,^* than a third part of her hufband's lands and heredita- ments, in confequence of a writing or deed executed by her hufhand, the following anfwer was given her : *' Videttir co?ifdio nunc hie exijlenti quod regina Navarr* *' non poteji plus habere pro dote fua, fecundum iifa- " gium et confuetudinem regni, nift tertiam partem ter~ *' rarum unde dominus fuus fuit fcifitus in doniinico fuo " lit defeodo^ die quo ipfam defpoTifaijit, aut pojtea, qua- *' lecunque fadum qjiendat^^ hz. §11. There are now fubUfling four forts of dower ; Dower at the firfl is dower by the common law, which appears, ^°"^"^<*^ K % from J 32 'Title VI. Dower. Ch.l § ii — 13. from what has been above ftated, to have been finally eflablifhed by magna charta ; and is thus defined by Littleton, f* 36. " Tenant In dower is where a man is " feifed of certain lands or tenements In fee-fimple, fee " tail general, or as heir in fpeclal tail, and taketh a " wife and dieth : the wife, after the deceafe of her " hufband, fhall be endowed of a third part of fuch '* la-nds and tenements as were her hufband's at " any time during the coverture ; to have and to " hold to the fame wife in feveralty by metes and " bounds for term of her life, whether fhe hath iffue ** by her hufband or no, and of what age foever the " wife be, fo as that fhe be pad the age of nine years " at the time of the death of her hufband." Dower by § 12. Dower by cuftom, Is where a widow becomes entitled to a certain portion of her hufband's lands, in confequence of fome local and peculiar cuftom which prevails In the place where her hufband's lands are fituated : and, in cafes of this kind, the wife cannot waive the provifion thereby made for her and claim dower at common law ; becaufe all cuftoms are equally antient with the common law. Rob. Gavel. § 13' Thus, by the cuftom of Gavelkind, the wi- ^59- dow is entitled to a moiety of all the lands and tene- ments which her hufband held by that tenure for her Prerog. Regis dower. But it is forfeitable by a fecond marriage, or St 1 c ^6 ^y incontinence. And it is obfervable, that this fpecies Lamb.Avcb. of dower Is precifely fimilar to that which exifted in 6o- ^ the time of the Anglo Saxons. 9 § U- By Cullom. Title VI. Dower. C/j.l § 14—18. 13-, § 14. By the cuflom of Burrough Englijh, the wi- Lit. f. 37. dow fhall have the whole of her hufband's lands In '^^" dower. § 15. By the cuflom of moft manors of which lands are held by copy of court roll, the widows of copy- holders are entitled to a certain part of their hufband's lands, as their dower or free-bench ; of which, an account will be given in Title 10. Copyhold, § 16. ldo\ver ad ojllum ccckfm, is where a man of Dower ad full age, when he comes to the church-door, endows ^^>"^ E^- his wife of his whole land, or of the half, or other ^{['7 fmaller part thereof; and doth declare the quantity ''' ' ^^* and certainty of the land which flie fhall have for her dower. § 17. This is, in all probability, the mod antient fpecies of dower; for BradGn fays, 92 ^. « Et fcien- " dum eft, id quod liber homo dat fponfa fuce ad ojiiiim " eccleficz propter nuptias fiituras, et onus matrimonii, " et ad fujientationem uxoris et educationem liberorum " cum fuerint procreati, ft vir pramoriatw-:' It is ex- aaiy fimilar to the mode of endowment which was praaifed all over Europe during the tenth and eleventh centuries ; and which prevailed in ^/2^/^;2^ when Glan- njille wrote. § 18. Dower ^a; afenfu patris, is only a fpecies of Dower ex dower ad ojium eccleficBym&.d.t when the hufband's pf^'-f father is alive j and the fon, with his confent exprefsly ^ 3 given. 1 34 Title VI. Dower. Ch. i. § 1 8—^2 1 . given, endows his wife at the church-door with a cer- tain part of his father's lands. Lit. f.41. § 19- Thefe two lafl: kinds of dower were not abfo- lutely binding on the wife, for fhe might refufe them after her huiband's death, and claim her dower at common law ; which was probably the reafon that they have fallen into total difufe. Dower de plus Belle. Lit. f. 48. la § 20. There was another kind of dower, called De la Plus Belle, which was, where a man held lands by knight fervice, and alfo in focage, and on his death the lord entered on the lands held by knight fervice, as guardian in chivalry ; and the widow occupied the lands held in focage, as guardian in focage. If, in fuch cafe, the widow claimed dower out of the lands held by knight fervice, the guardian in chivalry might pray that Ihe might be endowed De la Plus Belle of the lands held in focage, in order to prevent difmem- bering the lands held by knight fervice ; which were appropriated to the defence of the realm. The abolition of military tenures has, of courfe, put an end to this kind of dower. Dower a Moral Right. 2 P. Wms. 7C2. § 2 1 . A widow has not only a civil, but alfo, a moral right, to dower. Thus, Sir 'Jofeph yekyll fays : " The relation of hufband and wife, as it is the neareft, " fo it is the earlieft ; and, therefore, the wife is the " proper objedl of the care and kindnefs of the huf- ** band. The hufband is bound, by the law of God " and / Title V\. Dozvcr. Ch i. ^ 21,22. " and man, to provide for her during her life ; and, " after his death, the moral obligation is not at an " end ; but he ought to take care of her provlfion *' during her own life. This is the more reafonable, " as, during the coverture, the wife can acquire no " propert)?- of her own. If, before her marriage, fhe " had a real eflate, this, by the coverture, ceafes to " be hers, and the right thereto, while fhe is married. " veils in the hufband: her perfonal eftate becomes " his abfolutely, or, at leaft, is fubjeft to his controul ; " fo that, unlefs fhe has a real eftate of her own, " (which is the cafe but of few), fhe may by his death " be deftitute of the neceifaries of life, unlefs provided " for out of his eftate, cither by a jointure, or dowefo " As to the huft)and's perfonal eftate, unlefs reftrained " by fpecial cuftom, (which very rarely takes place), " he may give it all away from her ; fo that his real " eftate, (if he has any), is the only plank fhe can " lay hold of to prevent her fmking under her diftrefs. " Thus the wife is faid to have a moral right to " dower." § 22. Lord Bacon, m his reading in the ftatute of ufes, fays ; " The tenant in dower is fo much fa- " voured, as that it is the common bye-word in the " law, that the law favoureth three things; life, ,^^ liberty, and dower/' K 4 TITLE ( 13^ ) TITLE VI. DOWER. CHAP. II. Of the Requ'ifttes to complete the Title to Dower ^ and the Perfons eiititled to it. § 1 . Requijites to Dowsr. 2. Marriage. 4, Hoti} the Fa8 of Marriage mufi be tried. 9. Effect of Divorces. 12. Sclfin of the Hujhand. 27. Death of the Hujhand. ^28. Who may he endoived. 29. JVtoo are Incapable of having Dotver, 30. Aliens. 33. Jewejes. 34. Women Jlolen, Sedion i. Requlfites to TITTLETON*s definition of dower points out three 9ovjtr. circumflances as abfolutely neceflary to its exiil- ence •, namely, marriage, feifin, and death of the huf* band. Marriage. Pcik. 304. Tit. 5. ch. I. f. 10. § 2. As to the marriage, it mufl be actually folem- nized in the manner required by law, and between perfons capable of contrafting matrimony together: for it is a maxim of law, '* ubi nullum matrlmonium, •^ ibi nulla dos.'* But although a marriage be voidable, yet, if it be not avoided in the life-time of the hufband, his widow will be entitled to dower. § 3. Although Title VI, Dower. Ch.n. §3—5. J 37 § 3. Although the marriage fhould be had before the parties are of fufficient age to confent, yet Lord Coke fays, that if the wife be pafl the age of nine years i Inft. 33 ^?. at the time of her hufband's death, fhe fhall be en- dowed, of what age foever her hufband be, although h*e were but four years old ; wherein it is to be ob- ferved, that although confenfus non concubitus facit ma- Dye,- 36^^ a. trimoniumy and that a woman cannot confent before twelve, nor a man before fourteen ; yet this inchoate and imperfect marriage, (from which, either of the parties may at the age of confent difagree), Ihall en- title the wife to dower : and therefore it is accounted in law, after the death of the hufband, kgiiimiwi ?}ia- trimonium quoad dotem, § 4, The fad of marriage cannot, in adions for How tlie fa£t r 1 '11 • 1 1 1 1 of Marriage dower or curteiy, be tried by a jury, but only by the ^.^^^^ ^^^ t,.ie^, bifhop*s certificate ; upon the plea of ne miqties accouple in loyal matrimony : becaufe the direct jurifdiftion over praft. 302 a, queflions concerning the legality of marriage, fpecially ■^y^''» 3"° "- belongs to the ecclefiaflical courts ; and its fentences on this head are, in general, conclufive to the tem- poral courts. § 5. Where a bifhop certified, " ^wd copulata fuit wickhamv, *' i7t njcro matrmwnio, fed dandejiinoy et qiwd W. et E. r" c *' thori et menf(Z participatione mutiw cohahitaverunt^ 351- *' ad mortem pradidi W.'* It was refolved that the certificate was good ; for vera matrimonioy although clandejiino, copulati is as good as legitimo copulati matri- rnonio, for they are all one by intendment 5 and al- though 138 ' Title VI. Dower. Ch.ii. §5 — 7. though it be clandeji'mo^ yet it does not vitiate the mar^r riage : and when it is added, thori et menfa participa' iiene durante vita cohabitaverunt^ that proves they con- tinued hufband and wife during his Hfe. It was re- folved, in the fame cafe, that neither the day or place of marriage need be mentioned in che bifhop's certifi- cate, not being material nor iffuable \ the bifhop's cer- tificate being conclufive, § 6. No replication is allowed to the plea of ne unqmi accouple in loyal matrimony : nor can a fen- tence of an ecclefiaftical court be pleaded in proof of a marriage. Robins y. § 7* ^^ ^ ^^'^'^ of dowcr, the defendant pleaded two Crutchley, pleas : I ft. 'Ne ungues accouple in loyal niatrimonie et t Wilf. Kep. ^ i J^ J 122. hoc, &c. The demandant replied to the firft plea, and fet forth a fentence of the ecclefiaftical court, by which it was declared that fhe was lawfully married. The defendant demurred to the replication of the demand- ant, to the plea of ne unques accouple, and the plaintiff joined in demurrer. Lord Chief Juftice Willes. — " I am opinion, that *' there can be no replication to a general iffue to oufl ** a perfon of his legal trial. Here the bifhop has the *' only right of trial, by his certificate to this court ; *^ And if this replication be allowed, the bifhop will be " oufted. A fentence in a fpiritual court is not a re- " cord, and if it comes in queftion here, muft be ** tried by the country j neither is it final to the par- *f ties, Title VI Dower, Cb. il §7—10. 139 « ties, for, (as Oughton fays rightly), they may at any «^ time apply to have it reverfed : but the biftiop's " certificate is conclufive and final to all intents." Clive, Juflice. — " There never was a precedent of *« fuch a replication as this. I think ne iinques accoupIS *' in loyal matrimonie^ is a general iffue ; and fach a Vide Harg. " replication as this cannot be allowed, for it endea- ** vours to draw the trial to the country, which the " law doth not permit," § 8. It has been determined in a modern cafe, that llderton v. the lawfulnefs of a marriage celebrated in Scotland^ 2 h!^ B?ack. may be tried by a jury ; and, therefore, that a replica- »45' tion to a plea of ne imques accouple, &c. in a writ of dower, alleging a marriage in Scotland, may conclude to the country. § 9. A divorce propter fervitiam et 7netwn is no bar EfFe ^^^^ ^^ ^ 7^"^ ^°^^ ^^ ^^^' I Inft. 3 1 h. land, marries a Jewefs, born alfo in England, and the hulband becomes a convert, and purchafes lands, his wife fhall not be endowed. Women S 34' % the ftatute 6 Rich. 2. flat. i. c. 6., it Is ' *^ enafted, that whenever any woman is ravifhed, (that is flolen), and afterwards confents to live with fuch ravifher, fhe ihall be ipfo faclo difabled from claiming dower. TITLE ( 147 ) TITLE VI. DOWER. CHAP. III. Of what Things a Womari is dowab/e, and the Nature of this Ejiate. h 1- EJiates in Fee-Simple. $ 19. EJiates not of Inheritance. 4- F.Jlates TaiL 21. EJiates in "Joint-Tenancy, 8. ^talifad or Bnfe Fees. 23. Wrongful EJiates. 9- Revefions after EJiates for 24. Lands ajfgned for Dower, Tears. 29. A Cajlle or Fortrefs, J I. Equities of Redemption of 3^- Mortgages , fame Kinds. 32- Ufes and Trnjls. 12. Lands fequeflered. 33- Where Doiver ceafes with 13- EJiates in Coparcenary and the EJlate. in Common. 34- Nature of this EJlate. 14. Copyholds. 36. The Doivrejs entitled tg IS- Incorporeal Hereditaments. Emblements . 16. Where a IVidoiv Jlmll have 37- Refrained from Alienation. an Eledion. 39- And from Wajle. J8. IVhat Things are not Halle 40. Not fubjcB to her Hujband^s to Doiver. ~ Incumbrances, Seal on I. A WOMAN is entitled to dower out of all the e Hates In lands, tenements, and hereditaments whereof her F««-^""P^=* hufband was feifed, in fee-fimple, at any time during the coverture. § 2. A woman is entitled to dower out of Shares in Buckcridge the navigation of the river Avon, where the hufband is '''Jf^f^f^* ° ' I Vei. jun. tenant in fee of fuch fhares. 652- L 2 § 3. If 148 Title YL Dower. Ch.m. §3 — 7. I Inll. II b. § 3. If the hufband felfed in fee of lands, exchanges them for other lands, his wsidow fhall have her election to be endowed, either of the lands given, or taken in exchange ; becaufe her hufband was feifed of both during the coverture. But Ihe fhall not have dower of both, for that would be unreafonable. EflatesTail. §.4. A woman is alfo entitled to dower out of eflates in tail general or fpecial ; and dower is an in- cident fo infeparably annexed to an eflate tail, that ilnft. 224(7, it cannot be rellrained by any provifo or condition w^hateyer. jinft, 31^. ^ c^. Although the eflate tail fhould determine by the death of the hulband, without ilTue capable of in- heriting the eflate tail, yet the wife fhall be endowed Tide Tit, 5. of a third of fuch eflate ; becaufe dower, like curtefy, ch. 2= is a condition iacite annexed to the gift of every eflate tail. Blltliman's ^ 6. If a tenant in tail covenants to (land feifed to 2 Rep. t^2 a. the ufe of himfelf for life, remainder to the ufe of his Cro. Ehz. eldefl fon in tail, and afterv/ards marries and dies, his 2f^O. ' ' Nov, 46. wife fhall be endowed ; becaufe, when a tenant in tail Tit. 2. ch.2. Y\m\X.s an eflate for his own life, he has executed all Dc):T.Ri?ers, the power that he had, and the remainder is merely ' ■ void ; fo that he continues tenant m tail, as he was before. Lit. f.53. § 7* It ^ould, however, be obferved, that a woman is not dowable of an eflate tail, unlefs her ifTue is capable of inheriting it. So that if lands are limited to Title V\. Doiaer. Ch.ui. § 7-— ii. 149 to A. and the heirs of his body by B. his wife, and B. dies, if A. marries a fecond wife fhe will not be en- titled to dower ; becaufe her iifue cannot inherit this eftate tail. § 8. A woman is dowabic of a qualified or bafe fee Qualified or until it is defeated. So that if a tenant in tail conveys his eftate tail, by fine, to A. and his heirs, the wife of cafe, A. is entitled to dower againil her hufband's heirs. Jo^^P-95" It is the fame where an eflate tail is conveyed to a perfon and his heirs by bargain and fale, or ieafe and reicafe. § 9. Where a tenant in tali is attainted of high piowd. 55 7» treafon, the king becomes entitled to the eftate as long as there are heirs of the body of the tenant in tail ; and if the king grants this eftate to a man and his heirs, the wife of fuch grantee will be dowable of it j for he has a qualified fee, § 10. A woman is entitled to dower of a reverfion Reverfions expedant on a term for years. Thus, if a man, either jfter Eftates before or after marriage, makes a Ieafe for years, re- j inft. 32 a. ferving rent, his wife will be entitled to a third of the land for her dower ; and alfo to a third of the rent, as incident to the reverfion. But if no rent be referved on a ieafe for years, made before the marriage, then, al- though the widow may recover a third of the reverfion, yet it will be with a cejfat executio during the term* § II. Where lands are mortgaged for a term of Equities of years only, a woman will be entitled to dower of the ^^^^"^pt'o'i ■' or lomc L 3 equity Kinds. 150 Title VI. Dower, Ch.m. § 11 — 16. equity of redemption. But if the lands are mortgaged in fee, the wife will not be entitled to dower. The reafons for this difference; will be explained under Title XV. Mortgage. Lands fequef- § 1 2. If lands are fequeflered by the Court of Chan- cery, before marriage, for a perfonal duty, yet a right Anon. i Vcni. 118. to dower will attach on them. Xftates in Coparcenary and in Com- mon. § 13. A woman is dowable of an eflate held in co- parcenary, or in common ; but not of an eflate held in joint tenancy. The reafon of which will be ftated under thofe Titles. Copyholds. § 14. We have feen that there may be a cullomary dower of copyhold eftates. — An account of this fpecies of dower, and of the incidents attending it, will be given under Title X. Copyhold. Incorporeal g I ^. Incorporeal hereditaments, fuch as advowfons, Kients. tythes, commons, and rents, are alfo Hable to dower 5 as will be fhewn under thofe refpedive Titles. V/here a VVidow Hiall have an r.icclion. Ante, f. 3. § 1 6. There are fome cafes in which a widow has a right of eleftion, as to the property out of which fhe is entitled to dower. Thus, it has been ftated, that a woman fhall not be endowed both of the land given in exchange and of the land taken in exchange, but fhe may have her eledlion to be endowed of which fhe will. § /• So Title VI. Dower. C/j. ili. §17 — 20. 151 § 17. So if a perfon, having a feignory, marries, Perk. f. 329. and afterwards purchafes the tenancy in fee, and dies, his widow fhall have an election to be endowed either of the feignory or of the tenancy. But if the tenancy had efcheated, the wife would not have an election, but would be obliged to accept dower out of the tenancy ; becaufe the feignory was determined during the coverture by the a6l of law. There are fome other cafes where a widow has a right of eleftion, which will be mentioned in the fubfequent Tides. § 18. Having dated the different kinds of property What Things which are liable to dower, I fhall now examine what ^^ Dower, things are exempted from this charge. § 1 9. An eflate in dower is a continuation of the Eflatcs not of inheritance, and is therefore only incident to eflates of ^"^'^'^^'^^"'^'^• inheritance, and not to mere eflates for life. Thus, BraHon fays, " Si autem ita facia ejet donatio^ ut ft 02 h. ** dicam do tibi tantam terrain^ nulla fada mentione de " h(Xredibus, ifta donatio fe non extendit ad haeredes^ 3 p. Wm». " nifi tantum ad vitam donatoris ; ideo ceffat detis ^^^' " petitio'* § 20. It is not only neceifary that the hufband fhould have an eflate of inheritance, to entitle his wife to dower, but that inheritance mufl hefimul et femel in liim. The cafes on this fubjed will be ftated in Title XVI. Remainder. L 4 §21. Eilates 152 Titled.. Dower. Ch.m. §21—24. Ertates in S ^^* Eflates held in joint tenancy are not fubjef^ mn-v to dower : the reafon of which will be ftated under nancy. that Title. Wrongful § 22. A woHian is not dowable of a wrongful ell ate. J^^"' , So that if a tenant in tail difcontinues in fee, and after- I Inft. 31 3. Fitz. N. B. wards marries, and diffeifes the difcontinuee, and dies feifed, his wife fnall not have dower ; becaufe the ifTue is remitted to the ancient intail, and the eftate of the hufband was wrongful. Id. § 23. So, where a man, having a title to land, ch. I. f. 12.' enters, and dilTeifes the tenant, and dies feifed, upon \vhich his heir enters : now the heir is remitted to the ancient right which his anceflor had j and, by con- fequence, the wife of the anceftor is not entitled to dower out of the wrongful eftate, whereof her hufband w^as feifed, during the coverture. § 24. A woman is not dowable of lands afligned to another woman in dower : fo that if the anceftor of a married man dies, and he endows the widow of fuch anceftor of one third of the lands which defcended to him, and dies, his widow will only be entitled to ^ third of the remaining two thirds ; for it is a maxim of law, that dos de dote peti non debet. And this Lib. 6. c. 17. ^^^2 ^^ ^^ ancient as the time of Glativille, who fays, " Item in divifwnem non leniunt res quas tc^ " nerunt mulieres aliiS in dotem^ unde prius doiat^e « fuerintr % 25. The Lands af- ficjried for Dower . iJnft. 11 a. Bnftarc I's cafe. 4 Rep. 121 Title VI, Dower, Ch.in. ^ i$ — 29. 153 § 25. The reafon upon which this doftrine is founded is, that when the heir endows the widow of the apceflor, the affignment of fuch dower defeats the feifm which the heir acquired by the defcent of the lands on him : fo that the widow is in of the eftate of Vide infra, her hufband, and the heir is conlidered as never having been feifed. § 26. In the fame manner, if a woman, on whom Bro. Ab. Tit. lands defcend, endows her mother, and afterwards Curtefy'^io. marries and has iffue, and dies in the hfe-time of her mother, her hufband will not be entitled to an eftate by the curtefy in thofe lands whereof the moiher was endowed ; becaufe the daughter's feifin was defeated by this endowment, § 27. Where no dower is afTigned, the rule of dos de dote does not take place. § 28. Lands, fubjedl to a title of dower, were de-^ Hiichins v. vifed to a perfon in fee, who died leaving a widow; ^ '.ern.Aot. this widow fued for her dov/er and recovered a third part of the whole, without any regard to the title of dower in the widow of the teftator, who did not put her claim in fuit. It was hoi den by the court, that the teflator's widow, not having recovered her dower, it was to be laid out of the cafe ; and the dower of the devifee^s widow was not therefore to be looked upon as dos de dote, § 29. By the old law, confirmed by Magna Charta, A Cattle or c. 7. , a woman was not dowable of a caflle or fortrefs, ^°^'■^^^• ' Braft. 93 a. nor ^ 154 ^^^^^ ^^' Dower. C^ iii. § 29, 30. 2 Inft. 16. nor even of the capital meffuage, being caput baronia ^ " * •^ ■ or comitatus. This do6trine mufl, however, be under- ftood to be applicable to baronies by tenure only ; and, therefore, the circumllance of a perfon's being created a baron by a title taken from a principal manfion- houfe in his pofleflion, will not make that houfe caput baronia^ fo as to exclude the wife from claiming dower out of it ; for fuch a barony is merely titular, and a titular barony cannot have caput baronia. Gerrard v. § 3©. Lady Gerrard brought a writ of dower, and M d r demanded a third part of a capital meifuage called Bromley Hall. The defendant pleaded that, time out of memory, it had been called as well by the name of Gerard*s Bromley as Bromley Hall, of which Sir Thomas Gerard Knt. was created Lord Gerard of Gerard's Bromley, he being refident with his family in the faid capital mef- fuage, and the faid meffuage then became caput baronia fua, and derived the title of the meffuage and barony to himfelf, by divers defcents ; and demanded judge- ment, if fhe fliould be endowed of it, and averred that he had affigned to her a third part of his other lands, Iffc. The demandant dem^urred generally. The Court of Common Pleas gave judgement for the de- mandant. Upon a writ of error in the Court of King's Bench, the judgement was affirmed. § 3 1 . A woman Title Yl. Dower. C/?. iii. §31 — 33. 155 § 3 1 . A woman is not entitled to dower out of an Mortgages, eftate conveyed to her hufband by way of mortgage ; of which, an account will be given in Title Mort- gage. § 32. A woman was never allowed dov/er of a ufe, Ufes and nor is fhe now entitled to dower out of a trufl: eft ate ; of which, the reafons will be given in Titles Ufe and Truft. § 33. We have feen, that in cafes of eftates tail, WhereDowcr the dower of the wife, and the curtefy of the hufband, ^i^g Eftate. continue after the eftate charged with them is deter- Ante, f. 5. mined. But there are feveral cafes in which dower and curtefy ceafe upon the determination of the eftate ; Lit. f. 393. I ft, "Where the fee is evifted by a title paramount, both dower and curtefy neceflarily ceafe : 2d, Where Ante,f.22,23. the feifm of the huftDand is wrongful, and the heir is f/ij/' remitted, by which the wrongful eftate is determined, the right to dower ceafes : 3d, Where the donor en- Vide Tit. 13. ters for breach of a condition, it defeats the right to dower and curtefy : 4th, Where a perfon feifed in tail, or of any other determinable fee, conveys in fee, the right to dower and curtefy can only be commenfurate 10 Rep. 97^. with the eftate of the grantee, and muft neceflarily ^ ceafe when that eftate is determined : 5th, Where an Flavell v. eftate in fee is only to continue until a certain event ^^"^'i!'^^' , •' ^ I Roll. Ab. happens, it feems doubtful whether the wife fhall be 676. endowed or not. But where an eftate in fee is ori- ginally created, but by fubfequent words is made de- 241a. 11.4.* terminable upon fome particular event ; there, if that particular event happens, the wife's dower and the 5 huft^and's 1^6 fitleYL Dower. C/j. iii. §33 — 36. Vide Tit. 38. huiband's curtefy ceafe with the eftate. The cafe of Buckworth V. "Tbirkell, contradicts this doctrine. Nature of S* 34* '^^^ intereft which the wife acquired in the this Eftate. lands by way of dower, was feldom greater than for her own Hfe, unlefs it was otherwife flipulated at the time of the marriage : and, in England, dower does not appear to have ever confifled of more than an cllate for life. 1 Inft. i^^b. S ZS' Before the abolition of military fervices, the '"''^ ^* dowrefs w^as attendant on the heir, or whoever elfe was entitled to the reverfion, for the third part of the fer- vices v/hich her hufband was bound to perform ; and Gilb. Ufes, ftill fhe holds of the heir by fealty : for the affignment ^^'^' of dower by the heir is a fpecies of infeudation which is not prohibited by the llatute of quia emptores^ be- caufe the heir does not depart with the fee. The Dowrefs § ?>^' ^Y ^^^ common law, a tenant In dower could entitled to ^^^ devife corn which {he had fown, nor did it ^o to Lmblements. " 2 Inft. 80. ^^^ executors, but became the property of the perfon in reverfion ; becaufe the wife being entitled to an immediate affignment of dower, after the death of her Id. 81. hufband, if the lands happened to befownwt that time, Ihe took the benefit of it ; which made her cafe differ- ent from that of other tenants for life, who are never put into poffeflion of lands which are fown. But it was provided by the flatute of Mertm, 20 Hen. 3. c. 2., J Inft. 55^. that a dowrefs may difpofe by will of the growing "* ^* corn, otherwife it goes to her executors. § 'i^y. Tenants I Title VI. Dowe}\ C/j. ili. § 37 — 40. 157 § 37. Tenants In dower were under the fame re- Reflralned n • r r\' T • ^ r iT from Alieii- ilramts reipechng alienation, as other tenants tor nie : ^^^[q^^_ but where tenant In dower aliened by feoffment, and 2 Inft.309. the feoffee died felfed, whereby the entry of the perfon in reverfion was taken away, he coudd have no writ of entry ad co?nmime?n legem, till after the deceafe of the tenant in dower. But by the flatute of Gloucejier^ 6 Edn\ I. c. 7., it Is provided, that upon the aliena- tion in fee, or for life of a tenant in dower, fhe ihall forfeit her effate, and the heir fliall have a writ of entry m cafu provifo. § 38. By the ftatutes 1 1 Hen. 7. c. 20. and 32 Hen. 8. c. 36. f. 2. it Is provided, that no feoffment, fine, recovery, or waranty, by tenant in dower, fhall operate Vide Tit. 36. as a difcontlniiance of her eflate, or take away the entry of the heir, or perfon in reverfion ; but that all fuch ads Ihall operate as a forfeiture of her eff ate« § 39. Tenants in dower, having only an eflate for And from life, are not by law entitled to commit any kind of r 1*^* ^ / ^ \ Inft. 57 a. wafte: but It is fomewhat doubtful, whether they are "■ i* within the flatute 6 Ann, c. 31., refpedllng accidental fire. § 40. The wido,w holds her dower difcharged from Not fubje^t all judgments, leafes, mortgages, or other incum- ^^Jj^ ^'^■" brances, made or created by her hufband after the mar- cumbrances. riage ; becaufe, upon the hufband's death, the title of 1 I^^- 46 a- the wife being confummate, has relation back to the ^ ^^' ^'^' time of the marriage, and to the feifin which her huf- band 158 Title YL Dower. C^. iii. §40,41. band then had : both of which precede fuch incum- brances. T Tnft. 31 «. § 41* Dower is even proteded from diftrefs for a Fitz 150. ^^^' ' ■ debt due to the crown, contraded during the mar riage ; and if the lands are diftrained upon, the dowrefs may have a writ to the fherifF, commanding him not to diflrain, or to reftore the diftrefs, if any be taken. TITLE ( 159 ) TITLE VI. DOWER. CHAP. IV. Of the Affignment of Dower, and the Modes of recovering it. I. Neceffily of an AJJignment of Doiver. ^ 51- Of Anions for recovering Doiver. 5- Who may ajfign Doiver, 36. Of Damages in A^'.ions for lO. How Doiver Is to be ajfigned. Doiver. 23- Remedies aga'infl an improper Ajftgnment. 42. A Widow may noiv ohtain her Doiver in Chancery, 28. EJfed of an Ajfignment of Doiver. Seai( ya. I. T TPON the death of the hufband, the right to NecefTity of dower which the wife acquired by her marriage, ^" Affign- becomes confummate. But unlefs the precife portion Dower, of land which fhe is to have, is particularly fpecified, Lit. f. 43. as ufed to be the cafe in dower ad ojiium ecdejia, and ex ajenfu patris, Ihe cannot enter until her dower is affigned to her ; for fhe might choofe whatever part of the lands fhe pleafed, which would be an injury to| the heir. § 2. The widow has, therefore, no eflate in the Glib. Ten. land until afTignment, for the law calls the freehold on the heir, immediately upon the death of the an- ceflor. § 3. A widow I So Title VI. Dower, Ch. iv. § 3 — 6. I inft. 34 b. § 3. A widow could not formerly obtain an aflign- 2Comm i\c. i^^^^ ^f ^^^ dov/er, without paying a fine to the lord ; nor could ihe marry a fecond hufband, without his licence. It was even ufual for lords to force widows to marry, merely for the purpofe of obtaining a fine. But it was provided by the charter of Hen i., and alfo by Magna Charta, c. 7., that widows fhould not be forced to marry, nor be obliged to pay a fine for the affignment of their dower. 1 In (I. 34^. § 4* Widows were alfo allowed, by Magna Charta^ ^ ^^' to remain in the manfion-houfes of their hufbands for forty days after their death, which was called their quarantine. This cuftom was probably introduced, that widows might not be under the necefTity of ap- pearing in public, and feeking out a habitation, im- mediately after the death of their hufbands. It might alfo be intended to prevent a fuppofitious child, a fpe- cies of deceit which appears not to have been uncom« Barrlngton on mon in thofe times, as m.ay be inferred from the writ Mag. Charta, ^^ ^^^^^^^ infpiciendo. Who may § 5« With refped to the perfons whofe duty it was aflign Dower. ^ jiffign dower, the heir in common cafes, as lord of Gilb.UfeS, ^ ' ^ rr- . 3^6„ the manor, and who was to create the tenure, aihgned dower ; and if there was any difpute as to the quantity of land afTigned, it was determined by the pares curiae But the fuit might be removed to the county court, and alfo to the king's court. Fltz. N. B. § 6. Where lands were held of the King in capiie, ^^i^'ix and the heir was in ward, the widow was obliged to 2 init. zy*^" 2 fue 1 Title Y\. Dower. Ch.iv, § 6*— lo* l6i fue in chancery for her dower, and after office found, that fhe was the late tenant's widow, fhe was to make oath in chancery, that fiie would not marry again with- out the king's Hcence ; and, upon that, a writ iflued to the ef cheat or de dote ajfignanda, § 7. No perfon can affign dower who has not a inft. 3^ a, freehold eftate in the land. But in cafe a. difieifor, ^^'^ * abator, or intruder affigns dower, it is good, and can- not be avoided ; unlefs they are in of fuch eftates by fraud and covin of the widow, to the intent that fhe may be endowed by them, or recover dower againft them : and, in that cafe, the affignment may be avoided by the entry of the real owner. § 8. The reafon why fuch an affignment of dower fhall be good is, becaufe the widow having a right to dower, fhe might have compelled them as terre tenants to affign dower to her, and was not obliged to wait until the heir thought proper to re-enter, or fue for the recovery of his right. § 9. Where the heir or other tenant of the land i inft. 34 h. refufes to affign dower, and the widow is compelled to refort to the courts of law to obtain her dower, the affignment is made by the fheriff, 5 10. With refped to the manner in which dower How Dower ought to be affiigned, the rule is, that where the pro- ''5° ^\ . ^ alhgnea. perty affigned is capable of being fevered, it muft be by metes and bounds. And if the fheriff does not i Inft. 32 ^. return feifm by metes and bounds, it is ill 5 but where Vol. L M no iS2 Title Yl. Dower. Ch.'iv, § 10—13. 1 Inft. 32 a. no divifion can be made of an inheritance, a woman fhall be endowed thereof in a fpecial and certain man- ner. As of a mill, a woman (hall not be endowed by- metes and bounds, nor in common with the heir, but either fhe may be endowed of the third tolle diflie, or of the entire mill for a certain time. GJlb.Ufcs, § 1 1» Dower was affigned by metes and bounds, be- ^^ ' caufe it v/as a tenancy of the heir, and, like all other lands in tenure, ought to be feparated from the de- mefnes of the manor; and the reafon why the law created this tenure was, that the heir might be obliged to do the fervice for it, during the time of its conti- nuance, as he was obliged to do for all lands which he had given out in tenure, as well as for thofe which he held in demefne. § 12. The right to have an afUgnment of dower by metes and bounds, may be waived by the widow ; and, in that cafe, an alignment in common will be good. Coo;s V. § ^3* If -^^ feifed of lands in fee takes a wife, and 9 V in. Ab. ^^^^^ devifes it for 2 1 years to B., and dies, and after -5*^- C. his heir afilgns to the wife the third part of the land for her dower, without fetting it out by metes and bounds, and the v/ife accepts it in fatisfaclicn of her dower, though ihe w^as not bound to accept fo in common, without fetting it out by metes and bounds, nor the heir bound to affign it, but by metes and bounds, for the prejudice that may accrue to them to occupy it in common, yet, inafmuch as the third part in Title VI. Dower. Ch, Iv. § 13 — 16. 163 in common is due by law, and they both confent to accept it according to law, they may, by their confent, waive the allignment by metes and bounds, which is only for their own advantage, and accept it as it is due by law ; and though the lefTee for years did not agree thereto, yet the alignment of the tenant of the freehold fhall bind him. § 14. An affignment by metes and bounds can only take place where the hulband is feifed in feveraltv : for ' I"^^- 32 i- Lit. f. 44. where he is feifed in common, his widow cannot be endowed by metes and bounds j for fhe being in pro ianto of her hufband's eflate, cannot have it in another manner than her hufband. § 15. In dower againft the heir of her hufband, Sutton r. the tenant pleaded, that A. was feifed, and devifed the ^°r^^'"' ^ ^ 3 i^ev. 04. tenements to the hufband and two more equally to be divided, and fo demands judgment of the v/rit. fuppof- ing that fhe could not fue dov/er before partition asjainfl tenants in common; but, upon demurrer, adjudged that the writ well lies. § 16. Where dower is affigned by the fheriff, he is i Roll. Ab, bound to aflign a third part of each manor, or a third ^* '^^ part of the arable, a third of the meadow, and a third of the paflure. But where dower is af- figned by the heir, he may affign one manor, in lieu of a third of each three manors, &c. which is o-ood, if accepted by the widow ; and this is called an affign- ment agaiufl common right. M 2 § 17. Lord 164 57//^ VI. Dower. Cb.'iv. § 17 — 21. I Inft. 32/?. § 17* Lord Coke fays, that an eudowment by metes and bounds, according to common right, is more be- neficial to the widow, than to be endowed againft common right j for there fhe fliall hold the land charged in refped of a charge made, after her title to dower. 4 Rep. li. § 18. The alignment of dower mufl be of part of the lands whereof the widow is dowable ; for an af- fignment of lands whereof a widow is not dowable, or of a rent iffuing out of fuch lands, is no bar of dower ; becaufe a right or title to a freehold eflate cannot be barred by a collateral fecurit3\ 1 ^ oil. Ab. §19'-^ r^^t iffuing out of the land whereof a wo- ^'3- man is dowable, may be affigned in lieu of dower. Brickley v. And if a tenant in tail alligns a rent out of the land Bnckley, intailed, to a woman entitled to dower, out of fuch And. 267. ' eflate tail, not exceeding the yearly value of her dower, it will bind the iiTue in tail. 4 Rep. 122^. § 20. In fome cafes, a widow fhall have a new af- fignment of dower ; as where lands affigned to a widow for her dower are evicted, fhe fliall be endowed of a third of the remaining lands. 1 IniL 34 /J. §21. The afTignment of dower muft be abfolute, and not fubjecc to be defeated by any condition, nor lefTened by any exception or refervation : for the wi- dow comes to her dov/er in the per, by her hufband-, and is in, in continuation of his eflate, which the heir or terretenant is but a minifter or officer of the law to carve Title VI, Dower. Cb.iv. §21 — 24. 165 carve out to her ; and therefore fuch conditions or re- fervations are totally void, and her eftate difcharged from them; or elfe the eflate afligned with fuch conditions is no bar to her recovery of dower in an action. § 22. In dower, the tenant pleaded, that he, by in- Wentworth's denture, granted a rent out of the faid land to the ^liz' .ro[ demandant, in recompence of her dower, which fhe accepted. The demandant confeifed the grant of the rent, and her acceptance ; but faid, that in the fame indenture there was a condition, that if the rent was not paid v/ithin fuch a time, after it became due, it fliould ceafe, and the indenture be void ; and (hewed a breach. It was adjudged upon demurrer for the demandant : bccaufe it was pleaded as a grant, and alfo, becaufe it was upon condition ; for rent afligned in recompence of dower, and as that which comes in lieu of the land, ought to be abfolute, as the affignment of the land itfelf : therefore the condition annexed was void, or if it were good, yet being only annexed to it as a grant, upon breach thereof, the widow was reflored to her dower. § 23. "Where the flieriff makes an improper or ma- Femedles licious affignment of dower, it will be fet afide, and ^^'''"' ^" o 7 ' improper the fheriff will be punifhed. Affignment. § 24. Thus, where the fherifF returned that he had paim. 264,5. affigned to the demandant for her dower of a houfe, the third part of each chamber, and had chalked it out M 3 ^ for 1 66 Title VI. Dower, Ch.iv. §24—29. for her. This was held an idle and malicious alTign- ment, and the fherifF was committed for it ; as he ought to have affigned to her certain chambers or rooms therein. Longvlll's ^ 25. In another cafe, the fneriff was committed for cafe, I Keb. 743. refufmg to make an equal allotment of dower ; and for taking fixty pounds to execute his writ of execution ; and an information ordered againfl him. § 26. The Court of Chancery will alfo relieve againfl a partial or fraudulent affignment of dower, HoSy ▼. § 27. A bill was brought to be relieved againft a i Vcni z-'fi fraudulent affignment of dower by the fneriff ; becaufe I Cha. Rep. only a third part of the lands wasafligned, without 160. taking notice of a coal- work, which was on the eflate. The court ordered that the dowrefs fhould, if fhe pleafedj have a nev/ affignment. \ * Effer^l of an § 28. The widow acquires an eflate of freehold by of Dower. the affignment without livery of feifm, becaufe her title to dower arifes from the principles of the law ; and the affignment is an acl of equal notority with the livery of feifm. Gilb.Ufes, § 29. As foon as dower is affigned,, the widow holds 35 J- 395- i^y [Yie inflitution of the law, and is in of the eflate of her hufband ; fo that, after affignment, fhe is confi- dered as holding by an infeudation immediately from the^death of her hufband ) and therefore, the heir is not I Title \L Dower. Ch.lv. § 29 — 32. 167 not cor.fi Jered as having ever been feifed of that "Vide Chap. 3. part of his anceflor's eflate, whereof the widow is endowed. § 30 When dower is afligned, there is a warranty iTnft. aS*^, in law included, that the tenant in dower being im- pleaded, (liall vouch and recover in value a third of the two remaining parts whereof Hie is dowable. § 31. Where the wife was refufed her dower by the Of Anions heir, or terretenant, the lav/ provided her with feveral inrDTJen remedies for the recovery of it. Fftz N. B. 147. The firft of thefe is the writ of dower jmde nihil GHb. Ufes,^ habzt, which lies where no dower has been afligned, ^'''^' Bat if any part of the dov/er has been afligned, the widow cannot fay, unde nihil habet ; and therefore fhe id. 367. mufl have recourfe to the v/rit of right of dower, which is a more general remedy, extending cither to a part, or to the whole ; and is, with re-peol: to the claim of dower, of the fame nature and cfficacv as the grand writ of right, refpecling a claim to an eflate in fee fimple. § 32. In anions of this kind, the parol does net r Roll. Ab. demur, on account of the infancy of the heir; for it '^^" is neceffary that the w'dow's claim fhould be immedi- ately determined, otherwife (he might want a prefent fubfiflence ; nor can the judgment in thefe aaions be Gore v. fet afideon account of the infancy of one cf the de- P^'^^-^. Cro. £• 1 Eliz. 309. fondants. ^ ^ M 4 § 2^^. Vv^here i68 Title VI. Dower. Ch. iv. § 33 — 36. Fitz. N.E. § 33* Where the heir within age endows the widow ^"^ of more than Ihe is entitled to, or where the guardian Gilb. Uf.s, , . . 379. 381. endows the widow of more than a third part, the heir, when he attains his full age, may have a writ of ad- meafurement of dower againfl the widow, whereby her dower fhall be admeafured ; and the furplus which fhe had in dower fhall be reftored to the heir. j^, § 34. The writ of admeafurement of dower is vifcon- tiel, and returnable before the fheriff, and therefore the parties may plead before him if they think proper. But the plaintiff may, without fhewing any caufe, and the defendant upon fhewing caufe, remove the writ into the court of common pleas, and, thereupon, pro- cefs goes out. The flieriiF cannot, however, make ad= meafurement, but mufl extend all the lands, and re- turn them to the court of common pleas j and upon that return admeafurement will be made. j^ -^c.. § 35- If the widow after afTignment of dower im- proves the lands, fo as to render them of greater value than the other two parts, flill no writ of admeafure- ment of dower lies. It is the fame if the improvement arifes from the working of mines, which were open at the time of the afTignment, (for a widow cannot open mines) ; becaufe this is only a cafual profit, which may pot continue during the life of the dowrefs. Of Damages § 36. By the common law, no damages could be in AdiGiis n-jven in a writ of dower, zindc nihil hahet ; but it was ilnll. 32^. provided by the flatute of Merlon^ 0.0 Hen. 3. c. i., that the widow fhould recover damages from the death of her Title Yl. Dower. Cb.'iy. §36 — 38. 169 her hufband, provided the hufband died feifed. This ftatute does not extend to the writ of right of dower, becaufe damages can only be given for the detention of the pofTeffion ; and in writs of right, where the right itfelf is difputed, no damages are given, becaufe no wrong is done until the right is determined. § 37. Damages are only due from the time when i Tnd:. 32 5. the claim of dower has been made, for the heir on „. ' * whom the law calls the freehold, is not bound to af- fign dower until it is demanded. But a demand in pais, before good evidence, is fufficient. § 38. Upon a trial at bar, the ifiue was, whether Corfellls v. there was a demand of dower and refufal, to entitle the -g^^jj '^-^''p plaintiff to damages. The plaintiff proved an adual n?- demand of the heir, being of the age of fourteen years, and then in her cuflody; though, by his fa- ther's will, committed to another perfon. The infant faid his guardian would not let him affign dower. Refolved unanimoully upon debate, ifl. That dower was demandable of the heir though he was under age : 2d, That his guardian was but in the nature of a guar- dian in focage, and that the dower was not demand- able of him, but of the heir, though not in the ciif- tody of the guardian ; and that, if the heir had en- tered upon the land to affign dower, he would not be a trefpalTer upon the guardian, though the cuflody of the land was committed to fuch guardian, during the infancy of the heir : 3d, That the neglect of the heir in not afTigning dower upon demand, though he 5 tii^i lyo Title VI. Dower. Ch. iv. § 38 — 41. did not aflually refufe to do it, was fuch a refufal in '' law as to entitle the widow to damages (a). § 39. The ftatute of Merton only enables the court in v.hich a writ of dower is brought, to award fuch damages as Ihall be affcifed by a jury. So that, where a writ of error was brought on a judgment in dower, the court in which the writ of error was brought could not give any farther damages. But by the ftatute 16 & 17 Car, 1. c. 8. § 3.5 it was enacled, that in writs of error brought on a judgment in do^ver, no execution fhall be (laid uniefs the plaintiff in error be- Vide f. 4. comes bound to pay fuch cods and dam.ages as ihall Same Stat. , j i be awarded. I Infl. 333. § 40. If the heir or feoifee affigns dower, and the widov/ accepts thereof, fhe cannot afterwards claim any damages; becaufe, having accepted the dower, which is the principal, ilie cannot after fue for da- mages, which are only accefiary. Mordant v. § 41- Damages of this kind are not confidered as a ThorulJ, ^g^l- ^^^11 j-hgy ^j-g afcertained ; fo that, if the widow 1 Salk 252. ■' r • 1 -L r I Show. 97. dies before the damages are afcertamed, her reprelen- tatives will not be entitled to them ; for the writ of enquiry being in the nature of a perfonal adion, it dies with the perfon. (a) In feveral cafes damages have been given from the death of the hiifband. Bclfield v. Rowfe, I Init, 33 a. Dobfon v. Dobfon, Cafes temp, Hardw. 19. 5 42. Where Title V\. Dowsr. C/j. iv. § 42, 43. 171 5 42. Where a woman was difabled from fuing for A Widow her dower at law, by not having accefs to fuch. deeds obtain her as were neceflary to prove her title, fhe was always en- q°^''^^^''^J:" titled to relief in equity. And now it is fettled, that Moor v. widows labour under fo many difadvantages at law, ^^^^^Jjj ^^^^ from the embarraflhients of triiil terms, &c. that they Treat, of Eq. are fully entitled to every affiflance which a court of l^-ic. 1.1.3, equity can give them, not only in paving the way for them, to eftablifli their right at law, but alfo, by giving Mundy v. them complete relief, when the right is afcertained : 2 Vef. j'-un. and in the exercife of this jurifdiftion, courts of equity '■'^"• will even enforce difcovery againd a purchafer for \t^\\\^ valuable confideration without notice ; and though the I^'-^-'^J^s; R.. 795. widow fhould die before fhe had ellablifhed her ripht "&* to dower, equity will, in favour of her perfonal re- prefentatives, decree an account of the rents and profits of the lands, of which fhe afterwards appeared dow- able, but will not allow her interefl thereon. § 43. Where a mother was guardian of her infant Duke of . ^ r c 1^ n. Hamilton V, child, and received the rents and profits or the eltate, Molum, of which fhe was dowable, but it was never afli^ned : ^ ^' ^^ ""®' ' ^ 118. the Chancellor held, that the want of a formal afTign- ment of dower was nothing in equity, for flill the right in confcience was the fame. And if the heir brought a bill againfh the mother for an account of the profits, it was jufl that a court of equity fhould, in the account, allow a third of the profits for the right of dower. TITLE ( '72 ) TITLE VI. DOWER. CHAP. V. By what Means Dower may be barred. ^' 2. Attainder of the H'ujh and. 6. Attainder cf the Wife. ■ 7 . Elopement with an Adulterer. 17. Detinue of Charters. 19. Fins and Recovery. 20. Bargain and Sale in London. 2 1 . Jointure. 22. A Devife is no Bar of Dotver. 34. If expreffed to be in Bar of Doiuer the Widow mufi make her EleBion. ^29. Cafes ivhere the Widoiv is alioived to take both. 32. Modern Cafes ivhere a De- vife has been held a Satif- f action. ^6. A Bequefl of Re f due of Perfonal EJlate is no Bar to Dower. Attainder of the Hufband. Brad. 311 ^• 1 Inft. 41 a. Hawk. P. C. b. 2. c. 49. f. 42. Rob. Gav. 230. Law of Forf, Seflion i. '"T^HE right to dower attaches at the inftant of the marriage ; nor can it be defeated by the aliena- tion of the hufband alone ; but ftill the wife may be barred from claiming dower, by feveral a6:s fubfequent to the marriage. § 2. Formerly, if a man was attainted of treafon, murder, or felony, his wife was thereby barred, not only of her dower at common law, but alfo, of her d.ovf&r ad ojiimn ecclefi(2, ex ajfenfu pairis^ and cuftom- ary dower ; except where the lands were gavelkind. " This rule, (fays a modern writer), is to be juftified " on the principle, that fociety may beflow rights on « what Title VI. Dower. Ch. \. §2—6. 173 «« what limitations it thinks fit for its own fafety, and, " on the ftrength of conjugal ties, to deter men from " treafon ; and this is the only acl by which the huf- *' band can, after marriage, affed: his wife's title to " dower." § 3. By the flatute i Edw. 6. c. 12., the rigour of the common law was abated in this particular, it being thereby enacted, that in all cafes where the hufband was attainted of treafon or felony, his wife fhould have dower. But a fubfequent ftatute $ k 6 Edw. 6. c. II., revived this feverity againft the wi- ilnft. 392^. dows of traitors, who are now barred of dower. And the words of the aft being general, exclude the wife, as well in cafes of petit, as of high treafon. § 4. In cafes of mifprifion of treafon, or attainder of felony only, the ftatute i Edw. 6. is in force, and therefore widows are entitled to dower; and where offences have been made felony, by modern acts of parliament, the wife*s dower is exprefsly faved. § 5. It was refolved in 3 & 4 Philip and Maij, that Gate v, the widow of a man who was executed for treafon fliall Dyer, 140 l>. not be endowed of lands which he aliened before the \ ^"^* ^^ ^' treafon, though they are not forfeited. n. 3. § 6. If a woman be attainted of treafon or felony, Attainder of fhe will hereby lofe her dower. But if pardoned, t n- ^^^ fhe may then demand it, though her hufband fhould 13 Rep. 23. have aliened in the mean time : for when this impedi- ment 174 Title VI. Dower > Ch.v. §6 — 9. ment is once removed, her capacity to be endowed is reflored. Elopement § 7* '^^ ^^ve feen that a divorce on account of with an adultery was not, at common law, a bar to dower. Adulterer. -' But by the ftatute Wejiminjier 2. 13 Edw. i. c. 34., it 2 Inft. 433. is enacted, that if a wife willingly leaves her hufband, and continues with her adulterer, fhe lliall be barred of her aftion to demand dower, if fhe be convicted thereupon ; except her hufband willingly, and without coercion of the church, reconcile her, and fuffer her to dwell with him, in v/hich cafe, fhe fhall be reflored \o her action. ainft. 435. § 8. Lord Coke^ in commenting on this flatute, obferves on the words, " ftfponte rdiquerit, et abierit et moreiur cum adultero ;" that although the words of this branch be in the conjunftive, yet, if the woman be taken away not fponte, but againfl her will, and after confent and remain with the adulterer, without being reconciled, fhe fliali lofe her dower : for the caufe of the bar of her dower is not the manner of the going away, but the remaining with the adulterer in avowtry, without reconciliation. 2 Inft. 436. § 9. Lord Coke alfo obferves upon the words moretur cum adultero^ that although fhe does not continually remain in avovvtry with the adulterer, yet, if fhe be with him and commits adultery, it is a tarrying within this flatute : alfo, if fne once remains with the adul- terer, and after he keeps her againll her will 5 or if the Title Yl. Dcwer. Ch,v. § 9— -ii. 175 the adulterer turns her away ; yet fhe fhall be laid morari cum adulterOy within this ad:. § 10. If the wife goes away with her hufband's 210(1.435. agreement and confent with A. B., if, after, A. B. commits adultery with her, and fhe remains with him without reconciliation, flie ihall be barred of her dower. § II. In the rolls of parliament, 2,'^ Ed-iu. i., is the pavnell'scafe, following curious cafe. ^^'i^: ^^^'^' No. 2. William Paynell^ and Margaret his wife, claimed dower in parliament out of the lands of John De Cameys, the fiifl hiifband of the faid Margaret. It was anfwcred, that Margaret had quitted her firfl hufband, and had livc-.l in adultery with her prefent hufband, without having ever been reconciled to John De Cameys her firll hufbanj, fo that fhe had forfeited her dower by the flatute of Wejlminjier. In reply, the demandants p^'oduced /he following fmgular deed, by which JjJm De Caiveys had granted his wife to P^Tywi?//. " Ormihus chrijli fidelihus ad qiios 2 Iml. 435. *' prafens fcriptum pervenerii Johannes de C^.mQjs^Iius " et hares domini Randulphi de Qtoc.^^'Z faluiem Iji do- *^ mino. Noverifis 7?i^ iradlffc et din-iylje fponta?iea vo» " luntate mea domino Will. Paynell riiliti, Margaretam " de Czmtys fliam et h^redan doirdni Johannis de Gat- " tefden uxorsm meam^ et ciiam dedijfe ei concejjlfj'e eidein " domino Will, relaxaje et qvietum clapiafe omnia bona et '^ cattalla qucc ij-Ja Ivlargareta I abet 'uel de cetera habere 7 ' " /#^ 1^6 Title VI. Dower. Cb. v. §ii — 13. " po^t, et etiam quicquid met ejv de pradida Margareta '* bonis vel catalUs cum fuis pertinentiis, ita quod nee *' ego nee aliquis alius in nomine meo inprczdida Marga- " reta bonis vU catallis ipfius Margaretse cum fuis per- " iinentiis de cetera exigere vet vindicare poterimus nee " debcmus in perpetuum. Volo et concedo et per pre/ens " fcriptum confirmo quod predi6la Margareta cum prc- " did:o Will. /?^ et maneat pro voluntate ipfius Will. In " cujus rei teflimonium huic praefeniifcriptoftgillum meuni " appofui. Hiis tcfiibus,'" &c. 210^.436. It was determined, ift, that this was avoid grant; Glib. Dow. , ^-^^^ .^ ^jj ^^^ amount to a licence, or at lead was 402. ' Perk. f. 3V5. a void licence ; 3d, that, after her elopement, there fhould not be any averment quod non fuit adulteriuniy though William and Margaret intermarried after the death of John : and, therefore, that fhe was barred of her dower. They alfo produced a fentence of purgation of adul- tery, in the Ecclefiaflical Court j but it was not allowed to have any efFe£t. 2 Inft. 436. § 1 2. Lord Coke further obferves on this ftatute, that if a woman, who has eloped from her hufband with an adulterer, is afterwards reconciled, and cohabits with her hufband by the coercion of the church ; yet Ihe will be barred of her dower. Idem, § 13. With refped to the circumflances neceifary to prove a voluntary reconciliation by the hufband, Lord Coke fays, that the cohabitation is not fufficient, without Title VI. Dower. Ch.v. § i3-~i5» ^77 without reconciliation made by the hufband fponte^ fo as cohabitation only, in the fame houfe with the huf- band, availeth her not. But, in a cafe in Dyer^ coha- bitation as man and wife, appears to have been held a fufficient proof of reconciliatione § 14. Thus, where a reconciliation was pleaded, it Haworth v. was given in evidence, that the hufband and wife had^ Dwtv 106 L after the elopement, lain together divers nights, and in divers places, and demeaned themfelves as man and wife. It was objefted, that they never lived together in one houfe, but were apait, and the wife continued in adultery with one or more, during the life-time of the huiband : 5^:'^ tion allocatur^ for there might have yi^^ 2 Inft, been divers elopements, and divers reconciliations j and ■^'^^' the defendant ought to take ilVae on one at his peril. § 15. If the friends of the hufband efloin him from Green v. his wife, fo that the wife does not knov/ what is be- ■^^;\'".^^J'' , 9 Vin. Ac. come of him, and the friends of the hufband pubhfh 241. that the hufband is dead, and, after, they procure the wife to releafe all marriages and interells which flie can have in him as her hufband ; and after the wife, by the perfuafion of the friends of the hufband, mar^ ries with another that dies, and fhe takes another huf* band, to whom notice is given that the firfl is living, but no notice was given thereof to the wife, though the wife lives in adultery, and though the hufoand was not out of the realm or beyond fea, fo that the wife ought to take notice that he was living, yet, inafmuch as file no7i reliquit viriwi fpo?iie, as the flatute fays, but by the perfuafion of the friends of the hufband, that Vol, L N . he 178 Title Vh Dozcer. Ch. -v. § 15— 1 7* he was dead, and it does not appear that fhe ever knew that he was living, this is not any fuch elopement as to bar her of her dower. Cootv.Berty, § i^' In dower, the defendant pleaded elopement 12 Mod. 232. in the wife. The wife replied, that her hufband had bargained and fold her to the adulterer, and held bad. Detinue of § ij. If, in a Writ of dower, the tenant pleads _, / ^ ' that the demandant detains the charters of the eflate, Hob. 199. and fhe denies fuch detainer ; if it is found againft Bedingfield's her, fhe ihall loofe her dower. But, lil, The char- cafe, 9 Rtrp. 35. ters ought to concern the land whereof dower is jer, 30 a, (demanded, and not other lands defcended to the heir. 2d, He who pleads this plea, ought to fhew the certainty of the charters whereupon a certain iflue may be joined ; or that they are in a cheft or box, locked or fealed, which imports fufficient certainty : 3d, No ftranger, although he be tenant of the land, and has the evidences conveyed to him, can, in a writ of dower, plead detinue of charters. Alfo, the heir in divers cafes, is in degree of a ftranger, and there- fore, fliall not plead detinue of charters: ift. If the heir has the land by purchafe : 2d, If the heir has de- livered the charters to the wife, for in that cafe the wife has them by his own act : 3d, If the heir be not immediately vouched : 4th, If the heir comes in as vouchee : 5th, If he comes in as tenant by receit. And the reafbn thereof is manifeft, if the true form of pleading in that cafe be v/ell obferved : for he who pleads 7 Title VL Dozver. Ch.v. S 17—22. 179 pleads detinue of charters in bar of duv/er, ought to plead, that he has been always ready, and yet is, to Vide Perkins, 1. ^ C Q ^60 render dower, if the demandant would deliver to him his charters. § 18. Detinue of charters is no plea after impar- Burdon r, 352. lance ; for he who pleads this plea, mud pLad that, ^ vj'^j^"' from the time of the death of his anceft^r, he was ready to affign dower, if flie v/ould deliver the charters. § 19. If a woman joins her hufband in levying a Fine and fine, or fuffering a common recovery, flie will thereby effectually bar hcrfelf from dower out of the lauds comprifed in fuch fine or recovery. The principles upon which this doftrine is founded, will be explained under thofe Titles. § 20. "By tht cuHom of LoTidon, a married woman Bargain and may bar herfelf of dower, by a deed of bargain and London, fale acknowledged before the lord mxayor, or the re- corder, and one alderman 5 (the wife being examired Br.ii.in PnV. feparately and apart from her hufband), and proclaimed £merfon z6 and inrolled in the huflings of pleas of land. § 21. The mofb ufual mode of barring dower in Jointure, modern times, is by means of a jointure, fettled on the wife before marriap;e ; of which, an a in trufl that his widow fhould receive thereout 1 00 /. per annum during her life, in lieu and difcharge of her dov/er. The wife received this annuity for many years, and then broucrht a writ of dower. Decreed that the O wife was barred of her dower, as long as the perfonal eilate was fufficient. Ward V. Ward, Amo 299. Kep. § 28. A teftator, after devifmg to his wife, declares in his will, that what he had before given her, fliould be in full of all dower and right of dower or thirds, which fhe might have or claim in or out of his real eflate. Decreed by Lord Hardzvicke, that the devife was a fatisfadion of the widow's right to free-bench of a copyhold, which the tellator had purchafed after making his will : for free-bench was cuflomary right nomine dotis, and fo declared by Bracloju Cafes wnere the Widow Is allowed to tak; both. § 29. If, however, the intention of the teflator does not clearly appear to have been, that the wife fhould take the devife in lieu of dower, and not enjoy both ; as, if the hufband devifes lands to his wife during her widowhood only, or retrains the devife in any other manner, fo as to render it lefs beneficial than dower, a court of equity will not interfere ; but the wife will be allowed to take both the thing devifed^ and alfo her dower. §30. William Title VL Do-ver. Clw. $7,0, 183 § 30. lVillia?n Laivrcnce devifed lands of the value Lawrence r. of I ^o /. to his wife, durins: her widowhood ; end after T^I^^^^'' ^ ' t) ? J i,d. Ray. the determination of that eftate, he devifed the fame 43 S- premifes, together with all his other lands, to truftees, for a term of years, in trufl for the payment of his debts and legacies : and, as a further provifion for his ■wife, he direded that, after two years of the term were expired, his truftees fhould permit her to receive the rents and profit'G of another farm of 90 /. -per annum, for the remainder of the faid term of 2 1 years, fo long as fhe fhould continue a widow. The widow entered on the lands thus devifed to her, and afterwards brought a Vv-rit of dower for a third part of the lands not de- vifed to her J to which was pleaded the devife, with an averment, that the fame vv^as for her jointure ; but upon a demurrer to this plea, judgment was given for the demandant. A bill was then exhibited in Chan- cery, to be relieved againfl this judgment ; and Lord Chancellor So?ners decreed a perpetual injunction againfl the widow, to flay her further proceedings upon the judgment in dower. The caufe was reheard before Lord Keeper Wright, ■who ordered a cafe to be ffated, ifl, Whether the de- fendant was barred of her dower by the devife in the will or not : sdly. And if fhe was not barred of her dower by fuch devife, whether the plaintiff ought to be relieved in that court. A caie was accordingly flated. In 1702, the caufe came on upon the cafe fo flated ; and his Lordfhip declared, that he had fully confidered the matter, but conceived there was nothing in the teftator's yill that did intend that the defendant fhould be barred N 4 of 184 Title Yl. Dozver> Cb.v. § 30. of her dower ; and if any fuch thing did appear by the will, the fame would only be a bar at law, and not in that court ; therefore his Lordfhip reverfed fo much of the former decree as awarded a perpetual injunftion agaiiifl: the defendant's proceeding at law upon her judgment in dower. This caufe was brought on again by ynother remainder man, and was heard by Lord Chancellor Cowper in 17 15, who declared, as to the point of dower, that it being a point of right, and fo doubtful in its nature, as that the Court had been of different opinions about it, and the determination in 1702 having remained fo long unqueftioned, his Lord- Ihip did not think fit to make any variation from what was then determined as to that point. ^ Bio. Pari. On an appeal to the Houfe of Lords, it was con^ ^' ^''^' tended, that it would be againfl the rules of natural equity and juflice, if the refpondent Ihould be permitted to enjoy the eftates devifed to her by her hufband's will, and at the fame time difappoint his intention, by infixing on her dower, for which the lands devifed were far more than equivalent. On the other fide, it was faid to be no where ex- prelfed, nor to be colleded from the words of the will, that the lands, devifed to the refpondent, were for her jointure, or in bar of her dower ; neither could it be fo averred at law, or in a court of equity, fhe having no eflate for life, but for her widowhood only : and the decree was accordingly affirmed, § 31. A mzr^ Title W. Dower. Cb.v, §31 — 33. 185 § 31. A man devifed his eflate to his firfl; and other J^"^['^°"J* fons in tail, remainder to his daughters in tail, remainder 3 -Atk. 430. to his wife for Hfe. It was decreed by Lord Hardwicke, Boynton, that the wife was entitled to dower out of the eflate thus i,^^°-^- 445- rolter v. given to her in remainder. And his Lordfhip obferved, Cook, 3 Bro. that the cafe of Lawrence v. Lawrence was fully in point. f'^J^ch^ Davis, 2 Vef, ^ -2 2. Notwithllandinff the do6lrine eftablifhed in ^^ ^ , r r r J u r ModernCafes the caie or Lawrence v. Lawrence^ and the frequent where a De- recognition of it, devifes have been fince frequently ^^^^ J" Satif^ deemed a fatisfa6tion of dower, on account of very faaion. /Irong and fpecial circumilances ; as where allowing the wife to take a double provilion, would have been quite inconfiftent with the difpofitions of the will. § 33. A perfon, feifed in fee, by his will gave and Villa Real v. devifed to his wife an annuity of 200/. with a power Ld. Gal way, of diftrefs and entry, and, fubjed thereto, he devifed 202. Note, his real eftates to his daughter, in ftrid fettlement ; Rep.* 682. ' and gave all his perfonal eftate to Lord Galway^ in truft to inveft it in lands to be fettled to the fame ufesc One of the queftions in this cafe was, whether the wife was to take this annuity in fatisfadion of her dower, or not. Two cafes were cited; the firft, that of Pitts v. Snowden, vi^hich was a devife by a man to his wife of an annuity of 50 /. a year, payable out of his copyhold and freehold meffuages, with a claufe of entry and diftrefs ; to be made good out of his perfonal eftate, and fubjeft to the annuity, he gave his freehold mef. fUc^ges to his three children, Lord Hardwicke decreed, 9 timi 1 86 Title VL Dower. CLv. ^ ^^. that the widow was entitled both to dower and the annuity. The fecond was that of Arnold v. Kempjlead^ where a teftator gave fome leafehold eftates to his wife for Hfe, and then gave her lo/. a-year during her life, or fo long as flie fliould continue a widow, out of the rents and profits of his freehold eflates in ^teen s Square, but without any c.laufe of entry or diflrefs ; and devifed all his freehold eflates in ^een^s Square to his fon. Lord Northington decreed, that the widow mull eledt:, cither her dower, or the annuity ; but could not take both. Lord Camden. — The cafe now before the court is more exactly correfpondent, in the form of the devife, to Fitts V. Snowden, than to the other cafe ; for, in thefe two cafes, there is an exprefs claufe of entry and diftrefs, whereas there is no fuch power m Arnold v. Kenipjiead ; and they more particularly refemble each other in another circumftance, as the annuity in both is charged upon other funds, not fubject to dower, as well as upon the dowable eftate ; whereas, in Arnold V. Kempjiead, the annuity is made to ilTue only out of the freehold eftate, fubjecl to dower. Thefe two, being alike in all their circumftances, I muft admit that Pitts V. Snowden is an authority in point one way, Arnold and Kempfiead the other. The queftion upon this cafe is this, i ft, whether, if a rent-charge is given to the widow, ifluing out of the eftate fubject to dower, with power of diftrefs, this devife ftiall operate as a bar or fatisfa£tion of dower. I am of opinion that it ftiall ; becaufe the claim of dower, ift, difappoints the will, and, 2dly, is inconfiftent with it. It is admitted that every Title Yl. Dozuen Ch. \. ^ o^^- ^^7 every devifee muft confirm the will in toto, if he claims any intereft under it; and will confequently forfeit fuch intereft if he impeaches or intercepts any part of it. In this cafe, the will is contradifted by the claim of dower, ift, becaufe it puts the truflees out of polTef- fion, for they cannot hold the whole, fubjecl to the annuity and diflrefs, without being in pofTefiion of the whole ; nor can the annuitant, confident with the will, take poifeffion of any part, becaufe her right accrues upon default of payment. And though the prefent cafe gives the right of entry upon the whole or any part, in more explicit terms than Pitts v. Snowden, yet the general power of entry and diflrefs in Pitts v. Snowden is tantamount in this particular. The pofTef- fion, therefore of the truflees, being co-extenfive with the annuities and the diflrefs, it is- not poffible, in fuch a cafe, to make the land fubjed to the dower and the rent-charge at the fame time ; becaufe, as annuitant, the widow mufl be out of poffeflion of the whok ; as dowrefs, fhe mufl be pofTelTed of a part. Hence it fol- lows, that where the teflator gives the eflate fubjed to the annuity, as he doth in this cafe, he mufl be intended to give, fubjed to the annuity only ; and the refidue of the rents and profits being given to the devifee, mufl exclude all charges, except only the annuity. In this view of the matter, the widow, by the claim of dower, difappoints the will in the moft effential part of the teflator's plan, by reducing the interefl of the devifee, and loading the eflate with an additional burden. 2dly, The claim of dower is inconfiflent with the will in another light, as it will diminifh the annuity itfelf, which is contrary to the very words of the will. The i88 Title VI. Dower. Ch. v. §33. The annuity is either given over and above the dower, or in fatisfadlion of it : he intended only one, or he intended both ; if both, he intended both ftiould be enjoyed in their full extent, the whole annuity and the whole dower. Now, can the widow enjoy the annuity, as the will has given it, if Ihe claims her dower ? It is moft clear that Ihe cannot ; for if fhe enters into a third in right of her dower, fhe mufl fmk fo much of her annuity, as that third ought to bear in proportion. That is a violation of the will ; and whether the an- nuity claihes with the dower, or the dower with the annuity, it is equally decifive, for fhe can never enjoy both, unlefs both can be reconciled to the will. Nor is there any pretence to fay that the whole annuity, by an equitable marfhalment, fhall be thrown upon the two remaining thirds ; becaufe that would in terms contradid the will, which charges the whole, and gives the power of diftrefs on the whole. • This is fufficient to fhew the tellator's intention : it ic an intention that does not fland upon a loofe prefumption, but from the mode of devifmg in the will itfelf ; and then the cafe comes within the rule of Noys and Mordaunt, that no perfon fhall difpute a will that takes under it. This rule is univerfal and without exception, and a dowrefs has no more right to be exempted from it than any other devifee. The cafes of hawrence v. Lawrence^ Hiichin v. Hitchin, Lejnon v. Lemon, Iffc* may be all admitted to be good law ; the will, in all thefe cafes, being confident with the claim of dower. In all thefe cafes the dowable eflate was devifed generally ; and as the teftator had not exprelTed the wife's bequefl to be in fatisfa^tion, the Court would not prefume it, and the eftate Title Nl. Dower. C/j.y. S 33- ^^9 eflate paffed cum onere. There no violence is done to ;he will, and the wife takes no more from the devifee than the teflator intended (he fhould ; nothing being declared to the contrary. But where the dowable eftate is fo divided that the claim of dower makes a material change in the will itfelf, as it does here, the widow mufl be barred by necelTary implication. For where is the difference between declaring that fhe (hall not hold both, and devifmg fo that {lie cannot hold both, without dilturbing the will. And, therefore, if the claim of dower will difappoint the will, fhe is barred of her dower by neceifary implication ; which will, according to the do6lrine of all the cafes, be equivalent to an exprefs implication. I will now fay a word upon the cafe of Arnold v. Kempjiead, There is no power of diftrefs in that will, and yet I do not think it fubdantially within the reafon of the other two cafes ; for the very gift of an annuity to the wife out of the dowable eftate, does, from the nature of the intereft, throw her out of poffefTion, and makes the claim of dower inconfiflent with the will. I mull not conclude without taking notice of a circumflance that may be urged againfl my opinion, as a proof of inten™ lion in the teflator, to give both dower and annuity to the wife, and that is, that the annuity is made to iffue out of more than the dowable eflate ; from whence it may be argued, that the teflator enlarged the fund for payment, in order to leave fufficient for the fatisfa£tion of both the demands. I anfwer, firfl, that it is totally un- known whether he extended the charge and the remedy with that view ; it is, at mofl, but conjedure ; and it may as reafonably be fuppofed that he meant only, by augmenting rgo Title VI. Doiver. Ch, v. § 33,34. augmenting the fecurity, to give an eafier and fafef remedy for recovering the annuity, as nothing is more common, where a rent-charge is granted, than to charge an eftate of ten times the value for the payment of it. 2dly, That this fuppofed intention is rebutted by a declared intention to the contrary, manifefled and expreffed in the will itfelf. I wiih thefe cafes could have been reconciled ; feeling in myfelf a modejl un- wlllingnefs to fet in judgment upon two men greatly fuperior to myfelf in learning as well as capacity ; but Vide Jones that, which in a private man, would have been pre- V. Collier, .... , Amb. Rep. fumption, is an indifpenfible duty in a judge ; the tax: v^Wake''^ is impofed upon me by my omcCj and I undertake it 3 Bro. Rep. ' -with more eafe of mind, knowinsc that there is a jurif- 255. I Vaf. . . . - . . jun. 335. didion fuperior to us all, v/hich is able to confirm or reverfe my opinion by a final decifion. Pearfon v. § 34. A teflator gave by his will ten acres of land i^Bro^^R ^° ^■'^^ ^°^' ^^^j-*^ ^° ^ rent-charge of 10 /. per annu?n 292. to his wife for life, and 5 /. per annum to his brother. The widow filed a bill for this annuity and her dower ; and the queflion was, whether the rent-charge to the wife was a bar of dower, it not being fo expreffed in the will. The cafes of Lawrence v. Lawrence^ and Davis V. Edwards^ were cited to fhov/ that a rent- charge will not bar dower, unlefs fo expreffed. On the other fide was cited Villa Real v. Lord Galway^ Lord Loitghborough. — The law is perfeftly fettled and very plain. The gift of an annuity to the wife may be a bar of dov/er, or may not, . according to the language Title V\, Do%ver. CLv. §34,35- *9^ language of the will. Arnold and Kempjlead, (cited in the fame note upon Co. Lit. 36 b.) In Villa Real v. Lord Galway^ it was held to be a bar, becaufe, other- wife, the other devifes in the will could not take effect. In this cafe, if the value of the lands fhould not be fufficient to fatisfy the two annuities and the dower, it would prove it was intended to be in bar ; other- wife, there is nothing in the will to Ihew fuch intention, and there mufl be fuch an intent to make it a bar to dower. § 35. Sir G. Boynton^ by his will, gave his wife his Eoynton v. manfion-houfe, Iffc. for life ; he alfo gave to his faid j p^^ g^'^p. wife an annuity of 1000/. charged on all his real 445- eftates, in lieu of her dower, and thirds ; together with the ufe of her jewels, and of his houfehold goods, plate, carnages, l^c. for life ; and a legacy of 200 /. to be paid immediately after his deceafe : then came the following : — " Provided that if m.y faid wife fhall " happen to marry again, that then, and from thence - " forth, all and every the devife, annuity, powers, " authorities, and bequefls, by me herein-before or " herein-after given and bequeathed to my faid wife, " (except the annuity of 100/. a year herein-after " mentioned), fhall ceafe and be void. And, in fuch " cafe, I give and bequeath to my faid wife, during " her natural life, one annuity or yearly rent-charge " of IOC A, charged upon all my real eflates, to be *' paid, Is'c. The faid annuity of 100/. to be in full " for any benefit and advantage, which I mean fhail *' arife out of my real or perfonal eflatc, in cafe fhe fliall " happen igt Title VI. Dower. Ch.w. §35. "* happen to marry again/* And made his faid wife executrix and refiduary legatee of his faid will, and guardian to the plaintiff iJs eldefl fon, and to his other children. Sir G. Boynfon, the elded fon, filed his bill, praying, ainong other things, that the defendant, Lady Boynton, might make her eledtion, either to accept the benefits under the will, or to claim her dower. Lady Boy?iton, by her anfwer, elected to take her dower, inflead of the benefits given to her by her hufband's , will. Sir T. Sewell M. R. declared that, as no account of the teftator's perfonal eftate and of his debts, Iffc. had been taken, the defendant. Lady Boynton, was not obliged to make any eleftion, until the account (hould be taken ; and it fhould appear, out of what real eftates fhe was dowable at the time of the teftator's deceafe. The mafter made his report, and foon after Lady Boyn- ton married again. The plaintiff filed a fupplemental bill, making Lady Boynton?, hufband a party, ftating the marriage, and that in confequence thereof, the benefits arifing to the defendant Lady Boynton under the will, had become void. In her anfwer to this bill. Lady Boynton claimed her dower, and fubmitted to the Court whether ftie was not alfo entitled to the annuity of 1 00 /. given by the teftator's will. 'Lord Thurlow declared, that Lady Boynton, having eledled to take her dower, was not entitled to have the legacy, annuity, and provifion made by the will. And, upon a re-hearing, his Lordfliip faid, the queftion is, whether the teftator has declared, by exprefs words, or any thing tantamount, that Lady Boynton fhall have both TiikYl. Dozvcr. Ch.v. §34-^37- 19;; both the dower and this annuity ? The queftion turn? upon the claufe whereby he gives her, in the event of her marrying again, 100/. a year, as the full benefit fhe was to derive from his eifate. By the expreflions, I rather think he intended his eftate fhould be quite clear of her. On the other hand, it is faid, this could not be his intent, as he knew this was not equal to her dovN'er ; but the cafes do not feem to have gone upon any calculation of value between the legacy and the dower. The natural conftruftion of the words feemed to be, that if flie married again, fhe fhould only have 100/. a year, in this the teflator's intention is de- feated ; but fhe cannot have her dov/er and the an-* nuity. § 36. A gift of the refidue of perfonal eftate, A Bequ'eft of will not alone be conftrued as a bar or fatisfaftion of ofVerfon? dwv/er. Eftate is no BartoDow^n § '^'j. A man, by his will, taking no notice of his Ayres v. ■ wife's tide to dower, makes a provifion for her out j Vaf'a^o of the perfonal eftate by way of refidue. This was infifted upon to be an implication to bar her of dov/er. Lord Hardwicke. — -No cafe to that purpofe.* This ditfers greatly from Noys and Mordaunt, and th^ feveral other cafes, fmce which the rule has 'been, that if a provifion (even perfonal, according to latter de- terminations) is made for a child, whofe eftatey by the fame will, is deviled away, if he claims under V®L. L O the i^^ Titk VI. Dower. Ch, v. § 37. the will, he cannot have the other. But here, by the claim of do\Mer, the wife does not break in on the will ; and this is the flronger, as it is only a refidue ; which accidental benefit he might intend fhe fhould have as well as dower. TITLE ( 195 ) TITLE VII. JOINTURE, CHAP. I. Of the Origin and Nature cfjointurei* CHAP. 11. In what Cafes a fointrefs is entitled to the Aid of a Court of Equity. CHAP. IIL What will operate as a Bar or Satisfaflion of a fQinture* CHAP. L Of the Origin and Nature of Jointures. $ I. Origin of Jointures. 4. Statute 27 Hen. 8. c. lO. 5. Definition of a Jointure. 6. Requlfites to a jointure. 7. It mujl take Effe8 from the Death of the Hujband. 10. Jnd be for the Life of the Wife. 1$. It mufi be limited to the Wife l6. 7Vts Rule not in force in Equity. 18. // mufi be in SatisfaBion of the ivhole Doiver. ■^o. And fo expreffed. \^. It mufi be made before Mar- riage. 26. From ivhom a Jointure mufi come. 27. Jointures 'Vjhlch require the Acceptance of the Wife. 32. Cafes tchere a IVidoiv taket the Efiate and Dower. 33. pQiver of a Jointrefs over the Efiate. 37. A Rent charge is now ufually limited at a Jointure. 38. Jointure not forfeited by At' talnder of the Hujhand. 39. Nor by Elopement of the Wfe. 40. ff^'ho may take a Jointure. , 41. An Infant is bound by a Jointure. O 2 SedUon 196 Title Vll. Jointure. Ch.l Se£tion i. OnVrn of T"^ confequeiice of two maxims of the common law, Jointures. jf|;^ tliat no right can be barred until it accrues, 4 ivep. 1. ^^^^ 2dly, that no right or title to an eftate of freehold can be barred by a collateral fatisfadtion ; it was found abfolutely impoflible to bar a woman of her dower, by any aflignment or affurance of lands, either before or during the marriage ; though exprefsly mentioned to be in full bar and fatisfaftion of dower. For a wife having acquired a right to be endowed of a third part of all her hufoand's lands, at the moment of her mar- riage, this right, like all others, could only be ex- tinguifhed by a releafe thereof; and no fuch releafe of the wife, either before or during the marriage, v/ould be valid. For if it was made before the mar- riage, it was no bar ; becaufe, at the time of making it, the wife had no title to dower ; and, therefore, a releafe from her then, could be no bar to a right which accrued to her after. If it was made during the mar- riage, it was abfolutely void ; the wife not being then ' fill juris. And no eftate limited to the wife during the marriage, could bar her of dower ; becaufe no right or title to a freehold eflate can be deflroyed by acceptance of a collateral fatisfadion. § 2. Every woman became therefore entitled, im- mediately upon her marriage, to one third of all her hufband's real eftates, however fmall her own fortune might be. Such an inequality was one of the reafons why fo much land was conveyed to ufes, a widow not being Title Yll, jointure. Ch.\. §2 — 4. 197 being dowable of a ufe. And when the pradice of Vide Tit. u. vefting eftates in feoffees to ufes became general, it was ufual, on all marriages, for the friends of the wife to procure the hufband to take an eft^ate from his 4 Rep. 1 b, feoffees, and to fettle it to himfelf and his wife, for their lives, in joint- tenancy or jointure, (from whence the word jointure arofe), lead the wife Ihnuld be totally unprovided for at the death of her hufband. § 3. When the ftatute of ufes enacted that all thofe who were entitled to the ufe of any lands or tenements fhould have the legal feifm and poffeffion of them, all women,' who were then married, would have become dowable of fuch lands as were held to the ufe of their hufband's ; and would, at the fame time, be entitled to any particular lands that were fettled on them in jointure. But as this would have been a manifefl . wrong, the following claufe was inferted in the ftatute of ufes, to prevent that confequence. § 4. " Whereas divers perfons have purchafed or Statu ?p " have eflate made and conveyed of and in divers, (^h 10 f "g. " lands, tenements, and hereditaments, unto them and " to their wives, and to the heirs of the hufband, or to " the huiband and to the wife and to the heirs of their " two bodies begotten, or to the heirs of one of their " bodies begotten, or to the hufband and to the wife *' for term of their lives, or for term of life of the faid " wife ; or where any fuch eftate or purchafe of any ** lands, tenements, or hereditaments hath been or ** hereafter fball be made to any hufband and to his " wife, in manner and form above expreffed, or to O 3 " 2ny 19S Title VII. Jointure. Ch. i. § 4, 5. ^"^ any other perfon or perfons and to their heirs and '* afiigns, to the ufc and behoof of the faid hufband *■' and wife, or to the ufe of the wife, as is before re- *^ hearfed, for the jointure of the wife, that then, and '* in every fuch cafe, every woman married, having *' fuch jointure made or hereafter to be made, fliall " not claim nor have title to have any dower of the " refidue of the lands, tenements, or hereditaments " that at any time were her faid hufliand's by whom *' fhe hath any fuch jointure, nor fhall demand nor " claim her dower of and againft them that have the *• lands and inheritances of her faid hufoand. But if ** fhe have no fuch jointure, then fhe fhall be admitted ^* and enabled to purfue, have, and demand her dower, ** by writ of dower, after the due courfe and order of *^ the common laws of this realnic Id. f, 7. «« Provided always, that if any fuch woman be *' lawfully expulfed or evicted from her faid jointure, " or from any part thereof, without any fraud or covin, " by lawful entry, adlion, or by difcontinuance of her *' hufband, then every fuch woman fhall be endowed " of as much of the refidue of her hufband-s tene- *' ments or hereditaments, whereof ilie was before *♦ dowable, as the fam.e lands and tenements fo evided ^* arid expulfed fhall amount or extend unto." Definition of § 5- This flatute has given rife to the modern join^ joinimc. j.^j.g^ which Lord Coke defines to be *' a competent I luft. 37 fl. 4( livelihood, of freehold, for the wife, of lands,or tene- ♦* ments, Isfc. to take eiFeft prefently in pofTefTion or *' profitj after the deceafe of her hufband, for the life of Title VII. Jointure. Cb. i. § 6-.8. £99, '* of the wife at the lead ; if (he herfelf be not the *' caufe of determination of forfeiture of it. § 6. As the ftatute 27 Hen. 8. refpedling jointures, Requlfites to contradI£ls the common law, it has been conflrued ^ Jointure, ftridly ; and, therefore, Lord Coke lays it down, that i inft, 36 i, no eflate limited to a woman fhall be deemed a good jointure, and a bar to dower under this a6t, unlefs it has the following requifites., 5 7. It mull take efFe61:, in poifelTion or profit, im- it mull take mediately from the death of the hufband ; for, other- '^^^'S ^''?" . ■z . ' ' the Death of wife, it will not be fo beneficial a dower. If, therefore, the Hufband. an eflate is conveyed to the hufband for life, remainder ^ Inft. 36 b. to J. S. for life, remainder to the wife for life, in fatif- fadion of dower, this is no jointure within the flatute : jpecaufe, by the fir ft limitation, it was not to take efFed in pofTefTion or profit prefently after the death of her hufband. And although, in this cafe, J. S. fhould die in the life-time of the hufband, and after the death of the hufband the wife fhould enter, yet it would be no bar of dower, but fhe fhould have her dower alfo ; becaufe it was not within the flatute, and, by the com- mon law, it was no bar of dower, 5 8. So, where nn eflate was limited to the hufband in tail, and, for default of fuch ilfue, to the wife for life, it was held not to be a jointure, although the hufband died without iflue in the life-time of his wife. O 4 § 9. Sir 203 Title VM. Jo'mture. Ch.i. §9 — 11. Wood V. § 9. Sir H. Bowyer covenanted to ftand feifed^t6'*the r- '^T^' .?« ufe of himfelf in tail, and for default of fuch iffue, to ^ro.Jac. 400. ' ' the ufe of his wife for Kfe. Sir H. Bowyer afterwards made a feoffment of the fame lands to truftees, to the life of himfelf and his wife for their lives, without impeachment of wafle, by way of jointure. After the death of Sir H. Bozuyer^ his wife entered. And it was adjudged, that fhe was remitted inilantly to the eftate for hfe hmited to her by the covenant to fiand feifed ; and that it was not a jointure, becaufe it was to begin after the determination of an eflate tail ; and, although the eftate tail was determined by the death of the huf. band without iffue, fo that her eftate began immediately CartitViers v. upon the death of her huft)and, yet, forafmuch as it ^^'^v ^'^\i could not be faid to be a jointure at the beginning, 500. whatever happened afterwards could not make it a good jointure, And be for § 10. The fecond clrcumftance neceftary to a jointurfe the Life ot jg ^■^^^ j^ ^^^ l^g limited for term of the wife's life, the vy itc. ' ' I Inft 7.61) ^^ •^'^" fonie greater eftate. But if an eftate be limited to a woman for the hfe or lives of one or more perfons, or for a hundred or a thoufand years, i^c. if ftie lives fo \ long, or without fuch hmitation, it is no bar of her dower. § II. It is immatetial in what manner the eftate is 4 Rep. 2 a. limited to the wife ; for although the ftatute recites five modes of limiting an eftate in jointure, yet thefe are only mentioned as examples, and do not exclude any other eftate which is conftftent with the intention of the ftatute, § 12. In Title Vl\, Jo'mture. Ch,l § 12 — 15. aol § 12. In the Buchek o^ Somer/ef^ cafe, which was Dyer 97 fl, determined i M^r/, it was refolved by all the judges, that an eftate, limited to a man and his wife, and to the heirs male of their two bodies begotten, was a good jointure within the ftatute ; although it was not one of the eftates mentioned in the ftatute. § i;. In Vcrnc?i's cafe, it was determined, that an 4 Rep. 2 a. eftate, limited to the hufband for life, remainder to the wife for life, was a good jointure ; although it was not one of the eftates mentioned in the ftatute ; becaufe it is equally beneficial vvith them. § 14. It is faid, in Brook's Abridgement, that an Tit.Doxver, eftate, limited to a hulband and wife and their heirs, is " ^^' not a jointure within the ftatute ; becaufe it is not one of the eftates 'mentioned in the ftatute. But Dyer has 248 a. contradicted this pofition, and proved that fuch an + R^P- 3 ^• eftate would be a good jointure, and within the exprefs letter of the aft ; the words of the act being *' for " term of life or otherwife in jointure ;'* which word otherwife extended to all other eftates conveyed to the wife, not mentioned before in the aft, which are as beneficial or more to the wife, as the eftates before mentioned. § 15. The third circumftance neceffary to a good it muil be jointure, according to Lord Coke, is, that the eftate ^T^yjf^^'J^^f.lf^ muft be limited to the wife herfelf, and not to any iin[\.^6b. other perfon in truft for her. So that if an eftate be j a^^i made to others in fee-fimple, or for her life, in truft>, fo as the eftate ren^ain in them, although it be foi- $ her -<^T. JOS Title Vll. Jointure, C/j. i. § 15— 17. 1, 1 her benefit, and by her aflent, yet it is no bar of dower. This Rule § 16. Mr. //.^r^rji'f obferves, on this paflage, that Fn'^EqmVy'" though this may be true at law, yet it is now fettled, that a trufl eftate, being equally certain and beneficial as what is required at law, or even an agreement to fettle lands as a Jointure, is a good equitable jointure in bar of dower, Bucks V. § 17. In a modern cafe, it was determined by the fjfr7' Iloufe of Lords, that a covenant from Sir Thomas Drury^ the hufband, that his heirs, executors, or ad- mhiiftrators would pay an annuity to his wife for her | hfe, in cafe ihe furvivod him, in full for her jointure, , and in bar of dower, without expreffing that it fhould be charged on lands, was a good equitable jointure 4 Brown's within the ilatute. And Lord Hardwicke anfwered the V.e-p. 506. obieaion of its beins: in the hufband's power to have note. J o * I defeated this agreement, and fold or given away his I ■whole eflate, by Lord Lecchmere'% and other cafes, where the agreement refled as here on the hufband's covenant ; and further, by obferving that fuch an alien* ation would have been an eviction of the fund, out of which the jointure was to arife, and confequently let the wife into her dower ; and nobody would have dealt with Sir Thomas Drury without defiring to fee his mar- ria'^e articles, whereby the covenant would appear, and enquiring Avhether it was or was not performed. Another objection, that Sir Thomas Drury had not bound himfclf to do any ad, but only that his heirs, executors, and adminiftrators fhould pay, ^c. he an- fwered T/V/^VII. Jointure, Ch.i. ^ i-j — 21. 303 fwered by faying, that upon the former claufe ftipu- lating that if fhe furvived, fhe fliould have an annuity, life. Lady Drury might, the day after the marriage, have brought a bill by her next friend, and compelled Sir Thomas Drury himfelf to fettle the annuity. § 18. The fourth circumftance neccflary to a join- It muft be in ture is, that it mull be made in fatisfaftlon of the orihe^\ hole wife's whole dower, and not of part of her dower. Cower. For land conveyed to a woman in part of her join- * " • 3 • ture, or in fatisfaftion of part of her dower, is no 4 Rep. 3 a. bar, on account of the uncertainty, of any part of her dower. § 19. It is faid, in Vernon*s cafe, that if lands are i^, conveyed to a woman before marriage, as part of her jointure, and after marriage more land is conveyed to her, for her full jointure, and in fatisfadlion for her whole dower, and afterwards her hufband dies : in that cafe, if the wife waives the land conveyed to her after the marriage, (which fhe may do), fhe fhall have the j^fra. land conveyed to her before marriage, and her dower ^Ifo in the refidue. § 20. The fifth circumftance neceffary to a joint- Andfoex- ure, is, that the eflate limited to the wife muft be expreffcd in the deed to be in fatisfa6lion of her whole dower, prcfled. llnft. 36^. §21. An averment might formerly have been made, Vernon's that an eflate hmited to the wife was in bar of dower, "fe^^Rep. i Anon. Owei But, R. 33- 204 Title V\\. Jointure. Ch/u §21 — 23. Bat, fmce the ilatute of frauds and perjuries, no aver- ment can be admitted, that a provifion made for a 9 Mod. 1^2. wife previous to her marriage was intended as a joint- ture, and in bar of dower. Tinney v. § 22. On a bill brought for dower, the defendant '^?",'^''o infified, that the hufband, in his hfe-time, gave a bond 3 Atk. 8. ' in the penalty of 1000 1., in trufl to fecure 500 1. to the wife in cafe fhe furvived him : that it was intended, at the fame time, to be in lieu of dower, and that Ihe acknowledged it to be fo ; and offered to read evidence of her acknowledgment. Lord Hardwicke faid, that parol evidence could not be allowed in this cafe, being within the flatute of frauds and perjuries ; and that a general provifion for a wife was not a bar to dower, unlefs it was fo expref- fed. His Lordfnip, however, ftated, that in the cafe of Vizard v. Longdale, Sir J. Jekyll held the words in a bond to fecure a fum of money for the livelihood and maintenance of the woman, was no bar of dower. But Lord Chancellor King was of a different opinion, and faid, it was within the equity of the flatute 27 Hen. 8., of jointures, and therefore reverfed the decree. § 23. A limitation of an effate to a woman for life, with a fubfequent provifo, that it (hall be in fatisfaclion of dower, has been held to be a good jointure, though not limited exprefsly in lieu of dower, but only faid fo in the provifo. § 24. 7. S. Title VII. Jointure. Ch. I. §24, 25. 205 § 24. J. S, was feifed of copyhold lands belonging Jordan v. to the manor of WJjitcburcb ; in which manor, there is ^Y^^Ab .the following cuftom : viz. The firfl wife of every vol.3. 717. tenant fhall have her free-bench in all the lands whereof her hufband was feifed during the coverture ; the fe- cond wife a moiety, and the third a part, fo long as (he kept her hufband above ground. J. S., in confi- deration of a marriage, and marriage portion, cove- nanted with truilees, that within two months after the marriage, he would fettle all his lands to the following ufes : viz. As to part of the lands, to the ufe of him- felf and of his wife for their lives, remainder to the firfl: fon, &:c. in tail male ; and as to the other moiety, to the ufe of himfelf for life, remainder to his firfl fon, &c. with a provifo, that the lands fo fettled on the wife fhould be in lieu of her cuflomary efcate. And one of the points in this cafe was, whether this jointure, not being made exprefsly in lieu of dower, but only faid fo in the provifo, and fhe being an infant at the time of making the articles, and not a party to them, Ihe fhould be excluded from claiming her free- bench ; and it was holden, that (he fhould be obliged to abide by her jointure. §25. The fixth circumflance necefTary to a jointure it ^uft be IS, that it mufl be made before marriaoje. For it is "^/d^. before Marriage. cnatted by the 9th feftion of the ftatute, that if the , „ ^ , ' I Tnlt. 36 &. jointure be made after marriage, (except by aft of 4 Rep. 3 a. parliament), the wife may refufe it, and demand her dower. S 26. It 3o6 Title VII. Jointure, Ch. i. § i6 — ■•29. From whom § 26. It is not ncceflary that the eftate limited aS A * J"'"^"'^ jointure, fhould proceed immediately from the hulband^ Moore, 28. for if it comes through the medium of truftees, or the Bridges's demandant in a common recovery, it will be good. cafe,Mo.7i8. ■' ° Afhton'scafe, So, if the eftate proceeds from the father of the huf- Dycr, 23b. i^^jjj^ j^ y^\\\ i^g gQQ^^ Jointures S 2 7* A jointure attended With all the circumftances theAcccpt-"^^ above ftated, is binding on the wife, and is a complete ancf of the \y2x to her claim of dower ; or rather prevents her title Wife. T- -rt 1 to dower from ever arifrng. But there are other modes of limiting an eftate to a wife, which Lord Coke fays are good jointures within the ftatute, provided the wife accepts of them after the death of her huftDand. But flie is at liberty to rejed: them, and, in that cafe, Ihe becomes entitled to dower. § 28. Thus an eftate fettled on the wife, aftei* mar- riage, as a jointure, may, by the exprefs words of the ftatute, be rejeded by the wife, after her huft>and*s death j in which cafe, (he may claim her dower. But if Ihe once accepts of fuch jointure, (he is thereby bar* red of dower. § 29. An eftate for life Hmited to a woman for her jointure, upon condition to perform her huft)and's willy or which is determinable by any other means whatever during the life of the wife, is a jointure within the ftatute, if the wife accepts of it after the death of her huftiand. S 30' I" "Title VII. Jointure. Ch. I. S 30. 207 § 30. In a writ of dower, the tenant pleaded, that Vernon's the hufband of the demandant was alfo feifed of lands p'f^Jr'JoiT*'-" in the fame county, which he had conveyed to the ufe of himfelf for life, remainder to his wife for life ; and averred, that the eftate for life fo limited to the de* mandant, was for her jointure, and in full fatisfadion of dower ; and that, after the death of the hufband, Jhe bad entered into the lands fo limited to her for her jointure^ and agreed to it. The demandant replied, and confeifed the conveyance, by which fhe took an eftate for life ; but faid, that the eftate was upon con- dition that ftie fliould perform the laft will of her huf- band ; and fhewed the will in certain, in which divers things were to be performed by the demandant ; and demanded judgment, if the tenant fiiould be admitted and received to aver, that this eftate fo limited to the wife, upon the faid condition, was for the jointure of the wife, and in fatisfadion of her dower : upon which matter, the tenant demurred in law. It was refolved, that although the eftate limited to the wife was upon condition, and although dower, in lieu of which the jointure is given, is an abfolute eftate for life, yet, forafmuch as an eftate for life upon condition, is an eftate for life, it was within the words and intent of the ad, if the wife, after the death of the huft^and, accepted it. It was alfo faid, that if a man makes a feoffment in fee, to the ufe of himfelf for life, and after to the ufe of his wife, durante viduitate, for her jointure, it was good within the 27 Hen. 8. : And the fame law of an eftate con- veyed to the wife for her life, on condition. But, in 20 8 Title y II. y dim tire, C/^. i. § 30 — 32. in thefe cafes, the wife is not bound to accept fucli jointure, but may demand her dower. § 31. Lord Coke, in his report of Vernonh cafe, fays, it was determined in 38 & 39 Eliz., that if a man I.eake v. devifcs land to a woman for hfe, or in tail, for her ci'^cdARe jointure, "imA in faticfaftion of her dower, it is ajoint- 4'^- ure within the ftatute 2y Hen. 8. For, as an eflate for life made to a woman for her jointure before mar- riage, when (he is not his wife, is within the equity of the faid ace, fo, an eflate for life devifed to a woman for her life, v/hich takes effeft after his death when the marriage is diifolved, is alfo within the equity of the faid acl : for fuch eflate well agrees v/ith the intent of the m.akers of the faid acl, and with the defcription of a jointure made by the judges in Vernon's cafe. Cafes where § 32. It appears, from what has been above flated, takes the ^^^^ there are two forts of jointures \vithin the ftatute Eitate and ^7 Hen. 8. *. one, which prevents the title to dower Dowtr. ' from ever arifmg ; and another which, when accepted, but not before, becomes a bar to dower. An eftate for life upon condition, as in Vernon's cafe, and an eflate limited after marriage, for a jointure, and in bar of dower, are inftances of the latter fort. Where an eftate is limited to a woman, which does not fall within either of thofe defcriptions, fhe becomes entit- led to fuch eftate, and alfo to her dower. Thus, in Vernon'^ cafe, it was refolved, that if the eftate there 4 Rep. 2 a. limited to the wife, was not within the ftatute iy Hen, 8., then, by the common law, it was no bar of dower, but Title VII. yointure. Ch. i. § 32 — 3€. 209 but the demandant fhould have both. And Lord Coke oblerves, that where a jomture does not take i Inft. 36 b. efFe£t immediately on the death of the hufband, the wife ihall take fuch eftate, and alfo her dower. § 33* We have feen, that an eflate in fee, in tail, Pov.'erofa or for Hfe, may be Hmited to a woman for her jointure, ^y^'j. ^he In the cafe of a limitation in fee, I conceive the joint- Eftate. refs would have a full pov/er of difpofmg ©f it as fhe pleafed. But where an eflate tail is limited to a wo- man for her jointure, flie is prohibited by the flatutes II Hen. 7. c. 20.^ and 32 Hen. 8. c. 2>^j. f. 2., from alienating it, or creating a difcontinuance of it by feoft- , ment, fine, or recovery. The cafes which have arifen on thefe Ilatutes, will be flated under Title 76. Recovery. § 34. Where lands are limited to a v/oman for life Baflett v. for her jointure, fhe has the fame rights, with refped p-^'^^^j^ '^g to eflovers and emblements, and is under the fame Cook v. Winford, reflridions refpeding wafle, unlefs there is a deficiency 1 Ab. Eq. s. 221. in her jointure, as other tenants for life. 5 35. A jointrefs is not entitled to the crops fown at the time of her hufband's death ; becaufe a jointure is not a continuance of the eflate of the hufband like dower. § 36. As to emblements, it has been held, that al- FIlTierv. though a dowrefs fhall have emblements, becaufe dower g v'in! Ab. is confidered as a continuance of the eflate of the huf- 374- Vol. I, P band, 210 Title "Vll. Jointure. Ch.'i. §36 — 41. band, vet a jointure is not ; and, therefore, the re- prefentatives of a jointrefs are not entitled to them. A Rent- charge is row ufually limit- ed as a jointure. § -^7. The inconveniencies which attend a limitation of land by way of jointure are fo numerous, that it has long been a general praftice to limit or grant a rent charf^e to the intended wife for her life, to commence from the death of her hufoand ; v.'ith powers of diftrefs and entry, and a term of years for fecuring the pay- ment of it ; which has been found by ^experience to be much more convenient, both to the jointrefs and to the heir : as a m.ore certain income is thereby fecured to the jointrefs, and the heir continues in the pofleffion and managem-ent of the whole eflate. A Jointure § 38. A jointure is, in feme cafes, m.ore favoured by'^Attahider in law than dower ; for, although the hufband be at- of the Hul- tainted of treafon, yet the wife will be entitled to claim band. jinft. 37^. her jointure. Nor by Elope- § 39* Nor does the wife forfeit her jointure by ment of the elopement with an adulterer, although we have feen 3 P. Wir.s. that dower would be forfeited in fuch a cafe. 269. Who may lake a Jointure, § 40. As a jointure is an eflate limited to a woman in lieu and fatisfadion of dower, it follows, that all thofe who are capable of being endowed, are alfo ca- pable of taking a jointure. An Infant is §41. It was formerly much doubted, whether a bound by a . . ,, , , . r , r Jointur-. ]omture fettled on an mfant before marriage, was a bar to dower. But it has bee?i determined by the Houfe Title YVL Jointure., Ch. I. §41,42. 2U Houfe of Lords, that where a jointure Is hmited to an infant before marriage, fhe cannot waive it after her hufband's death, and claim dower. ^ 42. Sir Thomas Drury, previous to his marriage Earl of Buck* •^ ^ ^ v. Drury, with Martha Tyrrell, who was then an infant, by in- 3 Bro. Pari, denture made between the faid Six Thomas Drury of a- 492. the firft part, the faid Martha Tyrrell of the fecond part, and two truflees of the third part, agreed that the faid Martha TyrrelU in cafe the marriage took place, and fhe furvived her intended hufband, fhould have and enjoy an annuity of 600 /. during her Hfe, for and in the name of her jointure ; and that the fame fhould be accepted and taken by her in full fatisfadioa and bar of her dower : and Sir Thomas Drury cove- nanted with the truilees to pay the faid annuity of 600 /. This deed was executed by Sir Thomas Drury and Mifs Tyrrell, in the prefence of her guardian, who was a fubfcribing witnefs to it ; and the marriage was foon after folemnized, with the privity and confent of the guardian. Mifs Tyrrell was only entitled to a portion of 2,000 /. Sir Thomas Drury died inteftate, being feifed in fee of a confiderable real eftate, leaving two daughters. Lady Drury, upon the death of her hufband, infilled, that as (he was an infant at the time of executing the aforefaid indenture, and at the time of the folemniza- tion of her marriage, fhe was not bound to accept of the provifion thereby made for her, but was entitled to dower. The two daughters of Sir Thomas Drury P 2 filed Title VII. Jointure. Cb. i. § 42. filed a bill in Chancery againfl Lady Drury, praying that file might be rellrained from claiming dower. The caufe was heard before Lord Chancellor Henley,- who decreed, that Lady Drury was entitled to dower. On an appeal to the Houfe of Lords, it was con- tended by the appellants, that, by the, ftatute 27 Hen, 8., no woman having a jointure fettled on her before marriage, fhould claim or have title to dower ; fo that, in all cafes where jointures are made, the fubfequent marriage, which at common law gave a title to dower, after this aft, gave no fuch title, and the jointure i» made a ftatutable provifion for her, in lieu of the pro- viiion at the common law. It does not, therefore, depend on the confent of the wife, that the jointure takes away the right of dower, but, having the joint- ure, file never gains any title to dower. That this a6t gives no colour to the conftruftive exception of infants infilled on by the refpondent. The words are general : " Every woman married, having jointure made, *' jhall not claim, nor have title to any dower** This includes infants, as well as adults; -and, if the Parlia- ment had meant to dillinguilh between the two cafes, it would have been necelTary to except infants, in exprefs terms, and not to have left it to conllruftion only; for at the time of making this law, there muft have been numerous inflances of jointured infants ; and the fingle cai, in which it was probable that the wife might be injured by the influence and power of her hufband, ta bar Title VII. JmiUtre. Ch. I. § 42. bar her of dov/er by a jointure, was that of a jointure after marriage ; which cafe is exprefsly provided for by the aft, that the wife, after the death of her huihand, may eleft between the two rights. But if infants were not bound by their jointures, no efpecial provifion being inferted in the ftatute, to compel them to an eledion, when the hufband was feifed of the legal eflate in the land, they would take not only their dower, but their jointure alfo, which is contrary to the whole fpirit of the ad:. It was never meant that any woman fhould have jointure and dower both. If infants had been excepted, that exception would have been to their dif- advantage, by preventing their marriage. At that time, moft ladies of fortune, particub.rly landed for- tunes, \yere mar/Ied before they were of age, by rea- fon of the adva.»tage which accrued from their mar- riage to the lords under whom the tenure was derived ; and, in faft, women are mod frequently married under age. But if they could not bar themfelves, during their infancy, from claiming dower, by accepting joint- ures, fuch marriages could not prudently be had in families of wealth and rank. Dower, though a jufl and honourable provifion for the wife, is a right in- convenient to the heir, preventive of the free ufe and improvement of his lands, and, in great eftates, a far more ample provifion than can be in reafon demanded or expe£led. The legiflature, therefore, intended, that all women capable of contracting marriage, fhould be bound by jointures m.ade before marriage, which are prefumed to be fettled by the advice of parents, guardians, and friends ; or, if made only with their own confent, by the hufband fairly without fraud : P 3 ftiU ^^4 TifkVll. Jointure, Ch.\. §42. ftlll It was thought reafonable, that fhe, whom the law allowed to bind herfelf by the marriage, which is the principal contraft, fhould be bound by a provifion which is acceflary to that contradl, and a condition of it : thatj according to this conftruQiion, the opinion of the lawyers had been uniform, that a jointure made before marriage upon aji infant, is a bar of dower ; and, on this prefumption, fettlements had been made upon infants in many families of this kingdom. In the various inftances of jointures made before marriage upon infants, none could be found, either in authority or experience, where it has been adjudged, or infifted, or yielded in fact, that a widow might waive a jointure before marriage, on account of infancy, and claim her dower. That the long unvaried practice of th :• Court of Chancery gives a full fandlion to this con- ftruclion of the ftatute, by directing, on every applica- tion for the marriage of an infant female ward of the court, that a mafter fliould fee a proper fettlement made on fuch infant by way of jointure ; whence, it may be prefumed, that the court always underfhood that fuch fettlement and jointure would be effectual and binding in law on both the parties ; intending, at the fame time, to lend its aid and judgment 10 the infant ward, as her befl guardian and prote6tor. On the other fide, it was contended, that, before the ftatute 27 Hen. 8. c. 10., no jointure made on a woman, though of the age of 2 1 years, was binding or conclufive on her, but Ihe might waive fuch jointure, and claim title to a third part of the real eftate which her hufband v/as feifed of or entitled to, in fee, or in 8 tail^ Title Vl\. Jointure. C/^. I. § 42. 215 tail, at the time of her marriage, and at any time during the coverture j but, fmce that acl, a jointure made upon a woman of full age, previous to her mar- riage, is conclufive upon her, in cafe fuch jointure be made of lands and tenements to take effeO: in pof- feffion or profit prefently after the deceafe of her huf- band, and be for the term of her own life, or a greater eftate ; or otherwife fhe has it in her election to take the jointure or dower ; and fo, likewife, if the jointure is made after marriage. That it vv^as not to be con- ceived to have been the intention of this aft, that a jointure made before marriage on a woman under age, fiiouid be binding and conclufive on her ; as the law was then, and has ever fmce, continued to be clear and undoubted, that no conveyance or acceptance of any real eftate, whether by or under a fine, recovery, or other deed could, or now can, bind an infant, either male or female ; and if the Legiflature had intended, that an infant female fliould be bound by fuch a join- ture made upon her before marriage, care would have been taken, that fo remarkable an alteration of the known ,law of the land fhould be clearly fo expreiTed, efpecially as it muft be agreed, that this a6l is not bind- ing on the hufband of an infant making fuch jointure, but is abfolutely void, and, when he comes of age, he may totally difavow the fame. And there feems to be as much reafon to fuppofe that the makers of this act intended, if any infants were to be bound at all, that both males and females fhould be equally fo j and the Legiflature would probably have made fome provifion, that jointures, made by or upon infants, fhould have been ej;ecuted with fuch folemnities, and under fuch P 4 guards 2iS Title VIL Jointure. C/^. i. § 42, 43' guards and cautions, as might have efFedlually prevented any fraud or impofition, or been othery/ife injurious to infants executing the fame. That, if the doctrine of a female being in all events bound by that ftatute, though an infant of the age of 1 2 years perhaps, Ihould once clearly be eftablifhed, it might give occafion to the practice of great frauds, and be productive of the greatefl mifchiefs and inconyeniencies ; for, in fuch a cafe, a man of a great real eftate might engage an in- frjit of 1 2 years old to marry him, and, by his fettling of any fmall part of his real eftate on her, by way of jointure, might bar her out of his cPuate, at the fame time that he, in right of fuch marriage, acquired aii abfolute property in all her perfonal eftate. After hearing counfel on this appeal, the following queftlon was put to the judges : " Whether a woman " married under the age of 21 years, having before " fuch marriage a jointure made to her, in bar of hef " dower, is thereby bound, and barred of dower withirj ** the ftatute 27 Heri, 8. c. 10.?'* Mr. Baron Gould^ Lord Chief Baron Parker, an4 Vi'de SJr E. Lord Chief Juftice Pratt, delivered their opinions iii Soteri? ^^^ negative. But the reft of the judges, namely, Mr. Juftice Wilmot, Mr. Juftice Bathurjt, Mr. Baron Admm, and Mr, Baron 5/7Zj//i>f, delivered their opinion5 in the affirmative. Lord Hardwicke and Lord Mans- field alfo delivered their opinions in the affirmative, whereupon the decree was reverfed» § 43. Ths ' Title Vl\. Joint lire. Ch.'i. § 43, 44. " 21 § 43. The principle upon which this cafe was de- termined, is, that a jointure being a provifione viri, and not ex contradu^ the confent of the intended wife is not a circumftance required by the ftatute 27 Hen. 8., to render a jointure fettled on her before marriage a bar to dower ; and Lord Mamjleld^ in delivering his 4 Bro. Rep. opinion in the Houfe of Lords on this cafe, faid, that a jointure was not a contract for a provifion, but a pro- vifion made by the hufband, he. as defined by Lord Coke ; and fo, the confequences drawn from an infant's incapacity of contracting, were ill founded. It is therefore now held, that the intended wife need not be a party to the deed by which the jointure is limited : and, in an opinion of the late Mr. Fearne, he fays, Jordan v, " I difcover nothing in the ftatute 27 Heju 8. of join- Ravage. o I J Ante. " tures that requires the wife being a party to ths deed " which fecures her jointure ; and fome of the cafes '' faid to be within that flatute, feem rather againft " fuch a conclufion." § 44. It is, however, neceiTary, I conceive, that the intended wife or her guardians, where ihe is under age, /hould have notice of the jointure limited to her ; other- wife (he may be defrauded by the fettlement of a join- ture inadequate to her rank or fortune. In which cafe, there can be no doubt but that fhe would be re- jieyed in equity. TITLE ( 2l8 ) TITLE VII. JOINTURE. CHAP. II. In what Cafes a yointrefs is entitled to the Aid cf a Court of Equity, § 1 A yointrefs h proteCled In Equity. 6. Although Jhe elopes from her Hujband, 9. Relieved agmnfl a prior vo- luntary Conveyance. 10. And againfl a Term for Years. J I . Effect of a Covenant that J-,ands are of a certain Value. § 1^. 2^egle3 in a hiarried IVoman nvill not bar her. 18. Wafle alloiued to make up a Defciency. 1 9. Where Interejl is alloivedfor Arrears. 2 o , yointrefs not bound to deliver up Title Deeds. Seflion i. A Jointrefs is A JOINTRESS IS confidered in equity as a pur- Equity, chafer for a valuable confideration, marriage alone being deemed in law a valuable confideration j and, therefore, a jointrefs is entitled to the proteftion and aid of a court of equity : fo that, whenever there appears to have been an agreement to fettle a jointure, a fpeclfic execution of fuch agreement will be decreed by the Court of Chancery, Hayner v. § 2. A man agreed, by articles, to fettle certain 1 Vent.'343. I^ii^s on his intended wife, for her jointure, before the folenxnization Title VII. Jointure. Ch. ii. § 2 — 5. 219 folemnlzation of the marriage. The marriage took efFecl, but the hufband died before any fettlement was made, and the wife brought her bill for an execution of the articles. It was contended, that as the agreement was, to make a fettlement before marriage, and as the plaintiff married without requiring fuch fettlement, it amounted to a waiver of the articles, and -a reieafe in law ; but an execution of them was decreed againft the heir at law. § 3. Lord Hardwicke has faid, that in marriage i Atk. 440. contracts, where the fortune of the wife is paid to the father, or to clear incumbrances, or to the fon, and the father and fon are parties to the marriage contrad, the wife has a lien both upon the eftate of the father and fon. § 4. Although a fettlement fhould be very unequal, and much in favour of the wife, yet the Court of Chan- cery will not relieve againfl it ; becaufe it cannot put the wife into her former fituation. § 5. Thus, where a remainder man brought a bill Wicherly v. to be relieved againfl a jointure --made by a tenant for ^.^^.^j 2 p life, in purfuance of a power, in confideration of and Wms. 619. previous to his marriage, being then upon his death ^"°'^- ^ ^^^- bed'; Lord Chancellor Parker^ affifled by Lord Chief ,,,, . r ,, Juftice Pratt and the Mafter of the Roils, denied Taylor.Shou-. ,. r Pari. Ca.2iO, relief. 5 6. Although 220 Title V\l. jointure. Ch. li. % 6,"/. Although § 6. Although the wife fhould have eloped from her ' from^ her hufband, and lived with another man in adultery ; yet Hufband. ^\^^[ circumftance will not prevent a court of equity from decreeing a fpecific execution of articles, by which a jointure was agreed to be fettled on her, Sirlney v. § 7. A woman brought a bill againfl: her hufband 3 P. Wins. for a fpecific execution of her marriage articles, whereby ^^^* he had agreed that a jointure fhould be fettled on her. The defendant fet forth, that the plaintiff had with- drawn herfelf from her hufband, that fhe had lived feparately, and very much mifbehaved herfelf. It was proved that the plaintiff did elope from her hufband, and went away with another man to a cottage about three miles from where her hufoand lived ; fmce which there had been no pretence of reconciliation ; fo that this was a bar of dower at common law, and equity ought not to affifl: fuch a woman. Lord Chancellor Talbot obferved, that the fad of adultery was not put ^ in iffue, the accufation being only general and un- certain ; but the articles being, that the hufband fhould fettle fuch and fuch lands in certainty upon his wife, for her jointure, this was pretty much in the nature of an aftual and vefled jointure ; as what is covenanted for a good confideration to be done, is, in mofl re- fpecls, confidered in equity as adually done ; confe- quently, this was a jointure, and not forfeitable either for adultery or elopement. The reafon why a wife forfeits her dower by an elopement with an adulterer, and yet the hufband does not, by leaving his wife and living with another woman, forfeit his eflate by the curtefy 27//^ VII. Jointure, Ch/ii. §7 — n. curtefy is, becaufe the (latute Wefim. 2. does, by exprefs words, create a forfeiture in the one cafe, and not in the other. Decreed, that the hulband fliould perform the articles. 221 iount V, § 8. Where a bill was filed, praying a performance Eu of marriage articles, the hulband refifted fo far as the ^ p'^-^v^g, articles made a provifion for the wife, alledging and 377- "• proving that fhe lived feparate from him, in adultery. The court was of opinion, that this was not a reafon for non-performance of the articles, and decreed ac- cordingly. § 9. A jointrefs will be relieved in Chancery againfl a prior voluntary conveyance ; becaufe marriage is a fufficient confideradon to make a wife a purchafer ; and all voluntary conveyances are prma facie to be looked on as fraudulent againfl purchafers, unlefs the contrary appear. § I o. The Court of Chancery will alfo fet afide a term for years in favour of a jointrefs ; though it will not do fo in favour of a woman entitled at law to dower ; becaufe a jointrefs has a fixed intered by the agreement of the party. Relieved againlh a prior voluntary Conveyance. Douglas V. V'/aad, 1 Cha. Ca. 99. Martin v.- Seamore, 1Cha.Ca.176. 10 Mod, 469. And againfl a Term for Years. Prec. in Cha, 65. 5 II. If a hufband covenants fhat the lands limited EfFed of a Covenant that in jointure are of a certam yearly value, and they prove the Lands are afterwards deficient, the covenant will be decreed to ^ ^ o^r^-^m ' Value. 7 be 222 Title Vll. Jointure, C/j. il. § 1 1 — 14. Speake v. be performed in fpecie ; and although fuch a covenant i^Vern'217. t)e only inferted m articles, and not in the fcttlement made purfuant to them, yet the covenant fubfiils in equity. Hedges V. § 12. A jointrefs brought her bill to have an ac- ^Ab^E* 18. count of the real and perfonal eftate of her late huf- band, and to have fatisfa£lion for a defeft of value of her jointure lands, which he had covenanted to be, and to continue, of a certain yearly value. The defendant infilled that this was a covenant which founded only in damages, and was therefore properly determinable at law. But though it was admitted that a court of equity cannot regularly affefs damages, yet it was de- termined that, in this cafe, a mailer might properly enquire into the amount of the defeft, and report it to the court, which might fend it to be tried at law upon a quantum damnificat, Tarkerv. § 13. Where landsj fettled on a woman for her 2 Ab! Eq. jointurey are covenanted to be of a certain clear yearly 241. 4 Bro. ^^i^g ^^^ ^£^g^ ^^ ^^^^ q£ j-j^g hufband they prove rail. Ca. 004. ' Euftacc V. deficient, the iointrefs is entitled to have the deficiency 4 Bro! Pail. made good out of the other lands ; and to come in as Ca. 588. ^ fpecialty creditor upon the hufband's eftate, for the arrears of the deficiency, with intereft. Glegg V. § 1 4- Where, in marriage articles, the lands agreed to ^'^SS' be limited in iointure are exprelfed, but not covenanted, 2 Ab. I'.q. 27. •' 4 Bro. Pari. to be of a certain yearly value, and afterwards prove ^^' ^"^V . deficient, this amounts to an agreement that they were of Title Wi. Jointure, Ch.\\. § 14—16. 223 of that value, and is a fufficient foundation for making up the deficiency. § 15. The neglefl: of a married woman, during Neglca in , _, -, ,^, a married the coverture, will not prevent the Court or Chan- WomanwiU eery from affifting her, in cafe her jointure proves not bar her. deficient. § 16. A perfon made a fettlement on his eldefl fon Fothergill v. for life, with remainder to his firfl and other fons in j^yE?222. tail, remainder over j with power for his fon to ap- point any of the lands, not exceeding 100 /. per annum, to any wife he Ihould afterwards marry, for a jointure, (the father being under an apprehenfion that he was then married to a woman which the father difliked, and had no intention that his fon fhould provide for). The father died, and the fon married that woman, (though there was a flrong prefumptive proof that he was married to her before) ; and, after marriage, ap- pointed certain lands to truftees, in trufl for her, for a jointure ; and covenants, that if they were not of 1 00 /. per annum value, that, upon requeft made to him any time during his life, he would make them up fo much QUt of the other lands in his power. He lived feveral years, and no complaint was made that the lands were liot of that value, nor requefl to make it up 5 and died without iffue. On a bill brought by the widow to have the jointure made up 100/. the Lord Keeper faid, that a provifion for a wife or for children was not ' to be confidered as a voluntary covenant ; and there- fore decreed the deficiency to be made up, notwith- flanding 2 24 Tit/eVll- Jointure. Ch,\\, § i6 — io^ ftanding the circumftances of the cafe, and hei^ negle£t In not requefting it during the coverture, for the laches of a feme covert cannot be imputed to her* BrtrJv. 5 17. If a perfdn gives a voluntary bond, after I ¥011/427. marriage, to make a jointure to his wife, and he makes jAb.£q.22i. ^ jointure accordingly, and the wife gives up the bond ; if the jointure is evided, it fhall be made good out of the perfonal eftate of the hufband, there being creditors ; for the delivery up of a bond by a feme covert, can no way hurt her. Tvade r^llow- r jg^ Where this is a covenant that a jointure fhall jip a De- be of a certain yearly value, though the eftate be not .luency. iitnited without impeachment of wafte ; yet the join- Carevv, ' trcfs may commit wafte, fo far as to make up the de- 1Ab.Eq.221. £g£^ q£ ^^ jointure J and the Court of Chancery will not prohibits Where In- § 1 9. Interefl is not in general allowed for arrears lowed 'for ^^ ^ jointure ; but the court will expeft a fpecial cafe Arrears. jq l3g niade for that purpofe ; as the being obhged to A"°r',^ r borrow monev, and pay intereft for it ; and then the court will give intered from a reafonable time. A Jolntrefs § 20. If a bill is brought by an heir at law, or any is not bound , _ • n • • r 1 1 i to deliver up Other perion, agamit a jomtreis, whereby the party 'ink Deeds, •yvould avoid the jointure, under pretence that his Towers v. anceftor had not a futlicient title to make fuch a join- Davys, _ 1 Vtrii. 479. ture, and feeks i<-^i a difcovery of deeds and writings, whereby I 77//^ VII. Jointure. Ch.\\. % lo^ii. 225 whereby he would avoid the title of the jointrefs ; he will not be allowed to have fuch a difcovery, though the jointure be made after marriage, unlefs he, by Selc^lCa. in his bill, fubmits to comfirm her title ; and then King, Limax he fhall. ^• §21. A widow is not obliged in equity to difcover Luck v. the deed under which fhe claims the jointure, on the v r' 662 bare offer of confirming it ; but it muft be abfolutely confirmed. V0L.L Q TITLE ( 2Ci6 ) TITLE VII. JOINTURE- CHAP. III. What will operate as a Bar or Satufaclion of a Jointure. ^ 1. 2l:e Hujband cannot defeat a 'Jointure. 2. Unlefs the Wife joins hhn in a Fine or RecptJery. § \. A Devlfe is no Bar to a Jointure. lO. But Is fomctimcs conJiJeied as a Sathfaeiion. 15. Elopement Is no Bar. Seclion i. The HuHjand \X/H^^^ ^ jointure is fettled on a woman before cannot defeat » '^ marriage, purfuant to the ftatute 2j Hen. S, a Jointure. o * c. 10., it fo far refembles dower, that it cannot be defeated by the alienation of the hufband alone ; or be charged with any incumbrances created by him after the marriage. Unlefs the § 2. But if the wife joins with her hufband in le\7-- Wife joins jj^g ^ f^j^g^ qj. fuflfering a common recovery of the lands or Recovery, fettled on her as a jointure, or out of which the join- Vide Tit. 35, ture ?s to iifue, fhe will be thereby barred j upon the ^ ' fame principle that a fine or recovery in which (he joins her hufband, bars her from claiming dower. S 3- If n Title VII. Jointure, CL m. § ^-^S- 2,27 § 3. If the jointure, whereof the wife joins in a fine or recovery, was made before marriage, the wife is then barred, not only of the jointure, but alfo of her claim to dower ; whereas, if the jointure be made after marriage, a fine or recovery by the hufband and wife of fuch jointure, will not bar the wife of her right to dower. For, in the firfl cafe, the jointure being made i Tnft. 37 a, before marriage, was not waivable; whereas, in the ^ ' ^> fecond cafe, her eftate was originally waivable, and the time of her election came not until after the deceafe of her hufband, fo that ihe may claim her dower in the refidue of his lands. § 4. The principles laid down in the preceding title, A Devife is .no Bar to a refpefting the effe6l of devifes, have been adopted in jointure. the cafe of jointures ; fo that a devife of other lands or of perfonal property, by a hufband to his wife, will not operate as a bar or fatisfadion of a jointure, fettled upon her either before or after the marriage, unlefs it appears plainly from the will that the teflator made thofe bequefls, in lieu and fatisfadlion of the jointure. § 5. H. being feifed in tail of fome lands, with re- Hooke v. mainder over, and alfo feifed for life of other lands, ;\?-^^'au ' '5 Vin. Ab. with a power to make a jointure in bar of dower, with 293. remainder over, £ffc. : during his minority, in «on- 2 Ab. Eq. fideration of a marriao;e to be had with the daughter ^^^- 3^9- _ ° o ^ Bro. Pari. of J7". and 1000/. paid down, and 3000 A more to be Ca. 593. paid by IT. to H. at his age of twenty-one, did covenant, by his guardian, to fettle a jointure of 500 /. per an?tu7?i, when he cam^ of age, upon his intended wife. The Qji marriage 2 28 ThIeVn. Jointure, C/;. iii. §5. maniage took effect ; and afterwards f/"., the plaintiff's father, pays H. the 3000 /. refidue of the portion^ when he came of full age ; and then H. , in purfuance of the covenant entered into by his guardian, doth fettle a jointure of 500/. per annum upon his wife the plaintiff. Some years after, H. makes his wife an ad- ditional jointure of 250 /. per annum ^ upon her father's dying and leaving her the value of 9000/.; and, at the fame time, perfuades his wife to join with him in a fine of all the refidue of his eilate. Afterwards H. dies, and by his will devifes a houfe and lands to his wife for her life, to the value of 270 /. , and gives her a legacy of 4000 A , and his plate and jewels to the value of 2000 /. more, and makes her executrix, and gives her the moiety oi" the refidue of his perfonal cflate, cift. It happened that the jointure, made pur- fuant to the marriage articles, proved dcfedive, both in title and value, and thereupon fhe brought a bill againfl the remainder man, to have a fatisfadion out of the real eftate for the deficiency of her join- ture, ^c. There were two principal points in this cafe: — ifl. If the additional jointure, being a voluntary fettlement after marriage, fliould go in fatlsfaclion pro tanto of the jointure made purfuant to the marriage articles. idly. If the 270 /. per annum^ devifed to her for life, fhould go in fatisfaftion of the marriage articles, or if the legacies left her by the will fhould be deemed ^ a full fiitisfaftion. Lord Tille VII. Jointure, Ch. iiu § 5. Lord Harcourt Ch. was of opinion, that the addi- tional jointure of 250 /. per annum (liould not go in part fatisfaclion of the marriage agreement, which, though made by the guardian, did bmd H. as llrong- ly as if he had been of full age, and had figned the articles himfelf; efpecially fmce H., at his full age, did receive the 3000/. refidue of his wife's portion; and did acxually make a jointure of 500/. fer annimi to his wife, in purfuance of thofe articles. Now, when he had fettled the additional jointure of 250 /. per annum on his wife, he could not intend it in fatisfaftion pro tanto of 500 /. per annum ; becaufe, before that dine, he had made her a jointure of 500 /. per anniini^ purfuant to the marriage articles, which he then thought to be a good fettlemcnt \ and, therefore, there was no room left for the prefumption in equity, that a voluntary fettlement ihould be intended in fatif- fadion of a precedent covenant or agreement, though not made in purfuance of it ; and fo as to the devife of 270 /. per annum for her life, and the 4000 /. legacy, l^c. .hey could not be intended by H. in fatisfadion of the jointure by the marriage articles, but given to her as a bounty bv her hufband ; becaufe, at that time, he thought hiS wife's jointure was well fettled and fecured ; befides, money or perfonal eftate (hall never be deeme4 in equity a falisfa^ion for a freehold. And decreed, that the remainder man fhould fettle 500 /. per annum upon the plaintiff for life out of the lands which came to him upon the death of //. .• and that the lands contained in the additional jointure, or de- vifed to the plaintiff, ihould not come in aid of the other Isinds pr% rai({ ^Q nia^e a fati3factio^ for the marriage Q ;5 articles ; 23^ Tttle VII. Jointure. Ch. iii. § 5, 6. articles ; but the whole 500 /. per annum fliould entirely come out of the other lands in remainder, notwith- {landing the fnie levied by H. and his wife the now plaintiff of thofe lands, though that be a bar and efloppel of her dower at common lav/ : and that the plaintiff have a fatisfadion for the faid 500 /. per annum from the time of the death of her hufband H. And his Lordfhip did alfo direct the defendant to account for the rents and profits of the additional jointure of 250 /. per annum from the death of H. But the counfel for the defendant moved, that the additional jointure was made out of the lands of which H. was only tenant for life, with power to make a jointure, l^c. ; and that the power was not well executed at law J and being a voluntary fettlement, if the power was not well executed, it ought not to be aided in. equity. To which Lord Ch. faid, he faw no reafon why a defe6tive execution of a power for the benefit of the wife, though otherwife provided for, fliould not be aided in a court of equity, as well as want of a fur- render of a copyhold in cafe of a devife to a child, who Jiath another provifion by the will ; but fmce it was infifled on that there was no precedent in this court of fupplying a defective execution of a power in cafe of a voluntary fettlement, he gave leave to try the validity of the execution of this power at common law, and retained the bill, quoad that part, until it was determined at law. On an appeal to the Houfe of Lords, the de- cree was affirmed. E-xOwood V. § 6. A man, on the marriage of his wife, gave a 2^p'^Wrns ^^^^ ^° ^ truflee in the penalty of 4000/., con- 613. ditioned Title VII. Jointure, Ch. iii. § 6, 7. 231 ditioned that if he, at any time within lour months, Iliould fettle and aflure freehold lands of the yearly- value of 100/., then the bond to be void. The huf- band, foon after the marriage, made his will, devifmg thereby freehold and copyhold lands, lying intermixed in Norfolk, to his loving wife and her heirs, and died within four months after the marriage. Mafler of the Rolls. — ■" As money and lands are " things of a different nature, the one ihall not be taken " in fatisfadion of the other ; whatever is given by a will " Is pr'wia facie to be intended a bounty and benevo- " lence ; and it is remarkable that, in the prefent cafe, " the devife is to his loving wife, which is a term of " affection. The devife of fuch of the land as is copy- '^ hold, cannot poffibly be towards fatisfaftion of the *' 100/. per annum, which was to be freehold: nay, " fuppofmg the whole 88 I. per annum were freehold, " it would not go towards fatisfadion of the 100 /. per *^ annum, not being fo expreffed. And fuppoUng " there are affets to pay all the bond debts, and hke- " wife the charges laid by the will on the land, in fuch " cafe, the 88 /. per annum fhall be enjoyed as a bounty " and benevolence." This decree was, on appeal Pafch. 1732, affirmed by the Lord Chancellor. § 7. A father and fon, upon the marriage of the Probert v. Morgan and ion, covenanted that the lands fettled on the fon s wife Clifford, for her jointure were worth 300/. per annum. The * ^^^- 44^' fpn gave by his will a legacy of 1000/, to his wife, 0^4 Orx 27 a Title VII. Jointure. Ch. iii. § 7, 8 On a bill brought by the wife to have a deficiency In her jointure fupplied out of the aflets of her hulband and his father, and alfo for the legacy of 1000/. Lord Hardwicke held, that the legacy of 1000/. given by the will to the wife, ought not to be conli- dered in this cafe, as a fatisfadlion for the deficiency of her jointure, becaufe that did not arife till after his death, and therefore could not, at that time, be in his confideration. And as the jointure lands were cove- nanted by the marriage- fettlement to be worth fo much, clear of all reprizes, the teflator plainly intended the 1000 /. as a bounty for her. Prime v. § 8. John Sheppard having, by his marriage -arti- Stcbbm^, ^|g covenanted, that the lands fettled on his wife were 2 VeL 409, ' of the annual value of 1600 /. above all incumbrances, made his will in this manner : " I do hereby ratify " and confirm my marriage-articles ; and I do alfo *' give to my wife the lands in A. B. for life." The wife and her fecond hufband brought a bill to have a deficiency in her jointure lands fupplied, which was not difputed ; but it was infiftcd, that the lands devifed ihould be taken inflead thereof. Lord Hardwicke — If a hufband, upon his marriage, in confideration of a difparity of years, or any other perfonal confideration, will make a very large fettle- ment, the parties claiming under it, whether wife or children, are entitled to have it cg,rried into execution^ according to the intent. The defendants do not dif- pute but that, notwithilanding the largenefs of thi^ fettlements Title VII. Jointure. Ch. ill. § 8. 23;; fettlement, the plaintiffs are entitled to have any defi- ciency of jointure, on the foot of the covenant fup- plied and made good ; but infift, that the court ought to confider, and, according to the rules eftablifhed, to allow the lands devifed, to be either a fatisfaftion or performance, or, at lead, a part performance of this contradl ; and to go, fo far as they may, in point of value, to make up the deficiency. If the court can in any cafe do that, they ought in this ; but I am of opi- nion, that, if allowed in this cafe, I fl-iould make a precedent not agreeable to the rules eftablifhed, and which might be of ill confequence and inconvenience in other cafes. The fame rule of juflice, there- fore, mufl prevail in this, as in others. The huf- band was bound by his contract to make the jointure then fettled to the value of 1600/. per annum: this was, therefore, what fhe had a right to as a purchafer ; and whatever arofe from thence was her ov/n eflate, which fhe was entitled to, as a debt from her hufband to her. Then to confider what he has done by his will. In the very firfh claufe, he feems anxious for, and to take care of her ; therefore, it cannot be ima- gined that he intended to prejudice her. The huf- band's covenant, that thefe lands are of fuch an annual value, does amount to a covenant on his part to fettle and make good to that extent, in cafe of deficiency, for flie might have damages : therefore, it has been arp-ued, that, when the hufband by his v/ill has given lands of the fame, or in part, of the value, that is fo far a performance of his covenant ; for that he has by that ad fo far made it up. It is compared to cafes where a hufband covenants to fettle 01a the eldefl fou 234 T'iile VII. Jointure. Ch. lii. § 8. of the marriage, and lets land defcend to him m fee ; which is a performance fo far ; and where hufband covenants and dies inteflate, which was held a leaving tx) his wife fo much, becaufe, whether left by will or to go by the rules of law, it v/as the fame, and a per- formance, and, indeed, a drift performance. So, where lands defcended to an heir at law, who claimed, in place of his ancellof, a fum of money to be laid out in land. But I am. of opinion, that this differs from all the cafes that have been of that kind. It has been confidered, whether this is to be taken as a queftion of fatisfaclion or of performance, and, poiTibly, it may be more properly confidered as a queftion of performance, or part perform- ance ; but, in my opinion, this is not ftriftly any of thofe cafes. It is a queftion of conftruction of a will, and intent of the huft^and therein : all the above men- tioned cafes have been of implied fatisfaclion or pre- fumed performance, where the huftjand or father has done nothing, as, in the fuffering lands to defcend with- out any declaration what way he intended they fhould go. The court was there to confider from circum- ftances, whether there was ground to imply or infer a part performance, the perfon having faid nothing ; but here is a will made ; and therefore the queftion is upon the conftruclion of that will, and the intent to be put i:pon that conftruclion ; and he could not intend to give thefe lands thereby as a fatisfadion, for what fhe was, in ftriclnefs of law, entitled to under the articles, but clearly as an accumulated bounty, over and above. It is the fame as if he had repeated every iota in thefe articles, and faid, I alfo give her fuch lands. An in- quiry, therefore, muft be directed, of the deficiency of Title VII. Jointure, Ch. iii. § 8, 9. %2>S of the jointure ; and whatever it is, muft be made good out of the eflate of John Sheppard. § 9. Sir B. Broughton, by articles previous to, and Brougliton v. in confideration of his marriage with Mary Hill, cove- - Bro^Parl nanted, that, in confideration of the faid marriage, ^a. 461. and of 10,000/. her marriage portion, he would con- vey certain lands in the county of Chejler to truftees, to fecure an annuity of 1000/. to the faid Mary Hill for her jointure, and in bar of dower, remainder to his firjR: and other fons in tail ; remainder to his own right heirs. The marriage took effeft, and Sir Bryan Brough- ton received the 10,000/. portion; but no fettlement was ever executed purfuant to the articles. Sir Bryan Broughton having fold a large eflate in Lincolnjhire for 27,000/., and having contrafted for the purchafe of feveral confiderable eflates in the county of Southampton^ devifed to Lady Broughton a leafehold houfe in which he refided, with all the furniture thereof, and alfo de- vifed to her and her heirs, all the eftates in the county of Southampton, for the purchafe whereof he had then contracted, or, in lieu thereof, the whole money arif- ing from the fale of his eflates in Lincolnjhire, He then devifed his lands in Chejler, which were liable to the jointure, to truflees, to the intent that Charles Shrimpton fhould receive thereout an amiuity of 20 /., and fubje£l thereto to the ufe of his heir at law for life, remainder to his firfl and other fons in tail male ; re- mainder over. After the teflator's death, his wife en- tered on the eflates devifed to her by her hufband*s will, and the heir at law having refufed to pay her jointure, fhe filed g. bill, praying a fpecific execution of the mar- 8 riage J 2 ;6 Title VII. Jointure. Ch, iil. § 9^ ri^e articles, fo far as related to her jointure : to which, 'the heir at law put in his anfwer, infilling, that what was given by the will to Lady Broughton^ was a fatisfadion for what flie was entitled to under the ar- ticles, or that flie could not have both provifions. lifue being joined, the caufe was heard before Lord Chan- cellor Bathurji, who decreed, that Lady Broughton was entitled to have her jointure agreeable to the arti- cles. From this decree, an appeal was brought in the Iloufe 01 Lords ; and, on behalf of the appellants, it was argued, that though a devife, when confidered by itfelf, may carry with it the prefumption of an in- tended bounty, yet, when a teflator has covenanted by articles to make a provifion for his wife and children, fuch a prefumption is liable to be controlled by a flill flronger prefumption, that he intended the devife as a fatisfadion for the performance of thofe articles, and efpecially, where the devife is fo great in value as to in- clude both a fatisfadion and a bounty. This general prefumption, that where two provifions are made for a wife or a child, the teflator intended the one to be a iatisfadion for the other, (which general prefumption is grounded on the known cuflom of this realm, to give the bulk of the family eftate to, the eldefl fon or heir at law, with competent provifions for the wife and younger children), was peculiarly flrong in the prefent cafe, where, from the heavy charges already laid on the family eftate, the only brother and heir \vould be unable to maintain the ancient figure and credit of the family. That the lands alone, devifed by the will, were of much greater value than the rent-charge claimed under the articles, and thereby all objedtions \Yer^, Title VII. Jointure. Ch. lii. § 9. were obviated which might have arifen from the provi- fion under the will not being of the fame nature with that under the articles. That from the teftator^s hav- ing omitted any men -ion of the articles, although they muft have been prefent to his memory while he was fecuring another rent-charge of 20 /. a year to Mr. Shrimpton, and from the manner in v/hich he devifed thofe eflates to the appellant Sir Thoma:, fubjecl to that rent-charge, a ilrong prefumption arofe, that he confidered the devife and bequefts to his widow as an ample fatisfadion for the articles. Laflly, That the devife of the eftate to Sir Thomas for life, was incon- fiilent v/ith the claim of the rent-charge under the ar- ticles, inafmuch as Sir Thomas^ from the nature of his intereft, was incapable of making any legal conveyance of the rent-charge fo claimed. On the other fide, it was contended, that every de- vife or bequeft in a will, prima facie^ imports a bounty y and, therefore, in order to induce a court of equity to confider the bequefts in this will in favour of the Lady as a fatisfaftion for her jointure of 1000/. per annum ^ or as a performance of the marriage-articles entered into by Sir Bryan, it was incumbent on the appellants to fhew, that it was the teftator's intention when he made his will, to give her a fatisfaclion by that will for or in lieu of her jointure, or to perform the marriage- articles on his part. And fuch intention muft appear, either from the exprefs words of the will, or the clear and manifeft intention of the teftator appearing upon the .face of it, or be drawn by neceflary implication there- from : but no fuch intention appeared in any part of Sir ft3'8 Title VII. Jointure. Ch. iil. § 9. Sir Bryan* s will ; rather the contrary. In order td make a devife or bequefl a fatisfadion for a collateral demand or performance of a prior contrad:, it muft be ejufdem generis, and not land for money, or money for land ; or muft at leaft be of fuch certain and known value and eftimation, and fo far of the fame nature with the thing to be fatisfied therewith, as to appear indifputably to be equivalent or fuperior, not only in grofs value, but in annual income, to the debt or de- mand or the thing to be performed ; but none of thefe circumflances attended the devifes or bequefls which, in the prefent cafe, were contended to be a fatisfadion for the refpondent Mary*s jointure, or a performance of Sir Bryan's marriage articles. That the annuity of 1000 /. intended to be fettled on her by thofe articles, was intended to be a jointure for her, and declared to be in bar or fatisfadion of dower ; and therefore ought, in a court of equity as well as law, to be confidered as coming in the place of dower, and having the fame privileges, force, and effed as a right of dower ; and neither courts of law or equity admit an averment of a collateral fatisfadion for dower. That Sir Bryan, not having obtained any conveyance of the Hampjhire eftates, or paid the purchafe-money for them at the time of making his will, could not devife to the re- fpondent Mary the legal intereft therein ; and, there- fore, the devife to her was in fad a devife of the right to complete the purchafe, and a gift of mere perfonal eflate, or of fo much money as he had agreed to give for the purchafe of the Hampjhire eflate, and appeared to be fo confidered by him from the penning of his will ; but a bequeft of perfonal eflate cannot be averred to be, Title VII. Jointure. Ch. lii. § 9. be, or confidered as, a fatisfadion for a jointure in lands, or a rent-charge upon a real eflate. That, in in order to make Sir Bryan's will a performance of his marriage articles, it mud appear upon the face of it, and at all events, a complete and full performance thereof, and to have been fo intended by him ; but the very reverfe appeared ; for the devife of the Chejhire eflate in his will muft have been confidered by him as fubject to the articles, or fpringing out of the ultimate remainder in^fee referved to him by thofe articles ; and if he had had any fon by his lady, fuch fon, as well as the mother, would have been entitled to call for a fpecific performance of the articles ; and the will could not be fet up as a fatisfaftion thereof againft the fon, nor could fuch fon have infifted that the devifes and bequells in the v/ill to his mother were a perform- ance of the articles, fo far as related to her ; nor, if a conveyance and fettlement of the eflate had been ac- tually made and executed, purfuant to the articles, could any perfon, entitled under that fettlement, have fet up fuch devifes and bequefls, to the refpondent Mary in Sir Bryan's will, as a difcharge or fatisfaftion of her incumbrance or rent-charge upon his eflate. That if Sir Bryan had intended to devife his Chejhire eflate to his brother, and the other devifees in remainder, difcharged from his lady's jointure, he would mofl probably have exprefsly declared fuch intention by his will, as it appeared from many circumflances, that, at the time of making this will, he had not forgot, but well remembered, that he had before fettled fuch a jointure on her ; and his bequeathing her his houfe in Brook Street, and his plate, furniture, horfes, and car- riages, 240 Title Vll. Joint urc. Cb. in. §9 — 12. riages, proved his intention, that flie fhould, after his death, hve in a manner, and at an expence, fuitablc to her rank as his widow ; and therefore, he mull have intended by the devife in queftion to increafe her join- ture, in order to anfwer that purpofe. After hearing counfel on this appeal, it was ordered and adjudged, that the fame fliould be difmiifed, and the decree complained of affirmed. But is fome- § I o. But where It appears to have been the inten- fiTered""" a ^^°^ ^^ ^^^ dcvifor, that the thing devifed Ihould be Satisfaction, accepted as a fatisfaclion for a jointure, a court of equity will not permit the widow to take the thing devifed, and alfo the jointure. § II. Thus, if a jointure is agreed by articles to be fettled on a woman, and the hulband, by his will, con- firms fuch jointure, and a conveyance of a leafehold eflate which he had fettled on his wife, and declares them to be in full compeiifation of her jointure, a court of equity will compel the widow to make her eledion. EarlofGraa- S ^2* Robert Pitt, In confi deration of marriage. Ah "e ^g^^^*^ ^^ ^^y °^t ^ O5O00 /. in land to feveral ufes, one of 39^' which was, to the ufe of the plaintiff H^rn>/ for life, for her jointure. Robert's father, after the marriage, gave him an eltate for life, with power to grant a rent-charge of 400 /. peramium out of it to any woman for her join- ture. Robert, in purfuance of the power, grants that rent to Harriet after his death, in fatisfadion of part of her TitkYll. Jointure. Gh.iil, § 12 — 14. 241 her jointure. Three days after, he conveyed a leafc-» hold eftate of 100 1, per annum^ in triifl for his wife; and by his will, he confirmed the grant of the rent- chargej and the conveyance of the leafehold fettled on the plaintiff Harriet^ by way of addition or augmenta- tion, and in full compenfation of her jointure, It was held, that this was a fatisfadlion of the jointure provided by the articles, according to the intention of Robert ; and that the lady ihould make her eleftion, whether to have the rent and leafes, or the money laid out*, § 13. Where there happens to be a deficiency in a jointure, which is covenanted to be of a certain yearly value, and the hufband devifes lands to the jointrefs for life, and alfo a fum of money, fuch devifes will be confidertd as a Hitisfaftion for the defscl of the jointure. § 14. Francis I.0-C& Montague, on the marriage of Montao-uc v, Pra72ds Browne his eldefl fon with Mrs. Molyneux, fet- ■'^^a^^ p^' tied feveral manors to the ufe of the lady for life, for 421. her jointure : and the lands fo fettled, were covenanted J^ "gS.^'^ ' to be of the yearly value of 1000 /. After the death of Lord Montague, the honour and eilate came to the faid Francis, who devifed other lands of about 500 /* per annum to his wife, for her life ; together with a legacy of loooA, and ail his houfehold goods, not comprized in an inventory mentioned in his will. After the death of Lord Montague, his widow exhi- bited her bill in the Court of Chancery for a deficiency in her jointure, and to have it made good for the future. Vol. L R Lord J, 2 Title Vlh Johiiurr. C/j.iu. § 14,15. Lord Chancellor Cozaper declared, that the legacies given to Lady Montague, which were admitted to be of greater value than the deft(St of jointure, ought to be taken in fatisfaclion of her hufband's breach of co- venant, in not fettling lands in jointure of 1000 /. pcr annum. And this decree was affirmed by the Houfe of Lords. llipement § 15* A jointure IS not barred or forfeited by the u. no Dar. elopemcnt of the wife from her hufband and living in x\nt,e, ch. 2. adultery with another man ; and, it has been already flated, that thefe ad:s will not even preclude her from obtaining relief in equity. TITLE ( 243 ) TITLE VIIT. ESTATE FOR YEARS. CHAP. I. Of the Origin and Nature of EJlates for Tears, CHAP. 11, Of the Incidents to EJlates for Tears. CHAP. I. Of the Origin and Nature of EJlates for Tears. ^ T . Of EJlates lefs than Freehold. 2. Origin of EJlates for Tears. 6. Definition of an EJlate for Tears. 12. A Tenant for Tears has 7io Se'ifin. 17. EJlates for Tears may com- mence infuturo. 38. And may be ajfigned before Entry. ^21. An Entry hefore the Leafi Legln.r is a D'Jfe'Jin. 2^. A lerri for Tears is a Chattel. 30. EJlates for Tears mujl have a fixed Period. 3 I . IMay determine by Proniifo. 32. A Freehold cannot be derived from an EJlate for Tears. Seftion r. TTAVEsFG explained the nature of the different free- Of Eftatcs hold eftates, I now come to treat of thofe eflates pl-eebold. or interefts in land, which are lefs than freehold. Of thefe, there are three forts: ift, Eftates for years; adj Eftates at will : and, 3d, Eftates at fufferance. R a § 2. Under 244 "Tifl^ VIII. EJlaiefor Tears. Ch. i. § 2 — 5. Origin of g 2. Under the Saxon government, and, for fome Years. centuries after the Nor?nan conquefl, the demefne lands of the Thanes or lords were cultivated by perfons in a ftate of abfolute fervitude ; and who were either an- nexed to a particular traQ: of land ; in which cafe, they were called Villeins Regardant ; or elfe annexed to the perfon of the lord, and transferrable by deed ; in which cafe, they were called Villeins in Grofs, § 3. When either the religion or the liberality of the times, or fome other motives, with which we are unacquainted, induced the lords to enfranchife their villeins, and to reftore them to their natural liberty, they dill continued them in the employment of culti- vating their eftates, but did not give them any legal iiitereft in their lands. 5 4. It mufl, however, have been foon difcovered, that fo precarious a tenure as the will of the lord, operated as a (Irong bar to the induftry and exertions of the tenant ; and therefore it became cuflomary to grant the lands to fuch tenants for a certain number of years; which was an interefl fufficiently certain to induce the tenant to im.prove them ; and was. yet infi- nitely inferior, in every refped, to an eftate of free- hold. § 5. Eftates for years were become ufual in BraBon^s Brafl. 27 a. time, as appears from the following paflage : " Peter it " eni?n quis terram olicui concedere ad terminum annc- " rum^ et ille eandem infra terminum iinim alteri dare.** And a tenant for years was called Firmarius. § 6, " Tenant Title \niL EJlate for Tears, Ch.l. § 6— lo. 245 § 6. " Tenant for term of years, (fiys Littleton, Definition *' § 58.), IS where a man letteth lands or tenements to ^^j. years. *' another for term of certain years, after the number " of years that is accorded between the leffor and the ** lelTee, and the leflee entereth by force of the leafe, " then is he tenant for years.'* § 7. If a contrad or agreement be made for the pof- Lit. f. 67. fefTion of lands, but for half a year, or a quarter, or any lefs time, ftill the leflee is confidered as tenant for years, and is fo flyled in all legal proceedings ; a year being the fhorteft period of which the law will in this cafe take notice. § 8. Where an eflate is Umited to a perfon for 99 years, if J. S. fliall fo long live, it is an eftate for years ; for there is a fixed period beyond which it can- not laft. § 9, It has been dated, that where a perfon devifes Tit. 3. f. S. lands to his executors for payment of his debts, and, until his debts are paid, they only take a chattel inte-. reft ; and, therefore, they have an eftate for as many years as are neceflary to raife the fum required. It is Sir A. Cor- the fame where an eftate is deviled until fuch time as ^^ * '^VV l the fum of 800/. fhall be raifed out of the rents and profits thereof. 5 10. Notwithftanding the permanent intereft thus given to tenants for years, yet their pofteffion was efteemed of fo little confequence, that they were ra- Glib, Ten ther confidered as the bailiffs or fervants of the lord, 34- R 3 than 2^6 Title ^11. Ijic^e for Years. Ch.i. § lO— 14. than as having any eftate in the land. Their Interefls might be defeated by a recovery in a real action ; be- I Inft. 46 a. caufe the recoveror was fuppofed to come in by a title parr.raount, and was therefore not bound by the con- Vide Tit. 36. tracts of a former owner. This doftrine has, how- ever, bec:i fnice altered by ftatute. 5 II. Wliile eftates for years might be deflroyed by the reveriioner, it is no wonder that they were ufually very fiiort ; and Lord Cokc^ upon the authority of the Mirror, fays, that by the antient law, no leafe was allowed for more than 40 years, becaufe a longer pofTtflion, efpecially when given without livery, de- claring the nature and duration of the eflate created, 2Comra.i42. might tend to defeat the inheritance. But Sir William Blackjione obferves, that this law, if it ever exifced, was foon antiquated ; for, in Madox^s colledion of antient charters, there are feme leafes for years of an early date, which confiderably exceed that period : and that long terms for 300 and 1000 years, were certainly in ufe in the tim.e of Ediv. 3., and probably in that of Ediv. I. ; and it appears certain, that after the ilatutc 21 Hen. 8. by which terms for years were protected from the operation of feigned recoveries, long terms were frequently created, for the purpofe of defeating the lord's right of wardfhip, relief, and other feudal incidents : and, in modern times, they have been ftill more extenfively introduced, in mortgages, and family fettlem.ents. A Tenznt for ^ 12. A tenant for years i:: not fald to be feifed, or Stifin. ' t^ have the legal ftifm of the lands, the poiTefTion not 7 being Tih'eVm. EJiate for Tears. Ch.'i. § ic—- 14. 2-;, being delivered to him by the ceremony of livery of feifm ; nor does the mere delivery of a leafe veil any eflate in the leiTee, but only gives him a right of entry on the land; and when he has actually en- tered, the eftate becomes veiled in him, and he is Glib. Ten. then pofleffed, not properly of the land, but of the 3+« term for years, the feifm of the freehold ftili remaining in the kuor. § 13. This diftindion between the poffeiTion of the tenant for years, and the leifm of the freehold, v/as fully eftabliihed in Bradonh time, who favs: " Item " dare poteji qiiis tcrram quam alius tenet ad terminum *' annorum, faho iamen jirmario termlno fuo, quia i/ia *' du£e poJe/fiGncs fife compaiiuntur in una re, quod unus ^' habeat liberum tenemenium^ et alius ternmiumj** § 1 4. No eftate for years can be created at Gommon But muS law, without an aftual entry made by the perfon to £^,7,,^"'^ whom the Lind is demifed. For, although the grantor i inn ^5.^ has done every thing necelTary on his part, to complete ^7° ^ft-'^v the contrad, lb that he can never afterwards avoid itj yet, until there is a tranfmutation of poifefiion, by the aftual entry of the lelTee, it wants the chief mark and indication of his con fen t, without which, it might be unwarrantable to adjudge him in actual poflefTion 10 all intents and purpofes ; for which reafon, the law does not caft the immediate and aftual poflcffion on him, until he enters ; neither has the ieifor a reverfioii to grant, uiitil fuch entry. R4 • It 248 Title Vni EJlaie for Tears. Ch.'i. § 14-^1;. Vide Tit. II. It fliould, however, be obferved, that, in confequence of the ftatute of ufes, an eflate for years may now be created, without an entry. § 15. The tenant for years cannot, before entry, maintain an adion of trefpafs or ejedment ; becaufe thofe actions complain of a violation of the pofleffion, and therefore cannot be maintained by any perfoii who has not had an adual poirefTion, § 16. The lefTor, by executing the leafe, has done all that is rcquifite on his part, to dived himfelf of the poffeffion, and to transfer it to the tenant for years ; t Inft. 46 b. for he h'^s thereby given him fuch an intereft, as he may at any time reduce into pofiefTion by an aftual tnirf on the land, which may be made, not only by the leiTee himfelf, butj in cafe of his death, by his exe- cutors or adminiftrators : and this fpecies of intereft is called an Interejfe t^rminL Eflates for S ^ /'• -^^ eftate for years may be created to com- Years may mence in futuro^ though an eftate of freehold cannot ; coininencc j ^ o in fiitiiro. for, where an eftate for years is created to commence Vide Tit. I. infiduro, the freehold is not thereby put in abeyance, ' but ftill continues in the lefTor ; fo that he is capable of anfwering the precipes of ft rangers, which may be brought againft him ; and, before the abolition of mili* tary tenures, he was liable to perform the fervices whicli were due for the feud. 5 § 18. Where Title Yin. Ejlate for Tears. Ch.\. § i8— iio. 249 § 18. Where an eflate for years is created to com- ^"^ maybe ^ afligned be- inence in futuro, it cannot be executed by an imme- fore Entry. diate entry, and is therefore an interc^jfc termini \ but 5l\cp. 124 a, flill the lelTee may grant it over. And even if a ftranger enters by vvrong, yet fuch a grant will effeftually transfer Bruerton v. the leflee's power of entry, and right of redrong the Cro^fi'lL' ellate into poifefHon ; for, until the entry of the grantee^ ^5- the eftate is not executed, but remains in the fame plight as it was when the eftate for years was created : fo that no intermediate ad, either of the grantor or of a ftranger, can divefl or difturb it ; becaufe, whoever comes to the poiTeiTion, whether by right or by wrong, takes it fubje£l to fuch future charge, which the leflee may execute whenever he thinks fit, as by a title prior and paramount to all fuch intermediate violations of the poffeffion. § 19. Where a perfon made a leafe for years to Wheeler v. , p , . . c ^ Thoroiigli- commence m two years, and arter the expiration or the pood., two years, but before any entry by the leffee, the leiTor ^*'°- ^^'^• being flill in poifefTion, the leffee granted over his term i Leon. 118. and intereft. Refolved, that fuch grant was good} becaufe the interejje termini of the leffee was not de- vefted or turned to a right, but continued in him in Vide Baffin's the fame manner as when it was firfl granted ; and ^^ '^' ^ ' •^* was fo transferred over to another, who, by his entry, might reduce it into poffeffion, whenever he pleafedo § 20. If, however, a perfon entitled to an eftate for 5 Rep. 124. years, to commence in futuro^ once enters, and is after- j^ " wards 250 Title Ylll. EJiate for Tears. C/j.l §20—21. wards put out of poirefTion ; he cannot, in that cafe, grant over his term and interefl to a ftranger : for, by his entry, the eftate for years was adually executed ; and being afterwards defeated by the entry of a ftranger, the leffee has only a right of entry left in him, which the law will not fuffer hivn to transfer over to a flranger, no more than a right of adion, left fuch a transfer (hould encourage maintenance. An Entry § 21. As the leftee muft enter at the time when the Leaf.- bee ins l^^fe commences, fo, if he enters before that time, it is zs aDiiitilin. ^ defleifm, and no continuance of poifeffion after the commencement of the term, will purge fuch diiTeifm, or alter the eftate of the lefiee. But fuch entry of the leffee, bef re the comniencem.ent of the term, will not deveft or turn fuch term to a right ; fo that the leffee of the term may ftill affign it to another. Hemmlngsv. § 2 2. J. made a leafe to^. on the 23d '^ept€7?iber, \ on, habendiwi to him for 8 1 years from Michaelmas next enfuing, if C. lliould fo long live ; and from and after the day of the death of C. for 3 1 years more. The leffee entered the 23d of September and continued in poffcffion for fome years : then the leffor re entered, and the leffee, being out of poffcffion, after the death of C and during the continuance of the term of 31 years, affigned over that term to the plaintiff's leffor, who being kept out of poffcffion, brought an ejectment. Judgement was given for the plaintiff ; and the court held, I ft, That the term not being to begin until Michaelmasi this was, till then, a future intereft, and the Title Vlll. Eflate for Tears. Ch.i. § 12 — 24, ^$1 the leffee's entry before ^^as a dilTeifin and not a pof- feffion by virtue of the leafe. 2dly, That whether this leafe for 3 1 years were only a continuance of the firfl term, and that both together made but one term, as Bridgman held, or whether they were two diflinft terms, as others held, yet either way, it was not turned to a right by the entry of the leflbr ; for if a ftranger had entered after Michaelmas, and difleifed the leflbr, this would not have turned the term to a right ; becaufe, as to that, the time of entry of the leffee v/as not come, no more will the entry of the leflbr turn it to a right ; and, therefore, it was well afiignable to the plaintiff's leflbr, efpecially if it fliould be taken as a future interefl:, as fome held it flipuld, for then the leflTee was never in pof- fefl^ion by virtue thereof; and, confequently, the leflby's entry could not turn it to a right. § 23. Where the commencement of an eflate for V/allerv. years is limited, from a time pafl:, and the leffee is in q,!„ yX\z. poflTeflion prior to that period, it fliall be intended that ^°'^' he entered and occupied before by agreement j and, therefore, it is not a difllinn. § 24. A term for years is confidered in law as a A Term for chattel real, being an interefl: iflfuing out of a real eflate, ^^^11^^ * of which it has one quality, immobility, which deno- sComm.-^Sc. minates it real ; but wants the other, namely, a fuf- ficient legal indeterminate duration ; the utmofl: period for which it can kill: being iixed and de- termined. S 25- ^n 252 Title Ylll. EJate for Tears. CZ'. i. § 25— 28. § 25. In confequence of this principle, an eflate for years does not defcend to the heir of the perfon who was iaft poffeffed of it, but veils in his executors or admini- ilrators, hke any other kind of perfonal eftate. And although lands are now frequently demifed for 500 and 1000 years, yet the fuccelTion continues the fame. ? Tiift. ga. § 26. If a leafe be made to a bifhop, parfon, or any 5 - ^' other fole corporation, and his fuccefibrs, for a certain number of years, yet it lliall go to the executors of the leiTee ; becaufe a term for years being only a chattel, the executors or adminiftrators are the only perfons the law allows to fucceed thereto : and this fucceffion to a chattel cannot be altered or controled by any limitation of the party. But the king, by his prerogative, may take a chattel in fucceffion. 2Co;iini.5o6. § 27. Terms for years pafs from executor to execu- tor in irifinitum. But whenever the courfe of repre* fentation from executor to executor is interrupted by one adminiftration, it then becomes neceifary for the ordinary to commit adminiflration afrefh, of the goods of the perfon who was laft poffeflfed of the term in his own right, not adminiflered by the former executor. A limited or fpecial adminiflration only, may alfo be granted, viz. of certain fpecific effedls. And it is a common practice to obtain a fpecial adminiflration of a term for years. Cafes and §2 8. Where a perfon appoints two or more execu- Opin.ons, ^^^^ .^^ ^^1 ^^^ ^£ ^y^^^ ^^ ^^ ^Yon^ will become '•'i- 395- ' -^ . , , entitled TitkYlll, EJiaie for Tears, Cb.l §28—31. 2^3 entitled to any terms for years, whereof the teflator died poffelTed, and may affign them accordingly. § 29. Where there are feveral executors who all Dyer, 23 <^. a^x\. Crown for the term of 99 years, devifed all his eftates, ^^- ^°+- as well leafehold as freehold, to Thomas Lord Pelham for life, remainder to his firft and other fons in tail male ; remainder to Henry Pelham for life, remainder to his firft and other fons in tail male ; remainder to WiUia7n Vane for life, remainder to his firft and other fons in tail male ; remainder over. Thomas^ Lord Pelham^ who was afterwards Duke of Newcajile, never had a fon ; but Henry Pelham had two fons, both of whom died in his life -time, viz. Thomas and Henry, Thomas the eldeft being the perfon in whom the firft eftate tail in the order of limitation was vefted by vir- tue of the will. Hejiry Pelha7n foon afterwards died, having made his will, and appointed Richard Arundel and H. Perkins his executors ; and letters of admini- ftration of the perfonal eftates of Thomas Pelham^ the infant, were alfo granted to the faid Arundel. William Vane had iifue two fons, Chrijlopher the eldeft, who S 3 died 262 Title VIII. Efiaiefor Tears. Ch. ii. § 22. died an infant without iffue, and William his fecond fon. fFiUiam, who became Lord Vane, took out let- ters of adminiflration to his brother Chrijlopher, and thereby became entitled to all fuch intereil in the leafe- hold premifes as veiled in his brother Chrijiopher, who was the hrfl perfon in ejfe^ in point of time, who took any eftate of inheritance in the freehold premifes. Arundel and Perkins filed their bill againft Lord Vane Lnd others, Hating the above fads ; and further, that they, as executors of the faid Henry Pelham, and as adminiftrators of the perfonal eflate of 'Thomas^ the in- fant fon of Henry Pelham, were become entitled to the abfolute interefl in the leafehold terms, fubjecl to the life eflate of the Duke of Newcajile, and the contin- gency of his having a fon born alive. And being fo entitled, they had entered into an agreement in writ- ing with George Gregory for the fale of thofe terms ; and prayed that the agreement might be performed fpecifically, and carried into execution. Lord Vane put in his anfwer, infilling, that his bro- ther Chrifiopher was the firfl perfon in ejje, in point of time, who took any eftate of inheritance in the pre- mifes ; and that he dying an infant, and without iffuc. Lord Vane, as the only fon and furviving heir of his father IFilliam Vane, became the firft perfon in ejfe, who took an eftate of inheritance in any of the pre- mifes, by virtue of the limitations in the will : and denied, that the abfolute eftate and intereft in the leafe- hold terms ever vefted in Thomas Pelham. The caufe was heard before the Lord Keeper, who difmifted the biJl with cofts. The plaintiffs having appealed frppi th^ Til/eYlll. EJlate for Tears. C/^. ii. § 22, 23. '^^'t^ this decree to the Houfe of Lords, the following que- Hijons were put to the judges: iff, Whether the pro- perty of the leafchold eftates for years, devifed by the will of the Duke of Newcajlle, vefted in Thomas Pel' ham, the infant fon of Henry Felham deceafed, fubjetSl to the Duke of 'Newcajlle' s intereft therein for his hfe, and to the contingency of the Duke's having a fon. 2d. Whether the property of the faid leafehcld eftates, fubjeft as aforeiliid, was tranfinitted to the reprefentative of the faid Th:,nuu Felham the infant. The Lord Chief Baron of the Exchequer, and Mr. Juflice Denifon being prefent, the Lord Chief Baron delivered their concurrent opinion upon the faid tv/o queftions, in the affirmative. Whereupon it was de- clared, that the leafehcld eftates for years devifed by the will of the late Duke of Newcajile, fubjeft to the then prefent Duke's intereft therein for his life, and defeafible by the fajd Duke's having a fon, belonged to the appellants, as ftanding in the place of the faid Thomas Felham, the infant fon of Henry Felham, de- ceafed ; and that the agreement entered into between vide Foley them and George Gregory, for the fale of them, ought ' "^^^'^^p^^^'i to be carried into execution. C^. 3'9- § 23. Where a term for years become vefted In the Merged by a perfon who is feifed of the freehold, the term is merged ^h^ preebold and extinguiftied. There are, however, feveral ex- ceptions to this rule, not only where fuch union is temporary, bu^ even where it is permanent. S 4 S 24. Nq 2% I'itk Vtll. EJlatefor Tears, Ch, li. § 24—27. Exceptions. § 24. ITc merger will take place unlefs the freehold i Infl. 33S /^. and the term for years come to one perfon, in one and the fame right ; for If a perfon, having the free-^ hold in hir c^v/n right, acquires a term for years in the fame land in the right of another, there will be no merger. I Jnft. 338^. § 25. Thus, if a tenant for years dies, having ap= ^ '^ ■ poirtc-d the perfon who is feifed of the freehold to be his executor, whereby the term for years becomes veiled in him, it will not merge ; for he has the free- hold in his own right, and the term for years in right of his teflator. Pracebridge § 26. If a perfon, feifed of a freehold eflate in 3^1 holders . . Ill r ha.v£ a legal to be fo precarious, that an opmion was held, even 10 intereii. late as the reign of Edward 4., that, if the lord fhould Lit. f. 77. ouft his copyholder, he had no other remedy but to [ue the lord by petition, it was, however, laid down by Sir Robert Danby, Chief Juftice of the Common Pleas, in 7 Edw. 4., and afterwards by Sir Thomas Bryan, his fucceifor, that a copyholder, obferving the cuftoms of the manor, and performing his fervices, fhould, if put out by his lord, have an adion of tref- pafs againft him= A doctrine which has been long i Inft. 60 k fince 298 Title T. Copyhold. Ch.i. §17 — 20. fmce eftabliflied ; for, as Lord Coke fays, " Albeit he " is tenens ad vQluiitatem domini^ yet it \?,fccuiidum con- *' fuetudincm manerii,^* § 18. Copyhold eftates are, however, ftili faid to be held at the will of the lord ; and this pofition is fo far true, that the freehold of all lands which are held by copy of court roll, is vefted in the lord ; and the tenant's eftate is not fo great as an eflate for years. The will of the lord is not, however, now arbitrary, as it originally was, but mufl be conformable to the cuftoms of the manor : and therefore a copyholder Lit. f. 82, may, as far as the cuftom warrants, have any of the eflates or quantities of interefl, which may be had in other lands. § 19. Copyhold eflates are, In general, granted to a man and his heirs, or the heirs of his body. But there are many manors, particularly in the northern parts of the kingdom, where the cuftom is, to grant copyholds for one, two, or three \\vt% fuccejjlve : and, in fome of thofe manors, the cuftom gives the copy- holder a right to a renewal of the grant, upon the faU ling of the lives. Grafton V. § 20. A cuftom, that the heir of a copyholder for 3 Bro! Pari. ^^^^^ ^^ entitled to have a new copy, on payment of a Cn. 284. reafonable fine, is void, on account of the difficulty of V. ThomTs7 ^^certaining the quantum of fuch a fine. But a cuf- 668"'^^ ^* ^°"^' ^^^'^^ ^^^^ ^'^^^ ^^^^ ^^^^ ^ ^^^ copy, upon pay- Wharton ment of a fine certain, is good. The only proof that '^■?n^*o ^^^^ ^^ gi^'t^^ of fuch a cuftom, is, the fa6t of renewals 3 Anilr. K. '-' ' ' 659- having TiikX, Copy bold. Ch.i. § 2c — 25. 299 having taken place according to fome certain flandard, that is upon a fine certain. §21, There are four circumftances neceflary to the Circum- exiftence of a copyhold ellate : ift, A manor; 2d, A fary to a court ; 3d, The lands muft be parcel of, and fituated <-'^'Pyhold. within the manor of which they are held ; 4th, The lands muft have been demifed, or demifable, by copy of court roll, from time immemorial, § 22. With refped to a manor, it is effentially ne- A Manor, ceflary ; for a copyhold eftate is part of the demefnes of a manor, and held of the lord of fuch manor j fo that, without a manor, there can be no copyhold. . § 23. A manor may be fubdivided, and the fubdi- vifions may feparately retain manerial rights. Thus, if a partition be made of a manor between two copar- 6 Rep. 64 a. ceners, and each has parcel of the demefnes and parcel of the fervices, as each of them is in by acl of law, each of them has a manor. But, if a perfon having a ma- nor, grants part of the demefnes, and part of the fer- vices to another, the grantee fhall not have a manor. § 24. In confequence of this doclrlne, it has been Bragg's cafe, held, that a tenant in dower of a third part of a manor, ^ * ^^^' has a man.or, and may hold courts, and grant copy- holds. § 25. Although the demefnes of a manor fliould be fevered from the fervices, or the fervices extind, by which ^oo Title X. Copyhold. Ch. i. § 25 — 28. Tit. I. f. II. which the manor is, ftridly fpeaking, deftroyed ; yet it will continue to be a manor, fo far as is neceflary to Gilb. Ten. fupport the copyhold eflates which are held of it. 209. A Court. § 26. As to a court, it is equally neceflary, the tenant having no other evidence of his title but the I Inft. 58 a. rolls of that court. There are, however, two kinds Gilbf Ten. * o^ courts incident to a manor ; a court baron, or free- ^^°- holders court, and a cuftomary court, which only relates to the cuftomary tenants or copyholders ; in which, the lord or his fteward is judge. And although there fhould be no freeholders in the manor, by which the court baron, and even the manor itfelf is, in fome refpefts, loft, yet there ftill may be a cuftomary court. For as thefe two courts are diftinft from one another, in every refpe£l, the want of freeholders ought not to prevent the lord from holding a cuftomary court for his copyholders. Melwich V. S 27. It was refolved, in 30 EHz., that, when the "^R ^^^'^* 6 ^^^^ ^^ ^ manor having many antient copyholds in one Cro. Eliz. town, grants the inheritance of all the copyholds to another, the grantee may hold a court for the copy- hold tenements : for, although it is not a manor in law, becaufe it wants free tenants, yet, as to the copy- hold tenants, the grantee has fuch a manor, that he Vide Gilb. may hold a court to make admittances and grants of the copyhold tenements. Neale V. 5 28. It was refolved, in 37 Eliz. that where the 4 Rep. 26 h, lord of a manor demifed all his lands, granted by copy, Cro. Eliz. jQ 395- Title X. Copyhold. Ch. i. § 28—32. 301 to another for 2000 years, fuch leflee might hold a court for the copyholds. § 29. If a woman be endowed of feveral copyhold Gay v. Kay, tenements, Ihe may hold a court and grant copies, 661. though the fervices of any of the freeholders were not allotted to her, but only the demefnes and the copy- hold tenements ; for though fhe having, no fervices, cannot hold a court baron, yet fhe may have a fpecial court for this purpofe, and it is good enough. § 30. A grant of the freehold of one copyhold will Murrell v. not enable the grantee to hold a cuflomary court. 4 Rep* 24^. The copyhold will not, however, be totally deftroyed ^''"* •^'*** by this grant : but the copyholder will be excufed from all thofe fervices that arife by reafon of the cuflomary court. § 31. Lord Coke fays, that the court baron muft be i jnft. ^g^j. held on fome part of the manor. But it is faid that a court for admitting copyholders, where no pleas are i Leon. 2 89. holden, may be held out of the precinds of the manor. § 32. Tenant by copy has an interefl in the court ixMod. m. rolls, as well as the lord j becaufe they are the only evidence of his title, and the lord cannot deny him a fight or copy of a court roll, to make fuch ufe of ir as the tenant may think proper. If he does, an at- tachment will lie againfl him, § ZZ* The 302 TuJc X. Copyhold. Ch, I. § 2>?>'-?>S' The Lands, g 33. The third circumftance neceffary to the exifl- Pa'i-cer'ift'he eiice of a copyhold, is, that the land be parcel of the Manor. maiior whereof it is held. It is not, however, abfo- ilnft. 58.^. lutely necelTary, that the lands fhould continue to be Ante, f. 27. parcel of the manor, as it has been dated, that where a lord granted the inheritance of all his copyholdsj whereby the lands were fevered from the manor, yet the copyhold flill fubfifted. And demifed § 34. The fom'th circumllance neceffary to the ex» or demisable. .^^^^^^^ ^^ ^ copyhold cftate, is, that the lands have * " ' -^ * been demifed, or demifable by copy of court roll, for time immemorial. For this tenure derives its whole force from cuftom, fo that no new copyhold can be created at this day ; that is, no land can be granted now as copyhold, which was not granted or grantable as copyhold before. Kemp V. S ZS- Upon iffue, whether the lord of a manor had x^Lcon. cc. granted certain lands by copy of court roll, according to the cuftom of the manor ; it was given in evidence^ that within the faid manor were divers cuftomary lands, and that the lord now, of late, at his court, had granted the lands in queftion by copy, but they had never been granted by copy before. The court held, that the jury were bound to find dominus non concejfit, for not- withftanding that de fado^ do?ninus concejfit per copiam, yet non concejfit fecimdum confuetudinem manerii, &c. For the faid land was not cuftomary, nor was it de-* mifable, as the cuftom had not taken hold of it. § ^6. Though Title X, Copyhold. Ch.i. §36—38. 303 § 36. Though lands fhould appear to have been granted by copy of court roll for fixty years, yet, if there has been an interruption in that mode of granting them, they will not be deemed copyholds. % 'T)'j. The Bifhop o^ Norwic/j being feifed of the Taverner and manor of N. Jure ecclc/Ja, in 10 Hen. 8., granted par- ^aVe"^'^ ^ eel of the demefnes of the faid manor to one T. and 3 -Lton. 137. his heirs, by copy. Thefe lands had never been granted by copy before ; but were held in this manner until 23 He?i. 8., when T. committed a forfeiture, and the bifhop feifed the land, but regranted it to him immedi- ately by copy, by which it was again held until 8 Eliz» The court determined, that ^o years continuance was requifite to faflen a cullomary condition upon the land againftthe lord; and though the original commencement of the grant by copy was in 1 1 Hen. 8., from which, to 8 Eliz., was more than 60 years, yet that the feizure for a forfeiture, which happened 23 He?2. 8., interrupted the continuance of the time which might by law have perfected the cuftomary intereft ; fo that the com- mencement of the copyhold was to be reckoned from 23 Hen. 8., which not being fufficient time to make good a cuftom, the lord might enter on the copyholder as upon his tenant at v/ill. § 38. Where lands which have, for time immemo- i inft. 58 i^. rial, been demifed by copy, come to the lord by for- feiture or efcheat, they may again be granted out by copy, although the lord fhould keep them in his hands for many years ; for they were always demifable. § 39- It ^04 ^^tle X. Copyhold. Cb. i. § 39 — 42. Harris V.Jay, ^ «g. It was refolved, in 41 Eliz.^ that where a 4 Rep. 10 a. Cro. Eliz. copyholder of the queen's manor was attainted of ^^' felony, by which his copyhold efcheated, the queen's flcward of the manor might grant it out as copyhold ex officio^ without any warrant. § 40. If a copyholder furrenders his copyhold into the lord's hands, merely to the ufe of the lord, Cal- Read, ^^, thorpe doubts whether the lord may grant this land again by copy, as he may where it comes to him by Vide f. 38. forfeiture or efcheat. Becaufe it becomes parcel of Epis. London the demefnes by his own acceptance. And it feems % Keb. 124. doubtful, whether the lord of a manor can grant the ol: 62.' '" ^^^^^ ^y ^""P)"- Whai deftroys Q 41. But where lands which were formerly de- theCuftomof .^ ^ , \ granting mifed by copy, are granted out by the perfon entitled opy ^ »• tQ ^-jjg inheritance for any eftate of freehold, or for 4 Rep. x\a' y^^^s, this will deflroy the cuftom of demifmg them by copy ; becaufe, while the lands were granted for life, or years, they were neither demifed nor demifable by copy. So, if the lord makes a feoffment in fee thereof upon condition, and afterwards enters for the condition broken, the lands can never be regranted by copy. Id. § 42. If copyholds forfeited or efcheated to the lord, are extended upon a flatute or recognizance, acknowledged by the lord, or if they are affigned to the lord's wife for her dower, although thefe impedi- ments are by ads of law, yet, as the cuftom of de- mifmg is inteiTupted by a lawful aft, the lands can never after be granted by copy. S 43 • Wher^ Title '^L. Copyhold. CZ'. i. § 43— 45. 30 c § 43. Where copyhold lands which have fallen in to the lord are leafed together with the manor, this will not deftroy the cuflom of granting thofe lands again by copy. § 44. It wa3 held by the CoUrt of King's Bench, -Lee v. on a trial at bar, 14 Car. i., that if a copyholder in Cro. Car*, fee furrenders to the lord of the manor his copyhold ^^''* eftate, and the lord makes a leafe for years of the manor, and of the faid copyhold, by the name of his tenement called //., that it was not a determination of the copyhold : becaufe, when * the lord let the manor, it was included as a parcel of the manor. But if the lord, though he had been but domimis pro tempore^ had made a leafe for years of the copyhold, by itfelf, that had dellroyed the copyhold 5 for it was then dur- ing that time fevered from the manor, and fo could never afterwards be demifable by copy. But the manor being demifed, includes the copyhold as parcel of the manor ; and the naming of the copyhold is furplufage ; and it remains always as parcel of the manor, and demifable by copy as it was before. § 45. No perfon can deftroy the cuftom of granting i inO-. 58^, land by copy, unlefs he is entitled to the fee-fmiple of "• "'' ,, . the manor. Thus, if a perfon who is only tenant in Ku(hy, Cro. tail, or for life, of a manor, makes a leafe for years '^^' '^^'^' of a copyhold, which has efcheated, though quoad himfelf the cuftom of demifmg is thereby deftroyed ; yet quoad the iifue in tail, or the reverfioner, the cuf- tom is not deftroyed. So it is in the cafe of a hufband feifed in right of his wife. Vol. I. X § 46. A tor- 3o6 Title X. Copyhold. Ch. I § 46—48. § 46. A tortious interruption of the eibite, as if the lord is difleifed, and the dificifor dies feifed ; 4 Rep. 31a. or, if the land is recovered againfl the lord, by falfe verdict, or erroneous judgment, will not deilroy the cuitom of demifnig by copy ; although, in thefe cafes, the land v/as not demifed or demifable during the interruption. Roe V. New- § 47. It was refolved, in a modern cafe, that copy- Rcp' i2f " ^^°^^ ^'^'^^ mud be ftated, or found or pleaded, to have been demifed, or demifable, by copy of court roll, for time out of mind, otherwife a court cannot adjudge it to be copyhold. Revel 7. § 48' King Charles i. granted to Ed-ward Tltchjield 2 Term R ^^^ Others, and their heirs, the manors of Dr^^zV/J and 4 '5- Belperj with all their rights, &c. except the forefcs, chafes, and parks, he. There were feveral copyhold eflates held of this manor ; and the copyholders had rights of common on thefe wafles. It was agreed be- tween the crown and thefe copyholders, that the crown fhouid have one-third of thefe wades in feveralty, and the commoners fhouid have the other two-thirds ; in confequence of which, the foil of two-thirds was granted by the crown to certain perfons and their heirs, for the ufe and benefit of the commoners and their heirs and afligns in fee farm and free focage. It was re- folved, that by the original grant, the waftes were fevered from the manor j and that, in confequence of the grant to truftees in truil for the commoners, thefe wafles became freehold. § 49. With Title X. Copyhold. Ch. i. § 49 — 52. 307 5 49. VsTith refpedt to the things which may be What may granted by copy of court roll, they muft be parcel of ^y Copv. the manor, and He in tenure ; or elfe be appendant to ^ ^"^^' 5^^« fomething that does lie in tenure. § 50. Underwood growing upon a part of the ma- Hoe v. nor, may be granted by copy, becaiife it is a thing of ^^y^^''* perpetuity, to which cuflom may extend ; for after eveiy felling, the underwood grows again. So herb- age, or any profit of a parcel of the manor, may be granted by copy. § 51. It is faid by Lord Coke, that a cuflomary iinll. 58/^. manor m.ay be granted by copy. And Lord Chief NeviU'scafe, Baron Gilbert fays, that the grantee may grant copy- Ten. 2 15. holds, but it mufi: be of fuch things as have been ufually demifed by him ; for It feems he cannot grant all his demefnes without they have been ufually de- mifed. § 52. It is faid in Roll's Ab. 498., that tythes may Sands v. be granted by copy of court roll, for they may be ^^"'T- parcel of a manor. In Crokeh report of this cafe, Popham is faid to have Cro. Elfz. been of opinion that they were not grantable by copy, ^^'^' ^' ^' becaufe a manor and tythes are of feveral natures, and fo impoffihle, that that which is not pared of the manor, can be demifed according; to the cuftom of the manor. But Gawdy doubted, and conceived, it had VideCo.Ccp. been well enough if it had been fo ufed time out of ^"F/ ^"p ^' mind. 331. X 2 % ^2>' With ^08 Titte X. Copyhold. Ch. i. § 53 — c^6. Whatlntercfl: § ^^. With refped to the quantity of interefl which ^f °hlve°"" a copyholder may have in his eftate -t has been dated, that copyholds may be granted in fee-fimple ; and, confequently, any lelTer eflates may be granted to be held by this tenure. Co. Cop. § 54. Lord Coke fays, that if a copyhold be granted ' ^ ' to a perfon for the life of another, and the grantee dies, living cejiui qui i;/>, a ftranger may enter as a general occupant. It has, however, been laid down 2 Ld. Rayra. by Lord Holt^ that there cannot be an occupant of a I Salk. 188. copyhold, becaufe of the prejudice it might be to the I Roll. Ab. Jqj,^ . ^j^^^ therefore, if a copyholder holding for the Gilb. Ten, life of another die, the lord fhall enter j but there may 3^^- be a fpecial occupant of a copyhold. Of Copyhold § z,^. As eflates held by copy of court roll, owe their exiflencc to immemorial cuflom and ufage, fo the rules by which they are governed, derive their I Inft. 63 a. effect from the fame fource. Hence Lord Coke ob- ferves, that what a copyholder may or ought to do, or not do, the cuflom of the manor mufl diredl: for confuetudo manerii ejl ohfervanda. And many of thofe cufloms are materially different from the rules of the common law. Cro. Eh'z. S 5^* Copyhold cufloms differ from thofe which 353* relate to freeholds, in this circumftance, that cufloms relating to freeholds mufl be at leafl fo general as to extend throughout a county, and cannot prevail in a particular place only : whereas, a cuflom relating to 8 copy- Title X. Copyhold, Ch. i. § 56—59, 2^9 copyholds is good in a particular place ; for de minimis jion curat lex j and the law is not altered thereby. § ^y. Lord Coke has laid it down, that there are 4 Leon. 243. two pillars of cuftom ; one the common ufage, the other, that it be time out of mind ; and therefore, the perfon who maintains a cuftom, muft Ihew prece- dents in the court rolls to prove the ufage j and that, without fuch proof, and that it had been put in ufe, (although it had been deemed and reputed to have been the true cuftom), yet a court could not give cre- dit to the proof by witnefTcs. § 58. There are two forts of copyhold cuftoms : 9 Rep. 75-5, Firft, General cuftoms, which extend to all manors in ^ ^ • ^ ^' which there are copyholders, and are warranted by the common law, of which the courts take notice : Se- condly, Particular cuftoms prevailing only in fome manors, which muft be fpecially pleaded. § 59. Particular cuftoms are conftrued ftridly, and, where they are contrary to reafon, morality, or juftice, or where they are not capable of being reduced to a certainty, the courts of law will pay no attention to them. It ftiould, however, be obferved, that the un- reafonablenefs of a cuftom is not altogether to be de- duced from the rules and maxims of the common law, for there is no particular cuftom that does not, in fome refpeds, contradid the common law. X 3 S 60. Evidence 3IO Titled. Copy hold. Ch.i, § 60 — 64, 2 .'\tk. R. § 60. Evidence of cuftoms in a neighbouring manor, 2 Sua. 957. -^^^^^ ^°^' ^^ general, be admitted to fhew the cuflom of another manor ; becaufe every manor is governed by its own cuftoms. Of CopyKold § 61. Copyhold eflates being derived from the juuidic ions. |-£J^^J.g jj-^ villenage, were not originally within the ' ■ ' ^ * jurifdiftion of the king's courts at Wejlmmfi,er ; fo that copyholders mud implead, and be impleaded, in the land's cuflomary court, by plaint or bill to the lord. Black. Tra. § 62. Free copyholders are alfo incapable of fuing ^^^* or being fued in theufual real actions. But they have a peculiar method of procefs, called a Writ of Right Clofe, Co. Cop. § Gt,. If, therefore, a copyholder be oufted by a ilranger, he cannot implead him by the king's writ : but muft proceed by plaint in the lord's court, and fhall make proteftation to profecute the fuit in the nature of an affife of novel difleifm, or in the nature of any other writ, as his caufe fliall require. W- § 64. If a copyholder be oufted by the lord, he can- not maintain an alTife at the common law, becaufe he has no freehold ; but he may have an aftion of tref- pafs againft him ; for it is againft reafon that the lord fliould be judge where he is a party. § 6^. Where Title X. Copyhold. Ch. I. § 65-— 69. 3 \ \ 5 (~\$. Where a copyholder makes a leafe warranted Id. by the cuflom, and his Icllee is ejected, he fliall not fue in the lord's court by plaint, but may bring an ejeclment at common law ; for he does not demand a cuftomary eftate, but an eflate warranted by the rules of the common law. § 6(d. The Court of Chancery has affumed a jurif- Ma^:. of Eq. Max. 6. diction over copyholds, upon the principle, that equity \ p/wmg^ will not fufter a right to be without a remedy; SS'-- and, therefore, if an erroneous judgment be given in a copyhold court, in a formedon, or any other kind of action, a bill may be exhibited in chancery for its reverfal. § G']. A court of equity will alfo compel the lord of Cro.Jnc. 368. a manor to admit a copyholder, and to hold a court for that purpofe. For, as an a6tion on the cafe will not lie againft the lord, there is no other remedy. § 68. The Court of Chancery alfo exercifes a jurif- diction over copyholds, in moderating the rigour of cufloms, and relieving againft exceffive fines and un- reafonable forfeitures ; of which, an account will be given in the fubfequent chapters. § 69. Where a doubt arifes refpeding the cufloms Fawcet v. of a manor, the Court of Chancery will dire(Sl an iffue ^-^'^^''^l^'^'' J 2 \ el. 300 to try what the cuftoms of the manor really are. But the court is not bound to fend a cuftom to be triedy which, priina facie, is void at lav/. X 4 § 70. The ^12 Title %., Copyhold. Ch.i. §70. Rep. Temp. § 70* The Court of Chancery will grant a commif- Rous V. ^10^^ to examine witnefles for the purpofe of afcertaining Barker, ^j^g cufloms of a manor, and alfo, to fet out the boun- Dom. Proc. 1725. daries of copyhold eflates, where they are intermixed D. of Leeds V. • , r i 1 1 E.ofStraf. With freeholds. ford, 4Vef. jun. 180. TITLE :( 3^3 ) TITLE X. COPYHOLD. i I. 3- 4- ji. J3- CHAP. 11. 0/* Copyhold Grants, Nature of Copy hold Grants. Nece//ity of Admittance. All Lords of a Manor may make Grants. Provided they have a laiu- ful EJlate. A Steward may make Grants, 17- 1 8. 26. To ivbom Grants of Copy- holds may he made. The Cujloms of the Manor mujl be purfued. Copyhold Grants take place of many other EJlates. Section le T T has been fliown, that copyhold eflates are derived from a voluntary grant by the lord to the copy- holder, to hold to him and his heirs, or for any other eflate, at the will of the lord, according to the cuflom of the, manor, under the ufual fervices and returns. Nature oF Copyhold Grants. § 2. Grants of this kind are flill made by lords of manors, of lands parcel of the manor, and which have been demifed or demifable by copy, whenever fuch lands fall into the poireffion of the lord by efcheat, forfeiture, or any other determination of a former granj:, 5 3. Where a grant of this kind is made, the grantee Neceffityof muft be admitted to the copyhold in the lord's court, A'i"""*""- and 314 Title "yi. Copyhold. Cb.W. §3 — 5. and the admittance entered on the rolls of the cuftom- ary court. For the title of the grantee depends merely upon the entry made in the court rolls. All Lords of g 4. Every lord of a manor who is in pofifeffion, ir.ake Grants, and has a lawful eftate in the manor, may make vo- luntary grants of copyholds ; which will bind the fuc- Co.Cop.f.34. ceeding lords. If, therefore, a lord of a m.anor labours g '_ 5« i^ under any perfonal difabilities, fuch as idiocy or lunacy. Glib. 1 en. ^^ jc j^g j^^is only an eflate for life, or for years, he 196. may, notwithftanding, make copyhold grants ; pro- vided fuch grants are warranted by the cuilom of the Calth.Read. manor. The lord mult, however, be in polTelTion at the time of the grant, for, although he has good right and title, yet if he is not in pofleffion of the manor, it will not ferve. And, on the other fide, if he be in poffefTion of the manor, though he have neither right or title thereto, yet in many cafes the grant of a copy- hold is good, as dominus defaclo, fed non de jure, Gilb. Ten. § 5. The principle upon which this do6lrine is founded, is, that copyholders were originally mere tenants at will j and fo, though the lord pro tempore, had only a particular eflate, yet he might grant copy- holds, as it could be no prejudice, but rather an ad- vantage to the fucceeding lord, in refpeft to the rents and fervices which were referved on fuch grants. Be- fides, the fucceeding lord might turn out the copy- holder at his pleafure ; and when the law was fo al- tered that the copyholder acquired a permanent interefl in his eftate, it was ftill held, that the lord pro tempore might grant copyholds in fee, though he had but a particular Title IL. Copyhold. Ch,\i. § 5 — 10. 315 particular eftate ; and it is the cuftom which flill war- rants and fupports copyhold grants. For where the lord has only a particular eflate, the copyhold grant cannot be derived out of fuch eftate, for, in that cafe, it muft determine with the lord's eftate : fo that it is from the cuftom that the eftate is derived ; anil the lord is only the inftrument of the cuftom to convey. § 6. A bifliop may make copyhold grants which will 4 Rep. 21 ^ bind his fucceflbrs ; and where the temporalities of a bifhop come into the king's hands, he will be bound by fuch grants. § 7. A lord of a manor, who is only tenant for life, Carew's cafe, or for any other particular eftate, may grant copy- ^^°"' ''^7« holds in reverfion, though they be not executed in the life of the grantor. This pofition was doubted by lord Gilb. Ten. Coke, but is fupported by Lord Chief Baron Gilbert, *°^' § 8. Tenant in dower, to whom a manor is affigned, Gay v. Kar, may make grants of copyholds, not only in pofteflion, S"*^" ' ,, but alfo in reverfion, if the cuftom of the manor war- Ab. 499. rants them. § 9. If a guardian In focage grants a copyhold in Sliopland reverfion, according to the cuftom of the manor, this ow^iA"' fhall be a good grant, and bind the lord, though it ^^^^b. i. Ihould not fail into pofleflion during the nonage of the ward. § 10. If a lord of a manor devifes by his will in i inft. 58 3. writing that his executor fhall grant copyholds, accord- ing 316 Provided they have a lawful Eftate. I Inft. 58 4 Rep. 24 Title X. Copyhold. Ch. ii. § 10 — 14. ing to the cuflom, for payment of his debts, and dies ; the executor, though he has no eftate in the manor, may make grants accordingly. §11. There is, however, one exception to this rule : For perfons not having a lawful eftate or intereft in a manor, cannot make copyhold grants. Thus it is fettled, that tenants at fuiferance, diffeifors, abators, or intruders, cannot bind the lawful owners of a manor, by their grants of copyholds. I Rous V. Artvis, 2 Leon. 45. § 12. MA. be tenant of a manor, for the life of another, and the cejlui que vie dies, and afterwards A. makes a copyhold grant ; fuch grant will not bind the leflbr : for, upon the death of the cejiui que vie, A. became tenant at fufferance, and had no lawful* intereft in the manor. A Steward may make Grants. Co. Cop. f.45. 4 Rep. 3c a. Gilb. Ten. 221. 316. Harris v. Jays, Cro. iLl'u. 699. § 13. A fteward of a manor, properly appointed, may make copyhold grants ; for he reprefents the lord to all intents and purpofes. And the lord of a manor may appoint a perfon to be his fteward by word only, which will endure until he is difcharged. § 14. In the cafe of the king, a fteward cannot be appointed by word only ; but it muft be by patent. A fteward appointed by the king's auditor, to hold a court, pro hac vice, cannot make a voluntary grant of copyholds ; becaufe fuch an auditor has no authority to appoint fte wards. S 15. A ftewardj Title T, Copyhold, C/;. il. § 15— 17. 3^7 § 15. A fleward, appointed by a private perfon, may make voluntary grants of copyholds, notwith- ftanding any fubfequent difability of the lord who ap- pointed him. § 16. R. B. feifed of a manor for life, in which Blewli'scafe, there were many copyholds, granted the flewardfhip ^^* ' ^'' thereof by deed to W. S. for life. R. B. was after- wards found a lunatick, and committed to E. C. and others. It was refolved by Hobart and Tanfield, that the committees could not grant any copyholds, as they had no eftate in the manor j but the lunatick, by his fleward, might grant copyholds according to the cuftom. It was, however, ordered, that the fleward fhould grant none without the privity of the committees, nor before the court was acquainted therewith, and gave v/arrant for the granting thereof. But this was by way of caution, the grant of the fleward being good in law. § 1 7. Whoever is capable, either by himfelf or an- To whom t r 1 r ' r iii Grants of Other, to perform the lervices or a copyholder, may Copvholds take a grant of copyholds. Thus, an infant may be ^^^ ^^ m;xde. a copyholder, for his guardian may do the fervices. 51,52, So a married woman, and her hufband fhall do the fervices. But a lunatic or idiot cannot be a copy- holder, becaufe they cannot do the fervices, nor depute another perfon, S 18. In 3i8 Title 1. Copyhold. Ch.'ii, § i8 — 20. TheCuaoms § 1 8' I^ ^11 Voluntary grants of copyholds the of the Manor ^yfi^j^-^s of <([^^ manor muft be purfued : and Lord muit be pur- ^ fued. Coke obferves, that although it is in the lord's power to keep the lands in his own hands, or to difpofe of them at his pleafure, and, to that intent, he may be reputed an abfolute owner ; yet, becaufe in difpofmg of them he is bound to obferve the cuftom precifely in every point, and can neither in eftate or tenure bring in any alteration, the law accounts him cudom's inftrument. Glib. Ten. § 1 9* Lord Chief Baron Gilbert obferves, oh the ^ ' above pafTage, that the reafon of it feems to be, becaufe there is nothing but cuftom to warrant the grant by copyj which ought therefore to be ftriclly purfued, as to the eftates, cuftoms, fervices, and tenures ; or elfe it is not the eftate that was demifed before. But yet if there be a copyholder in fee, it feems the lord may releafe part of the fervices, and not do any prejudice to the copyholder's eftate ; for there is an eftate in being, that appears to be the old eftate. But when the lord grants a new eftate by copy, fince it is an eftate againft common right, and warranted only by the cuftomj that muft be ftriclly purfued, to bind the heir. Ten. 199' S 20. So ftrict is the law in this point, ({dij?, Gilbert), that if the rent be referved in filver, where it anciently was in gold ; or payable at two feafts, where anciently it was payable at one feaft ; or if two copyholds efcheat, one ufually demifed for lo s. and the other for 10 J., and he demifes both for 30 s, j it is not good. § 21. It 7}V/^X. Copyhold. CZ?. ii. § 21— 25. 319 § 21. It has been determined in many cafes, that a cuftom, which enables the lord to grant greater eftates, will aifo warrant him to grant lelfer eftates. ^22. Where the cuftom of the manor was, that Staunton ▼. "^ . ^ . Barnes, Cro. the lord might folum modo grant copyholds in lee, it Eliz. 373. was, notwithftanding, held, that he might grant them ^f^^""' ^^• in tail, for life, or for years ; for thefe eftates were in- cluded within an eftate in fee, and omne majiis continet in fe minus, § 23. If cuftomary land within a manor hath been Kemp v. granted in fee, and, upon an efcheat, the lord grants j ^i^^oa. ss- the fame for life, fuch grant will be good ; for the cuftom which enables him to grant in fee, will enable him to grant for life. And after the death of the tenant for life, the lord may grant the fame again in fee ; for the grant for life was no interruption of the cuftom. § 24. If the cuftom of the manor be, that copy- Ven v. holds may be granted for three Hves, an eftate may be ^ ^^[j '^^^ granted J^y copy to three perfons for the lives of two; 511- for this is not a greater eftate than for three lives, it being only for two lives, which is lefs than the cuftom warrants. § 25. By the cuftom of the manor of Tregoar in Smartle v. CorJiwall^ cuftomary lands are demifable by copy of ^ ]_ ^j, Raym. court roll to two or three perfons for term of their 994- *; 6 Mod. (>i. lives, and of the longeft liver of them ; habendum fuccejftve 320 ' Title X. Copyhold. Ch. ii. § 25. fuccejji've ficut nominantur in charta, ^c. et ?ion aliter, and the perfon firft named in the grant enjoys the tene- ments to him alone during his life, and fo to the fecond and third, and the lord has a heriot of every fuch per- fon fucceflively dying feifed. The lord of the manor granted the tenements in queflion to one Thos. Norton^ and his affigns, habendum to him and his affigns, for the lives of J. P. W. W. and of the faid Thos. Norton^ and of the longer liver of them, fuccejjive ; and the queflion was, whether this grant was warranted by the cuftom. It was contended, that this grant was void in toto, not being purfuant to the cuftom ; for the grant was to Thos. Norton and his affigns, hahendiun for his own life, and the lives of J. P. and W. W. which varied from the cuftom ; and though the grant be of an inferior intereft than is al- lowed by the cuftom, yet it being prejudicial to the lord, in refpe6l of his tenure, and of his fervices, the cuftom would not warrant it. In this cafe, Thos. Norton was tenant for his own life and the lives of the other two, for they were not named to take any intereft, but only added by way of limitation of eftate, fo that upcii the death of Thos, Norton, if either of the other two lives were in being, there would be an occupant of the copyhold, which would be an injury to the lord, when a ftranger would have power to come in without his confent. It was determined by all the judges, that this grant was good, and warranted by the cuftom, § 26. As Title 'X. Copyhold. Ch.u, ^ 26 — ^o, 321 § 16. As copyhold grants derive their effect from CopyholJ the cuflom of the manor, and not from the eftate place of tnany of the lord, they are confidered as paramount to, and other ElUtes. will take place of, many other titles, prior to them in ^!r^P„M^- point of time. 200. § 27. A lord of a manor granted copyhold lands Cham v. for three lives, and afterwards married. The lives de- i Leon. 16. termined during the coverture, the lord entered into ^ ^"-^P- ^3 ^' the manor, and kept the copyhold lands in his ov/n hands for fome time ; he then granted them again by copy, and died. The wife of the lord entered and claimed dower. It was refolved, that the copyholder fhould hold the lands difcharged of dower; becaufe Sneycl v. he was in by the cuflom, which is paramount to the I'^Jtk'.., title of dower. S- ^^• § 28. But if the heir, after the death of his anceflor, i inft. 58 h. and before an aflignment of dower, grants lands by q^^^* r^^^^ copy, the widow may avoid the grant ; becaufe her title 203. to Dower was then complete. § 29. It appears to have been formerly doubted, whether copyholds, created by voluntary grants, were fubjedl to the charges or incumbrances of the lord who granted them ; but it is now fettled, that they are not fubjedt to fuch charges. ^ 2>'^. The Earl of Wejimorland^ being feifed in fee Sands v. of the manor of /C^?2;2/;z^/ ' 1 ; £> Ci O 4 iVlod. 25:1. money, leaving a widow who claimed dower. tii-in. 406. The court faid, the widow's title does not commence by the marriage ; if it did, then the hufband could do nothing to prejudice it -, but it was plain he might ahen or extinguifli his right. The free- bench grows out of the eftate of the hufband ; and it is his dying feifed, which gives the widow a title ; and as the hufband had a defeafible eftate, fo the wife may have her free-bench defeated. § 40. Upon a motion for a new trial, it appeared, Saliflmry r. that the cuftom of the manor of fVarminjier v>'3ls, to q^[,.' .^^^ grant copyholds for three lives. That the firft life had a power of fua-rendering the whole eftate ; and the widow 01 a tenant who died feifed, was entitled to her free-bench. That F., then copyholder for three lives, furrendered to Hurd, the deceafed hufband of the de- fendant, who, by licence from the laih lord, demifed to Singer for 99 years, by way of mortgage. Then ' ' >. _ Hurd 234 Title X. Copyhold. Cb. iii. § 40-— 43. Hiird died, and S'mger demifed to the plaintiff. The widow of Hard claimed her free-bench ; and the court was of opinion, tliat flie could not, in this cafe, re- cover it. They held there was a great difference be- tween the cuftom of free-bench found in this cafe, and dowTr ; in the latter, the widow is entitled to dower of all lands whereof her hufband was feifed during the coverture ; but here her right was confined to thofs lands only, whereof her hufoand fhould die feifed. § 41. Even an agreement to convey, will, inequity, bar the widow of a copyholder of her free-bench. Hinton V. 5 42. Hufband, copyholder for lif"e of an eitate, -> Vc°"6m ^^ which, by the cuftom of the manor, his widow was Amb. 277. entitled to free-bench, being in jail, entered into an acrreement for the fale of that eftate for a valuable con- o fideration to his fon : the hufband died, without having executed the agreement, by an actual furrender of the copyhold, and paffmg the legal eftate to the fon ; who brought his bill for a fpecific performance of the agree- ment, and that to the exclufion of the widow's free-bench. Erown V. Lord Hardwicke decreed, that the widow was bound 3'v'ef.jun. by her huft^and's agreement, and muft therefore fur- 256. S. P. render her free-bench to the fon. And by For- § 43. If a copyholder commits a forfeiture, his wi- ^ * dow will thereby lofe her free-bench. For if he had 1 rreem. -^ P^-ep. 516. furrendered his eftate, it would have bound her ; there- fore, any other aft which determines his eftate, muft have the fame effect* § 44. Where Title X. Copyhold. Ch. Hi. § 44 — 47. 335 § 44. Where the lord conveyed the freehold of the -And by land to the copyholder in fee, it was refolved that the Freehold to widow fhould not have her free-bench. But if the ^^'^ Hufband. Lafhmere lord had enfeoffed a ftranger, it would have been v. Avery, otherwife. C™.J._..6. § 45. Free-bench is not loft by the attainder of the Not barred hufband for high treafon ; becaufe the right of the ^ ' wife is derived from the cuftom. § 46. Curtefy is not incident to copyhold eftates any Cuilom of more than dower, unlefs there be a fpecial cuftom to ^^^"^ ^ zL warrant it ; for the freehold and inheritance being in q.^^ E^f^ the lord, and the copyhold being only a cuftomary 3^^* right of taking the profits, time out of mind, at the will of the lord ; this cuftom, like all others, muft be a law to itfelf ; and all eftates derived thereout, are fo far good, as thev are warranted by that law, and no farther. If, therefore, there be no cuftom for a man to be tenant by the curtefy of his wife's eftate, there is no law by which he can claim it ; and therefore, where a cuftom of holding by the curtefy has prevail- ed, it is conftrued literally, and not extended beyond the words. So that, if the cuftom is, that where a man marries a cuftomary tenant of a manor, &c. the woman muft be a copyholder at the time of t-he marriage. § 47. The cuftom of a manor was, that, if any Savage's cv-f?- man took to wife a cuftomary tenant of the faid manor, ^ ^ ^"* ^^^' and had iifue, and out-lived his wife, he fliouid be tenant 0-7 5 Title X. Copyhold. Ch. iii. § 44 — 47. tenant by the curtefy. A perfon pleaded that he took to wife one Ann, to whom, during the faid co- verture, a cufhomary tenement of the faid manor did defcend : that he had iifue, and that flie was dead. It was adjudged, that the hufband was not entitled to curtefy in this eflate, under the cuilom ; becaufe his wife was not a cuflomary tenant at the time of the marriage. Everv.ARon, § 48. The cuflom of a manor was, that if a man 7 Vin.'^Ab. h*^^ ^ wife feifed in fee of copyhold lands, according ^SS' P^' ^4* to the cuftom of the manor, and had iffue by her, that he fhould be tenant by the curtefy, it was found, that A., a copyholder, was feifed, and had iifue a daughter, who was married to y, S. who had iifue. A. died, his daughter entered, but died before admit- tance. Glib. Ten. The court feemed of opinion, that the huiband was ^^' entitled to be tenant by the curtefy before admittance of the wife, and that the delay of admittance by the lord fhould not prejudice the hufband, who was a third perfon. Copyholders § 49. As mere copyholders have no freehold eftate, at"Ekaions. they are not allowed to vote for the eleftion of knights Vide ante, of t^^ Ihire. But at the great eledion for Oxford- ch. I. f. 10. y;?,/;-^ in the year 1754, a queflion arofe, whether free copyholders, holding according to the cuftom of the manor, and not at the will of the lord, were entitled to vote. Sir Title X.. Copyhold. Ch.m. §49 — 51. 2Z7 Sir Willia?n Blackjlone has written a tra£l: on this fubjeft, intituled, " Confiderations on Copyholders*'' in which he contends, that copyholders of this kind were not, by the old law, entitled to vote for knights of the (hire ; becaufe they were, in fad, villein fockmen, whofe fervices were bafe and fervile, though reduced to a'certainty ; and therefore, their eflates were not com- prLfed under the denomination of free lands or tene- ments, or freehold, within the meaning of the ftatute of Hen, 6. : and this opinion is confirmed by the fta- tute 31 Geo. 1. c. 14. which enads, that no perfon who holds his eftate by copy of court roll fl.all be en- titled thereby to vote at the elcdion of a knight of the ill ire. § 50. Copyhold eftates are not alienable by feofF- Pvfay alien by mentj or other alTurance at common law ; which is a ^' °™' proof that they are derived from the tenure in villein- age. But by the general cuftom of all manors, a copy- holder may, by furrendering his eftate to the lord, to vide Tit. 37. the ufe of another perfon, alienate it. And a copy- holder may, alfo, by the general cuftom, make a leafe for one year of his copyhold. § 51. Eflates held by copy of court roll are as much whatStaiutes under the power and controul of the Legiflature as r '^^"S^oM^ any other kind of property. Bat where copyhold eflates are not exprefsly mentioned in an aft of par- liament, it has been held in many inflances, that fuch an aft does not extend to them ; upon the ground, that it was not the intention of the Legiflature that it Ihould afFeft copyholds. Vol. L Z § 52. Lord Blac. Tra. 230. 33^ 1'itie X. Copyhold. Ch. iil. § 52 — 54. Co. Cop. § 52. Lord Coke lays down the following rules for ■ ^^' diftinguifhing between thofe ftatutes that do, or do not, extend to copyholds. Where an a£t of parliament alters the fervlce, te- nure, or intereft of the land, or other thing, in pre- judice of the lord, or of the cuftom of the manor, or in prejudice of the tenant, there [the general words of fuch an a£l of parliament extend not to coyyholds. But where an aft is generally made for the good of the commonwealth, and no prejudice may accrue by rea- fon of the alteration of any intereft, fervice, tenure, or cuftom of the manor, there, ufually, copyholds are within the general purview of fuch acts. § 53. In conformity to thefe principles, it is held, that the ftatute 4 Hen. 7., of fines, the ftatutes of bank- ruptcy, the ftatutes of Umitations, and many others, extend to copyholds. But it is alfo fettled, that the ftatute Wejim'mjler 2. ch. 20. of executions, the ftatute iy Hen. 8. c. 10. of ufes, and feveral other ftatutes, do not extend to copy- holds : of which, notice will be taken in the fubfequent Titles. Where the § 54. No point of law has been more debated than, don Is affcas whether the ftatute De Bonis Conditionalibus, which Copyholds. creates eftates tail, extends to copyholds. In a cafe f-°S3-°^' which arofe in 18 Jac. i., the queftion was, whether &°iii'^^" ^* ^^^ furrender of a copyhold eftate to a perfon and the Cro. Ja. 42. heirs male of his body, (there being no cuftom to war- rant Title X. Copyhold. Ch, iii. § 54« 339 rant fuch an eflate), gave the furrenderee an eflate tail, under the flatute De Donis, or a fee-fimple conditional at common law. It was held by Crokey and two other Juftices, agalnft the opinion of Teherton^ that the flatute De Donis did not extend to copyhold eftates, and, confequently, that the furrenderee took a conditional fee : ill, Be- caufe it would be prejudicial to lords of manors, for by this means the tenure would be altered, as the do- nee in tail, v/ithout any fpecial refervation, ought to hold of the donor, by the fame fervices by which the donor himfelf holds ; and he who comes in by furren- der and admittance of the lord, to hold to him and his heirs of- his body, cannot hold of the perfon who made the furrender, but of the lord of the manor to whom he becomes tenant, and bound to perform his fervices : 2d, The words of the flatute De Donis are, " ^od voluntas donatoris in charta fua nmnifcfte ex- " P^((P^ ^^ cetero obfervetiir /'* which proves the in- tention of the flatute, that no lands fhould be intailable, but fuch as might be given by charter or deed, which copyholds cannot : 3d, The intention of the flatute can only be extended to things whereof a fine may be levied ; for it provides quod finis ipfo jure fit nullus ; and no fine can be levied of a copyhold eflate : 4th, When the flatute De Donis was made, copyholds were no more than mere tenancies at will, which might have been defeated by the lord ; againfl whom, the tenant had no remedy but in Chancery. Z 3 S 55. The ^^^ Title X. Copyhold, Ch. lil. § 55 — SJ. § 55, The authority of this determination, and of fome others, founded on the fame principles, has been controverted by feveral great perfons, and parilcu- 6 Vin. Ab. larly by Lord Chief Baron Gilbert. It has, however. Ten*. 165. t>een long fettled, that the flatute De Bonis does not extend to copyhold eftates, without a ipecial cuftom ; but that, when there has been a cuflom of intailing 1 Tnft. 60 b. copyholds, the flatute De Bonis co-operating with the T Term R. cuftom, will give to fuch an eflate all the qualities of an ellate tail. III. f(]. § ^6. Lord Coke fays, that although lands have ^ Vefey R. ^ntiently and ufually been granted by copy of court roll, to many men and the heirs of their bodies, that will not prove a cuflom of intailing copyholds; for fuch grants might have created eflates in fee-fimple conditional at common law. But if a remainder has been limited over after fuch an eflate, and enjoyed ;^ or, if the iffue in tail have avoided the alienation of the anceflor ; or, if they have recovered the fame in writs of formedon in the defcender, thefe, and fuch like, would be fufEcient to prove a cuftom of creating intails. % S7' There are various modes of barring intails of copyholds j of which, an account will be given in Title '^y.t Alienation by Cuflom.- TITLE ( 341 ) TITLE X, COPYHOLD. 4- 5- 7- 8. lo. CHAP. IV. Of Fines and Heriots, Fines upon Defcent. Fines fometlmes due hy Te- nants by the Curtefyy and in Dotver. Fines for Alienation. No Fine itpoji an yJgreement to furrcnder. Fines due upon Bankruptcy. Fines due upon a Devije. Fines only due on Admittance. l6. Admittance of the Tenant for Life fujfuient . 19. No Fine due unlefs there is an Alteration of the Te- nant. 22. Fines on the Change of the Lord. 27. Hoiu much may be demand- ed as a Fine. 33. No more than Tivo Tears Value can be required. 36. Fines mujl he ajfiffed feve- rally. 37. When Fines are payable. 38. Remedies for recovering Fines. 41. Of Her tots. Sedlion i. ^X7HEN copyhold eftates were allowed to defcend Fines upon to the children of the copyholders, the lords of ^^^^^"^• Lhe manors, from whofe permilfion and continued acquiefence the right of defcent was derived, would not admit the heir of a copyholder to fucceed to the land, whereof his anceftor died poflelTed, without pay- ment of a fum of money ; from whence arofe a general cuftom, that, upon every defcent of a copy- hold, a fum of money, or fine, was due from the Z 3 heir 34« Title's., Copyhold. Cb.iv, § i — 7. heir to the lord, as a confideration for the renewal of the grant. 4 Rep. 22 I/. 2 Term Rep. 485- § 2. The lord is not entitled to a fine upon a defcent, until the heir is admitted. But the death of the heir, or an alienation made by him before ad- mittance, will not deprive the lord of his right to a fine. Fines fome- tiiTivS duf by Tenants by the Curtely, and in Dower. Co.Cop f.56. Gilb. Ten. 223. Isioy, 29. Fines for Alienation. Vide Tit. 37. I Inft. 59 1>, § 3. Where a man acquires a copyhold eftate by the curtefy, or a w^oman acquires a copyhold as her free-bench, a fine is payable on the admittance of thofe tenants by the cullom of fome manors, and in others no fine is due. § 4. As the power of alienating copyhold eftates was originally derived from the bounty of the lord, and a continued acquiefence on his part, and as the lord is in fa£l; a party to every ahenation, by admitting the alienee to become his tenant, a fine was paid to the lord by the alienee j from which arofe a general cuftom, that a fine was due to the lord of the manor upon every alienation of a copyhold eltate. No Fine upon § 5. A covenant or agreement to furrender a copy- 10 W^rXr"^ hold, will not entitle the lord to demand a fine from the perfon with whom fuch covenant or agreement is made, unlefs he demands to be admitted. Rex V. T.ord of Htndon, 2 ! erm Kep, 484. § 6. One Bonham, a copyholder of the manor of Bendon, covenanted to aflign and furrenderto Goodrich 5 which Title X. Copyhold. Ch. Iv. § 6 — 8. 343 which covenant the homage had prefented at a court, and the confideration money was paid, but no furrender was ever made to him. Goodrich then affigned to Rankin his interefl in the copyhold, and Bonham furrendered to Rankin, who claimed to be admitted. The lord of the manor refifted the application, on the ground that no fine had ever been paid to the lord for the conveyance to Goodrich^ and that this was a mode of cheating the lord of his fines ; that before Rankin was admitted, he ought to pay both the fines which were due. The court faid, that all the lord had a right to re- quire was, to have a tenant, and in this cafe he had one during the whole time j and that any private agreement between Bonham and Goodrich^ not followed up by a furrender of the eflate, could not give the lord of the manor a right to any fine, notwithflanding it was prefented by the homage. § 7. The aflignees of a bankrupt mufl be admitted ; y'iwc? due and are, confequently, fubjedl to the payment of a fine. "P°" ^^'^''* Lord Hardwicke has therefore recommended it to com- ^ ^^j, „- miflioners of bankrupts to except copyholds out of the deed of allignment of the bankrupt's eftate, becaufe it would fave two fines j for the commiffioners, where the creditors could meet with a purchafer of the copyhold, might convey to him in the firfl inflance. § 8. The executor of a devifee for years of a Fines due copyhold eftate, claiming under the teflator, mull "po"^^^^^^- Z 4 be 344 Title H. Copyhold. Ch.iv. § 8— -I2. be admitted ; and is therefore fubjedl to the payment of a fine. EailofBath § 9. Hfwrj' Gr^j', having a copyhold eflate, devifed I Buj-r. 206. '^^ ^o John Tayloiir and Arthur Lake^ their executors and admhiillrators, for 99 years, if three perfons fhould fo long hve. After the death of the teftator, Tayloiir and Lake v/cre admitted and paid a fine of 280 /. Tayloiir furvived Lake^ and died, having appointed Doctor John Taylour his executor ; and the queflion was, whether he was obliged to be admitted and pay a fine. A cafe being fent out of Chancery for the opinion of the Court of King's Bench, it was certified, that the executor of the furviving truflec ought to come in, and be admitted. Fines only § I o. A fine being only due on the admittance of a due on Ad- • r 11 t 1 r ^ mittaiice. ^^"^ tenant, It rollows, that where a perlon, who ac- quires an interefl in a copyhold eftate, is not obliged, by the nature of that interefl, to get himfelf admitted tenant to the lord, he is not fubjeft to the payment of a fine, Co. Cjp. § II' Thus, If a perfon marries a woman, having ■^ * - a copyhold eftate, though an interefl becomes thereby veiled in him, yet, as he is not feifed jure propria, but only jure alieno, he is not obliged to be admitted ; and, therefore, he is not hable to the payment of a fine. IJ. § 12. It is the fame if the wife be a termor of a copyhold J for, though the term becomes veiled in the hufband Title X, Copyhold. Ch.iv.^ii — 15. 345 hufband by the marriage, fo that he may difpofe of it as he pleafes, yet he is only poflefTed of it in right of his wife. § 13. Where, by the cuflom of the manor, the id. bailiff is to have the wardfhip of the heir of a copy- holder, who is under age, fuch a guardian (hall not be admitted, nor pay a fine ; becaufe he is but a pernor of the profits, and that not in his own right, but in the right of his ward. § 1 4. Where a teflator dire6ls certain perfons to fell his copyhold eflates ; fuch perfons need not be ad- mitted, and confequently are not liable to the payment of a fine. § 1 5, A perfon, feifed in fee of copyhold lands. Holder v. did, by his will, order and direct that A. and B. fhould 2 Wil*f?Rep. make fale of the faid copyhold premifes, and apply and 440' difpofe of the monies, arifmg thereby, in the manner mentioned in his will. A. and B. bargained and fold the lands by deed to Richard Ray, and his heirs. Ray claimed to be admitted under this deed, which the lord of the manor refufed ; infifling that the truftees fhould have been admitted to the faid premifes previous to their making fale thereof, and paid a fine for their admifTion. The court was of opinion, that the truflees were not obliged to come in and be admitted ; becaufe they had no eflate or intereft, but only a naked power or authority ;- 34^ Titled. Copyhold. Ch.iv. § 15 — 18. authority ; and that the" lord was bound to admit the purchafer Ray to the copyhold. Admittance § 1 5. By the general cuftoHi of copyholds, the ad- of the Tenant . „ r it • i • r ■, for Life I'uf- mittance or a tenant ror lire is an admittance or the per- ficitnt, ^Qjjg jjj remainder ; and therefore, no fine is due from !o. xiz. ^j^g remainder-men. For although there is an altera- I Mod. 102. tion of the tenant, yet there is no alteration of the 1 Eurr, 212. eflate ; and the fine Is afiefled, not for the particular ellate, but for the whole inheritance. Barnes V. S ^7' The father being felfed of a copyhold eflate ? Lev.' ^08 ^^ ^^^' furrendered it to the ufe of himfelf and his wife for life, remainder to his fon in tail. The father and mother were admitted, and paid a fine; and being both dead, the fon prayed to be admitted to the re- mainder, which was done, and a fine of 58 /. fet upon him, which he refufed to pay, alleging, that none was due, he being admitted by the admittance of his fa- ther and mother j and adjudged that no fine was due, unlefs there was a fpecial cullom for it. S 18. In fome manors fines are due, by particular cuftom, on the admittance of perfons in remainder. 4 Rep. 23 a. But cven in this cafe, Lord Coke fays, that the admlt- Blackburne ^^^^^ ^£ ^^iq tenant for life is the admittance of the ! Mod. 120. perfon in remainder, but not to prejudice the lord of his fine, to which he may be entitled, by the particu- lar cullom of the manor. $ ig, A fine Title X. Copyhold. Ch.vf. § 19 — 24. 347 ^ 1 g. A fine is only due as a confideration for the No Fine due ^ ^ •' unlefs there admittance of a new tenant j and therefore, where is an Alte- there is no alteration of the tenant, the lord is not en- ^"^e'lanu titled to a fine. § 20. Thus, if a copyholder in fee furrenders for Co. Cop. life, referving the reverfion, and the leflee for life dies, the copyholder may re-enter without paying a fine, becaufe the reverfion was never out of him. § 21. So, if a copyholder grants his copyhold to id. a flranger upon condition, and afterwards enters for the condition broken, he is not liable to the payment of a fine, becaufe he comes in of his old eftate. Vide Tit. 13. § 22. By the cuftom of many manors, a fine is due Fines on the on every change of the lord which happens by the a6t th^ L^rd. of God. But a cuftom that a fine is due on every i infl. 59 h, change of the lord by alienation, has been adjudged to be a void cuftom. For by this means, the tenants might be oppreffed by a multitude of fines. 5 23. In a manor where a fine was due by the cuf- tom from all the tenants on the death of the laft ad- mitting lord or lady, a huftDand, tenant for life in re- mainder after the death of his wife, under a marriage fettlement, is entitled to fines from all the tenants, on the death of his wife, the laft admitting lady. § 24. Upon the death of the Duchefs of Somerfet, Duke of the Duke her hufband, who was tenant for life in re- ^.^France, mainder ' Stra. 654, ^4 8 Title H, Copyhold. Ch.iv. §24. mainder after the Duchefs, under the fe.-lement made on his marriage, claimed a general nne of the feveral cuftomary tenants cf the manors of Cockermoutl\ Sic. in the county of Cumberland^ which were the inheri- tance of the Duchefs ; and the Duke having aflelTed their fines, and the tenants having refufed to pay themj the Dake brought his bill in the Couri: of Chancery, to eftablifh his right to thefe fines as the next admitting lord. The bill Itated, that it was the cuflom of thcfe manors, for the lord or lady thereof for the time being, to admit the feveral tenants of the manors to their re- fpedive eflates ; and that, by virtue of fuch admit- tances, the feveral tenants had a right to hold their re- fpedive eftates during the joint lives of fuch tenant, and fuch admitting lord or lady. That, in confidera- tion of fuch admittances from the lord, the tenants had, time out of mind, refpeftively paid to fuch ad- mitting lord, a fine or greffum^ which had been gene- rally affelfed by the lord's fleward at a court held for that purpofe, called the Court of Dimi/Jtons. And that thefe fines or grejfums are called the General Fines, and are due to the next fucceeding lord, upon the death of the lafl admitting lord, by whofe death there is a ge- neral determination of the eflates of the tenants. The fines which the Duke demanded, were the general fines, which he infifled were due to him, as next ad- mitting lord, upon the death of the Duchefs. And the bill fet forth, that the Duchefs, being the lady of thefe manors, and having married the Duke, a court of dimifTions was held in the names of the Duke and Duchefs, in order to grant the tenants new eflates, their Title X. Copyhold. Ch. Iv. § 24. ~ 349 their former having been determined by the death of the Duchefs's father. And at fuch court, admittances were granted to the feveral tenants during the joint lives of the Duchv^fs and the tenants. That upon the death of the Duchefs, the Duke became lord of the faid manors, and, the tenants eftates being determined by the death of the Duchefs, the Duke, as next ad- mitting lord, had a right to a general fine. The de- fendants, in their anfwer, infifted, that by the cuftom of thefe manors, a lord who was tenant by the cur- tefy, or lady tenant in dower, had no right to a general fine ; and that they were only obliged to pay a general fine to the lord who comes in by defcent, or to him that comes in loco hcEredis. They infifled, that al- though the Duke was become tenant for life of thele manors by the Duchefs's death, yet no fine was due to him ; for, if he had been tenant by the curtefy, no fine would have been due, and his claiming by fettlement could better his cafe ; for then it would be in thg power of the lords of fuch manors to multiply the te- nants fines, and greatly burthen their eftates, if every fuch lord, who had an intervening eftate by fettlement, fhould be entitled to a eeneral fine. Lord Chancellor King. — The principal queftion is, whether a fine is due to the Duke from his tenants, upon the death of his Duchefs ? And, in refolving this queftion, it is firft to be confidered, upon what account thefe general fines become due. Now, it ap- pears from the nature of thefe admittances, that, upon the death of the laft admitting lord, all the eftates of the tenants which are held under his admittances arc determined ; 2^^o Title X. Copyhold. Ch. iv. § 14. determined ; and their eflates being fo determined, it is neceffary for the tenants, before they can have any new eftate, to have a regrant from the fucceeding and next admitting lord ; which regrant they have a right to ; and that right gives their eflates the denomination of tenant-right-eflates. From hence, it appears, that the fines are paid upon account of the admiffion to the new eftate, and, therefore, that the lord who hath a right to admit, hath a right to the fines : the lord grants the tenant a new eftate, and, in confideration of that, a fine becomes due to him from the tenant. The only queftion, then, feems to be, whether the Duke hath a right to admit, and the tenants feem to agree that he has ; for they allow, that if a particular tenant dies, the Duke, upon the admiffion of his heir, is entitled to a dropping fine : nor can the Duke be entitled to his dropping fine, if he be not the admitting lord. And if he hath a power to admit, and hath a right to a fine upon the determination of a particular eftate, upon the death of a particular tenant, why hath he not an equal power to admit, and an equal right to his fines, upon the determination of the te- nants eftates in general, by the death of the laft ad- mitting lord ? It is very extraordinary to allow it in the one cafe, and not in the other. If a particular te- nant dies, his eftate is determined, and his heir muft pay a fine to the Duke ; yet, if the laft admitting lord dies, all the eftates of the tenants are determined, and yet the Duke has no right to a fine. It hath been ob- jected, that this is multiplying the fines of the tenants, and fubjeding them to frequent burthens of this kind : But where is the inconveniency to the tenants ? They 9 are Title X. Copyhold. Ch.iv. §24. 351 are ftill to hold during their own lives, and the life of the lord who admits them ; and that is the very tenure of their eflates : nay, if a leflee for years, or any other dominus pro tempore^ fhould admit them, their eflates would be good, according to thefe admittances, during their own lives, and the life of fuch lord ; and the de- termination of the lord's eftate would have no influence upon theirs. Indeed, if there fhould appear to be any fraud or contrivance in a fettlement of this kind, by putting in a number of lives fuccefTively on purpofe to multiply the fines of the tenants, this court would un- doubtedly interpofe in fuch cafe, and relieve them ; but, in the prefent cafe, nothing of that kind can be pretended. Thefe are my prefent thoughts on the fubjed; but, as an ifTue has been infifled on, I readily agree to it. An ifTue was accordingly tried at the bar of the Court of King's Bench by a jury of Middlefea, Whe- ther a general fine was due to the Duke of Somerfet from the tenants of the manors of Cockermouthy &c. as next admitting lord, upon the death of the Duchefs of Somerfet, And the jury, by the direction of the court, brought in a verdict for the Duke of Somerfet, The caufe came on again before the Chancellor, who decreed the tenants to pay their fines, and gave the Duke his cofls. § 25. By 352 Title X. Copyhold. Ch. iv. § 25 — 47. § 25. By the cuflom of many manors in Cujnher- land and Wejlmor eland ^ a fine is due on the death of the lafl admitting lord, whether fuch laft admitting lord was, at the time of his death, in pofleffion of the manor or not ; and this cuflom was held good by the Houfe of Lords. Lowther V. Raw, 2 Bro. Pari. Ca. 451. § 26. 'Philip Duke of Wharton, became entitled, by defcent, to feveral manors in Cumberland and WeJl?nore- land, in which the cuflom was, that the tenants fhould pay a fine upon change of the lord by death. In the year 1721, the Duke fold thefe manors to Mr. Lozv- iher, and having afterwards withdrawn himfelf from the kingdom, he died in Spain in the year 172 1. Mr. Lowther affeffed a general fine upon all the tenants in confequence of the Duke's death, which they rcfufed to pay. He then filed his bill in Chancery for pay- ment of thefe fines. Lord Talbot difmiffed the bill : but the Houfe of Lords reverfed the decree, and de- clared, that Mr. Lowther became entitled to a general fine on the death of the Duke. How much may be de- manded as a Fine. § 27. With refpecl to the quantum or amount of fines, it is probable, that when fines were firfl introdu- ced, they were at the mere will and difcretion of the lords of manors. But the benevolence of fome lords eflablifhed fines certain in fome manors, while they continued uncertain in others : nor does it appear that the courts of law interpofed before the reign of Queen Elizabeth, to moderate the exercif^ of the lord's right to demand whatever he pleafed, where the cuflom had left the amount of the fine uncertain. 5 § 28. It Title X. Copyhold. C/^. vl. § 28, 29. 353 § 28. It was refoived by the Court of King's Bench, Hobart v, in 42 and 4^ Eliz., that if the fines of copyholders /'rcd. 27'^. upon admittance be uncertain, yet the lord cannot demand or exaft exceflive or unreafonable fines ; and that, if he does, the copyholder may, by law, refufe to pay them 4 and it fliall be determined by the opinion of the julliccs, before whom the matter is depending, either upon demurrer, or upon evidence to a jury, upon confeffion or proof of the yearly value of the land, whether the fine demanded was reafonable or not. For, if the lord might affefs exceflive fines at his plea- fure, all the eflates of copyholders would be, at the will of the lord, defeated or deftroyed. § 29. A lord of a manor demanded a fine of 5/. V/Illowe's 6 s. S d. for an admittance upon a furrender to a cot- j-^i.tp. i. tage and an acre of paflure, which was let at a rack- rent of 53 J. a year. It was refoived, iff. That aU though the fine be uncertain and arbitrary, yet it ought to he/eamdtwi arbitriwn bojii viri, that is, reafonable, and not excefTive ; for eacejfus in re qualibet jure repro- batur commiini. The common law forbids any unrea- fonable diflrefs ; and, if an exceflive or unreafonable amercement be impofed in any court baron, or other court which is not of record, the party fhall have mo- derate mifericordia. 2d, That if the lord and tenant cannot agree about the fine, and the lord demands more than a reafonable fine, the fame fhall be decided and adjudged by the court, in which any fult lliall be brought on account of the denial of fuch fine. 3d, That the fine demanded in this cafe was unreafonable, , . Vol. I, A a for 354 TitkJ^. Copyhold. Cb.'iv. § 29 — 32, for this was not a voluntary grant, as where the copy- holder has but an eltate for life. Dong. Rep. § 30. Thus flood the do6lrIne, the fine was to be '726. n. afTeffed by the lord ; and whether it was a reafonable one or not, was a queflion for the confideration of the court and jury. And it would be obvioufly fubjed to much fluduation and uncertainty, to prove upon a trial the annual improved value of land, and then to calculate how much of that value fhould be paid for a fine, was likely to be attended with fo much diffatisfadion, that recourfe would frequently be had to the Court of Chancery, which had always taken upon itfelf, with- out a jury, to determine what fhould be a reafonable fine. iVliddieton §3^* Lord Keeper CG-vtwifry^ In 5 Cba, i., and again litp'.'^in'cha. ^^ ^^^ ^^^^^ *^^ ^^^^ i^'dniQ reign, held, that one year's l^^"'" improved value was a reafonable fine; jruardinor the. Lancafler, decrce, that one year's value fliould not be counted a 7 1- ' ■ ^ ^' fine certain, but referable to the dilcretion of the court, whether it was reafonable or not, and that the payment was then directed, becaufe it was reafonable. Morg:an v. § 3 2. In 29 Cnr. 2. Lord Nottingham held, that two Id/p^Tl^-o. y^ars value was a reafonable fine ; and at the time of this determination, two years value was not a much higher payment, than one year's value had been at the time of Lord Coventry's determination : the interefl of money had been reduced, and, from that and other caufes, the value of land had rifen. One year's value mieht Title X. Copyhold. Ch. iv. § 32 — 34. 355 might be near as large an aliquot part of the felling price of land in 5 Cha. i. as two year's value at the time of Lord NottiUgbanih decree. ^ ^^^'^ From that time to the prefent, the idea of No more two years value being a reafonable fine, in the cafe of Years Value can be re- quired. a fine arbitrary, or, in a more proper phrafe, arbitrable, has prevailed uniformly : and the adherin^!: to this rule ^ ^ ^ ■' " Dong. Rep. has been a matter of great convenience, though it can- 726. n. not be Eird to be a matter of firid judice. Two years value, the intereft" being at 6 per cent., as at the time of Lord Nottingham''^, determination, is a much larger proportion of the felling price of a copyhold eflate than the fame number of years purchafe, the intereil of money being at 4 or 5 per cent. But, to follow the variations of price, would create confufion in this pro- perty, would occafion a deprivation of it, and it is not the true interefl of the copyholder. Public conveni- ence, therefore, that great fource of law and juftice, has ellabliflied the authority of the rule laid down by Lord Nottingham. It feems, therefore, much better for the copyhold tenants, and for the public advan- tage, as there is a great deal of that property in the kingdom, that the fine to be paid upon the renewal of the copyhold eflate fliould be ftridly kept to that fum, which has fubfifled now above a century, namely, two years improved value, § 34. It has been determined in a modern cafe, that Grant v. no deduction is to be made out of the two years full ^''''i' "^^^^ > K. 724. n. improved value of a copyhold, on account of the land tax. But quit rents are always deducted. Aa 2 %it^. The 35^ Halton V. Haffcll, Stra. 1042. Title!.. Copyhold. C/j. iv. § 35—38. ^2)5' "^^'^ ^^^^ ^^^^ ^^ eflimated according to the improved yearly value, not according to the rent under a leafe fubfilling by licence of the lord. Fines mufl be afTefTed feve rally. 4 Rep. 28 «. Cro. Eliz. 779- Grant v. Aflle, Ante. ^ 2>^. Where a perfon holds feveral tenements by copy of court roll, of the fame manor, in confidera- tion of feveral fervices, the lord muft aflefs and demand the fines feverally, for every tenement v/hich is fo held. For the tenant may refufe to pay the fine for one te- nement, and yet pay the fines for the others : and to every feveral tenure, there is a feveral condition in lav.'- iacite annexed. When Fines are payable. Dalton V, Hammond, Cro. Eliz. 779- 4 Rep. 2Sa. Gilb. Ten. 218. § 37. Where the fine is certain, the tenant is bound to pay it immediately upon his admittance. But where the fine is uncertain, the copyholder is not bound to pay it immediately, becaufe, as he cannot tell what fine the lord will affefs, it would be impofiible for him to provide himfelf with the precife fum ; and therefore he will be allowed a convenient time to pay it, unlefs the lord fhall appoint a certain day for its payment. recovering Fines. Doug. R. 7:^7. n. Remedies for § 38. The lord may bring an a6lion of debt againfl his copyholder for the recovery of his fine. But, if a copyholder in fee dies, and his heir waives the poiTef- fion, it feems doubtful whether the lord can bring an action of debt againfl the heir for his fine. Lord Chief Ten. 292. Baron Gilbert was of opinion, that the heir may waive J.J* '""* the pofTeffion of the lands in the lord's court; and if he may do fo, then no fine is due. $39-K Title X. Copyhold. Ch. iv. § 39 — 41. 357 § 39. If a copyholder be admitted, and, before pay- shutdeworth ment of the fine, the lord dies, and the manor defcends ^ xa^^a^^' ^ ' ' 3 Mod. 240. to his fon and heir, who alfo dies, the executor of the fon may maintain an adion of affimipjit againfl: the copyholder, to recover the fine ; whether it be a fine certain, or at the will of the lord. § 40. By the ftatute gGeo. i. c. 29., reciting that doubts had arifen in the law refpefting the power of lords of manors to feife copyhold lands, parcel of their manors, on the negleft or refufal of perfons to come in and be admitted tenants, it is enaded, that feme coverts and infants may be admitted to copyhold eftates by their attorney or guardian ; and, in default of appearance, the lord may appoint a guardian. That upon every fuch admittance, the fine may be demanded by a note in writing to be left with fuch infant or feme covert ; and if the fine be not paid within three months after fuch demand, the lord may enter on the copyhold, and receive the profits thereof, until he is paid his fine and colls, &c. And by the fourth fedion it is enafted, that guardians and hufbands paying fuch fines, fhall reimburfe themfelves out of the rents and profits of the copyholds, notwithftanding the deaths of fuch infants and feme coverts. § 41. Befides a fine, there Is alfo a cuftom in many Of Hcriots. manors, that, upon the death of every tenant who was ^o. Cop. poiTefTed of a copyhold eflate, the lord fliali be entitled to the befl beaft, or averiu?n, which belonged to fuch tenant. In fome manors, it is the beil chattel ; under v/hich, a jewel or piece of plate is included. But it is A a 3 always 352 Title 1^, Copyhold. Ch.iw §41—45. always a perfonal chattel, which, immediately on the death of the tenant, being afcertaiiied by the option of the lord, becomes vefled in him as his property ; and is no charge on the lands, but merely on the goods and chattels of the tenant. Parker V. § 42. A cuflom that the lord of a manor fhall Combltford, i 1 n. n. r Cro. Eiiz. have the belt bean: of every perfoii- who dies within ^^^* the manor, whether he be a copyholder or not, is a void cuilom. For it cannot have a lawful beginning between the lord and a (tranper. 2 Tg. Rayra» § 43. The lord is only entitled to a heriot^ on the death of the tenant, who has an intereft in the copy- hold ; and not on the death of perfons for whofe lives a copyhold is granted. § 44. Although the copyholder be oufted or dilTeif- ed, yet the lord will be entitled to a heriot on his death ; for he was tenant in right, nctwithftanding the puiler or dilfeinn^ Korrice v. § 45. A copyholder for life, where the cuflom was, 2 Roll. Ab. that if the tenant died feifed, a heriot fhould be paid. Ma h.R 2^ ^^"^ difleifed or oufled and died ; the lord having firft granted the feignory to A. for 99 years, if the tenant iliould fo long live, remainder to B, for 4000 years. Two qoeftions were made: ift. Whether the heriot iliould be paid, becaufe the copyholder did not die feifed ; and as to this, the cour;; held clearly, that a }ieriot was due and payable ; for, notwithflanding the cufter and diffeifin, he flill continued legal tenant, and fuch Title X, Copyhold. Cb. I v. § 45 — 49. 359 fuch difTeifin might have been by combination to defeat the lord of the heriot. 2dly, To whom the heriot fhoiild be paid : and as to this the court held clearly, that the remainder-man for 4000 years could have no right to it, becaufe the copyholder was never his tenant ; and as to the grantee for 99 years, it was doubted, becaufe the moment the copyholder died, his eltate was de- termined. § 46. A heriot is only due on the death of the legal Trin. Coll tenant; not on the death of a perfon entitled to an i\txn.^±'i equitable eflate in a copyhold. § 47. If a copyholder for life, on whofe death the 2 Ld. Ray. lord is entitled to heriot, becomes a bankrupt, and the copyhold is aiTigned for the benefit of the creditors, this tranfmutation of the tenant by aft of parliament fhall not work a prejudice to the lord, who lliall have a heriot on the death of the copyholder, but not on the death of the afTignee. 5 48. No heriot is due on the death of a married Anon, woman, becaufe a married woman can have no i^^ihv. 84. chattels. § 49. In many manors there is a cuflomary com- pofitlon, as 10 or 20 (liillings in lieu of a heriot, by which the lord and tenant are both bound ; provided it be an indifputably ancient cuflom. But a new compofition of this kind will not bind the heirs or reprefentatives of either party ; for that amounts to the creation of a new cuflom, Vvhich cannot be now done. Aa 4 ^ § 50. If a6o Title X. Copyhold. Ch. iv. § 5c — 53. 8 Rep. 106 3. § 50. If a heriot be due, by the cuflom of the manor, upon the death of the tenant, and the lord purchafes part of the tenancy ; fuch purchafe will not extinguifli the lord's right to a heriot ; for the tenant 13 ftill within the lord's homage. Snag V. Fox, § 51. Where a copyholder is bound to pay a Palm. 342, hej-iot, and he conveys part of his copyhold to one perfon, and part to another, the heriot will be mul- tiplied, Bro. Ab.Tlt. § 52. In the cafe of heriot cuftom, the lord may Henots, 2, 3. ^^j^^ ^^^ ^^^ ^^^^ ^£ ^j^g tenant, or whatever is due as 2 InCt, 131. r 1 • • 1. • 1 • u i\uflinv. a heriot, wherever he can find it, either witnin the ? s"a"k!'356. manor or out of it, even on the highway, Parl ^ ^ n c \. tbeCuftom. manner prelcnbed by the cuitoni or the manor in which they are fituated ; and any other mode of alien- ation will operate as a forfeiture. Thus, fays Littletoriy (f. 74.) if a copyholder aliens by deed, it is a for- Gilb. Ten. feiture ; for a copyholder being only a tenant at '^^' will, fuch an aft would amount to a determination of his will. I Tnft. 59 a. % 6- Lord Cole fays, that if a copyholder makes ^r-K r a charter of feoffment, or a deed of demife, for life, Co. bpp. 1.10. without giving livery of feifm, it is no forfeiture ; be- caufe nothing paiTes. According Title X. Copyhold. Ch. v. § 6—8. 363 According to Roll, though livery is not made, yet i Roll. Ab. the feoffment is a forfeiture, if there be a letter of at- ^^ /^ _ torney to deliver feifnx ; becaufe then the feoffee may at any time perfect the conveyance. And he thinks that Lord Coke ought to be underftood with this dif- tinclion. Mr. Hargrave does not acquiefce in Roll's dodrine ; *' For (fays he) the criterion of forfeiture of a copy- " hold by alienation feems to be, the aftual paffing of " an unlawful eftate, to the lord's prejudice ; and in " the cafe of the feoffment, no intereft can pafs until " livery, nor is it flriclly true that the feoffee may at ^' any time perfect the conveyance ; for it is poffible " that, before livery, the feoffor may revoke the power *'• of attorney, or the attorney may die, or refufe to ^' execute the authority. § 7. It is alfo faid in Roll's Abridgement, that if a i Roll. Ab. copyholder bargains and fells his copyhold to another 5° • P- ^ »• in fee, it is a forfeiture, although the deed be not in- Co.Sup.f.io. rolled. But this doctrine has been frequently denied to be law ; for a copyhold eftate, not being within the Statute of Ufes, does not pafs by fuch a con- veyance. § 8. A leafe for years of copyhold lands by inden- Making ture, or by parol, is a forfeiture ; unlefs there be an trarvtoThe" exprefs cuflom to warrant it, and that cullom muft be ^I'l^o^. . , jackman v. time out of mmd. HQddeiU)n, Cro. Eliz. 35'- S 9. By •564 Titled. Copyhold. Cb.v. §9 — 12. 4 Kep. 26 J. § 9. By the general cuftom of all manors, a copy- AVeiicn-er," holder may make a leafe for one year. But where a I Roll. Ab. copyholder leafed his copyhold for one year, and fo Cio. J. I. 308. from year to year, during the life of the leiTor, referving to the leffor in every year the 25th day of March ; it was held to be a forfeiture ; for it w^as a leafe for two years at leaft, referving one day, fo that a greater eflate than for one year paffed in intereft ; and the referv- ing a day in every year was but a fliift to avoid the forfeiture. Matl'ewsv. § 10. A copyholder agreed to make three feveral iRo!'l°\b. leafes by indenture, one to commence after another, 508. pi. 10. there beinsc two days between the end of the firft and Cvo.Car.233. Gilb. Ten. the commencement of the fecond, and fo between the ^^^* fecond and the third ; and made them accordingly, and fealed them at the fame time : this was held to be a forfeiture ; for it was an apparent fraud, and a greater eflate than for one year paffed prefently. A covenant § !!• Where a copyholder made a leafe for a year iTi-'ll enioy only, according to the cuftom, and covenanted that, IS no For- ^ffgj. o^Q ej^(j Qf ii^Q year, the leffee fhould have and feiture. Mountague's ^^PJ ^^^ ^^"^^ lands for another year, and fo de atDio cafe, Cro. Ja. lyi annum for ten years, it was held by Telverton to be no fuch leafe as would make a forfeiture ; becaufe the leffee had a lawful eftate but for one year only ; and ' the court agreed with him. Ten. 233. § 12. Lord Chief Baron G/V^fT/ feems, in the firft inftance, to doubt this cafe, for " the words covenant '.*, and Title a. Copyhold. CZ;. v. § 12, 13. 365 " and grant make a leafe," &c. He afterwards, how- ever, fays ; " But, in another cafe, it was held that " thefe words by conflruction might make a leafe, " where the lands might be let ; bat otherwife, where " the lands could not be let : which diflinclion feems " very reafonable, for the words themfelves do not " import a leafe ; and it would be a very injurious " confl:ru6lion to make them a leafe, and fo a forfei- *' ture, vv'hen they only import of themfelves a cove- " nant." It is faid 'm.Bacoii' s Abridgement, Tit. Leafe, (1.6.), that in fuch a covenant it would be better if it were worded, to permit andfiiffer the lelTee to have, hold, and enjoy the lands in fuch manner ; for a covenant in that form, even of freehold lands, will not amount to an immediate leafe, becaufe the words, permit andfiiffer, prove that the eflate is ftill to continue in him from whom the permiffion is to come ; for, if any eflate thereby pafled to the covenantee, he might hold and enjoy it without any permiffion from the covenantor ; and, therefore, in fuch cafe, the covenantee hath only the bare cove- nant for his fecurity of enjoyment, without any actual eflate made over to him. § 13. Mr. Hargr/tve appears to acquiefce in this ilnft. 59^. doclrine. " Becaufe, (fays he), though in general a " covenant amounts to a leafe, yet it feems harfli to " give fuch a conllrudion, where a leafe amounts to a '*^ forfeiture, and the intention of the parties may have " efFecl by way of agreement 5 and, in a modern cafe, « it ^66 ; Title X. Copyhold. C/^. v. § 13— iS. Eocv.Clnrf, ' Though the fine affeffed be reafonable, yet cafe, ■ ^ . . . . J 3 Rep. I. the lord mufl appoint the time and place where it is to be paid ; becaufe it flands upon a point of forfeiture ot the eftate ; and the copyholder is not obliged to carry his fine always about him. But, as to a fine certain, the Title li. Copyhold. Ch.x, §35-39- 375 the copyholder is obliged to pay it immediately upon admittance. § ^6. If a copyholder is bound by his tenure to the Kcfufal to payment or a certam yearly rent to tne lord, and he '' . . Co. Cop. refufes to pay fuch rent, he will forfeit his copyhold, f. 57. Such a refufal muft, however, be founded on an idea, ^^^. ' '^"' that the lord has no right to the rent, which implies a difclaimer of the tenure. For if the copyholder ad- mits the lord*s claim to the rent, but fays he has no money, or makes any other excufe of that fort^ it is no forfeiture. § 2)7' If a copyholder be abfent w^hen the lord de- Crlfpv.Frecr, mands the rent, and no perfon is there to pay it, which ^°* ^^' is a refufal in law, yet the court doubted whether it was a forfeiture, as it did not amount to a voluntary refufal : and two of the judges faid, there ought to be j^^^_ ^.^^ a demand from the perfon of the copyholder to make ^'''^" "^'^"• 22J. a forfeiture. § 38. Where the eflate of a lord of a manor ceafes § Rep. 92 a. by limitation of a ufe, and is thereby transferred to another perfon, who demands rent of the copyholder, and he refufes to pay it, this is no forfeiture, without notice given to the copyholder of the alteration of the ufe and eflate. § 39. With refpe(5l to the perfons who are capable who may of committing or incurring a forfeiture of copyholds, ^'^" Lord Coke fays, that none but perfons of found mind J'^' ^^' and underftanding can forfeit ; fo that no act done by B b 4 an ;7o Title X. Copyhold. Ch. v. § 39 — 42. an Idiot, lunatic, or infane perfon, will operate as a forfeiture of a copyhold. § 40. By the flatute g Geo. i. c. 29. f. 5., it is en- acted, that no infant or feme covert fhall forfeit any copyhold mefluages, tjfc. for their neglefl: or refufal to come to any couri; or courts to be kept for any manor whereof fuch mefluages, ts'c. are parcel, and to be ad- mitted thereto ; nqr for the omiffion, denial, or re- fufal to pay any fine impofed or fet on their admit- tances. § 6. Provided, that if the fines fo impofed fhall not be warranted by the cuflom of the manor, or fhall be unlawful, that then fuch infant or feme covert fhall be at liberty to controvert the legality of fuch fine or fines. Extent of § 41. A forfeiture, in general, only extends to the copyhold in which the acl has been done. For if a Taverner v. Cromwell, copyholder be feifed of black-acre by the rent of 3 J., Gilb^Ttn'^" white-acre by the rent of 4 c/., and green-acre by the 2i7« rent of 6ane's cafe, Tin rr w I Leon. 17c. ftranger, for years, and the ftranger afligns over m$ o term Title J.. Copyhold. Ch.\i,^y — lo. 3S7 term to the copyholder, this will extinguifh the copy- hold ; for both thefe interefls cannot exifl in the fame perfon, Jnml et femeU and, confequently, one of them mufl be determined, which, of neceflity mufl be the cuftomary eftate ; for the eflate, at common law, can- not merge in that ; and, when common law and cuf- Hide v. tom come together, and one or the other mufl necef- Mqo, 185. farily ftand, the common law fhall be preferred, and take place before the cuftom. § 8. The next mode of extingulfhing a copyhold Enfranchife- eflate is by enfranchifement, by which the tenure is "^^"^* changed from bafe to free. This may be done by the lord's releafing to the copyholder his fignoral rights and fervices, by which the tenure betv/een the copy- holder and the lord is extinguifhed ; and as the copy- j j^ft. 270/^^. holder was tenant at will to the lord, which created a Vide Tit. 32. privity between them, the releafe enlarges his eflate, and gives him the freehold. § 9. We have feen, that a conveyance of the free- Vide f. 6. hold by the lord to the copyholder extinguiOies the copyhold \ for in faft it operates indirectly as an enfran- chifement, becaufe a freehold and copyhold tenure cannot fubfift together, and confequently the lefs v/orthy, that is the bafe tenure, becomes merged in the freehold, § 10. Where a copyhold is enfranchifed, either by Lit. r. 146, a releafe of the fervices, or a conveyance of the free- hold to the copyholder, the premifes are fevered from the manor, and will, for the future, be held of the C c 2 lord ^^S Title X. Copy hold, Cb.vi. § 10—12. lord paramount, by the fame fervices as thofe by which they were held of the lord by whom they were en- franchifed. § It. When a copyhold eflate is enfranchifed, all fervices and renders to which fuch copyhold eflate was fubje61: previous to the enfranchifement, become ex- tinct and gone ; nor can the lord of a manor, upon enfranchifement, referve to himfelf the antient fer- vices ; for the tenant, in confequence of the enfran- chifement, mufl hold of the fuperior lord, and not of the lord who enfranchifes. Bradfhaw v. Lawfon, 4 Term Rep. 443- § 12. In an action of debt to recover is. 6 d.^ m which fum the defendant was amerced for not attend- ing a court baron, it appeared that the defendant was feifed of 14 acres of land, which had formerly been held of the manor whereof the plaintiff was lord, by copy of court roll. But that in 18 Jac. i., the then lord of the manor made a feoffment of the land to the then copyholder, referring a yearly rent, (which was flated in the deed to be the antient yearly rent), for all man- ner of fuits, fervices, and demands whatfoever. The queflion was, whether the owner of this land was bound to attend the plaintiff's court. Lord Kenyon obferved, that the principal queflion was fettled by the flatute of quia e?nptores, 18 Edw. i., for after that Ilatute, the lord could not by any deed referve the old fervices, when he conveyed away the eflate in refpe^l of which thofe fervices were due ; as 8 the Titled. Copyhold. Ch. \i. §12 — 15. 389 the tenant mud hold of the fuperior lord. By the conveyance, the eftate was no longer parcel of the manor, nor held of the manor, neither was the defen- dant's ancellor any longer a tenant of the manor; therefore, it was clear that the defendant was not bound to attend the plaintiff's court as a tenant of the manor. § 13. The lord of a manor who enfranchifes copy- Ante, ch. i. holds, mud either be feifed in fee, or have a power " ^ * to convey the fee-fimple of the lands to the copyholder, in order to enable him to enfranchife them. § 14. Although a copyholder fliould only have a particular eftate in his copyhold, yet he may take an enfranchifement which fhall be deemed abfolute. But in a cafe of this kind, the enfranchifement fhall be for the benefit of the perfons in remainder, who would have taken the copyhold interefl in cafe there had not been an enfranchifement ; and a court of equity will Wynne v. accordingly direft a conveyance from the heirs at law j g^o Rep. of the particular tenant, to the perfons in remainder, S^S- zded. on their paying a proportionate part of the confidera- tion advanced for the enfranchifement. § 15. We have feen, that whenever lands which when th Lands ceafc to be de- have been held by copy of court roll have ceafed to be demifed or demifable by copy, they become incapable of mifable by being ever granted again by copy j fo that, in faft, the copyhold is extinft. C c 3 ^ § 1 6. There oQo Title X. Copyhold. Ch.v'u § i6 — iS. Sufpenfion of § i6. There are feveral cafes in which copyholds °^^ ' ^ ' are fufpended only for a certain time, and not abfo- lutely extinguiflied. Thus, it is faid, that where a perfon who holds a copyhold eftate becomes king, the copyhold is fufpended ; for it would be beneath the dignity of a king to perform fuch fervices as thofe to which copyholds are fubjed. But after his deceafe, the next perfon who becomes entitled to it, (not being a king), fhall hold by copy, in the ufual manner, and the tenure be revived. Co.Siip. f.8. g ly. Where a copyholder married the lady of the Eliz. 8. ' manor, it was held that this operated as a fufpenfion of the copyhold during th9 marriage only, and was not an extinguifhment. 1 Rep. 31 ^. § 18. Where a copyholder took a leafe for years of the manor of which he held, it was refolved that the copyhold was fufpended, becaufe no perfon can be lord and tenant at the fame time. But that the lelfee might grant it again as copyhold. TITLE ( 391 ) TITLE XL USE. CHAP. L Of the Origin of Ufes. CHAP. IL Of the 'Nature and S^mlities of a life before the Statute 27 Hen, 8. CHAP. IIL Of the Statute 27 Hen. 8. of Ufes, CHAP. IV. Of the ?nodern Do^rine of Ufes, CHAP. L Of the Origin of Ufes, I I . Origin of Ufes. 5. Of the Fidei commijjum. SI. furifdidion aff'umed by the Chancellors over Ufes. 13. Invention of the Writ of Subpana. SeQiion i. 'TpHE original fimplicity of the common law admit- Origm of ted of no immediate eftate in lands, which was "" not clothed with the legal feifm and pofielTion thereof. But, in procefs of time, a right to the rents and C c 4 profits 392 Title X\. Ufe, C^.i. §i— 4. profits of lands, whereof another perfon had the legal feifm and poffeffion, was introduced ; and, though not recognized for a long time by the courts of common law, was, notwithftanding, fupported by the Court of Chancery, and became ;Well known by the name of §.2. The introdudion of this novelty has been at- tended with the moft ferious confequences : and though, at firll:, it appears to have been but a trivial innovation, yet, in its progrefs, it has in fa6l produced a revolution in the fyftem of real property, and intro- duced a mode of transferring land, very different from that which the old law had originally eftablifhed. § 3. A ufe was created in the following manner : The owner of lands conveyed them by feoffment, with livery of feifm, to fome friend j with a fecret agree- ment, that the feoffee fhould be feifed of the lands, to the ufe of the feoffor, or of a third perfon. Thus, the legal feifm was in one ; and the ufe, or right to the rents and profits, in another. § 4. It would be a matter of confiderable difficulty, ' to afcertain the precife time when this diflindion be- tween the legal feifm, and the right to the rents and profits, was firft introduced. It is, however, certain, that the practice of conveying lands to one perfon to the ufe of another, did- not become general until the Bac. Read ^'cign oi Edw. 3,, when the ecclefiaflics adopted it, in Edit 1781: order to ey^-de the ftatutes of mortmain, by procuring p- 22. conveyances of land to be made, not diredly to them- 1 Rep. 123 a. r 1 lelves. Title XI. Ufe. Cb. I § 4—6. 393 felves, but to fome lay perfons ; with a fecret agree- ment, that they Ihould hold the lands for the ufe of the ecclefiaftics, and permit them to take the rents and profits. § 5. The idea of a ufe, and the rules by which it Of the Fidti was firfl: regulated, are now generally admitted to have been borrowed by the ecclefiaftics, from the /"i^f/ co;;2- ,^/ mijfum of the civil law. It will, therefore, be necef- fary, to give fome account of that fubjed. By the Ro?nan law, a great number of perfons were vin, ad Inft. incapable of being conftituted heirs, or even of taking Lib.z.T. 23. a legacy, under the teftament of a Roman citizen; fuch as exiles, unmarried perfons, thofe who had no children, l^c. In order to evade this law, it became ufual for teftators, to conftitute fome perfon their heir who was capable of inheriting ; and co annex a requefl to the devife, that the perfon thus conftituted heir, fhould give the inheritance to fome other perfon who was incapable of taking under the will. " ^ibus Ju(L Inft. " enimnon foierant hareditatem vel legata relinquere^ ft f j] * " relinquebant, jidei comniittibant eorum qui capere ex " tejlamento poterant hareditatem.''* § 6. This was called a Jidei commijfum^ of which, id. f. 2. yujiinian, in his Injlitute^ has preferved the form : *' Gum igitur ahquis fcripferit, Lucius Tit i us hares ejio^ " potejl adjicere, rogo te Luci Titi, ut cum primum poteris " hcereditatem Jiicam adirc^ earn Caio Seio reddas rcjii- " tuas" The perfon thus conftituted heir, was called hasres Jiduciarius j and the perfon to whom the tefta- tor 394 ^^'^^^ ^I- W^' ^^^' '^' § 6—8. tor direded the inheritance to be given, was called h(zres Jidei commijfarius. § 7. In cafes of this kind, the h(zres jidei co?nmiffa- ritis had only what the Roman lawyers called a jus precariuniy that is, a right in curtefy, for which the remedy was only by entreaty or requefl; ; fo that the hares Jidiiciarius was under no legal obligation of com- Id. f. I. plying with the diredions of the teflator. " Et ide9 " JideicommiJJa appellatafunt^ quia nullo vinculo juris, " fed tantum pudore eorum qui rogabanturj contineban^ <« turr § 8. Thus flood the Ro?nan law refpecling \he Jidei commijfum for fome centuries ; during which time, feveral frauds were committed by thofe, who being conftituted heirs, with a direction to give the inheritance to fome other perfon, refufed to execute the truft repofed in them by the teflator, and converted the property to their own ufe. But Augujlus having been conftituted heir in the teftament of Lucius Lentulus, with a requeft to give the inheritance to the daughter of the teftator, he confulted all the eminent lawyers at Rojne, and, in purfuance of their advice, executed the truft as the jnrt. Inft. teftator had direfted. " Nam cum (^L. Lentulus), de- >.ib.2.T.25. Proem. " cederet in Africa, fcripjit codicillos teftamento conjirma- " toSt quibus ab Augufio petiit per Jideicommiffum ut " faceret aliquid ; et cum D. Auguftus 'voluntatem ejus ♦' implejfety deinceps reliqui, ejus audoritate?n fequutiy ^' Jidei commifja preftabant : et Jilia Lentuli kgata, qucs *' jure non dcbebat, folvit." § 9. It Title Ti. life. C/a i. § 9—1 1. 395 § 9. It is natural to fuppofe, that this example would have a confiderable influence over thofe who afterwards happened to be in the fame fituation. AuguJIiis^ how- ever proceeded a ftep farther, and direfted the confuls to take cognizance of all future cafes of this kind. " J^ilJ^^ confiillbus auBoritatemfuam interponere." And Inft. Lib. 2. as the pradlce of creatingy^Jr/ commijfa increafed under ^*'^'^3- • i' the emperors, Clat^dian appointed two magiftrates for the fole purpofe of determining cafes of this kind, who ^ere thence called fr^tores fidei comm'ijfari'u § 10. yzy?//z/<2;z completed this fyflem, and extended the rights of the h becaufe the cejiuique ufe had no legal feifin of the land. This was a grievance much complained of; and, therefore, it became cuitomary, when mod eftates in the kingdom were vefled in feoffees to ufes, to fettle fome eftate before marriage on the hufband and wife for Title XI. Ufe. CL li. § 32—36. 413 for their lives, which, as we have feen, gave rife to Tit. y.ch.i. modern jointures. § 33. A ufe was not extendible, becaufe there was Ufes not no procefs at common law but againfl legal eftates ; and ufes were only creatures of equity, againfl which there was no common law procefs ; nor could ufes be confidered as aflets in the hands of executors, becaufe they defcended to the heir. § 34, Ufes were devlfable, although, at that time, ufes were lands were not ; and Lord Bacon obfcrves, that one of the reafons why fo much land was conveyed to ufes ^ J^^. p.^i°2\ ^, was, becaufe perfons acquired by that means a power of difpofmg of their property by will ; which enabled them to make a much better provifion for their family than they could otherwife have done. % 2>S' ^^^ ^^ ^^ ^^'^ ^^^^^ ^^ ^^^ Year Books re- MIcli. fpeding ufes was, a woman who had made a feoffment ^ ^* '^ to ufes, afterwards married, and devifed that her feoffees Ihould convey the legal eftate to her hulband. It was adjudged, that the will was void at law, being made by a feme covert ; and, therefore, fhould be alfo void in Chancery. § 36. There was, however, one inftance In which ufv^s were the chancellors followed the rules of the common law. ^ ^^^ ^ ^* Ufes defcended in the fame manner as legal eftates, iinft. 14/, and the doftrlne of the half blood was allowed to take place. Even local cuftoms were left unvlolated in this inftance j for if a ccjluiqiie ufe of lands held in gavel- kind 414 Title ^l. Ufe. C/j. ii. § 36— 38. kind or borough EngliJJo died, leaving feveral fens, the ufe defcended, either to all the fons, or to the eldefl,^^ according to the cullom. 2 Roll. Ab. % ^J' So, where a perfon, feifed ex parte maternal made a feoffment to ufes, the ufe defcended to hit heirs ex parte materna, in the fame manner as the legj eftate would have done. Incrnvcnl- § 38. Thus flood the do^lrinc of ufes as it was re- UIcs.* "^ gulated and fettled by the Court of Chancery ; and in this flate it was, in fome inflances, applied to very ufe- ful purpofes, by removing the rellraints on alienation, and enabling the proprietors of real property to exer- cife feveral powers over it, which were not allowed by the rules of the common law. But ufes foon became fo general, and were applied for fuch bad purpofes, that, at length, they were pro- dudive of very great grievances. Feoffments to ufes were ufually made In a fecret manner, fo that, where a perfon had caufe to fue for land, he could not find out the legal tenant, againft whom he was to bring his precipe. Heirs were frequently difmherited by means of feoffments to the ufe of a perfon*s lafl will ; widows were deprived of their dower, and hulbands of their tenancy by the curtefy. The king and the feudal lords loH the profits of their tenures ; their fines for aliena-. tion, wardships, marriages, heriots, and reliefs : and an univerfal obfcurity and confufion of titles prevailed, by which means, purchafcrs for a valuable confidera- tion were frequently defrauded. S 39' To Title XL life. C/j. il. § 39. 4^5 € 'jg. To remedy thefe inconveniencles, feveral fta- Statutes made '''-'•' •' 1 r 1 *" remedy tutes were made, to fubjeft ufes to the fame rules as \\ica\. legal eftates. By the ftatute 50 Edw. 3., it was en- adled, that where perfons conveyed their tenements to their friends, by collufion, to have the profits at their will, their creditors fhould have execution of fuch te- nements as if no fuch gifts had been made. Two other flatutes of the fame kind were made, i Rich. 2. c. 9., and 2 Rich. 1. ftat. 2. ^3. By the ftatute i Rich. 3. c. i , reciting, that by privy and unknown feoiFments, great infecurity, trou- ble, cofls, and grievous vexations daily grew, it was enaded, that all afts and conveyances made by per- fons having only the ufe of lands fhould be good and efFedual, not only againll the perfons making fuch. ads, but alfo, againll all perfons having or claiming any eftate or intereft in the fame, to the ufe of thofe who fhould make fuch a6ts. By the flatute i Hen. 7. reciting^ that when divers of the king's fubje£ls having caufe of aclion by for- medon, Iffc. be defrauded and delayed of their faid adions, and oftentimes without remedy, becaufe of feoffments made of the fame lands and tenements to perfons unknown, ^c. it was enafted, that the de- mandant, in every fuch cafe, fliould have his adion againfl the pernor or pernors of the profits of the lands I or tenements demanded, whereof any perfon or per- fons had been enfeoffed to his or their ufe. By 41 6 Title 'LI. Ufc, Ch. II. §39. By the Itatute 4 Hen, 7. c. 17., It was ena6:ed, that if any perfon or peil'ons fliould be feifed of any eftate of inheritance, being tenant immediate to the lords of any caftles, Iffc, holden by knight fervice, to the ufc of any other perfon or perfons, and of his heirs only, he to whofe ufe he or they be fo feifed dieth, his heir being within age, no will by him declared, nor made in his life touching the premifes, the lord of whom' fuch caftles, Is'c. be holden immediately, fhould have a writ of right of ward as well for the body as for the land, as the lord fhould have had if the fame anceftor had been in polTellion of the eftate fo being in ufe at the time of his death, and no fuch eftate to his ufe made ; and that, if any fuch heir be of full age at the death of his anceftor, to pay relief as his anceftor whofe heir he is would have paid if he had been in pof- feffion of that eftate, fo being in ufe at the time of his death, and no fuch eftate in his ufe made oi? had. By the ftatute 19 Hen. 7. c. 15., it was enacted,- that it fhould be lawful for every fheriff or other offi- cer to whom any writ or precept fliould be dire£led at the fuit of any perfon or perfons, to have execution of any lands, tenements, or other hereditaments, againft any perfon or perfons upon any condemna- tion, flatute, merchL-nt, 'ks'c. to make and deliver execution unto the party in that behalf fuing, of all fuch lands and tenements as any other perfon or perfons be in any manner of wife feifed to the only ufe of him, againft whom execution was fo fued. TITLE ( 417 ) TITLE XL USE. CHAP. IIL Of the Statute 27 Hen. 8. of Ufes, Injlcrv cf the Statute. Statiuc cf Uj'i-s. Ir.teT.i'wTi of the Statu*:. Circumjiiuices necefary to the Opsn'tioii cf thd Statute. Ill, A Pcifn ffed to a JVhat Perfonr, may he Je'ifed to Ufa. 13- 14. 22. 25. 29. 39- 40. Ofr^vhal Efate. An Efate Ihll. An EJinte for Lfe. What Kind of Property may he cowjeyed to Ufes. 2 dJy, A ceftmque Ufe in EJ/e. 'i,dly, A 'Ufe in Ejfs. Saving of all former EJlates, Seftion i. IhJOTWITHSTANDING the variety of ilatutes by Killoryof which it was endeavoured to make ufes fubjed ^^^ Statute. to the rules of the common law, yet means were found of evading them ; particularly in cafes of wardfnips, marriages, and reliefs. For in the ?i?lMtQ 4. Hen. y : ^^^^ ^1^^. for enabling lords to have the w?vrdfhip of perfons f-4o- entitled to a ufe only, an exception was inferted where the anceilor had made a v/ill, of which many perfons 6 Rep. 76 a, took advantage, to the great detriment of the lung, and the chief lords. § 2. King Henry 8th, in the 23d year of his reign, Bumct's Hlft. caufed a bill to be drawn to moderate, not to remedy ^ ^^^^^ *^ * ^' altogether this abufe ; he was contented that every Vol, L E e man .i8 Title HI. Ufe. Ch. iii. § 2. man fhould have the Hberty of difpofing in this manner of half his land ; and he told the parliament in plain terms, if they would not take a reafonable thing, when it was offered, he would fearch out the extremity of the law, and then would not offer them fo much again. The lords came willingly into his terms, but the com- mons rejected the bill ; in confequence of which the parliament was prorogued (a). The king made good his threats ; he called together the judges and ableft lawyers, who argued the cjueftion in Chancery, and agreed, that a mian could not devife any part of his land in prejudice of his heir. (_^a) Jufiice Harper gives the following hiftory of the ftatute of iifes : *' And as to the making of the ftatute 27 Hen. 8. the truth is, *♦ that the king was difpleafed for the lofs of wardfhips, and other *' injuries done to him ; for which caufe he complained to the judges *' of the defecl of the law in that cafe, who thereupon fliewed unto ** the king the caufes of thofe injuries and lofTes to the king ; and •* further fliewed to the king, that if the pofTefTion might be joined *' to the ufe, all would go well, and all the injuries, wrong, and lofs *' which came to the king, by reafon of fuch ufes, wills, and fecret ** feoffments, would be avoided. For which the king commanded " his council to frame a bill to that purpofe, and prefent it to the " houfe of commons in the 24th year of his reign ; but it was then *' rejefted, and the king at that time would have been contented " that the fourth part of the land only fljould defcend. And from thaj ** time the king flayed further proceedings in the faid caufe, until *' 27 Hen. 8., at which time it took effeft : and their care was t9 '• pen the flatute fo precifely that nothing fhould be left in the '* feoffees, but that the whole ellate fhould be executed by the fta- " tute, fo as the faid flatute did utterly tiike out all from the " feoffees." 2 Leon. Rep. 17,18. No Title XL Ufc, Cb. iii. § 2— '4. 4^9 No account of thefe arguments is to be found irt the Year Books, nor do 1 believe they are mentioned by any legal writer ; but it is probable that this de- termination only related to a devife of land, and not to that of a ufe ; fo that all the inconveniencies arifmg from the piadice of devifing ufes, ftili con- tinued. § 1. The mifchiefs that refuked from feoffments to Statute of ufes increafed every day ; and at length it became ab~ folutely neceffary to apply a fufficient remedy to thefe diforders. This was effecled by the ftatute 27 Hen. 8. ch. 10. intitled. An act conceniing ufes and zoills, and lifually called tbe Jiatuie of tfs, reciting that, by the common law, lands Vv'ere not devifable by will, nor ought to be transferred but by livery of feifm ; yet neverthelefs divers and fundry imaginations, fubtle in- ventions and practices had been ufed, whereby the hereditaments of the realm had been conveyed by frau- dulent feoffments, fines, recoveiies, and other alfur- ances, and alio by wills and teflaments ; by reafon whereof heirs had been unjuftly difmherited, the lords had loft their v/ards, marriages, reliefs, hcriots, efcheats, aids ; married men had loft their tenancies by the curtefy, and widows their dower j manifeft perjuries were committed, ^^r. § 4. It is therefore enacted, " That where any per- f. 3, " fon or perfons ftand or be feifed, or at any time *' hereafter fhall happen to be feifed, of and in any *' honors, manors, lands, tenements, rents, fervices, re-- ** verfions, remainders, or other hereditaments, to the E e 2 *' ufe. 42^ T'itle XL Ufc. C/j. iil. § 4. " ufe, confidence, or trufl of any perfon or perfons, or " of any body politic^ by reafon of any bargain, fale, " feoffment, fine, recovery, covenant^ contrad:, agree- *' ment, will, o? othervi-Ife, by any manner or means " whatever it be, that in every fuch cafe, all and every " fuch perfon and perfons and bodies politic that have, " or hereafter (hall have, any fuch ufe, confidence, or " trufl:, in fee fimple or fee tail, term of life or for *' years, or otherwife, or any ufe, trufl, or confidence " in remainder or reverfion, fliall- from thenceforth " ftand and be feifed, deemed, and adjudged in lawful " feifm, eflate, and poiTcfiion, of and In the fame '' honors, caflles, bV. to all intents, conflructionSy " and purpofes in the law, of and in fuch like eflates, " as they had or lliall have in ufe, trufl, or confidence *« of or in the fame ; and that the eflate, right, title, " interefl, and poifefTion that was in fuch perfon or *' perfons that were or hereafter fliall be feifed of any " lands, tenements, or hereditaments, to the ufc, con- *' fidence, or trufl of any fuch perfon or perfons, or of " any body politic, to be from henceforth clearly " deemed and adjudged to be in him or them that ** have or hereafter fhall have fuch ufe, confidence, " or trufl, after fuch quality, manner, form, and con- *' dition as they had before in or to the ufe, confidence^ " or truft that was in them. J..^ " Where divers and m.any perfons be or hereafter " Ihall happen to be jointly feifed of and in any lands, " tenements, rents, reverfions, remainders, or other ** hereditaments, to the ufe, confidence, or trufl of nny ^ of them, that be fo jointly feifed. tliat In every fuch ** caf?,, T%tk XL Uft\ Ch. ill. 5 4, 5. 421 " cafe, that thofe perfon or perfons which have or here- " after fliall have any fuch ufe, confidence, or truft, in *' any fuch lands, l5'c. fhall from thenceforth have and " be deemed and adjudged to have only to him or *' them that have or hereafter Ihall have any fuch ufe, *' confidence, or truft, fuch edate, poiTefTion, and feifm, ■** of and in the fame lands, tenements, feV. in like *' nature, manner, form, condition, and courfe as he or ^' they had before in the ufe, confidence, or truft of *' the fame lands, tenements, or hereditaments. " And where div-^rs perfons ftand feifed of any lands, f. 4.. ^' to the ufe and intent that fome other perfon fhall re- " ceive a rent out of the fame lands, in every fuch cafe " the perfon having fuch ufe and intereft to have the ** fame rent, fhall be adjudged and deemed to be in ^' poffeffion and feifm of the fame rent, of and in fuch " hke eflate as he had in the ufe of the faid rent." § 5, It is evident from the words of the flalute, intention of that the intention of the iegiflature was, entirely to *'"^ Statute. abolifh ufes, by deftroying the eflate of the feoffees to ^ '^^' ^ ^^ ufes, and transferring it from them to the cejiuique ufe ; by which means, the ufe fhould be changed into a legal eftate. And the operation of the flatute has fo far anfwered the intention of the makers of it, that no ufe upon which the flatute is allowed to operate, can exifl in its former flate for more than an inflant, as the legal feifm and poffeffion of the land mufl be- come united to it immediately after its creation. Ee- 5 6. It ^^22 Title XI. Ufe. Ch. iii. § 6—9. § 6. It therefore followed, that where this flatute operated, lands conveyed to ufes could never, in fu- ture, become liable to the charges or incumbrances of the feoffees ; but, on the other hand, they would be always fubjed to the charges and incumbrances of the cejiuique ufe, and to all the rules of the common lav/. So that they ceafed to be devifeable, and, by that means, the great object of Hen. 8. vvas attained -^ which was to preferve his right to wardfliip, and other feudal profits, out of the lands of the nobility. .Ci-cnm- § 7. There are three circumftances neceffary to the laTy'to the"^' execution of a ufe by this flatute : ift, A perfon feifed Operation of ^q the ufe of fome other perfon : 2d, A cejiuique ufe the Statute. . _. „ . Re 1-6 a ^''^#/ ^^^'^J 3^' ^^ ^^^ ^'^ ^^' "^ pofieflion, remam- der, or reverfion. J lit, A Per- 5 8. With refpecl to the flrfl of thefe circumflances, iV,n fcifcdto fi^j. words of the flatute exprefsly require it, " When " any perfon or perfons fland or be feifed, or at any *' time hereafter, fhall happen to be feifed of any <' honors, b'V. to the ufe, confidence, or trufl, of any ?« other perfon or perfons." It v/ill, however, be ne- cefHiry, in this place, to inquire, firfl, what perfons are capable of being feifed to ufes ; and, fecondly, of what edate or interefl they can be feifed to ufes. What Per- § 9- All perfons who were capable of being feifed to foM.maybe ^^^ ^^c^^^ ^T^^, (|.^tute may fl-ill be feifed to a vSc\ leilcd to Ufes. and, on the other fide, all thofe v.ho v/cre incapabb of being feifed to ufes before the flatute, fall labour under the fame incapacity. S i^- It? Title Tl. Ufc. Ch/nu § 10—12. 423 § 10. It has been dated, that neither the king nor Ante, ch. i. queen could, before the ftatute, have been cejiuique ufe ; or rather, were not compellable to execute the ufe. This law continued after the fl^tute ; and a fin- gular cafe arofe in 35 Eliz. refpeding the prerogative of the crown to hold lands difcharged of all ufes. 5 II. ^.committed high treafon in 18 Elh., for Pimb's cafe, which he was attainted in 26 Eliz. by trial. Between , ul^ i\a the treafon and the attainder, a fine was levied to him "• ?• by B. of certain lands to the ufe of B. and his wife, (who was fiiler to A.) and of the heirs of the faid B. ; aftervv'ards B. and his wife bargained and fold the lands to J. S. for money. Upon difcovery of the treafon and the attainder ofv^., the purchafer J. S. Vvas ad- vifed by Plowdcn and Popbam^ and many others, that the eflate of the land was in the queen ; becaufe the queen is entitled to all the lands that traitors had, at the time of the treafon, or after. So the ufe which was declared to B, and his wife upon the fine, was void, by the relation of the right of the queen under the attainder : and the queen muft hold the land, dif- charged of the ufc, becaufe (he could not be feifed to a ufe. It is but juftice to mention, that the cafe being" re- prefented to queen Elizabeth, flie granted the land to the cejtiiique ufe, by patent. § 12. By the very words of the ftatute, which are, Bac. P.. 42. " any perfon or perfons," aliens and corporations are ^ "^"'^^^' '" incapable of bdng feifed to a ufe. And therefore, it Dy"?,'2t;3°^! E e 4 was 4^4 Title W. life. Ch.m. §12—15, was determined in a cafe reported ty Dyer, that where an alien and a natural born fubject were enfeoffed to ufes, the moiety of the alien flrould, upon office found, become veiled in the crown. Of what ^ i^. With refped to the eflate or interefl of which iilbte a Per- "^ ^ \ fon may be a perfon may be feifed to a ufe, the words of the fta- ^rl^ ^° tute are : " V7here any peifon or perfons (land or be " feifed, or at any time hereafter fhall happen to be " feifed." Now, the word feifed extends to every fpecies of eflate of freehold ; although it appears to have been the general opinion, before, and immedi- ately after the pafTmg of this ftatute, that all feoffees to ufes muft have been feifed in fee-fimple. EflatsTail. § 14. It was form.erly much doubted, whether a Cent. 5. tenant in tail could be feifed to a ufe ; and Jenkins dates it as a point determined by all the judges, that a tenant in tail cannot be feifed to a ufe either expreffed or im- plied. I ft, Becaufe the tenure creates a confidera- tion : 2dly, Becaufe the ftatute De Donis has fo appro- priated and fixed the eflate tail to the donee and the heirs of his body, that neither he nor they can execute the ufe. § 15. The cafe cited by Jenkins m fupport of this doctrine, is that of Cowper v. Franklin, which arofe in Cro, Ja. 400. 12 Jac. i., and is thus reported by Croke. — John Wal- ter being feifed in fee, made a feoffment to Thomas Walter, habanduni to him and his heirs of his body, to the ufe of him and his heirs and affigns for ever. The queflion was, whether Thomas Walter had an eflate in I Title 'H. Ufe. Ch.iii. § 15 — 17. 425 in fee tail only, or in fee, determinable upon the cftate tail. Firft, whether a ufe might be limited upon an ellate tail at the common law, or after the ftatute of ufes : 2dly, Whether this limitation of ufes to Thomas Walter and his heirs fhould not be intended the fame ufes, being to the feoffee himfeli, and to the fame heirs, as it was in the habendum. Croke reports that the cafe was adjourned ; but the opinion of the court upon the argument, inclined that he was tenant in tail, and that the limitation of the ufe out of the eftate tail was void, as well after the ftatute as before ; for the ftatute never intended to execute any ufe but that which might be lawfully compelled to be execute before the ftatute. But this could not be of an eflate tail, for the Chancery could not compel him, at the common law, to execute the eftate ; and fo the ftatute did not execute it then. § 16. Buljlrcde reports a fecond argument upon 3601(1.184. this cafe, together with the judgement of the court ; which was, that Thomas Walter took an eftate tail, be- caufe a tenant in tail could not be feifed to a ufe. § 17. Godbolt reports tlie cafe to have arifen upon a 26^ limitation to one, and to the heirs of his body, haben- dum unto the donee, to the ufe of him, his heirs and affigns for ever : and that two points were refolved, J ft. That the limitation in the habendum did not in« creafe or alter the eftate given in the premifes of the deed : 2dly, That tenant in tail might ftand feifed to a ufe exprefled 5 but fuch ufe could not be averred. 8 § 18, The 4^6 Title '^l. Ujc. C'i?. iii. § i8~2o. 848. § 18. The fame cafe is alfo reported by Moor by the name of Carrier v. Franklin^ who feems to have con- fiJered it as a queflion of conftruclion, and that the feoffee only took an eftate tail ; becaufe the ufe to him and his heirs, immediately fucceeding the habenduniy mufl be conftrued to mean the fame kind of heirs, to whom the eftate had been already limited, that is, the heirs of his body. § 19. If this cafe be confidered as an authority, it will only prove that a tenant in tail cannot be feifed to a ufe jn fee. -, But that a tenant in tail may be feifed to a ufe co- extenfive with his eftate, is a dodrine which it would be Read. 57. extremely dangerous to controvert. And Lord Bacon exprefsly fays, that a tenant in tail may be feifed to a ufe : — " If I give land in tail by deed fmce the fta- «« tute to A., to the ufe of B. and his heirs, B. hath a " fee-fimple determinable upon the death of J. with- " out ilfue ; and like law, though doubtful before the *' ftatute was : for the chief reafon that bred the doubt " before the ftatute, w^as, becaufe tenant in tail could " not execute an eftate without wrong ; but that fmce, " the ftatute is quite taken away, becaufe the ftatute " faveth no right of entail, as the ftatute of i Rich, 3. " did.'' 10 Rep. OS' 5 ^^* ^^ Seymour's cafe, 10 Jae. i., a tenant in tail bargained and fold his eftate tail to a ftranger in fee ; and it was unanimouily refolved by the Court of King's Bench, that the bargainee took an eftate to him and his heirs, determinable upon the death of the tenant in Title XL Ufc. Ch, iii. § 20—23. 427 ill tail. Now this determination mud have been found- ed upon the principle, that a tenant in tail may be feifed Tit. 32. to a ufe ; for, otherwife, the bargain and fale would have been void. 5 21. It may, therefore, be now laid down as an undoubted principle of law, that a tenant in tail may ]>j ftifed to a ufe, even in fee ; and that fuch ufe will be good againd the tenant in tail. And as tenants in tail have, ever fmce the time of Lord Coke, been in 2 Ren. 77*. the praftice of transferring their eftates to the perfons who were to be tenants to the -pra^cipe^ and .0 their heirs, by conveyances derived from the flatute of ufes. If it were eftablifned that a tenant in tail cannot be feifed to a ufe, the confcquence would be, that al- mod all the comm-on recoveries which have been fuf- fered for the lad century, would be void, for want of a good tenant to the precipe, ^ 22. A tenant for life may be feifed to a ufc 5 but Eftate for fuch ufe will determine, together with the legal edate ^* transferred to it by the datute, upon the death of the tenant for life. § 23. In 2 & 3 Z/Zz., this cafe was moved. Lands Dyer, 186 a, were given to two perfons for their lives, and the life ^^^^''' 2,.o of the furvivor, to the ufe of ^. B. for his Hfe. The Eliz- 72'. two donees to ufes died ; and the quedion was, whe- ther ths edate to A. B. was determined. The court thought that the edate was determined, becaufe the cuate on which the ufe was created and raifcd was gone. § 24. It 42 8 Title m. U/e. Ch.m. §24 — 27. § 24. It follows from this cafe which is cited andr admitted to be good law in BuJJirode'^ report of Cowper V. Franklin, that all perfons having a legal eflate of Cro. Car, freehold may be feifed to a ufe. If the ufe is greater "^'* than the eflate out of which it is created, it will ceafe upon the determination of that eflate j but will be good in the mean time. V\'hat Kind S ^5' With refpccl to the different kinds of property niav'b^con- ^^hereof a perfon may be feifed to the ufe of another, veyed to ^hc words of the ftatute are — " Honors, caflles, ma- " nors, lands, tenements, rents, fervices, reverfions, " remainders, or other hereditaments ;" which com- prehend every fpecies of real property in polfeffion, remainder, or reverfion ; and, therefore, not only corporeal hereditaments, but alfo, incorporeal ones, fuch as advowfons, tythes, rents, ^c. are within this {latute, Cro. Ellz. § 26. Nothing, however, can be conveyed to ufes, z'roII Ab ^^^ ^^"^^ whereof a perfon is feifed at the time ; for, in 79°- law, every difpofal fuppofes a precedent property ; and therefore, no man can convey a ufe in land, of which he is not in poffeflion, when the conveyance is made. Read. 43. § ^7' Lord Bacon fays, that the word hereditament in the (latute, is to be underflood of thofe things where- of an inheritance is in effe ; and yet a grant of a rent charge de no'oo for life, to a ufe, is good enough j al- though there is no inheritance in being of this rent. It (liould, hovrever, be obferved, that^ in this cafe, there Title XL Ufe. Cb. iii. § iy — 32. 429 there IS a feifin of the land, out of wliich the rent is granted. § 28. Copyhold eftates are, however, not compre- Co. Cop. hcnded within the ftatute of ufes ; becaufe a tranfmu- Tit/n.ch. 3. tation of pofleiTion, by the fole operation of the fla- ^/'^- ^"^"' lute, without the concurrence or permiffion of the lord, C'owp, R. would be an infringement of the lord's rights, and '' would tend to his prejudice. § 29. The fecond circumllailce necefTary to the exe- 2dly. A Ctf- cution of a ufe by this ftatute is, that there mud be a ^*'^-."£ ^^^ ^ in Llic;. cejiuiqiw ufe m eye. If, therefore, a ufe be limited to ^^^ ,^ ^ a perfon not in efe, or to a perfon uncertain, the fla- U- 42- tutc can have no operation. 5 30. With refpeft to thofe who may be cejluique ufe, all perfons capable of taking lands by any com- mon law conveyance, may be cejiuique ufe. And, by the wordc of the ftatute, a cejiuique ufe may be entitled to an eflate " in fee-fimple or fee-tail, term of life, " or for years, or otherwife j or in remainder or re- " verfion." § 31. Lord Ba€o?i fays, the king may be a cefiuique Read. 60. ufe, but it behoveth both the declaration of the ufe, and the conveyance itfelf, to be matter of record, be- caufe the king's title is compounded of both. A cor- poration may alfo be a cejiuique ufe. § 32. The cejiuique ufe mud, in general, be a dif- ferent perfon from him who is feifed to the ufe : for Lord 430 Title XI. JJfe. Ch, iii. § 32, 33. Read. 63. Lord Bacon fays, " the whole fcope of the flatute \va3 " to remit the common law, and never to mtermeddle " where the common law executed an eftate ; there- " fore the common law ought to be expounded, that " where the party feifed to the ufe, and the cefmique " ufe is one perfon, he never taketh by the ftatute, " except there be a direct impoffibility or impertinency " for the ufe to take ejSecl by the common law." il Jenkins v. % y^^ Thus, where lands were given to a man am X^""^' his wife, habendum to the faid huiband and wife, to the Cro. Car, ' 230. ufe of them and the heirs of their two bodies ; and for default of fuch iffue, to the ufe of A. B. The quef- tion was, whether the hufband and wife had an eftate tail, or only an eftate for their lives. And it was ad- judged that they took an eftate tail. Upon a writ of error in the King's Bench, it was argued, that the eftate out of v»'hich the ufe arofe was but for their lives, and, confequently, the ufe could not be limited for a larger eftate. But Croke^ Jones, and Wbitlock, were of opinion that there was a differ- ence, where an eftate was limited to one, and the ufe to another ; there the ufe could not be more than the eftate out of which it was derived : but it w^as other- wife where the limitation was to two perfons, habendum to them, to the ufe of them and the heirs of their bo- dies : this was no limitation of the ufe ; nor was the ufe to be executed by the ftatute j but they took by the common law. S 34. The Title Xl, U/e. C/;. iii. § 34— 36. ^ 43 ^ § 34. The fame point arofe in the fubfequent term, Meredith in a writ of error from a judgement given in Wales, Cro.Car.244. the court held, that the limitation in the habendum was a limitation of the land itfelf, and not of the ufe. § 35. In a modern cafe, Lord Chief Juftlce Holt is Glib. Rep. reported to have faid ; " If a fine be levied to a man " and his heirs, to the ufe of him and his heirs, in " this cafe, he fhall take by the common law, and not " by way of ufe." And the late Mr. Booth, in an ela- Cafes and borate opinion on this fubjecl, fays, " If at this day ^^_^\^ 2. 2 '4. " a man fhould enfeoff J. S, to hold to the faid J. S. " and his heirs, to the ufe and behoof of the faid J. S. " and his heirs for ever, no man living would call that " a ftatute ufe ; for the words would import no more " than the words, for his and their fole benefit and " behoof, and would only lerve to fhow, in how ample *' and beneficial a manner the feoffee was to take the " eflate limited to him by the babeyidtan, which being " manifeftly an eflate at common law, could not alfo " give or create a ftatute ufe.'* § 36. There are, however, fome cafes, where the fame perfon may be feifed to a ufe, and alfo csjluiqus ufe. Thus, if a man makes a feoffment in fee to one, to 13 Rep. ^^6. the ufe of him and the heirs of his body, in this cafe for the benefit of the iffue, the ftatute, according ro the limitation of the ufes, divefts the eftate vefted in him by the common law, and executes the fame in himfelf by force of the ftatute : and yet the fame is out of 432 Title XI. Vfe. Ch. iii. § i^ — 39. of the words of the (latute, which are, " to the ufe of " any other perfon ;" and here he is feifed to the ufe of himfelf. But the ftatute hath been always benefi- cially expounded to fatisfy the intention of the parties, which is the diredion of the ufe according to the rule of the law. i3 Rep. 56. § 37. So, if a man feifed of lands in fee-fimple, co- venants with another, that he and his heirs will ftand feifed of the fame land, to the ufe of himfelf and the heirs of his body, or to the ufe of himfelf for life, the remainder over in fee ; in that cafe, by the operation of the ftatute, the eftate which he hath at the common law is diverted, and a new eftate vefted in himfelf, ac- cording to the limitation of the ufe. Read. 64. § 38. Lord Bacon fays, if a perfon enfeoffs J. S. to the ufe of J. D. for life, remainder to the ufe of J, S. for life, remainder to the ufe of J. N. in fee, J. S. is in by the ftatute ; becaufe the law will not admit fractions of eftates. Id. So, if a perfon enfeoffs J. S. to the ufe of himfelf and a ftranger, they fhall be both in by the ftatute ; becaufe they could not take jointly, taking by feveral Id. titles. Like law, if I enfeoff a biftiop and his heirs, to the ufe of himfelf and his fucceffors, he is in by the ftatute, in right of his fee. 3clly, A Ufe § 39. The third circumftance neceffary to the exe- cution of a ufe by this ftatute is, that there fliould be a ufe in efe, in poffeffion, remainder, or reverfion. When Title XL Ufe, Ch. ill. § 39—42. 43j When all thefe circumHances concur, the poffeffion aivJ. legal edate m the lands, out of which the ufe was < ranted, is immediately taken from the feoffee to ufes d veiled in the cejluique ufe ; and the pofleffion thus nsferred is not a mere feifm or poffeiTion in law, but Bac. R. 46. an adual feiiin and polfeffion in fa6l ; not a mere Cro.^EIIz. iile to enter upon the land, but an aftual eftate. 4^. § 40. The third fesSlion of the flatute contains a Savm^ of .all former laving " to all and lingular thofe perfons, and to their Eftates. ' heirs, which be or hereafter Ihall be feifed to any ufe, '- all fuch former right, title, entry, intereft, poffeffion, ' rents, cufloms, fervices, and adion, as they^ or any ' of them might have had to his or their own proper ' ufe, in or to any manors, lands, tenements, rents, or ' hereditaments, whereof they be or hereafter Ihall be ' feifed to any other ufe, as if this ad had not been ' made." § 41. In confequence of this claufe, no term for 7 Rep. 193. years or other intereft, whereof a perfon to whom lands are conveyed to ufes, is poffeffed in his own right, will be merged by fuch conveyance. § 42. A, demifed lands to B. for a term of years, Ferrers and and afterwards the leffor by bargain and fale inrolled, Fei-mor, ' and fine, conveyed the fame lands to the leffee and ^'^^' J^- ^43- others and their heirs, to the ufe of them and their heirs, to the intent that a common recovery fhould be had and fuffered againft them, with voucher of the leffor, to the ufe of a flranger j all which was done accordingly. Vol. I. Ff The 434 ^'^'^^ ^^* W^' ^^^- i"- S 42- The queftion was, whether the term for years was merged : and it was determined, that the term flill exifted ; for akhough it was merged by the union of the eftates, until the recovery was fuffered, yet, when that was done, the ufes thereof being guided by the bargain and fale, it was the fame as if there had been no conveyance ; it being within the equity and inten- tion of the faving in the third feclion of the flatute of ufes. For the intention of that flatute was, not to de- {troy prior eftates, but to preferve them. And it was agreed by the whole court, that if a fine or feoffment had been levied or made to the leffee for years, his term would notjiave been thereby extinguifhed. It was objeded that the bargain and fale and fine were to the ufe of the leffee for years, otherwife he could not have been tenant of the freehold ; and, therefore, the faving in the ftatute of ufes did not ex- Cook V. tend to this cafe. But it was anfwered and refolved, y^Wnr" Qc. ^°' ^^^ former reafons, that the term was faved by ths 280. S. P. equity of the ftatute. I TITLE ( 435 ) TITLE XL USE. CHAP. IV. Of the modern Doctrine of Ufes, § I- 3- 4- '5- i6. 28. 33- ConJlruHion of the Statute. Contingent Ufes. Ufes ar'ifing on the Execution of Powers. Conveyances denied from the Statute of Ufes. Whether a Devife operates by the Statute of Ufes. Refulting Ufes. Ufes by hnpl'icat'ion. No life ivill refult incon- fijient with an EJlate li- mited. 38. No Ufe lulll refult ngainfl the Intent of the Partits. 43. A'^^ Ufe refult s hut to the Oivner. 45 . What Ufe refults to a Tenant in 1 ail. 52. N9 Ufe refults on a Grant of an EJlate in 'rail, for Liff^ or Tears. ^6. No Ufe refults on a De- life. Sedlion i. W HEN the ftatute of ufes firft became a fubjedl of Conftraaion difculTion in the courts of law, it was held by the judges, that no ufes fhould be executed by the fta- tute, which were limited againft the rules of the com- mon law : for it appeared by the preamble of the fta- tute, that it was the intent of the makers of the acl to reftore the ancient law, and to extirpate and extinguifh fuch fubtle pradlifed feoffments, fines, recoveries, abufes, and errors, tending to the fubverfion of the good and ancient comm.on law of the land. So that it fully ap- peared that this ad fhould not execute any ufe which was limited againft the rules of tlie common law j for F f 2 the of tbe Statute. I Rep. 129^. 43^ Title XI. Ufe. Ch. iv. § 1—3. the intent of the ad was to extinguifh and exth'pate, not the feoffment, fine, or recovery, for thefe were laudable and good conveyances of lands and tenements by the common law, as is in effeft recited in the be- ginning of the preamble ; but thofe ufes which were abufes and errors, and therefore erroneous, becaufe they were againfl the rules of the common law. And the ftatute 27 Hen. 8., was a law of reilitution ; name- ly, to reflore the good ancient common law, which was in a manner fubverted by abufive and erroneous I Rep. 1^0 a, ufes ; and not to give more privilege to the execution of ufes, than to eilates v.'hich v/ere executed by the ancient common law. 1 § 2. The courts have fo far adhered to this conflruc- tion of the flatute of ufes, that the fame technical words I Rep. 87 h. of Hmitation are now required in the creation of eflates, through die mediuiuof ufes, as in the creation of eilates at common law. But in many other inflances, this dodtrine was departed from, and advantage was taken of an exprefiion in the flatute of ufes, in order to fup- port feveral of thofe limitations which had been al- lowed by the Court of Chancery, in declarations of ufes, when they were diflindl from the legal eflate. Contingent § 3« The flatute of ufes enacls, that the eflate of "• the feoffee to ufes fliall be in the cejiulque ufe, " after '* fuch quahty, manner, form, and condition as they " had before, in or to the ufe, confidence, or trufl that *' was in them." Now, the Court of Chancery having permitted a limitation of a ufe for life, or in tail, to arife in fiituro-i without any preceding eflate to fupport it, and I Title XL Ufe, Ch. iv. § 3—5- -+37 and alfo a ufe to change from one perfon to another, by matter ex pojifado^ though the fir ft ufe were limit- ed in fee. The courts of law, in procefs of time, ad- mitted of limitations of this kind, in conveyances to ufes J and determined that, in fuch cafes, the ftatute would transfer the pofleffion to the cejiuique ufe, after fuch quality, form, and condition, as he, had the ufe. An account of the nature of thefe limitations will be dven under Title i6. Remainders. o § 4. By the rules of the common law, no reftri^llon ufes arfing or qualification could be annexed to a conveyance of °^^J^^ J"" lands except a condition. Powers. In confequence of this principle, a fine or feoffment, 1 Inft. 237 «. with a power of revocation annexed to it, was void at common law ; becaufe the fine or feoffment transferred the whole property and right of difpofal, to the cog- nizee or feoffee, and therefore, the power of revoca- tion was repugnant to the force of the preceding words. Befides, the admiffion of fuch a ciaufe, would have introduced a double power, veftcd in different perfons, over the fame thing ; which was contrary to the prm- ciples of the common law. § 5. We have, however, feen, that before the ftatute of Ante, ufes, if a feoffment was made to ufes, the feoffor might referve a power either to himfelf,or to fome other perfon,. to revoke the ufes declared on the feoffment, and to ap- point the feoffees to ftand feifed to other ufes. For the Ff3 » principle, 438 Title XI. Ufe. Ch. iv. § 5—7. principle, on which ufes were originally founded, being, that the feoffee to ufes v;?.s bound in confcience, to pur- fue the directions of the feoffor, this obligation was equally binding, whether the agreement was that the feoffor fhould receive the rents and profits himfelf, or fome flranger ; or whether they were to be paid in fuch manner as the feoffor, or any other perfon to whom he delegated his power, fliould at any future time appoint. § 6. The ftatute of ufes vefls the legal eftate in the cejiuique ufe, after fuch quality, manner, and form, as he had in the ufe : from which the courts concluded, I Itifl. 2375. that in all conveyances to ufes, a power might be re- ferved of revoking a former limitation of a ufe, and Opinion at appointing a new ufe to fome other perfon. Mr. Booth Shep. Touch, has, therefore, very properly, claffed eflates arifmg from the execution of powers, under the head of contingent ufes. And as powers of this kind were foon found to be much more convenient than conditions, they were generally introduced into all family fettlements. § 7. Thus, if a perfon conveys his eflate to truf- tees to the ufe of himfelf for life, remainder to his firfl: and other fons in tail, and inferts a provifo, that it (hall be lawful for him at any future time to revoke thefe ufes, and to declare new ones, and that, imme- diately upon fuch revocation and new declaration, the truftees fhall (land feifed of the lands to the ufe of fuch perfons as the fettlor ihall appoint, this is a power of revo- cation and appointment ; and as foon as it is executed, the ufes originally limited ceafe, and a new ufe imme- diately Title XL Ufi. Ch. iv. § 7—9. 439 dlately arlfes out of the feifin of the feoffees to the peribn named in the appointment, for fuch eftate as is given him by the appointment ; and the llatute tranf- fers the legal effcate to fuch appointee, who by that means acqaires the aftual feifm and poflefTion. Th. nature of revocations and appointments of ufes will be explained in T.de 32. Deed. ^; 8. It has been frequently obferved, that the prin- Conveyance cv', objed of the .latute 27 Hen. 8., was to deftroy f;;,''smutr al' 'hole iecret conveyances to ufes which had been fo of Ufes. muth complained of ; but that, inftead of having that cfffcft, this ftatutc has given rife to feveral new modes of nan.,ferring lands, unknown to the fimplicity of the common law, and of a more fecret nature than feoff- ments to ufes ; fo that, n-jtwithflanding the great cau- tion With which this ftatute was made, it has not an- i Atk. 591. fwered the intention of the legiflature. § 9 This obfervation feems to have been founded on aii idea, that the chjef object of the ftatute was to deftroy all conv eyances to ufes. But Lord Bacon has Read. 39. clearly proved, that the intention of this ftatute was only to deftroy the eftate of the feoffee to ufes, by transferring it to the perfons whp were entitled to the ufe, and not to deftroy the form of the conveyance to ufes. ift, Becaufe the words of the ftatute are, " where " any perfon is feife(? or hereafter ftiall be fei*ed to any " ufe." 2dly, In the fame feffion in which this ftatute was made, i*- ;v^as enabled, that: all bargains and fales to ufes, (liould be inrolled j which proves that ? f 4 th^ 440 Title XI. life. CZ>. Iv. § 9— 1 1 . the intention of the legiflature was to leave the form of the conveyance, with the addition of a farther cere- mony. 3diy, By the 12th fcclion of the flatute, it; was provided, that the king fhould not take any primer feifm, or other feudal profits, on account of any eftate which fhould be executed by means of the flatute until the firft oi May 1536. But that he fhould take the feudal profits for ail ufes which fliould become executed by the flatute after that time. § TO. But whatever might have been the intention of the legiflature in pafTmg this flatute, it is certain that it has given rife to feveral new forts of convey- ances, which operate contrary to the rules of the com- mon law. For it being foon obferved that there was nothing in the flatute to prevent the raifmg of ufes, but only a provifion that when a ufe was raifed, the poffefTion of the land fhould be transferred to fuch ufe ; it v/as only neceffary to raife a ufe, and the legal feifm and eflate became immediately vefled in the cefiuique 2Comm.333. ufe, by a kind of parliamentary magic, without livery Ante, ch. 3. ^^ feifm, entry, or attornment. §11. In confequence of this doftrine, it became ■cuflomary to raife a ufe in the perfon to whom the lands were intended to be conveyed, and then the flatute transferred the poffefTion to the cejhdque ufe. This was done in two different ways : firfl by a con- veyance which only transferred a ufe, and which v/as faid to operate without any tranfmutation of poffefTion ; becaufe the alteration of the legal feifm is efieded by the mere operation of the flatute. There are two modes Title Tl. life. Ch.h. § ii — 14. 441 Tiiodes of conveyance which operate in this manner: A bargain and fale to ufes, and a covenant to ftand feifed to ufes ; of which an account will be given in Title 32. Deed. § 12. The fecond mode of conveying lands through the medium of ufes is effeded in the following manner: The legal eftate and pofleffion is transferred by a feoff- ment, fine, or recovery to fome indifferent perfon, who ftands in the place of the ancient feoffee to ufes, and a deed is executed, reciting that by means of fuch feoff- ment, fine, or recovery, the lands have been transferred to A, B. and declaring that fuch feoffment, fine, or recovery fhall enure and operate, and that the feoffee, cognizee, or recoveror, in fuch feoffment, fine, or re- covery, fhall be feifed of fuch lands, to the ufe of a third perfon. Or elfe a deed is firft executed, reciting that a fine or recovery is intended to be levied or fuf- fered, or covenanting to levy a fine, or fuffer a re- covery ; and declaring that thofe affurances, when compleated, fhall enure to the ufe of a third per- fon. § 13. In both thefe cafes a ufe arifes out of the feifm of the feoffee, cognizee, or recoveror, to the perfon to whom fuch ufe is declared, and the ftatute immediately trensfers to that ufe, the adual poffeffion and legal cflate. § 1 4. Thefe latter affurances are faid to operate by means of a tranfmutation of poffeffion ; becaufe the legal feifm and eftate is firfl transferred by fome com- mon 442 Wlicthcr a Devife ope- rates by the Statute of Uffcs. Collea. Jur. Vol. I. 427. 1 Inft. 271 b n. I. f.3. 5. I Roll. Ab. 412. p. 25. Dyer, 127. Fearne's Op. 422. Title ^l. Vfe. C/^. Iv. § 14— 16. mon law, conveyance, or afTurance. They are ufually called declaraiions ofufes^ and wiil be treated of under Title 32. Deed. ,§ 15. It is a matter of doubt whether a devife, under the ftatute 32 Hen. 8., can operate by means of the flatute of ufes. The late Mr. Booth was of opinion that it did not. The queftion is fully and ably difculTed by Mr. Butler^ in his notes to the 1 5th edition of the firft Injiitute ; who concludes his obfen^ations on that fubject with the following words : " But whether a devife to ufes operates folely by the " ftatute of wills, or by that ftatute jointly with the " ftatute of ufes, is, except in a verv^ lew cafes, a matter « rather of fpeculation than of ufe ; as it is now lettled, *' that an immediate devife to ufes, without a feifm to " ferve thofe ufes, is good ; and that where the eftate " is devifed to one, for the benefit of another, the " courts execute the ufe in the firft or fecond devifee, " as appears to fuit beft with the intention of the « teftator." Pefiilting Ufes p. 95. § 16. Before the ftatute 27 Hen, 8., if a perfon ha4 conveyed his lands to another, without any confidera^ Dyer, i86 ^. ^j^^ ^^ declaration of the ufes of fuch conveyance, he I I Mod. Ib2. r [. r And 37. became entitled to the ufe or pernancy or the protits of the land thus conveyed. This doftrine was not al- tered by the ftatute of ufes, and, therefore, it became an eftabliftied principle, that where the legal feifm and eftate in lands is transferred by any common law con-, veyance or afturance, and no ufe is exprefsly declared, nor any confideratipn or evidence of intent to direct Title XI, Vfe. CZ/. IV. § 16—19. 443 the ufe, fuch ufe fhall refult back to the original owner of the eflate. For where there is neither eonfideration nor declaration of ufes, or any circumftance to fhew the intention of the parties, it cannot be fuppofed that the eflate was intended to be given away. § 17. In confequence of this principle, Lord Coke has laid it down as a rule, ** That fo much of the ufe i Tnl. 23 a. *' as the owner of the land does not difpofe of, re- Dyer, 166 tf. ^' mains in him." So that, where a perfon feifed in fee, levies a fine, or fuffers a recovery, without any confidera'.ion or declaration of the ufjs to which it fliall enure, the ufe refults back to himfelf, and the ftatute Armftronpr ' . V. Wo!fc^ley, immediately transfers the legal eflate to fuch refulting 2 Wilf. R. ufe ; by which means, he is feifed in the fame manner '*-^* as he was before. And if any particular ufes are de- clared, fo much of the old ufe as is not declared to be veiled in fome other perfon, refults back to the ori- ginal owner. § 1 8. Where a perfon made a feoffment to the ufe sir E. Clerc's of fuch perfon or perfons, and for fuch eflate and eflates ^^^[' _ j^ ^. as he fhould appoint by his will, it was refolved, that the ufe refulted to the feoffor, until he made an ap- pointment. § 19. Where a perfon made a feoffment to the ufe WoodlifTr. of himfelf, and his intended wife, afcer their marriage, cro'.'Eliz. it was determined, that the ufe refulted to the feoffor 439- and his heirs until the marriage. § 20. When ^44 ^^'^^^ ^I- W^' ^f^' iv. § 20— 2j. Beckwlth's §20. AVhen hufband and wife levy a fine of the 2\ the Lord Keeper, after confideration had with all the 4 Mod. 380. ■» judges, and a cafe, that as the cognizor had not li- mited away the freehold to any perfon during his own life, it refulted back to himfelf, f T7nis T. 523. Arch dale F aimer y in confideration of the mar* rBhck.Rep. "^g^ of his fon, fettled an eftate to the ufe of his fon *^7« for life, remainder to his intended wife for life, re- mainder to the firft and other fons of the marriage, in tail, remainder to the heirs male of the body of Archdak Palmer y remainder over; it was refolved, that as the limitations to the fon, and his firft and other fons, might determine during the life of Arch- dale Palmer, a ufe refulted to him for life, expeCrant upon Title XI. Ufe, Ch. Iv. § 23—27. 445 upon the determination of the eflates limited to his fon, ' 53- No Ufe re- % 5^' The dodrine of refultiiig ufes only extends ta fiilts on a ^j^Q^-g ^^^gg where an eftate in fecrfimple is conveyed, J Giant or an * . . 1 Eilate in Tail YoY if a perfon conveys an eflate to another in tail, Years. without any confideration or declaration of ufes, no Bro. Ah "^^ ^^^^ refult to the donor ; and, confequently, the Feoif. al Ufe, donee in tail will hold to his own ufe. For by a gift Pyer, 146^. of this kind, there is a tenure created between the Perk, f.534- (ionor and the donee in tail, v/hich amounts to a con- fideration, and prevents the ufe fi-om refulting ; in the fame manner as if a feoffment in fee had been made before the flatute of quia cmptores terrarwn^ the feoffee would have held the land to his own ufe ; becaufe a tenure was thereby created, in confequence of which, he would have held of the feoffor by fealty at leaft. Perk, n 535^, § 53- III the fame manner, if a perfon leafes lands Koulmfe ^° another for life or years, no ufe will refult to the pi- 10. leifor. So, if a Icffee for life or years grants over his eflate, without any declaration of ufe, the grantee will e$, have it to his ovv-n ufe. In Gilbert's Ufes, the reafon given for this doftrine, is, that thefe leffer eftates were not ufed to be delivered to be kept for the future fup- pcrt and provifion of the family ; and, therefore, the mere ficl of delivering poffelTion, pafled a right, with- out confideration, lince there was no prefumption from the ufe of the country, that thefe eflates were tranf. fcrred under fecret trufts ; efpecially fmce rents were ufually referved, and they were fubjed to wafle and other forfeitures, S 54. In Title XI. Ufi. a. iv. § 54, 55. ^^. § 54« In the cafe of a conveyance of an cftatc for life or years without confideration, although a ufe fhould be declared of part of the eflate to the grantee, yet there will be no refulting ufe. § 5S- A' being tenant for life, granted his eftatc to Caftlev.Doa, B. by fine, and, by indenture, limited the ufe io B. ^^'^•^^■'^'•'-' for the life of ^. and B. ; and if he died, living A.^ that it fhould remain to C. ; afterward B. died, living A, ; C. entered, and let to D. for years, and died. Jiving A. The queftion was, whether the lefTee Oiould retain the land, as an occupant, during the life of A.^ or that A, fhould have it again as a refulting ufe. " It was adjudged, after argument, that C. fliould " have it as an occupant, and that A. had not any " refidue of the ufe in him : for, although where te- " nant in fee makes a deed of feoffment, and limits " the ufe for life or in tail, and doth noL fpeak of the " refidue, it fliall be to the feoffor or conufor, becaufe " he had the antient ufe in him in fee ; yet when tc- " nant for life, or he who hath a particular eftate, *' grants his eflate by fine, and limits the ufe for years, " or for a particular eflate, it fhall not return to him, " but be to the conufee, although the fine were with- " out any confideration ; becaufe he who hath the " particular eftate by fine, is fubjed to the antient " rent and forfeiture, which is a fufficient confideration '* to convey the eflate to him." G g 4 S 5^- As 456 Title XI. Vjh Ch. iv. § 56. Ko Ufe re- § 56. As a devife imports a bounty, it follows that lults on a .^ j^^^ ^jg J.Q ^j^g ^j-g ^£ ^jjg devifee, unlefs othenvife Bro. Ab. exprelTed ; and that no ufe can in any cafe refult to FeofF. al Ufe, ^^ j^eij-g Qf j-j^g devifor, unlefs it appears by the will pi. 10. ^ 1 1 J itfelf that the devife was not made to the ufe of the derifeei TITLE ( 457 ) TITLE XIL TRUST. CHAP. I. Of the Origin and Nature cfTruf!:. CHAP. II. Of the Rules by which Truji Ejiates of Freehold are governed. CHAP. III. Of the Rides by zvbich TruJi Terms are governed, CHAP. IV. Of the EJlate and Duty of Trujlees, § 1. 3- 4- 12. 19. 24- 27. 29. 32. CHAP. I. Of the Origin and Nature of Trufls. 35 Ong'tn of Trujis. Defcription of a TruJl. A Uft limited upon a Ufe. Limitation to Triiflees to pay over the Rents. Triijl for the feparate Ufe of a married Woman. Trufl to fell or to raife Money. A Trufl after Payment of Debts ve/ls immediately. Terms for Tears limited in Trufl. Of refulting or implied Trtifts. Contrail for a Purchafe. Purchafe in the Name of a Stranger. Purchafe by a TruHee 'ivith Trufl Money. Conveyance without Confi- deration- 3-7. A Trufl declared in Part. 42 . If here no Apbointment is made. 4.3. Purchafe by a Father in the Name of a Child. ^^. Purchafe in the Name of a MJe. 56- Rcncji'al of a Leaf by a Trtflec. 60. No Trufl hetijjun a Lejfor and Leffee. 61. It 'here there is a Fraud M Trufl arifes. 63 . Trufls of Copyholds. 68. Who may be Trujlees. 72. All Trufls are executory. Sedion 45 S Title Xll. Triijl. Ci6.i. §i— 3, Section i. Orii'in of '"T"'^HE objcct and intention of the flatute ij Hen. 8. c. 10. certainly was, to deflroy that double pro- * ^ ' pcrty in land, which had been introduced into the Englifp law by the invention of ufes ; and for that purpofe the flatute enaded, that the legal feifm and pofTefTion fnould be transferred and annexed to the ufc. If, therefore, the intention of the legiflature had been carried into full eifeO:, no ufe could ever afterwards Vai:gh. R. have exifted for more than an inflant. But the ftrid I'^'^tk R conftruclion which the judges put on that flatute de- 59'- feated, in a great refpe^l, its intent ; as they determined that there were fome ufes to which the flatute did not transfer the pofleifion. By this means ufes were not endrely ?bohfhed, but flill continued feparate and dif- tinct from the legal eflate ; and were taken notice of and fupported by the Court of Chancery, under the name of Trujis, § 2. A trufl is therefore a ufe not executed by the flatute 27 Hen. 8. j for originally the words ufe and trufl were perfedly fynonimous, and are both men- tioned in the ftatute. But as the provifions of that flatute were not deemed co-extenfive with the various J Bl^ck. R. modes of creating ufes, fuch ufes as were not provided ^^ ' for by the ftatute, were left to their former jurifdiclion. refcr'rption § 1. Thcfc are the circumflances to which trufl o a 1 rui.. gjiates owe their origin, and from which it follows that a trufl eflate may be defcribed to be, a right in equity to take the rents and profits of lands, whereof the legal eflate Title XII. Trii/l. Ch. \. § n^--^. 459 cflate is veflcd in fome other perfon ; and to coirxpcl the perfon thus feifed of the legal eflate, who is culled the truftee, to execute fuch conveyances of the land as the perfon entitled to the profits, who Is called the ceftuique trufl, fhall dired ; and, in the mean time, the i Show 73/ cejiidque truil, when in poffeflion, is tenant at will to the truftee. § 4. There are three dire6l modes of creating a truft. A iTc Hmit- The firfl arifes from a rule which was eftablifhed fo uic''"" ^ early as in 4 and 5 Phil, and Mary^ that an ufe could 'rynciri not be limited on an ufe : and the reafon given by Lord t^ ^ ■' Dyer, l^ja. Bacon for this determination is, becaufe the words of ^^^■i'-^- 43- the ftatute are, " where any perfon is feifed of any lands or tenements," which excludes ufes, as they do not fall under either of thefe defcriptions. § 5. Thus, if in confideration of a fum of money paid by C, a feoffment was made to A. and his heirs, to the ufe of -5. and his heirs, to the ufe of or in truft for C. and his heirs, the judges held that the ftatute would transfer the legal eftate to the firft ufe, that is to B. ; and that the fecond ufe limited to C. was a mere nullity, becaufe a ufe could not be limited on a ufe. Not adverting, as Sir William Blachjlone obferves, 2Ccmm.33(S. that " the inftant the firft ufe was executed in i?., he *' became feifed to the ufe of C, which fecond ufe the " ftatute might as well be permitted to execute as it *' did the firft ; and fo the legal eftate might be in- " ftantaneoufly tranfmitted down through a hundred ^* ufc^s, ;iil finally executed in the laft cejluique ufe.** § 6. Akhough x6o Title XII.' TTrUj^. Ch. i. § 6—9. ■ v» § 6. Although the courts of common law determined that, in fuch a cafe as that which has been flated, the limitation to C. was void ; yet, as it was evident that B. was not intended to be benefited by that convey- ance, and as C. had given a valuable confideration for the land, the Court of Chancery immediately took cognizance of the cafe, and decreed that B. fliould pay the rents and profits of the land to C, and fhould exe- cute fuch conveyances of it as C. fhould direct. whetftone § 7. In a fettlement before marriage, lands were 2 p'wms. conveyed to truflees and their heirs, to the ufe of them 146. and their heirs, to the ufe of the hufband for life, Iffc. it was decreed, that the legal edate v%-as veiled in the truflees ; and therefore that the limitations to the huf- band, life, were but trufts, which could not be executed by the flatute. Auor. Gen. § 8. Ami Ratford^ being feifed in fee of certain FoiTcll Rep. lands, conveyed them to Thomas Baker and his heirs, ^5^- to the ufe of him and his heirs, in trufl to permit the faid Ann and her hufband to receive the profits during their lives, ^t. It was decreed by Lord Talbot^ that as the eflate was limited to truflees and their heirs, fo that it was ac- tually executed in the truflees, whatever came after- wards could be looked upon only as an equitable interefl j for there could not be an ufe upon an ufe. Venabks v. § 9. An eflate was limited by deed and fine to the 7 TcTm Rep. ufe of the hufband for life, remainder to truflees and 342.438. ' their Title TL]. Trvjl. C/!;.i. § 9— 12. « 4^1 their heirs during his life, to preferve contingent re- mainders, remainder to the wife for life, remainder to the trullees and their heirs (not faying during her life), in truft to fupport the contingent ufes and eftatcs therein-after limited, remainder over. Upon a cafe fent from the Court of Chancery, the Court of King's Bench certified, that the truftees took a legal eflate in fee after the determination of the wife's life cftate, and that all the fubfequent hmitations were trufl cllates. ^10. In the cafe of a devife, the rule is the fame. Hopkins v. Thus, where John Hopkins devifed his real eflate to j °uk'.'^-Jj,. truflees and their heirs, to the ufe of them and their heirs, upon feveral trufts, it was decreed by Lord Hard- Marwood v. zi-Icke, that the legal eflate was vefled in the truflees, ^-emp.Hard. and that the devifees only took trufl eftates. 91. b. P. § II. It follow^s from the principles here laid dow-n, vide Tit. 32. that if lands are conveyed by covenant to fland feifed, bargain and fale, or appointment under a power, to A. and his heirs, the legal eflate will be vefled in J., and B. will only take a trufl. Q 12. The fecond mode of creating a trufl arofc Limitation "-' ^ . . to Frultces from an opinion which was delivered by the judges m to pay over -xG Hen. 8., that althouorh a feoffment to a man for life, ^'"^ ^'"^*' Pro Ab and after his deceafe that J. N. fhould take the profits, peofF.alUfc, was clearly an ufe, and executed by the flatute, yet if pi- J^- it had been that after his death the feoffees fliould re- ceive the profits and pay them over to J. N., this would not be executed by the flatute j becaufe J. K could J receive 462 I Ab. Eq. 383- Brc.uelifon V, Lanr"ley, 1 Salkr678. Title Til, Trujl. CLl § 12—15. receive nothing but through the hands of the trufteeSj and therefore J. N. could only take a truft eftate. § 13. A di(lin£lion has been made between a devife to a perfon in truft to pay over the rents and profits to another, and a devife in truft to permit fome other perfon to receive the rents and profits. In the firft cafe, we have feen, it was determined that the legal eftate fliould continue in the firft devifee, in order that he might be able to perform the truft ; for, where he is directed to pay over the rents and profits, he muft neceffarily receive them : but, in the fecond cafe, it has been adjudged, that the legal eftate is vefted by the ftatute in the perfon who is to receive the rents and profits. § 14. Lands were devifed to truftces and their heirs, to the intent and purpofe to permit J, to receive the rents and profits for his life, '^c. 2 Vent. 312. Fearne's Gp. 422. It was determined by Lord Chief Juftice Holt^ that this would have been a plain truft at common law, and what at common lav/ v/as a truft of a freehold or inheritance, is executed by the ftatute, which men- tions the word truft as v/ell as ufe. And that the cafe of Burcbett v. Durdant, which had been determined otherwife, was not law. § 15. It follows from the preceding cafes, that whene\'er an eftate is conveyed or devifed to truftees, and they are required to do any aft to which the feifin and poIfcfHon of the legal eftate is neceffary, although they Title Wl. Trujfi. Ch.l § 15, 16. ^63 they fhould be direded to permit the rents and profits to be received by another perfon, ftill that perfon will only be entitled to a truft eHiate : for, otherwife, the ti-uftees would not have the means of executing the truft. § 1 6- J of epb Blifett dit\ik<\ ?1\ his freehold, copy- Chnpmsn v. 145. hold, and leafehold, and all his real and perfonal eftate, ^Yolllk to three truftees, their heirs, executors, and affians, in truft to pay his fon Ifaac Blijfett 37 /. quarterly ; and if he married with confent, then double the fum ; and if he ftiould have any child or children, he gave the reft and refidue of the yearly rents and prohts of his faid truft eftate, over and above the faid yearly pay- ments, to be appHed during the life of the faid fon for the education and benefit of fuch child or children. And then he goes on in thefe words -, " I give one " moiety of the faid truft eftate to fuch child and *' children of my faid fon as he fnall leave, their re- " fpeflive heirs, executors, and afligns, and to the " furvivor ; and the other moiety I give to the child *' and children of my grandfon Jofepb Dickeryln, and " every other child and children of my daughter, tlieir " heirs and afligns." Then, in cafe Ifaac die without ift'ue, the firft moiety to Jofepb Dickenfon and other child and children of Sarab, and their heirs, ^c. Then, by another claufe, he appointed 100 l. per an- num as a jointure to any wife his {on Ifaac ftiould marry. in cafe he married with confent ; and gave to his faid grandfon fofepb Dicketifon 30 /. per a^inum lox his main- tenance until his age of fifteen, and then 200/. to put: him out apprentice, c One 464 Title Xn. Truji. Ci;. i. § i5, i^. One of the queftions in this cafe was, whether th^ truflees took the legal eflate, and continued to hold it after the death of Jfaac, Lord Hardwicke^ — " The whole depends upon the " teilator's intent as to the continuance of the eftate " devifed to the truflees, whether he intended the *' whole legal eflate to continue in them, or whether '* only for a particular time or purpofe : if an eflate " be limited to A. and his heirs, in trull for B. and " his heirs, then it is executed in B. and his heirs : " but where particular things are to be done by the " truflees, as in this cafe, the feverai payments that are " to be made to the feverai perfons, it is necefTary that " the eflate fliould remain in them, fo long at leaft as " thofe particular purpofes require it. No authority " has been cited to warrant the doclrine, that in cafe " of fuch a general hraitation to truftees, as the pre- " fent cafe is, that they fhould have but a particular '^ interefl, and then that interefl to determine ; fuch a *' cafe might indeed be framed, but \^-as never intended " here, there being many purpofes to take effecl, which " might endure longer than the life of Ifaac ; and the " taking it in fo confined a fenfe, would be making " a forced conflruftion to difappoint the teflator*s in- *' tent, which was to make an entire difpofition of the '* legal eflate to the truflees.'* s'napland v. § 1 7- Lands were devifed to truflees upon truft, i' Br'''R ^^"^^ ^^y fhould every year after dedufting rates, taxes, 75. repairs, and expences, pay fuch clear fum as lliould then remain to A. B. j it was decreed by Lord Thiirlowy that Title Xll. Triijl. Cb.l^ij—iu 465 that the truftees being to pay the taxes and repairs, VidcFcarne*-* muft have an interefl in the prcmifes, and, therefore, ^■^^^' that the legal eft ate was veiled in them. § 18. A perfon devifed lands to truftecs and their Silv'-flcrv. 1 • n 1 1 • 1 'rr WilfoH, heirs, upon trult to take and receive the rents, lUues, 2 T^rm R. and profits, and to apply the fame for the fubfi Hence 444- and maintenance of his fon during his life. It was determined, that the fon had only a trufl eftate. « § 19. Where an eftate is devifed to truflees for the Trufl for the feparate ufe and beneht or a married woman, the courts ^^f a married will, if pofTible, conftrue the devife, fo as to veft the Woman. legal eftate in the truftees ; becaufe fuch a conftru6lion will beft effe6luate the intention of the tefl:ator. § 20. Lands were given by will to truftees and their Neville v. heirs, in truft for a married woman and her heirs, and ^ Verii.415. that the truftees fliould, from time to time, pay and difpofe of the rents and profits to the faid married wo- man, or to fuch perfon or perfons, as fhe ftiould dired. This was decreed to be a truft eftate in the married woman, and not a ufe executed by the ftatute. ^ 21. A teftator p-'^ve all the rents and profits of South ▼. •^ ^ 1 . u IT Aldi;c. certain lands to a married woman during her hie, to , S;,ik. 32S. be paid by his executors into her own hands, without S^^^""^^- ^3- the intermeddling of her hufband. The queftion was, whether this devife pafTed the legal eftate in the lands to the wife. Vol. I. H h Lord 466 Title Xll. Trujt, Ch.'i. §21—23, Lord Chief Juftice Holt was clearly of opinion, that the executors took the legal eftate as trull ees for the wife ; but the other judges were of a contrary opinion. The doctrine here laid down by Holt, was^ however, fully edablifhed in the following cafe. Savand Sele § 22. Lands were devifed to truflees and their heirs, T. Jones, . n f. . . . 1 Ab. Eq. in trull to pay feveral legacies and annuities, and then R V' Ab ^° P^y ^^^ furplus of the rents and profits to the pro- 262. per hands of a married woman, or to fuch perfon or perfons as ilie fhould by any writing or writings direct, during her life ; and, after her deceafe, that the truf- tces fhould fland fcifed to the ufe of the heirs of her ; Bro. Pari. body, with remainders over. It was decreed, (and the ' '^^' decree affirmed in the Houfe of Lords), that this was a ufe executed in the truilees and their heirs, during the life of the married woman, who had only a trull 3eable v. eftate in the furplus rents and profits ; but that, after Dodd, 1 Term R. her deceafe, the legal eftate vefted in the heirs of her ^^5- 7- body, § 23. In this cafe, the diredion to the truftees ta pay annuities, and the truft to pay only the furplus, Hartcn v. would alone have juftified the decree. But in a modern ■ ^ ""' Tj cafe, fent from the Court of Chancer/, where an eftate 65^' , was devifed to truftees and their heirs, upon truft " to " permit and fufter the teftaLor*s niece, who was mar- " ried, to receive and take the rents and profits of all '* the faid premifes during her life, for her ov^^n fole *' and feparate ufe, notwithftanding her coverture, and " and without being in anywife fubje6l and liable ta *' the debts, ^c, of her then, or any after -taken huf- '' band; Title XII. Trujl. Ch. I. § 23—25. 46,- «* band ; and her receipt alone, from time to time, to " to be a fufficient difcharge for the fame." Lord Kenyan faid, " whether this be a ufe executed '* in the truflees or not, mull depend upon the inten- " lion of the devifor, which is to be colleded from " the will. This provifion, it appears, was made in *' order to fecurj to the feveral feme coverts a feparate *' allowance, free from the controul of their hufbands, " to efFecluate which, it is eifentially neceffary that the " truftiees (hould take the eftate with the ufe executed ; " otherwife the hufband of each taker would be " entitled to receive the profits, and fo defeat the very " objeft that the devifee had in view.'* And the court certified, " that the legal eftate by w^ay of ufe executed, " in fee-fimple, veiled in the truftees : that conftruc- " tion being necefiary, (as they conceived), to give " legal efFeQ: to the teftator's intention, to fecure the " beneficial intereft to the feparate ufe of the feveral " femes covert.'* § 24. Where lands are devifed to truftees in truft Trud to fdl P or to raifc to fell, or in truft to raife money to pay debts, or tor Money, any other purpofe, and fubjed thereto, in truft for a third perfon, the truftees will take the legal eftate, for otherwife it would not be in their power to execute the truft. § 2 (J. A perfon devifed all his lands to five truftees, Bi-diaw ▼. " n 1 1 J , . 1 • Sptiiccr, their heirs and afligns, in truft that they and their Heirs , ^^^ .^^^ ihould, in the firft place, by the rents and profits, or ^^'j^^'^^';^ J^;* by fale or mortgage of the premifws, raife fo much as H h 2 Ihould 58 Title XII. Trujl. CL I § 25, 26. fliould be neceffary for the payment of his debts ; and after payment thereof, gave the fame unto his truflees for 500 years, without impeachment of wafte upon truft, as after mentioned : and then goes on in thefe words ; " and from and after the determination of the faid eft ate " for years, then I give and devifc all my faid lands, " yc. unto m.y faid truftees, their heirs and affigns^ *' my mind being, that my faid truftees iliall be and " ftand feifed of the faid premifes, in truft to the fe- *' vera! ufes and behoofs, intents and purpofes after *' declared, viz. ; as for one moiety of the faid pre- " mifes, I give and devife the fame to the ufe and be- *' hoof of my nephew T. Bagshaiv, for the term of his *' natural life, ll^c. and then as to one moiety, upon *' truft and to the ufe of his nephew for life." One of the qucftions in this cafe was, whether the eftate devifed to the nephew was a legal or a truft eftate. Lord Hardwicke was of opinion, that the devife of a moiety to the nephew was merely a truft in equity, the firft devife being to the truftees and their heirs, it carried the whole fee, in point of law : pait of their truft was to fell the whole, or a fufficient part thereof, for payment of debts and funeral expences. This would have carried a fee by conltruftion, had the word heirs been omitted out of the devife, becaufe the truft is to continue for ever, and to fell and convey a fee. ICenrick v. § 26. A perfon devifed his eftates thus : And as to i*°'"^ 1^^' mv real and perfonal eftate, fubjed to and charged Beauclerc, y * -^ '-' 3Bof.&Pul. ^\[\^ my juft debts, I give and difpofe thereof as fol- ^^' ^^^' lows ; (that is to fay), I give, devife, and bequeath my A real Title XIL Tnifi. Ch. I § 26, 27. 469 real eflates, and alfo my pcrfonal eftate, unto 7. M. and 0. W., and their heirs, upon truft, and to and for the feveral ules, trufts, intents, and purpofes following, (that is to fay), to the intent that the faid J. M. and 0. W. fhall and do in the hrfl; place apply and difpofe of my perfonal eftate in payment of all my juil debts ; and as to all my real eflates fubjeft to my debts, and fuch charges as I may now or at any time hereafter think proper to make, I give, devife, and bequeath the fame to R. P. for and during his life, ^r. The Court of Common Pleas, to whom this cafe was fent from the Court of Chancery, certified that the truflees did not take any eftate at law, in the real eftates devifed by the faid will, the court being of opinion, that this was a mere devife charged with the payment of debts ; and it did not appear on the face of the will, that the teftator intended the truflees' fhould be aftive in paying the debts. It would, indeed, be more convenient, (faid the court), that the legal eftate ftiould be vefted in truftees for the payment of the debts, than that the truft ftiould be executed by the devifee, under the diredlion of a court of equity ; for a court of equity could not enable the devifee to make a complete title to the eftate. But this was only an argument ab inconvejiieniij from which they could not conftrue the teftator to have faid w^hat in fad he had not faid. ^27. Where an eftate is conveyed or devifed to A Truft after ^ ' n 3 u Payment of truftees and their heirs, upon truft to pay debts gene- p^bts veils rally, or to pay fuch debts as are particularly fpecified, immeJiatdy. H h 3 and 470 Title TH. Tmji. Ch.\. § 27, 28. VideColIea. and after payment of fuch debts, and when fuch debcs 7 1 J r.vo. . fliall be paid, then in trufl for A. B., or in truft to convey fuch parts of the premifes as fhall remain unfold to j4. B., in either of thofe cafes, J. B. has an imme- diate trufl eftate in the furplus, upon the execution of the deed, or the death of the teflator. For, in cafes of this kind, the payment of the debts is not a condi- tion precedent, which mufl be performed before the fubfequent Hmitation or devife can take effect ; but an intereft commencing at the fame time, and concurrent with the eftate given to the truftees. And the words, after payment of debts, or wben the debts are paid, only denote the order or courfe in which the feveral interefts fhall take place, in point of a£lual pofleffion and per- ception of the profits, without preventing the fubfe- quent eftates, whether legal or equitable, from be- coming veiled in interefl, at the fame time with thofe which are prior to them in point of limitation. Terms for § 28. The third mode of creating a trufl, arifes ia Truft. from a determination of all the judges in 11 EHz. upon Dyer, -6; ^. a qucllion put to them by the Lord Chancellor, that - oph. K. 76. sfj^iQi-Q a term for years was granted to A. to the ufe of, or in trufl for i?,, the legal eflate in the term remained in A.y and was not executed in B. by the flatute of B'C. Read. ufes. For the words of that flatute are ; " where any ^^" " perfon is feifed to the ufe of another :" whereas, in this cafe, A. is not feifed, not having a freehold, but Vide Th. 8. is only polTeired of the term ; the word feifed being only applicable to the poffefTion of a freehold eflate. So that, in cafes of this kind, the cejiuique ufe was driven to the Court of Chancery for his remedy, where the ch. i. f. j2. Title Xll. Trujl. C/j.l § 2 8— 3 i. 471 the truftee was obliged to account wiLh him for the rents and profits of the term. , § 29. Befides thefe dired modes of creating a trufl Ofrcfulting eftate, there are feveral other cafes in which trufl eftates XrJIil,.'^ arife from the evident intention of the parties and the nature of the tranfa£lion, which are enforced by the Court of Chancery, and are ufually called refulting trufts, or trulls bv imDlication. And in the flatute of frauds and perjuries, which ena£ls, that all declara- tions and creations of trulls of lands or hereditaments mud be in \vnting5 it is exprefsly mentioned, feet. 20, " That all conveyances w^here trails and confidences " fliall arife or refult by implication of law, fhall be "^ as if that aft had never been made." And it has i P. Wms. been determined that this claufe muft relate to trufls and equitable interefts, and cannot relate to a ufe, which is now a legal ellate. § 30. Where articles are entered into for the pur- Contraftfor T 1 r ^ i_ ^ Purch?.re. chafe of an eftate, a truft nnmediately refults to the ^ ^^^^ ^^ purchafer. Acherlcy v. Vernon, 9 Mod. 78. § 31. Where an eftate is purchafed in the name of Purchafc in one perfon, and the money or confideration is paid by a'^t,.^n"^r. another, there is a refulting truft in favour of the per- Li^yd v. fon who paid the confideration. But in all cafes of ^P^^'|].''\ this kind, the payment of the money muft be proved, Willis v. by clear and undoubted evidence; for, otherwife, the ^Aik'. 71. Court of Chancery will not interfere. H h 4 § 32. Sir 472 Title TLl. rru.fl, Cb,l §32,33- Gafcoltigv. § 32. Sir Thomas Gcifcoigne bought an eftate, and 1 Vcm!^366. to<^^ ^^^ conveyance in the name of one Vavqfor, who affigned to the defendant Thwing ; and it was fuggefted by Sir Thomas Gafcoigne, that the eflate was bought v/ith his money, and was upon truft that Elizabeth Thwing, (who was then dead), fhould enjoy it for her hfe, and then in trufl for Sir T. G., who prayed the eftate might be conveyed to him. The defendant de- nied he knew it was bought with the plaintiff's money, but believed it was bought with the proper money of the faid Elizabeth Thwing, and that the conveyance was in truft for her and her heirs, and claimed it as heir to her, infifling on the ftatute of frauds, there being no declaration of truft in writing. The chief point was, whether when a man purehafes land with his own money, and takes a conveyance in another man's name, this is fuch a refulting truft by implication of law, as is faved by the ftatute, and needs no declaration of truft. After long debate, whether the plaintiff fhould be admitted to prove the money was his, the proofs were read, and they amounting only to what had paffed in difcourfe, the Mafter of the Rolls difmiifed the plain- tiff's bill, becaufe the proofs were not fufficient where- on to ground a decree. Piirc'is^e by § 33. It was formerly doubted, whether in the cafe whh' Traa- ^^ ^ purchafe made by a truftee with truft money, a Money. refulting trufl would arife to the perfon entitled to the money j Title XII. Trvjl. Ch. i. S 33. 34. 473 money ; becaufe thiit would be to contradia the deed Kirk v. by parol evidence, in diredt oppofition to the flatute of JJi^^c ^n Ch. frauds. It has, however, fmce been determined, that ^4- evidence aliunde is admiffible, to fliew that the purchafe was made with the truft money ; and that, where that circumflance has been clearly proved, a truft will refult to the owner of the money. § 34. A bill was brought by the legatees of John liyal v. Ryal, Ryal againft the executrix and heir at law of Jonathan '^'^' Ryal for fatisfaclion out of the aflets againft the exe- cutrix, and as againft the heir at law, to have fatif- faclion out of an eftate purchafed by Jonathan Ryal^ fas the plaintiff infifted), with the affets of John Ryal, the original teftator. The defendant, the exe- cutrix, admitted that, as to one particular eftate, it appeared by her teftator's papers, that it was purchafed with 250 /. of the teftator's money. Proof was read, that Jcnathan Ryal, after teftator's death, purchafed feveral eftates ; and that, before that time, he was a poor per- fon, and not able to pay for them out of his own money. The counfel for the plaintiff infifted, that the heir at law was to be confidered as a truftee for them, as far as the eftate appeared to be purchafed with the affets of John R.yal. On the other fide, it was argued, that money could not be followed into land. Lord Hardwicke — The court has been very cautious of following money into land, but has done it in fome cafes. No on© would faj, but the court would, if it was 474 Lane v. Digbton, Amb. 409. Title XII. Truji. Ch, i. § 34—36. was actually proved that the money was laid out in land. The doubt with the court, in thefe cafes, has been on the proof. There is difficulty in admitting proof. Parol proof might let in perjury : but it has always been done, when the fact has been admitted in the anfwer of the pe^fon laying it out. If the execu- tor of John Ryal had been a party, and admitted it, there would have been no doubt ; but the admiffion is by his reprefentative, which, though it does not bind the heir, is ground for inquiry. The way of charging the heir is by confidering him as a truftee ; as, when lands are purchafed by one in the name of another, it is a refulting truft by law, and out of the flatute : and, upon inquiry, a little matter will do to make it a charge pro tanto. Refer it to the mafter to inquire whether the eftate was purchafed with 250 /. of the teftator's money or not. Conveyance ^ 2>S' Where lands are conveyed to a ftranger with- fideiation. out any confideration, there will be a refulting trufl for the original owner. Dulic of Norfolk V. Browne, Free. Ch. 80. 1 Ab. Eq. 381. § 36. The Duke of Norfolk had executed a grant of the next avoidance of a church, to a clergyman who was much entrufled and employed by him. The grantee knew nothing of the maldng of this grant, and being examined in a caufe, depofed, that he did not purchafe it of the Duke. It was decreed to be a refulting truft for the grantor, there being no other triilt declared. § 37, Where Tit/tfXn. Tntji, CZ;. i. § 37— 40. 475 5 2,7. Where the legal eftate in lands is conveyed A Truft to a truflee, and a truft is declared as to part only, v-^n^^ "* nothing being faid of the red, what remains undifpofed Lloyd t. of refults to the real owner. Spillat, 2 Alia. 150. § 38. In the fame manner, where the whole of an eftate is conneyed for particular purpofes, or on parti- cular trufts only, which, by accident, or otherwife, Prrc. InCha. cannot take effeft, a truft will refult to the original ^ p.* \\mi. owner, or to his heirs. As, where a teftator devifes ^°- '^^^• I V«rl 108. real eitates to truftees, in truft to fell, and to apply the Amb. 643. purchafe money in a particular manner, and fuch pur- pofe cannot be effeded, the fund, though money, will be confidered as land, and will refult to the heir at law. § 39. A perfon devifed her real and perfonal eftate I^'gby v. to truftees, in truft to fell and pay debts and legacies, cited and to pay the refidue to five persons, to be equally 3 P« ^ "^s. divided between them. One of the refiduary legatees died in the life-time of the teftatrix. It was decreed by Lord Chancellor Bathiirfi in Tri- i ^'■"- C^^'* Kcp. 5^9. nity Term 1774, and the decree affirmed at a rehear- 3 355. ing, that this was a refulting truft, as to the ftiare in the real eftate of the refiduary legatee, who died in the teftator's life-time, for the benefit of the heir at law. § 40. The rule, that where lands are devifed for a particular purpofe, what remains artci mat purpofe is fatisfted refults, admits of feveral exceptions. § 41. Richard 476 Title XIL Trujl, C/j.i. §41. HJIIv. Ep. § 41* Richard Smith devifed an advowfon to Grace iAthr6i8. Smith, willing and defiring her to fell and difpofe of the fame to Eton College, and, on their refufal, to Tri- nity College, Oxford, i^c. Soon after the death of the teftator, Grace Smith prefented a perfon to the living, upon which, the heirs at law of the teftator filed their bill, in order that the biliiop might be enjoined from accepting the prefentee of Grace Smith ; the plaintiffs infifling, that the teftator did not intend the prefent avoidance fhould go to Grace Smith, but that fhe ought to be confidered altogether as a truflee for the heirs at law of the teftator. Lord Hardzvicke — " The general queftion on this " devife is, whether there be a refulting truft or not I *' In the firft hearing, I inclined to think that there " was, but I have changed my opinion entirely : the " general rule, that where lands are devifed for a par- " ticular purpofe, what remains after that particular " purpofe is fatisfied refults, admits of feveral excep- *« tions. If J. S. devife lands to J. to felt them to B., " for the particular advantage of B., that advantage is *' the only purpofe to be ferved, according to the intent " of the teftator, and to be fatisfied by the mere acb " of felling, let the money go where it will, yet there is " no precedent of a refulting truft in fuch a cafe : nor *' is there any warrant from the words or intent of the " teftator to fay, this devife fevers the beneficial intereft, " but is only an injunftion on the devifee to enjoy " the thing devifed in a particular manner. If J. de- " vifes lands to J. S. to fell for the beft price to B., or " to 57/7^X11. Truft. C/^. i. § 41— 43. 477 *-' to leafe for three years at fuch a fine, there is no " refulting truft. So that the devife here amounts to " no more than this ; the teflator gives the advowfon " to Grace Sjulth^ but if fuch or fuch a college will " buy it, then he lays an injunction upon her to fell ; " and, therefore, there are two objects of the tefta- " tor's benevolence, Grace Smith and the colleges." § 42. Where a perfon makes a conveyance of a Where no legal eftate to truftees, upon fuch trufts, and for fuch j^ made^"""^ intents and purpofes as he fhall appoint, and no appoint- pitz^rib R ment is made, there will be a refulting truit for the 223. grantor. § 43. Where a father purchafes lands during the Pnichafe by minority of his child, in the name of the child, without \\^^ Name of any declaration of trufl in the deed, and takes the ^ Child- profits during the minority of the child, fuch a pur- chafe will be confidered in a court of equity as an ad- vancement for the child, and not as a trufl for the father. The reafon is, becaufe between a father and his child blood is a fufficient confideration to raife a ufe. And herein the law of trufts does, as it ought to do, agree with the law of ufes : for, if before the flatute 2'jHe?i.S. a father had made a feoffment to a flranger without any confideration, the ufe refulted to hinifelf ; but if he had made a feoffment to his fon without any con- fideration, no ufe would have refulted to the father. Becaufe blood was a fufiicient confideration to have Rep. Temp, veiled the ufe in the fon. Befides, as a father is bound ^"'' ' ^^** by 478 r;V/^XII. Triiji. a.i. §43— 45- by the law of nature to provide for his child, his pur- chafmg in the name of his child will be conftrued, in a court of equity, to be a performance of that obligation; and the taking of the rents and profits, during the minority of the fon, only implies that tiie father aded as guardian to the fan. Grey V. Grey, § 44. Lord Gr^y purchafed the manor of Gosjield in Rcp.lemp. ^-^^ name of his elded fon, Thomas Grey, who died in i'lncn, 330. "^ 1 Clia. Ca. the hfe-time of his father. Afterwards Lord Grey *^ ' fettled his eflate on himfelf for life, remainder to truf- tees to raife portions for his younger children. Upon the death of Lord Grey, Ralph, who was originally the fecond fon, claimed this ellate as heir at law to Thomas, his elder brother, upon the principle that this purchafe was an advancement for Thomas Grey, and not a truft for the father j and it M^as decreed accordingly. Miimmav. § 45- Jacob Mumma purchafed a copyhold tene- Mumma, ^^^ -^^ ^^ TiT^x^^ of his eldeft fon, an infant of about 2 Vcrn. 19. . eleven years old; he afterwards laid out 400/. m improvements, paid the purchafe money, and the fines, and enjoyed it during his life. The father furrendered this copyhold to the ufe of his will, and devifed the fame to the ufe of his wife for life, remainder to his younger children, and made - other provifions for his eldefl fon. Upon the death of the father, the eldefl fon re- covered this copyhold in ejectment ; and a bill was brought by the widow to be relieved, upon the pnn- ciple Title XII. Truj}. Ch. i. § 45, 46. 479 ciple that the eldefl fon was only a truflee for the father. The Lord Chancellor, however, was of opinion, that as the eldefl fon was but an infant at the time of the purchafe, though the father did enjoy during his life, yet the purchafe muil be confidered as an advancement for the fon, and not a truft for the father. § 46. A father purchafed copyhold lands in his Taylor v. q's name, who was then 18 year tinued in polTeiTion until his death. r » 1 TO r 1 Taylor^ fon s name, who was then 18 years or age, and con- i ^tic. -.'^(^^ The queftion was, v.'hether this fhould be con- fidered as an advancement for the fon, or a truft for the father. Lord Hardwicke^ — *' I am of opinion that it fhould " be confidered as an advancement for the fon ; and " found my opinion greatly on the cafe of Min-.ima v. Ante, f. 45. *' Mumma ; and though two receipts are produced " under the fon's hand, for the ufe of the father, I " think that will not alter the cafe ; for the fon being " then under age, could give no other receipt in dif- " charge of the tenants who held by leafe from the " father. And in this cafe I am of opinion that parol *« evidence may be admitted, though indeed improper, " when offered againft the legal operation of a vvil', *' or an implied trufl: ; but here it is in fupport of law, *' and equity too,'* V 5 47. A pur- 48 o Title Xn. Trujl. C/^. i. § 47— -49. Scroop V. § 47. A purchafe by a father in Lis own name and ^^?°^^ ,n that of his fon, has, in feme inftances, been deemed Back V. an advancement for the fon, and not a truft for the Free. inCha. father. But this do6lrine has been altered by fome I. modern determinations. § 48. Where a father prnxhafes an eflate in his own name and that of his fon, a moiety of it will be fubjeft to the debts of the father. Stileman r. § 49. A father made a purchafe in his own name^ ^^ir^^L and that of his eldefl fon, and their heirs ; and another 2 Atk. 477* purchafe in his own name, and that of his younger fon, and their heirs. The father paid the purchafe money, and continued in pofTelTion until the time of his death. A judgment creditor of the father's brought his bill to have fatisfadion out of thefe eftates. It was infifled that the fons took thefe eftates to their own ufe, as an advancement, and were not truflees for their father. Lord Hardivicke, — It has been Infilled on the part of the defendants, that thefe two purchafes are to be confidered with refpecl to a moiety, and on account of the furvivorfliip, as an advancement of the fons ; and, confequently, they are entitled to retain the eftates, and are not liable to the plaintiff's judgment. Now, as to that, the general rule has been admitted, and has been long the doftrine of this court, that not- ■withftandlng the father pays the whole money, yet, if the TiikXlL Tniji. Cb.i. §49* 481 the purchafe is made in the name of a younger fon, the heir of the father fliall not infifl it is a trufl for the father. But the prefenjf cafe differs from this rule or any other that I remember. And if I can find any material difference, I fhall, in my own judgment, be incHned to reheve the creditor ; for though it may be proper Jiare decifis, yet I have thought the cafes have gone far enough in favour of advancements, and that I ought not to carry it further. It muff be ad- mitted that, in feme cafes which have been before the court, the father has continued in poffefllon, where the purchafe has been made fmgly in the name of the fon, and yet held an advancement of the fon ; and for this reafon, becaufe the father is the natural guardian of the fons during their minority. Here the purchafe is in the names of the father and fon as joint tenants ; now this does not anfwer the purpofe of an advance- ment, for it entitles the father to the poffeffion of the whole till a divifion, and to a moiety abfolutely even after a divifion ; befides the father's taking a chance to himfelf, of being a furvivor of the other m^oiety. Nay, if the fon had died during his minority, the father would have been entitled to the whole, by virtue of the furvivorfhip ; and the fon could not have prevented it by feverance, he being an infant. JSuppofe a ftronger cafe, that the father had taken aii eftate in the purchafe, to himfelf for life, with re- mainder to his fon in fee : fliould this prevail againff the creditors ? No, certainly ; for the defendant's father having the profits for life, and the fon only a remainder, the eftate' would have been liable. A ma- terial confideration for the plaintiff is, that the father Vol, L I i might 482 Title XII. rruji. Ch. i. § 49, 50. might have other reafons for purchafing in joint- tenancy, namely, to prevent dower upon the eflatc and other charges. Then confider how it flands in refpeft of the creditor. — A father here was in pofieffion of the whole efcate, and muft neceffarily appear to be the vifibie owner of it> and the creditor too would have had ?. right, by virtue of an elegit^ to have laid hold of a moiety ; fo that it differs extremely from all the other cafes. Now it is very proper that this court fhould let itfelf loofe, as far as poflible, in order to re- lieve a creditor, and ought to be governed by particular circumftances of cafes : and what can be more fa- vourable to the plaintiff than that every foot ©f the eftate is covered by thefe purchafes, and unlefs I let him in upon thefe eftates, the plaintiff has no poffibility of being paid. i ole y. Pole, j^. ^^^ decreed, that a moiety of the purchafes was 1 Vei. 76. 7 y r liable to the debt. Rep. Temp. c -q. Where a fon is married in the life-tim.e of his Finch, 341. '^ '^ iVef. 76. father, and by him fully advanced, and in a mxanner emancipated 5 there, a purchafe by the father, in the name of the fon, may be a trull for the father, as much as if the purchafe had been made in the name of a ftrangel' j bccaufe, in that cafe, all prefumptions and obligations of advancement ceafe. But where the fori is not advanced, or but advanced or emancipated in part, there is no room for any conftrudion of an implied truft ; and, without clear proofs to the con- trary, it ought to be taken as an advancement to the fon. § SI' It 57//^ XII. TrUjQ. C/a i. § 51— 54. 483 § 51. It is laid down by Lord Chief Baron Gilbert ^ Lex Prxtor. 2 7 I « that if a father purchafcs in the name of his fon, who is of full age, which, by the EngUJJo law, is an eman- cipation, out of the power of the father ; there, if the father takes the profits, or lets leafes, or afts in any other manner as the owner of the eflate, the fon will t be confidered as a trullee for the father ; becaufe there is the fame refuking trufl as if the fon were a flranger, fmce it was purchafed with the father's money. § 92. But if the father had let the fon continue In Id. poireffion from the time of the purchafe, without ail- ing as owner, it would be an advancement. For the legal intereil being in the fon, and the father permit- ting him to acl as owner of the eflate from the time of the purchafe, does as m.uch declare the trufl for the advancement of the fon, as if It had been declared in exprefs words by the deed. 5 ^T^. A purchafe by a grandfather in the name of Ebraud v, his grandchild, provided the father is dead, in which 2Cha.Ca. 26. cafe the grandchildren are in the immediate care of the grandfather, will be deemed an advancement for the Lloyd v. grandchild, and not a trufl for the grandfather. j P^ {Yms. 608* § 54. Where a perfon purchafed a copyhold eflate Fearne's Op. in the names and for the lives of his three natural 3^^' daughters, who were admitted and filled his daughters on the admifTion, Mr. Fearne was inclined to the opi- nion, that the daughters were entitled to the eflates for their own ufc. lis § 55* ^ wife 484 Title XII. Truji. Ch. i. § SSSI' Purchafe in § 55. A wife cannot be a truftee for her hulband ; a Wife"^^ ° '^^^^ therefore, if a hufband purchafes lands, in the Kinfrdom v J^^^ie of his wife, it fhall be prefumed, in the firft Bridges, inftancc, to be an advancement and provifion for the 2 Vern. 67. Wife. Renewal of g ^5. It has been long fettled, that where a truftee a Leafe by a Tiuiiec. for an infant, or for any other perfon, takes a renewal of a leafe in his o^.v^ name, the renewed leafe fhall, in equity, be fubjecl to the former trufl. This doftrine 1 Clia. Ca. is founded on general policy to prevent fraud ; for as 1 Vern. 276. ^^^ trullee's fituation, in refpecl to the eftate, gives ^^'^' him accefs to the landlord, it would be dangerous to permit him to make ufe of that accefs for his own benefit. Keecli V. § 57. A leafe of the profits of a market was devifed iicl. Ca. in. to a truftee, in truft for an infant. Before the expi- Cha. 61. ration of the term, the truftee applied to the lefTor for a renewal, for the benefit of the infant, which he re- fufed, in regard that it being only the profits of a market, there could be no diftrefs, and the only fecurity for the payment of the rent would be a covenant, which the infant could not enter into. There was clear proof of the refufal to renew, on which the truftee took a leafe for his own benefit. It was decreed by Lord Chancellor King, that the leafe (hould be afGgned to the infant, that the truftee fliould account for the profits fince the renewal, and fhould be indemnified from the covenants in the leafe. His Lordftiip faid, he rauft confider this as a truft for the Title X\l. Trujl. Ch.\.%si—^^' ' 4S5 the infant ; for if a truflee, on a refufal to renew, might have a leafe to himfelf, few trufl eflates would be renewed to the ce/iuique trufl^ That the truflee (hould rather have let it run out, than to have taken a leafe for himfelf. That it might feem hard that the truflee was the only perfon of all mankind who might not have the leafe ; but it was very proper that rule fhould be flriclly purfued, and not in the leafl relaxed ; Kllllck v. Flexnev, for it was very obvious what would be the confequence 4 Bro.'Rep. of lettnig truflees take leafes on a refufal to renew to ^^^* the cefmique trufl. § 58. This doclrine has alfo been applied to perfons having only a particular and limited interefl in a leafe- hold eflate. § 50. Thus, where a tenant for life of a crown leafe, Tafier v. P , Marriott, under a marriage fettlement, got a renewal ot the ^mb. Rep. leafe in reverfion, it was decreed by Lord Chancellor ^^^' 734- Camden, that it fhould go to the ufes of the fettle- ment. § 60. It fhould, however, be obferved, that there No Tmft .- . 1 1 /r between a call be rio implied trufl between a lefTor and leilee; Leffor and becaiife every leifee is a purchafer by his contract and his covenants, which excludes all pofTibihty- of iniply- ^,\'^"fe°" ingr a trufl for the lelTor : and, therefore, if in that 7 do. Pari. - - - . . . Ca. 383. cafe, there be any-truft ^t-aHj it-mufl be-deciared m writing.' '"■- ---'^ ^i:>- o: .•>?ri=i!k s- . ^ 61. AVhere" any fraud is-coMmifted in obtaining where there •^ •' ^ Ml ^^ Fraud, a a conveyance, the grantee, in fuch conveyance, will x luft arif«. lie? be 486 Title J.IL rrujl. C/;. I. § 61—65. be confidered in equity as a truflee for the real owner. ♦FearneCont. Sem. 479. Vide Treat, of Eq. b. z. c. 6. f. 2. § 62. Thus, where a perfon purchafes of a truflee, with notice of the truft, he is guilty of fraud, even though he fhould pay a valuable confideration ; and is therefore confidered as a truflee for the perfon en- titled to the beneficial interefl. For, as Lord Hardwicke fays, " if a perfon will purchafe, with notice of another's " right, his giving a confideration will not avail him, " for he throws away his money voluntarily and of his '^ own free will/' Tiufts of Cop) holds. Tit. II. ch.3. f. 28. JTowe V. Kowe, I Vein. 415. § 62^. It has been flated, that the Ratute of ufes does not extend to copyhold eflates ; and, therefore, if a copyhold is furrendered to A,, to the ufe of ^.j the legal eilate will not be transferred to B., but he will be entitled in equity to the rents and profits, and to call upon A. for a furrender of the eflate. § 64. Where copyhold eflates are granted for lives, the perfon who pays the confideration or the fines will be deemed the real owner ; and the other perfons, whofe names are inferted in the grant, will be deemed triiflees for him. Dencrer ▼. 1 P.Wms. 780. % 6^. Copyhold lands were granted to the hufband and wife and J. S. for their feveral V\.\ts,fuccejjive, and by the copy it appeared that the fine was the money of the hufband and wife. Lord Title XII. Truji, C/j. i. § 6s, 66. 487 Lord Chancellor.—" This third perfon (J. S.) *' named in the grant, is in equity to be intended but '' as a truftee for the hufband and wife and the furvivor " of them, by whom the purchafe money was advanced ; *' and it being mentioned in the copy that the fine was " paid by the hufband and wife, is ftrong evidence of "" the fads being fo ; which, though the court will not *' look upon as conclufive, yet any evidence given to *' contradict it, ought, in order to prevail, to be very «« clear and full." § 66. By the cuftom of the manor of j4., copy- Withers v, holds were grantable for three lives fucceJJ'i.ve Jicut ^^b'^^'^i nominantur. One Price, being the lafl life in an old copy, the lord of the manor (as appeared in evidence) advifed him to renew ; and, upon that, he enquired after two healthy young perfons, and named the de- fendants Harris and Bowles, and a copy was granted to hold to them fuccejjjive. It alfo appeared on the copy, that the fine, which was 120/., was paid by Frice ; and that the defendants were ftrangers to Frice, The queflion was, whether, upon the death ol Price, Harris, who was the next in nomination, was entitled, or whether the copyhold went to the reprefentative of Price. Lord liardwicke was of opinion, that refulting trufls of copyholds, as well as of freeholds, are within the fla- $:x\\ih v. tute of frauds and perjuries, and that the reprefentative Ya^C. 28? 114 of 488 "Title XII. truji, Ch, i. § 66—70. of Price was entitled to the copyhold by operation of law. 2 Black. R. ^ Sy The Court of King's Bench obferved m. a ^"^* modern cafe, that, in the Welf , it was ufual upon copy- holds for lives, that the cejluis que vie take in the order they Hand in the copy ; but the perfon who puts in the lives, and pays the fine, has a power of difpofmg of the eftate. Who may be § 68. When trufls were firfl introduced, it was held, Truilees. ^^^ ^^^^ ^^^ ^^^^^ ^^-^^ ^^^^^ capable of being feifed 4'■T'46^' to a ufe, could be truflees. But this is quite altered, and it is now fettled, that the king or a corporation may be a truftee. I Vef.468. § 69. It has alfo been determined, that when once Amb.R.552. ^ ^^^^ jg fufficiently created, it will fallen itfelf upon the eflate ; and, therefore, if a conveyance or devife, by which a truil is created, becomes void by the in- capacity or death of the grantee or devifee, ftill the Court of Chancery will decree the trufl to be carried into execution. Eennet v. § jo. A perfon devifed lands to his daughter, who Davis, 2 P. married to a tradefman in London^ for her feparate Vvms. 310. and peculiar ufe, exclufive of her hufband, to hold the fame to her and her heirs. The hufband became a bankrupt, and it was decreed, that he fliould be a truftee for his wife and her heirs. § 71. An Title 111. Truft. C/>.i. § 71— 72. 489 §71. An eflate was devifed to a corporation (which SonTey v. was incapable of taking in confequence of the ftatute , ]\x^tz\\i** of mortmain) upon certain trufts. It was decreed, that ^^P- S'* although the devife was void in law, yet that the trufl was fufficiently created to fallen itfelf upon any eftate the law might raife ; and, therefore, that the heir at law was a truftee to the ufe of the will. § 72. There formerly prevailed a diflinftion between All Tmfls trulls executed, and executory ; but it is laid down by cutoiy. Lord Hardwicke, that all trufts are executory ; and his Lordfliip is reported to have expreffed himfelf, in this inflance, in the following manner : — " All trufts are, Cunn. D;a. " in the notion of law, executory, and to be executed ^^^^^'^.^^^ ^ *' in this court by fuhpana^ as the old books fpeak. Spencer. *' At common law every ufe was a truft. Then came *' the ftatute 27 Hen, 8., and executed the legal eftate ^' to the ufe, and conjoined them together. The ftatute " mentions trufts as well as ufes ; and a truft executed *' is, in ftriclnefs, now a legal eftate ; and, therefore, " in order to bring it into the jurifdi6tion of the Chan- " eery, it muft be executory, that is, the legal eftate " muft want to be executed to the truft, and a con- " veyance to be decreed ; therefore one eftendal part " of the truft is, that the truftee is to convey the eftate *' at fome time or other ; fometlmes it is to be done *^ fooner, fometimes later ; and this whether the " teftator has directed it or not : and fo much every " teftator is prefumed to know. One may therefore " reafonably doubt how it can make any fubftantial ^* difference whether the teftator has in words direfted '* a con- 490 Title XII. Trufl, Ch. i. § 72. *' a conveyance or not, fmce the law, that is, the *' courfe of this court, takes notice that the teftator '' could not intend his eftate Ihould always remain in *' the truftees, but that one principal confidence re- ^* pofed in them was to convey." TITLE ( 49^ ) TITLE XII. TRUST. CHAP. II. Of the Rides by which Truji EJiates of Freehold are gover7ied. ^ \. A TruJi is equivalent to the legal Owner/hip. Confidence in the Perfonjldl neccjfary. But not Privity of Efiate. Cejiuique Tniji deetned the real Oivner. Trujls are allenahle, devif- able^ and defcendible, Trujls are intailahle. May he limited for Life. 2. 3- 4- 8. SubjeS to Curtefy, 1 o . Exception — Trufi for the fc' par ate Ufe of the Wife. 1 2 . But not to Doiver. 21. SuhjeB to Forfeiture for Treafon. 24. But not for Felony. 26. Not fubjea to Efcheat. 27. Trufis are Ajfets. 3 I . Me-rge in the legal Ejlate. 32. Where an out Handing legal Efiate is a Bar in Eje£l' ment. Se6lion i. WE have feen, that trufl; eftates owe their origin to A Truft »$ ^ . ^ /I ^ . . 11 r equivalent to the ftrid conftrudtion given by the courts ot to the legal law to the flatute of ufes ; in confequence of which, Ownerlhip. the Court of Chancery was obliged to interpofe its authority. But in the exercife of this jurifdiftion, they have avoided the inconveniencies with which ufes were attended ; for, ahhough the Court of Chancery firfl laid it down as a principle, that a truft, being in fad an ufe not executed by the ftatute, ought to be re- gulated by the rules which had been eftablifhed Tefpeding 49'. I Vcf. 357. I Black. R. Title XII. TruJ^. Cb. n. § 1—3. refpecling ufes, before they were changed into legal eflates ; yet this idea was foon departed from, in many inftances ; and it was found much more convenient to confider a trnft eflate as equivalent to the legal owner- fhip, and to regulate it in the fame manner, as the legal eftate. Hence Lord Mansfield has faid, " that " the cefiuique trufl is aclually and abfolutely feifed of " the freehold in the confideration of a court of " equity : that the truft is the land in that court ; and " that the declaration of truil is the difpofition of the " land." Cor.fiJcnce in the Pei fon Hill neceffary. TcarneCont. Rem. 479. Infra, ch. 4 § 2. Although this principle has been adopted in m-oft inftances, yet a truft eftate ftill retains fome pecu- Harities which ftiew its origin. Thus, it is a rule, that confidence in the perfon is as neceflary to the exiftence of a truft, as it was to that of a ufe. So that, even at this day, if a truftee fells the land for a valuable con- fideration, to a perfon who has no notice of the truft, the purchafer will not be compelled in Chancery to execute the truft. But not Privity of Eilate. Hard.R.469. I Black. R. Vide Tit. 30. § 3. As for the privity of eftate, it was formerly held to be as neceflary as confidence in the perfon ; but this is now altered. "' And Lord Mansfield has faid, " that part of'^'the old law, which' did not allow any *' relief to be'git'en fofor'againft any^ates in the/g//?, " does not now'bfndty its authority^, in the cafe of « trufts." " ' '"■ '' It feems, however, very doubtful, whether a lord by efchcat is bound to execute a truft. 2 § 4- A ceJluU 493 Title XII. Triijl. Oh, ii. § 4—6. § 4. A cejiuique trufl in poiTcflion is confidcrcd, in CdUiiq.ic every refpeO:, as the real owner of the eflate ; and, by t-d'ihet^aT" the ftatute 7 Will. c. 25. f. 7., he is allowed to vote at ^«'nef> elections for knijrhts of the fhire. § 5. Any difpofition of a trufl: eftate by the cejiuique Tmns arc trufl:, is binding upon the trufl:ee, in a court of equity. viflbL^,' amf" It having been determined by the Court of Chancery '^'-f^*-""J!^'J-- in 33 Cha. 2., as a general rule, " that any k?gal con- ^.!^''^- ^^• " veyance or alTurance by a ccfiuique trufl:, fliall have *' the fame effeft and operation upon a trufl:, as it " fhould have had upon the efl:ate in law, in cafe the *' trufl:ees had executed their trufl. But all thofe " technical words which the common law req\ures in " the limitation of particular efl:ates, mufl: be ufed in " the difpofition of trufts.*' Trufl efl:ates are alfo de- vifeable ; and where they are not devifed, they defcend to the heirs of the perfon who was lafl: entitled to them, in the fame manner as legal efl:ates, § 6. It was formerly held, that a trufl: efl:ate being TmRs are merely the creature of a court of equity , v\^as not with- ^""^' ^'^''~' in the ftatuta^ De Donis Conditionalihus ; and, there- ' ^' "*** fore, that where a trufl eflate was limited to a perfon, Bowater v, and the heirs of his bodv, he might, after ifTue, bar ^ ^'^ *' ' fueh iflue by a feoffment, bargain and faie, or will. But this dod:rine is now altered ; and it is fully fettled, that a trufl eflate may be intailed in the fame manner I as a legal one : and that fuch intail can only be barred KiVkman v. by a fine or recovery ; which will have the fame effect ^^^ U ' -^ ' Ar.iD. K.5 1, upon a trufl eflate as upon a legal one* z P. Wma. yii- § 7. A truft 494 ^^'^^^ ^^- "^^^{ft' ^^' "• § 7—9- May be § 7. A trufl eflate may alfo be limited to a perfon limited for £^^ j.^-^ ^^^ .^^ ^-^^j^ ^ ^^^^ ^^^ ^^^ ^^^ ^^j^^j, ^^^^^ J-iirc. ' ' ' 2 ?. Wms. ance by the cejluiqiie trufl for life will operate as a for- *■ 7 feiture of his eflate. 3 Atk. 729. Siil,-;^ to g g^ Although no perfon could be tenant by the Cuit(.fy. curtefy of a ufe, before the ftatute 27 Hen. 8., becaufe the wife could have no feifm of a ufe, yet it has been determined by the Court of Chancery, that a hufband may now be tenant by the curtefy of a trufl eftate of freehold. Watts V. Ball, § 9. A perfon having two daughters, devifed his ' g "^^' lands to truftees and their heirs, in trufl to pay his debts, and to convey the furplus to his daughters equally. The eldeft daughter brought her bill for a partition ; and the only queflion was, whether the huf- band of the younger daughter fliould have an eflate for life conveyed to him, as tenant by the curtefy. The hufband, in his anfwer, had fworn that he married the younger daughter upon a prefumption that ihe was feifed in fee of a legal eflate in the moiety ; that at the time of the marriage, fhe was in the receipt of the profits of fuch moiety. And it was admitted, that this ^ trufl was not difcovered until after the death of the younger daughter, and until it was agreed that a par- tition fhould be made. Lord Chancellor Cooper declared, that trufl eflates ought to be governed by the fame rules, and were within the fame reafon as legal eflates. And as the hufband fhould have been tenant by the curtefy, had it Title 111. Triiji. C>^. ii. § 9—1 1. 495 it been a legal eftate, fo fhould he be of the trud eflate ; and if there were not the fame rules of property in all courts, all things would be, as it were, at fea, and under the greatefi uncertainty. His Lordfliip added, that this being a cafe of fome difficulty, he could have wiflied that it had not come before him as a caufe by confent ; but his opinion was, that the hufband ought to be tenant by the curtefy, and the rather, becaufe it appeared, that he, upon his marriage, did conceive and prefume his wife to be feifed of a legal eftate in the moiety, and had reafon to think fo, fhe being in polTeffion thereof. Wherefore it was decreed, that an eftate for life, in a moiety, in feveralty, Ihould be conveyed by the truftees to the hufband, with remainder in fee to his fon. Lxcerition- § 10. But where an eftate is vefted in truftees, for E: the fole and feparate ufe of a married woman, her huf- f^paratruftT band will not be entitled to curtefy ; for, in that cafe, of the Wife, it is the evident intention of the parties to exclude the hufband from any intereft: in the eftate. §11. Lands were devifed by a perfon to truftees Hearle v. and their heirs, in truft to apply the rents and profits , y^f^ 298.' to the fole and feparate ufe of his daughter during her 3 Atk. 695. life, and to permit and fufFer her to difpofe of the lands to fuch perfons as Ihe fliould appoint. It was decreed that the hufband fhould not be tenant by the curtefy of this eftate, becaufe he had no feifin of it, either at law or in equity. 8 § 12. It 496 Title ^11. Trujl. C/j. il § 12— 15. But not to § 12. It might have been expeded, that when the Court of Chancery deviated fo far from the old law of ufes, as to allow a tenai-cy by the curtefy of a truft eftate, it would have extended the fame indulgence to dower, which is an equitable as well as a legal right ; yet it is now fully fettled, that a widow is not dowable of a truft eft ate, whether the huiband himfelf has parted with the legal eftate, or a truft eftate has defcended upon, or been limited to him. Colt V.Colt, ^ 13. The firft time this point appears to have been 13T. ' ' ' determined, was in 12 Cha, 2. ; and although this doc- trine has been followed by all modern Chancellors, yet they have always exprefted their regret at being bound by fuch a precedent. But fo many cafes of this kind have arifen, and the determinations have been fo uni- form againft the claim of dower, out of a truft eftate, that it is not probable any alteration will be made in this refpect. Bottomley v. § 14. A huft)and, before marriage, conveyed his Free, in Cha. eftate to truftees and their heu-s, in fuch manner, as to 33^' put the legal eftate out of him ; it was determined, that though the truft eftate was limited to him and his heirs, yet his wife fliouM not be endowed of it ; and that the court had never gone fo far, as to allow dower in fuch a cafe. AmLrofe V. § 1 5. A. purchafed an eftate in the names of two f P.^Wms. truftees, who acknowledged the truft after his death j 321- and upon a claim made by his wife for her dower, it was 27//.? XII. Trufi. C/;. ii. § 15— 17. 497 r^as decreed, 'that the wife was not dowable j and Printed Cau 9 1717. this decree was affirmed in the Houfe of Lords. § 1 ^. Sir Jojeph Jekyll has attempted to diftinguifh between the cafe of a truft created by the hufband himfelf, and a truft eftate which has defcended upon, or been limited to the huiband. In the firft cafe, he admits it to be a fettled point, from the authority of the preceding cafes, that the wife cannot have dower, becaufe it muft be prefumed that the truft was created for the fole purpofe of barring dower. Accordingly, it has been t|ie common pradlice, for a purchafer to take a conveyance of the legal eftate in a truftee's name to prevent dower. But, in the fecond cafe, where the equitable eftate defcends, or comes to the huft)and from another perfon. Sir Jofeph contends that it is different. This diftinclion, however, has been exploded by the following determination. § 17. A» devifed a truft eftate to B. and his heirs, Attor. Gon. ■who vvas:«iarried, and, upon the death of ^., his wife Foncii.'i3^. claimed dower out of the truft eftate. Xord Chancellor Talbot—'-' The queftion is very con- ** fiderable, and very proper to be fettled : dower is " properly a legal demand, and here the eftate is- li- " mited to truftees and their heirs, to the ufe of them " and their heirs, fothat it is adually executed in the " truftees ; and whatever comes after can be looked " upon only as an equitable intereft, for there cannot *« be an ufe upon an ufe. The queftion^ therefore, is. Vol, I. Kk *-vvhdhcr 498 ^it^c Xn. trujl Ch. li. § 1 7, 18. ** whether the wife of the devifee is entitled to dowef *' at law. No dower was of an ufe before the fla- *' tute, it being entirely a legal demand ; and then how *' fliall file be dowable of a truft after the ftaitnte, fmce *' no difference can be affigned between a truft now ** and an ufe before the ftatute ? and courts of equity *' muft follow the fame rules now as to trufls, as pre- " vailed before the ftatute as to ufes* How the dif- '* ference now received between tenant by the curtcfy, " and tenant in dower, ever came to be eflabliflied, *' I cannot tell, but th.^t it is eilablifhed, is certain ; " nor have I heard any cafe cited to the contrary, but Prcc. inCha. " that of Fletcher and Rohhifon, which was determined ^ ' " upon another reafon which does not affe6l the pre- Antc, f. 72. " fent cafe. That of Bottomlcy v. Lord Fairfax^ is an *' exadl authority that a woman ihall not be endowed " of a truft, and the received pradtice of inferting •' truftee^ to bar dower, would otherwife be of na " fignification : for me, therefore, to do a thing merely *' upon the authority of an obfcurc cafe, viz. Fletcher *' V. Robinfon, which does not feem to have been de- *' termined upon that point either, and that might *' perhaps fhake the fettlements of 500 families, is *^ what I camiot anfwer to my confcience." It was decreed that the wife was not dowable. Banks V. § 1 8. It is laid down by Sir Jofeph Jekylly that 2"? °Wms ^vhere a particular time is appointed for conveying the 706. legal ejftate to the hufband, and he outlives that time, without obtaining fuch conveyance, his widow /hall, notwith- Title Xll Ttujl. C/^. li. § 18— 20. 499 hotwithftanding, be entitled to dower in equity. For \vhere an ad is to be done by a truftee, that is looked Infra, ch. 4. on as done which ought to have been done. But this do£lrine is not fupported by the decree in the cafe referred to, without the additional propofition, that a wido-y^ was dowable of an equity of redemption in fee : it was a mortgage in fee, and not paid off dur.- ing the coverture. If the truftee, therefore, had convey- ed, he would have conveyed an equity of redemption only, fubjeft to a mortgage in fee, and the widow would not have been entitled to dower, unlefs fhe was dowable out of fuch an equity of redemption. Vide Tit. 15, which ihe is not. This, therefore, though faid, will not fupport the decree ; and the proportion is too im.. portant, and contradicted by too many analogies, to be hazarded upon this clklum alone. § 19. A widow is not dowable of a truft ellat€4aa copyhold or cuflomary freehold. Q 20. A bill was brought by a widow for a cuflom- Goodwin t. , , n » r 1- Windfmorf, ary eftate in lands at IVorccJier. The huiband s iather ^ Atk. 525, .bought the lands, which were conveyed to him and D. and the heirs of the father. The father devifed the • lands to the hufband in tail, and D. farvived the huf- band. The cuftom was laid for the wife to have the whole lands as her freebench. Lord Hardivic^.e — " It is an eftabliflied doftrinc " now, that a wife is not dowable of a trufl eflate ; " indeed, a diftinaion is taken by Sir Jofeph Jekyll in Kk2 -''Banks 5C0 Title Xll. Tri!,fi. C/;. 11. §20,2 i. *' Banks and Sutton, in refpeft to a tmR where It de* " fcends or comes to the hufband from another, and " is not created by hlmlclf : but I think there is no " ground for fuch a diflinclion, for it is going on fup- " pofitions which will hold on both fides ; and, at the " latter end of the report, Sir Jcfeph Jekyll himfelf " feems to be very diffident of it, and refled chiefl j *' on another point in equity ; fo that it is no autho- " rity in this cafe. But there is a late authority in " direO: contradiction to the dillinction above takeji " in Banks and Sutton, the cafe of the Attorney Ge- " neral v. Scott. The only cafe for the plaintiff, is '• that of Oticay v. liudfoiij 1 Vern. 583. : there it was " freebench, and is fo called here ; but it appears' *' plain to be only cuftomary dower : freebench is " merely a widow's eflate in fuch lands as the huf- " band dies feifed of, not that he is feifed of during " the coverture, as dower is. There were many cir- *' cumflanees in the cafe of Otzcay v. Hud/on ; and it " was decreed on the endeavour of the hufband to get " the legal eftate furrendered, and the refufal of the Vide Fordcr *< truflees, and grounded on his will : but, as to the 4 Bro. Rep. " general dodrine at the latter end, it is not warranted ^;^- *' by the decree.** The bill was difmiffed without cofls. . '.'b;eft to § 21. At common law, the king was not entitled to rorfeiture forXreafon. any ufe upon an attainder for high treafon of the cejlid' que ufe, as is mentioned in the preamble to the ftatute of ufcs : fo that, after the paiHng of that ftatute, trufts were, by an analogy drawn from ufes, alfo prote^ed from forfeiture, upon an attainder of the cejiuique trufl for high treaf»;i. S 22. By Title nil, TnijQ. C/3. ii. § 22— 25. 501 ■ § 22. By the flatute -t^^^ Hc:i. 8, c. 20., it is enacted, ^^ that if any perfon fliall be attainted or convitled of " high treafon, the king fhall have as much benefit and " advantage by fuch attainder, as well of iifes, rights, '' entries, and condiiions, as of pofTeffions, reverfions, ** remainders, and all othf-r thing's,' as if it had been " done and declared by authority of parliamentv" § 23. Lord Hale ha<^ obfcr-v^ed that, at the time when !'• ^- 24^* this flatute was made, there could be no ufe, but that which is now called a trnfh ; anci although it was de- termined in Abingdon ^ cafe, that a truft eflate of free- hold was not forfeited by attainder of treafon, yet that refolution could not be reconciled to the itatute 3':; Hen. 8., as the ufes there mentioned could be no- thing but trulls ; and, therefore, he was of opinion, that, upon an attainder for high treafon of the cc/iuiq.ue truft of an inheritance, the equity or truft is forfeited by the 33 Hc7u S., though, poilibly, the land itfclf is aot forfeited, § 24. But, whatever may be the cafe in an attain- But not for der for high treafon, it has been determined, that an '^'^'V- attainder for felony is not within the ftatute 33 Hen. 8., and, therefore, that in fuch a cafe, neither the land nor the truft will become forfeited j for the king has his tenant as before, namely, the feoffee in truft, § 25. Freeman Sands being attainted of felony for y^t^or. Gen. the murder of his brother, and having a truft eftate in '^•^{'Jl'jj,*^,^^^ lands, of which Sir George Sands had the legal eftate, 19. i Hale and thq lands being held of the king, the Attorney ' * '^'^* K k 3 Geueiivl 502 Title XII. Trfifi. Ch. ii. § 25 — 27. General preferred an information againft Sir Oeorgs Sands in the Exchequer Chamber, to have a convey' ance of the legal eflate from Sir G. Sands to his majefty, being the lord of whom the land was held. But it was unanimoufly refolved, that although Free- man Sands had the trufl of the land at the time of his attainder, yet, inafmuch as Sir G. Sands continued feifed of the lands, and fo was tenant to the king, though fubjed to the truil, yet the truft: was not for- feited to the crown ; but that Sir G. Sands fhould hold the lands for his own benefit, difcharged from the trufl. Not fubjea § 26. A trufl eflate of 'inheritjince does not efcheat to Efcheat. ^^ ^j^^ j^^^j^ ^£ ^j^^ cejluique trufl without heirs ; but the truflee may hold the land difcharged from the trufl. This point will be explained under Title 30. Efcheat. Trufts arc § 27. Ufes v/ere not originally liable to the debts of the cejiuique ufe. But there are many precedents m 3r" 'fj^ha. the time of Henry 6., where the writ of extendi facias ^^' for levying the king's debts, was not only of the lands of the debtor, but of any other perfon who was feifed to the ufe of the debtor. For it was determined, that when the king's debtor had the profitable part of the eflate, the king fhould not |o(e his debt by any fidion ef law. $ 28. By Tk/eXll. Truji, a.il. §28— 32. ;o3 5 28. By the flatute of frauds, 29 Cha. 2. c. 3. f. 10., it is enaded, that flieriffs fhall deliver execution of all Jands, 'i^c. whereof any other perfon or perfons arc feifed in trufl for the perfon againfi whom execution is fued, which fliali be held and enjoyed freed from all incumbrances of the perfons fo feifed, in trufl for the • perfon againft whom fuch execution fliall be fued. And where any ccjhdque trull Ihali die, ie;aving a truft in fee-fimple to defcend to his heir, fuch trull fhall be deemed and taken to be alTets by defcent, _ § 29. It was held in Trin, i, Geo. i., that if atruf- Huntv.Coles, tee has conveyed the lands to the cejluique truft;, before Saun'd Rep * execution fued, though he was feifed in trufl for the v. 2. p. n. note, debtor at the time of the judgment, the lands cannot be taken in execution, § 30. Where a trufl eflate defcends on the heir at Jaw, though it may be necelfary to come into equity to reduce it into pofleflion, yet it will be confidered as Jegal, and not equitable affets, a trufl eflate being made afTets by the flatute. § 3 1, Trufl eflates are, in all cafes, fubjeft to merge Merge In the n\ the legal eflate, whenever both eflates come to the Eftate! fame perfon; for a man cannot be a truflee for Doug.R.775. himfelf. .Br„.R.368. § 32. It is a rule in law, that a plaintiff mufl re- where an cover in ejedment, upon the flrength of his own title, Wal'*Eftrte and cannot, of courfe, found his claim on the weak- i^ a Bar m EjeAment. nefs of the defendant's title ; for poflefTion gives the K k 4 defendant 5^4 TiileXlL U/e. C/^.ii. § 32, 33. defendant a right againft every man who cannot fhe\v a good title. The party, therefore, who would change the poflefllon, mufl firfl: eilablifh a legal title in him^ felf ; and therefore, where it can be fhewn by the de? fendant, that the legal eftate is not in the plaintiff, he cannot recover in this action. ^Eurr. R. § 33. An outftanding legal eftate Ihall not, how- Cw' R 46. sver, be fet up as a bar in ejedment to the cc/iuique truft, where fuch cejiuique trufl is entitled to the whole Doug. 731. benefit of the legal eflate. But Lord Mansfield has ' ^* obferved, that " the rule only is, that the truft eftate " fhall not be fet up in an ejedment to defeat the cejiui' \ '' que truft in a clear cafe. In fuch a cafe, where the " truft is perfectly clear and manifeft, the rule ftands *' upon ftrong and beneficial principles, becaufe, in " ejedment, the queftion is, who is entitled to the " poffeftion. But if the truft is doubtful, a court of Vide Infra, " law will not decide upon it in an ejectment ; it mull " be put into another way of inquiry,*' en TITLE ( 505 ) TITLE XII. TRUST, CHAP. III. Of the Rules by ivhich Trujl Terms arc governed. 1 8. 19. 20. Terms hi Grofs. They are not AJJ'ets. Terms attendant on the In- herttancf. Hoiv a Term becomes at' tendant. Where a Term is in Grofs. A Term attendant may' he- come a Term in Grofs. Rules refpeBing Terms at' tendant. A Term attendant is Ajfets. 2 1 . Only paffes by a Will dulj attepd. 2 2. P rated s a Pur chafer from Dozver. 26. But does not proteB the Heir. 28. Nor the Ajfignees of a Bank- rupt. A Term only protiSs a Pur- chafer 'where it is affgned to a Trujlte for him. Curtefy not barred by a Term. Where an outfanding Term is a Bar in Ejedment, 29 31 32 Sedion i. 'TP'flE principles upon whjch terms for years ^e determined not to be aftefted by the flatute of ufes, have been already explained. It will now, there- fore, only be neceflary, to Itate the rules by whicji they are governed, § 2. Terms for years are either vefted in truftees for Ter.ns In the ufe of particular perfons, or for particular parpofes, ^^ ** or elfe upon truft to attend the inheritance. In the firft cafe, they are called Terms in Grofs ; and the per- fons entitled to the beneficial intereft, have a right, in equity, to call on the truilees, or perfons who have the legal 50 6 Title XII. Trujf, Ch. iii. § 2—6. legal interefl in the term, for the nents and profits of the lands, and alfo, for an abfclute legal affignment of the term. They are not § ■?. It has been held, that if a man be ccjiuique AlTcts. truft of a term, it is not alTets within the Ihitute of K. 1 n <'■ V, Ballot, frauds ; for that ftatute only e::i;tends to a truit of lands 3Vern.248. held in fee-fimple. § 4. Terms of this kind are, in general, governed by the fame rules as legal ones ; except that trull terms in grofs are capable of being limited in a manner not allowed in the limitation of legal terms ; of which, an account will be given hereafter, Terms at- § 5. With refpeft to terms which are attendant on ths^:iihe.'it- ^^ inheritance, they owe their exiftence to the follow- atice. lowing circumllances : — When terms for years became Vide Collea. £^^jj ellablilhed, and the intereft of the termor was Jnr. v.2.297. J fecured againft the effed: of fictitious recoveries, long terms became common ; in all cafes of this kind, al- though the purpcfes for which the term was raifed were fully fatisfied, yet it did not determine ; fo that the legal intereft continued in the truftee : but as the owner of the inheritance was entitled to all the benefit and advantage of it, the term became, in fadt, confolidated with the inheritance, and is ufually called a term at- ■ iendant on the inheritance. Wllloughby % 5. Thus, Lord tiardivicke fays, *^ The attend* wnioughby, *' ^^^^ of itrms for years upon the inheritance, is the I Term Rep. c< creature of a court of equity, invented, partly, to '^^^' '< protect title Xri. Trujh Ch. iii.. § 6. 507 *' protect real property, an4, partly, to keep It in the *' right channel. In order to it, this court framed the " diflindion between fuch attendant term and terms " in grofs, notwithflanding that, in confideration of " the common law, they are both the fame, and *' equally kept out of the owner of the fee, fo long as *' they fubfift. But as equity always confiders who " has the right in confcience to the land, and, on that " ground, makes one man a truftee for another — and ** as the common law allows the poflefiion of the te- ** nant for years to be the poffelTion of the owner of *' the freehold, this court faid, that where the tenant ** for years is but a truftee for the owner of the inhe- " ritance, he fiiall not keep out his cejiuique truft, nor, " pari ratione, obftrucl him in doing any ads of owner- " fhip, or in making any affurances of his eftate ; and " therefore in equity, fuch a term for years fhall yield, " ply, and be moulded according, to the ufes, eftates, <' or charges, which the owner of the inheritance de- *' clares or carves out of the fee. Proceeding upon " thefe principles, wherever a term for years has been " vefted in a ftranger, in trufl for the owner of the <« inheritance, whether by truft exprefsly declared, or « by conftru6lion or judgment of this court, which « is called a truji by operation of law^ this court has « faid, that the truft or beneficial intereft of fuch a ^^ term ftiall follow, or be affed-ed by all fuch convey- *« ances, aflurances, or charges, as the owner creates « of the inheritance : though the law fays, that the « term and the fee being in different perfons, they « are feparate and diftindl: eflates, and the one not ^* merged in the other j yet the beneficial and profit. « able 3o5 TifkXlL Triiji. Ch.YL%^. ^* able interefl cf both, being in the fame perfon, ^V equity will unite them for the fake of keeping pro- " perty entire ; therefore, if the owner of the inheri- " tance levies a fine fur cognizatice dc droits or fuffers ** a recovery to ufes, the truil of ihe term muft fol- ''^ low, and be governed by thefe ufes, although a ^^ term for years is not the fubjeft of a fine fur cogni- " zance de droits much lefs of a common recovery. ^' Nor would equity allow the truil of a term in grofs ** to be fettled with fuch limitations. This dodrine *' is always allowed to have its full effc6l us between *' the reprefentatives, /. e. the heir, either in fee-fimple " or fecrtail, of the owner of the inheritance, and the " executor, and all perfons claiming as volunteers *' under him j although certain diftindions have been ^' admitted as to the creditors, which are not material " to the prefent cafe. And, in general, the rule has " been the fame, whether the trufl; of the term be *"• created by exprefs declaration, or arifes by con-' ** (IruQiion and judgment of this court, |(J, '' But although, in all cafes, this court confiders ** the truft of the term as annexed to the inheritance, *' yet the legal eftate of the term is always feparate ** from it, and muft be fo, otherwife it would be merged : " and this gives the court an opportunity of making ** ufe of fuch terms as a guard and protection to an *' equitable owner of the inheritance againil mefne " conveyances, which would carry the fee at common *' law ; or to a perfon v/ho is both legal and equitable ''* owner of the inheritance, againft fuch mefne in- •<'• cumbrancSi, as he ought not to be affe6led with in " confcience. Title XII. Trujt. Ch. ill. § 6 — '9. 5cr9 ** confcience. And here the court often difannexeS " the truft of the term from the ftri<^ legal fee, but " flill in fupport of right.'* § 7. A term may become attendant on the inherit- HowaTerna ance, either by an exprefs declaration of truft, or by tendajit! ^^" implication of law. Thus, where a fatisfied term is afligned to a truftee, upon a» exprefs truft to attend the inheritance, the owner of fuch inheritance acquires a right to the term by the declaration of the parties. But there are many cafes where no fuch declaration is made, and then it becomes a queftion in equity, whether it is a term in grofs, or a term attendant on the inheritance. § S. In confequence of a maxim in equity, " that Max. in Eq, " ftiould have the fatlsfaftion which has fuftained the *' lofs," it has been often determined, that where a term is carved out of the inheritance for any particular purpofe, when that purpofe is fatisfied, the term be- comes attendant on the inheritance. § 9. A woman, before marriage, raifed a term for Bed v. loco years, upon truft that her intended hufband pj.^,^, i^cha, fhould receive the profits during their joint lives ; and 252. if they fhould have any children, in truft for fuch children during the refidue of the term. The hufband died without children j the wife fur- vived, and married another huiband, who furvived, and took out adminiftration to his wife. The 21. 510 Title XII. Trujl. Ch. ill. § 9—12. The queftion was, whetlier the term Ihould go to the hufband or attend the inheritance. Lord Keeper. — " This is only an unlkilful declaration, " and not the intent of the party ; and the particular " purpofe being ferved, it muft attend the inheritance ; " for fo I think it was at her fecond marriage, and *' that could not be altered by her death, for equitas ** fequitur lege?n ; and cited Polbill v. Polhill^ and if the ** term and inheritance had been in the fame hands it *' would have merged ; fo here it fhall be attendant '* in equity." §10. Where a perfon purchafes the inheritance of lands, and obtains an aflignment of an outftanding term to a truftee for himfelf ; fuch term will be confidered as attendant on the inheritance. North r. Langton, 3 Cha. Ca. 156. Tiffin V. Tiffin, I Vcrn. I. Dowfe T, Derival, I Vern. 104. §11. A woman, who had lent a fum of money upon a mortgage, purchafed the inheritance, and got the term affigned to a truftee for her. On her dying inteflate, this term was decreed to attend the inherit- ance, for the benefit of the heir, and not to go to the adminiftrator. If Ihe had firft purchafed the inherit- ance, and afterwards the term, it would have been the fame thing. Huntingdon V. Huntingdon, 2 Bro. Ca. in Pari. I. § 12. Lord and Lady Huntingdon fettled certain lands, which were the eftate of Lady Hwtti?igdon, to the ufe of Lady H. for life, remainder to her fon in tail, l^c. fubjed: to a power referved to Lord and Lady H, to revoke and limit new ufes. Lord Huntingdon pre- I vailed Title Xll. Trii/}. Cb. ui. §12,13. 511 Tailed on his lady to join him in demifing the premife^ for 1000 years to a morrgngee for fecuring 4500 /., and Lord //. covenanted to pay cIT the mortgage mortey. Lord //. paid off the mortgage, took an afiignment of the term in truft for himfelf, and devifed it for thi benefit of his younger children. Upon the death of Lord //. his eldeft fon filed a bill agalnfl the pcrfonal reprefentatives of his father and the truflees of the term, praying that it might be afllgned to attend the inheritance free from incumbrances. Lord Keeper Wright decreed, that the plaintiff muft redeem the mortgage. But on appeal to the Houfe of Lords, this decree was reverfed, and the term was directed to be affigned to the appellant ; becaufe when Lord H. paid off the mortgage, the purpofe for which the term was created being fatisfied, it became attendant upon the inheritance. § 1 3. Edivard Whitchurch took a mortgage of certain witchurch v. lands from one Bifs, for 500 years. He afterwards ^ p|\vms!' took another mortgage of the fame lands for 1000 236. years, in the name of another perfon, but in truft for himfelf. Edward Whitchurch fometime after purchafcd the inheritance of the premifes in his own name, and devifed them to a nephew. The will not being executed according to the ftatute, did not pafs the real eftate. The heir at law of the teftator brought a bill to compel the executor to allign over the term. It was decreed by the Waftcr of the Rolls, that as this was a term which would have at- tended the inheritance, and in equity have gone to the heir. 3 1 3 title XII. TritJ}. Ch, ili. § 1 3— 1 6. heir, and not to the executor, in which refpeet it iv«i$ to be confidered as a part of the inheritance, fo the 9 Mod. 127. will fhould not carry it. Upon an appeal to the Lords Commifiioners Rapwnd and Gilbert, the decree wa$ affirmed. GoodrlgKt g 14. John Hoole took an alTignment of a term for TwilV Rep. years, which was in mortgage to a truftee for himfelfi 3^9- fubjeO: to an equity of Redemption. John Hoole after^ wards purchafed the fee-fimple of the premifes in his own name, and devifed all his real efcates to his grand* daughter, who was his heir at law. Lord Chief Juftice— *' When John Hook purchafed *' the fee, he became both the hand to receive, and " the hand to pay of the mortgage money : it wrought *« an extinguifhment of the debt due on the mortgage. " When Hoole purchafed the fee, the mortgage term '* was gone, though it did not extinguifli the term in " point of law, (becaufe that was in Shepherd) ; yet it " became attendant on the inheritance, and mull fol- ' " low it in point of law, as much as if it had been " made to do fo, by the a<5t of the party^ John Hook " himfelf." WhenaTcrm § 1 5. But where a perfon indicates in any manner isinGrofs. ^^ intention of feparating a term for years from the inheritance, it will then be confidered as a temn in grofs. Haytcr V. § 16. A perfoH, being feifed in fee, devifed his Wmt 36^." cftate to a truftee for 99 years, in truft for hirafelf and his T'if/eXll. Trujl. C/aIII. § i6, 17. 5T3 his wife for their lives and the life of the furvivor, and afterwards in trufl: for the heirs of their bodies ; and in default of fuch iiTue, to the heirs of the body of the hultand, remainder to the heirs of the furvivor. They had iflue a fon. The hufband died ; after which the fon died in the life-time of his mother, who took out adminiftration to her hufband and fon, and affigned the term. After the death of the wife, it was contended by the heir of A. that all the trufls of this term either became void by accident, or Vv^ic fo in their creation ; fo that the term had no fubfiftence for the benefit of the per- fonal reprefentatives of any of the parties, but Ihould be confidered as attendant on the inheritance. It was, however, decreed, that this term fhould not be attendant on the inheritance ; for that the party w^ho raifed it, and had povvxr to fever it from the in- heritance, fliewed his intention to do fo, by limiting the trufl: to the furvivor of him and his wife, and the heirs of the furvivor ; which, though it was a void limitation, yet fufficed to lliew his intent to fever fuch term from the reverfion. § 17. Sir y^. Chadwick purchafed an eflate In fee- Scott v. fmiple from Mrs. Rudgcr ; and there being an out- f '];;|^°'';|J,'J,'. (landing term in a truftee, a derivative leafe of it was 69. granted to a truftee for Sir A. Chadivick^ with a nominal reverfion of eleven days to the truftee of Mrs. Paidger. Vol. I, LI The Title TIL Truji, C/^'^iii. § 17. The queftion was, whether this term was a term m grofs or to attend the inheritance. Lord Chancellor Thiirlow. — Every term {landing out, is at law a term in grofs. If it be different in equity, it mufl be by afi"e6ting the perfon holding the term with a truft to attend the inheritance. This may be by two ways : by exprefs declaration, and then whether the term would or would not merge, and whether the re» verfion be real or only nominal, it muft be attendant on the inheritance. Here it is not upon exprefs de- claration : then it muft arife from implication of law, founded on the flatute of frauds, which forbids any truft except by writing or implication of law. It is faid to be extremely plain, that Sir Andrew Chadwick meant to confolidate the interefts. — This is begging the quef- tion. It is true he meant to take the largeft intereft he could, but It is by no means apparent that he meant to confolidate the interefts. I lay no ftrefs on the days of the reverfion, for it was meant only as a nominal reverfion ; during that time the rent would be to the original leifee : but they did not mean to referve a fub- - flantial intereft. It would be neceifary there fhould be an exprefs truft to make this attendant on the inherit- ance. The tranfaftion does not fupply a neceifary con- ftru6tion of law : it is a very nice and very new point, whether the intent to purchafe the whole intereft is fufficient to make the term attendant upon the inherit- ance. The impoffibility he was under of purchafmg the whole, rendered an exprefs declaration neceifary to make it attend the inheritance (^). ia) There is a very able opinion of Mr. Fearne's on this cafe, publifhed in a work intitled Colkclanea Juridica, Vol. 2. No. 6. § 18. The Tiik XIL Truft, C/;. Hi. § 18—20. 515 § 18. In the cafe of Willoughhy v. Willougbby, Lord A Term at- tJardivkke fays, " A term attendant on the inheritance become a^^ " may be difannexed and turned into a term in grofs X^*""^ '" • 1 • Grofs. " by the abfolute owner or the niheritance. And fo ^ „ I Term R. ^^ it is admitted by Mr. Serjeant Mayndrd in the Duke 770. *' of Norfolk^?, cafe 46. ; or it may be made to become *' a term in grofs upon a contingency, according to the " refolution of that cafe." § 19. Terms attendant on the inheritance are con- Rules re- fidered as abfolutely annexed to the inheritance, and y erms at- confiiituting part of it ; and are therefore not fubjeft to Pendant, thofe rules by which terms in grofs arc governed. 1 hey Y Collect. J ^ " ■' Jur. V. I. follow the defcent to the heir, and all alienations made 297. by him ; they are capable of being intailed, and limited over after a general failure of iifue, provided the in- i Vent. 194. heritance on which they are attendant is limited in the fame manner. And where, in cafes of this kind, a i Term R. common recovery is fuffered of the inheritance, it will ' bar the intaik and remainders over of the term as well as thofe of the freehold ; for the term can no longer attend an eftate tail which is deflroyed, nor can the truftee, v/ho is but an inflrum^ent to proteft others, have the term to his own ufe ; fo that it muft thence- forth attend on the inheritance in fee. § 20. It was formerly much doubted, whether a A Term at^ term of years attendant on the inheritance w^as perfonal ^^^^ aCIis. affets for payment of debts ; but it is now fully fettled, Hard. 4S9. that a term attendant on the inheritance in fee-fimple \J^^^^' ^"^^^ is only real afiets in the hands of the heir. For the ftatute of frauds having made a trud eftate in fee, affets LI 2 in 51 6 r/V/^XlI. Tnift, C/7. iii. § io^^j. in the hands of the heir, the term which is annexed X.0 the inheritance, and which is fubjccl to all the charges' that affecl the inheritance, mud be io alfo. Only pafTcs §21. A term attendant on the inheritance is fo duly ac'tefted. fully confidered as part of the inheritance, and not as Collcft. Jur. a. chattel real, that it does not pafs by a will of chattels, V. 2. 297. i^^j. ^,^^ ^y, ^ ^y-jj executed in fuch a manner as \i neceflary to pafs real eftates. Prote^Ss a § 2 2. A term attendant on the inheritance will from Do-vvei-. protect a purchafer for a valuable confideration againfi: the claim of dower, although fuch purchafer had notice of the nrarriage at the time of his purchafe. Lady Radnor § 23. Lady i?^?^«(?r's hufband was feifed in tail of d- "^Shmv!" ^^^ lands in queftion, but there was a term of 99 years Ca. in. Pad, prior to his eflate, which was created for performance of feveral trufls in the Earl of Wamcisk\ will, (which were all performed), and after, in ti-ufl to attend the inheritance. Lord Radnor levied a fine and fujEFered a recovery, and fold the eflate to Vandehendy \ the term v/as aiTigned to the purchafer. Lady Radnor not join- ing, flie, after her hufband's death, recovered dower, with a cejfat executio during the term ; and brought h^r bill to have this term removed, and to have the benefit of her judgement and recovery at law. But the court held, that this being againfi a purchafer^ equity ought not to give her any relief, and therefore difmiffed the bill. From this decree, there was an appeal to the Houfe of Lords, where it was argued for iht appellsmt, that equity did entitle her to the thirds of TitkXll. rniji. CZ'. Hi. § 23, 24. 517 of this term : that a tenant by the curtefy is entitled to it, and, by the fame reafon, a tenant in dower : that the term created by the fettlement was to attend all the eftates limited by that fettlement, and in trufh for fuch perfons as fliouid claim under it, which the ap- pellant docs as well as tlie refpondent : that the pur- chafer had notice of the incumbrance of dower, the vendor being married when he fold the eftate : that file claims under her hufband, who had the benefit of the whole trull. On the other fide, it was Aiid, that dower is an intereft: or right at the common law only : that no title can be maintained to dower, but where the com-non law gives it ; and if a term were in being, no woman was ever let in until after the deter- mination of that term : that this was the firft pretence fet up for dower in equity ; the right is only to the thirds of the rent referved on any term : that it had always been the opinion of conveyancers, that a term or ftatute prevents dower ; and that the confequence of an alteration would be much more dangerous, than the continuance of the old rules. The decree was affirmed, § 24. The doctrine eflablifhed in this cafe, is con- trary to the general principles of equity, which has never extended its proteftion, in any other inftance, to purchifers, with notice of incumbrances, at the time cf their purchafe. The true and only reafon on which it was founded, was, the fdent uniform courfe of practice, uninterrupted, but, at the fame time, un- fupported by legal decifions : an opinion having been generally adopted by the profcifors of the law, that a L 1 3 fatisfied 51 S ^^itk XIL T'r^f, Cb. iii. g 24., fatisfied term would proted a purchaler againft the claim of dower ; and many eflates having been pur- chafed under this opinion. It is now, however, fully recognized and confirmed by a decree of Lord Hard- wicke, of whofe judgement on the cafe, the following account is taken from. Mr. Builerh notes on the firfl Jri/litute, S\vannock v. Lord Chancellor.— The plaintiff's huiband being ilnft. 2c8fl. feifed of a freehold efl ate, fubjecl to a term of 1000 "j.y years, Handing out in a mortgagee by virtue of a m.ort- Adams, gage made by his father, conveys the inheritance to g 'q ' * defendant for a valuable confideration, and, at the time of this conveyance, defendant takes an allign- ment of the term in mortgage, in the name of truftees, to wait and attend upon fuch inheritance : and now the plaintiff brings her bill againft defendant the purchafer, for dower, praying to be admitted to redeem this mort= gage term, and to have it out of the way j and, upon payment of her proportion of the mortgage money, to be let into her dower immediately, that fhe might not wait till tlie determination of the term. And the quef- tion is, whether the court ought to decree this under the prefent circumftances. of the cafe. I cannot fay but that the decree already made at the Rolls for plains- tiff the widow, is abfolutely confiftent with the mere reafon of the thing, if it was not to be confidered ori- ginally, and fettled ; but as this muff depend not only upon the precedents of the court, but the pra6tice of conveying titles to eftates, upon which the precedents tliemfelves were fettled, I do not wonder that a decree pf this kind fhould be made by a judge who was not abfolutely Title X\L Truji. Ch.m.%1/^, 519 abfolutely converfant in fuch precedents of the court, and the diflinclion taken therein. Bat upon confidera- tion of them, and the great authority relied upon of Lady Radnor and Vandebendy, I am of opinion that the decree ought to be reverfed ; and if it fhould not, would it not be going diredlly contrary to that great authority, and the rcafons upon which it is founded, and make fuch uncertainty in this court, in regard to purchafers, that the fubjed would not know what to rely upon. The wife here claims her dower, fubjeft to a term originally {landing out in a mortgage ; the confequence of that is, that, in law, though (he might have brought her writ of dower, and recovered judge- jnent, yet (he could not have had the benefit of it, till after the determination of the term ; for the judge- ment would be with a cejfat exeadio till that time : this was the wife's legal remedy, and, that being fo, fhe comes into this court upon the foundation of her ge- neral right of dower, to be deUvered from that re- flridion which the law impofes upon her, from having the benefit of it till fuch determination of the term, and to be admitted to redeem this term, which is now not in the hands of the mortgagee, but of the purchafer, as being affigned to attend upon the inheritance, and for the other purpofes before mentioned ; and though the aflignment is not in the words, to proteSi the inherit iancefrom doiv^r cr mefnc incumbrances, yet it is always fo underflood, otherwife there would be no ufe in tak- ing the term in the name of a truftee. It is admitted by the defendant, in cafe things had flood as they were at the time of the marriage, viz. that the term had been in the mortgagee, and the inheritance in the huf- L I 4 band Title XII. Truft, CIk iii. § 24. band as heir, or purchafed from him by the purchafer, without aiTignment of the term, as here, the wife, as en- titled to dower, might then have come here to redeem the mortgage, to have the benefit of coming at her dower immediately, by paying off the mortgage money, or keep- ing down the intereft, for the benefit of the heir or pur- chafer ; and even this was, (when originally fettled), going a good way in favour of a dowrefs, though it was confiflent with the reafon of the thing ; for as fhe was entitled to dower, and as a mortgage is only a re- deemable intereft, it is fit the equity of redemption fhould follow the nature of the intereft in the eflate ; and fhe to be endowed, and the heir at law to be en- titled to the inheritance, fubject to fuch dov/er, was giving the wife a real benefit, arinng from her dower, and not a mere nominal one, as it wo^ld be at law, where there is an outflanding term : for, when the law fays (he fhall have judgement for dowser, but with a, cejfat executio till the determination of the term, that is, in fad, to fay, fhe fliall have no dower ; and there- fore this court, as againft the heir, but not the pur-, chafer pf the term and inheritance, gives her the be- nefit of her dower, by removing the term ; and if all the cafes of tenancy in dower, and curtefy likewife, were now originally to be confidered, it might as well be left upon the ftrength of the law, for it is undoubt- edly a mere legal title that the one has as well as the other ; and there is no contrail of the parties inter- vening ; therefore, if a woman marries, and the huf- band is in poiTeflion of an eflate, or if a man marries, and the woman is in poiTelFion of an eflate, each party knows that, at the time of the marriage, their eflates are Title XII. Trujl. Ch, iii. § 24. 5«l are liable and fubjeft, en the one fide, to a tenancy by the curtefy, and, on the other, to dower, and to all mefne incumbrances and terras ; and there is no harm to fay that both fhall take their chance. The com- iniferation in refpecl to dower, has arifen from the determination in favour of tenancy by the curtefy; and, indeed, the difl:in6lion made between dower and curtefy, is founded upon veiy flight reafons ; but, however, it has been fo eftabliflied. The great point, in this c?,fe.^ depends upon the determination in the cafe of Lord Radnor and Vandebendy in B>ho%u. P. C, and Preced. in Chan. : and that was thus. (I mention jt from Lord Somer's own notes). It was fent to the mafter in order to (late the cafe, who ftated it, that Charles Earl of Warwick, upon the marriage of his fon, fettled his eftate, as to part, in jointure to his lady, and part upon the fon in tail, and part upon himfelf in tail, and, upon failure of iffue male, then to truflees fpr 99 years, to be difpofed cf by the faid Earl either by deed or will ; and for want of fuch appointment, the term was declared to he for the next in remainder, and to be attendant upon the inheritance. And as to a third part of a moiety of the eflate, it was limited to Lord Bod?nyn in tail, the fon (flied without iffue, and then the Earl, according to his power of appointment, charges the eftate with fome annuities, of which, fome were determined at the time of the purchafe in queflion, and fome were continuing ^ and then the trufl term, which was merely fuch, was to be attendant upon the inheritance. Vandebendy pur- chafes of Lord Bod-niyjh the plaintiff's hufband, that part Title XII. Truft. Cb, iil. § 24, part of the eflate limited to him, and took, not only m. conveyance, but a recognizance in two flatutes, in very confiderable fums, to indemnify the eflate from incumbrances, and againft the wife's dower, and for fuffering a recovery, and took an ailignment of the term. Vandebendy afterwards conveys to Sir John Ro^ iheram, which occafioned it to be called in Freced, in Chan, by that name. Lady Radnor brought a bill to have the benefit of dower againfl: Vandebendy, (who purchafed of Lord Bodmyn her hufband), and to fet this term out of the way. And by the decree before made. Lord Jefferys inclined to give relief, and did fet the term out of the \vay, and direct flie fhould bring dower at law ; but Lord So/ners reverfed that decree, and, upon appeal to the Houfe of Lords, the reverfal was affirmed. There was great doubt in this court, and fo in the Houfe of Lords, and there was a great inclination in the houfe to reverfe that decree of Lord Somers, but when the counfel came to the bar, the lords afked, whether it was ufual for conveyancers to convey terms for years to attend the inheritance, to prevent dower, and the counfel with great candour faying it was, the Lords affirmed Lord Somers* decree. The point that weighed in the judgment was, that this was the cafe of a purchafe for valuable confideration ; that in making conveyances, purchafers relied upon that method of taking a conveyance of the inheritance to themfelves, and an affignment of the term Handing out to a truflee, to attend it ; that the outftanding term was prior to the title of dower in the wife, and, therefore, purchafers have relied upon that, as a bar to fuch dower ; fo that this court and the Houfe of Lords were Title XII. Truft. CL ili. § 24, 52 3 were of opinion, that if they v/ere not to permit that to be fo, it would be to overturn the general rule which had been eflablllhed and pradtifed by many titles to eflates, and tend to make fuch titles precarious for the fu- ture. And as to what was faid in the cafe of Broivn and Gibbs, Preced. Chan. 99. in-z. that though there was a purchafer in cafe of Lord Radnor and Vandebendy^ yet that the court did not go upon that reafon, I do not know who reported that to be the faying of the ^ourt, but this I know, that that was the only reafon for the determination there ; and that is plain, for Vandebendy the purchafer having purchafed for a valu-. able confideration, Lord Soniers did rely upon that greatly, for he faid it has been always looked upon, that a term purchafed in by fuch a perfon to protect the inheritance againft dower, 'S not, therefore, to permit fuch a term to be in any cafe ufed againft the owner of the inheritance, either of the whole, or a part of the inheritance ; for the ufes adapted and accommodated themfelves to all the interefls which arofe out of that inheritance, with which, in contem- plation of equity, the term, for moll purpofes, was con- fidered incorporated. Every defcription, therefore, of ownerfhip, Ihould, in its order, defign, and propor- tion, have a ufe in the term, commenfurable with the intereft exifting in the inheritance. Therefore, when dower arofe, the term, in a proportion, was jufl: as much attendant upon the intereft growing out of the inheritance, as before it was attendant upon the inhe- ritance during the hufband's life. The heir, therefore, though he could avail himfelf of the term at law, was not allowed in that court to defeat the widow's claim to dower ; for, having a certain quantity of interefl, equity mull confider her as having correfpondent in- terefls in the term. When the hufband conveyed to a purchafer, and the wife did not by fine join, nothing paiTed but the eflate the hufband had, that is, an eftate fubjeft to dower. The right to dower remained juft where it was. The purchafer flood precifely in the place of the hufband. The outftanding term would accompany the inheritance thus conveyed, in the mode and manner in which it was attendant upon the fame inheritance, before it was conveyed. The term being a mere accefTory, the operation of the conveyance was purely derivative and confequential. It was not pofli- ble that a greater interefl could be incidentally acquired under the term, than diredtly in the freehold. M m 4 That ^36 Title XII. Truji. Ch. iii. § 30 — 32, That the whole doclrine upon this fubjeft was dif- cuffed by Lord Hardvjicke in Willoughby v. Willoughby, Tfit. i5.ch.5. where his Lordfhip noticed the opinion of fome con- veyancers, that where there was a term of which the truft was already declared to attend the inheritance, it was not neceflary to difturb it, and take an aflignment to new truftees ; and (hewed that not to be generally true. But if there were antecedent incumbrances^ nothing but an affignment could proteft againfl them ; and he conceived dower to be fuch an interefl as could be guarded againft only by an affignment. His Honour concluded, as to this point, by faying, that, from the whole tenor of the judgment in Swan- 4rite, f. 34. j2ock V. Lifford, it appeared, that the term did not ex- clude dower : and decreed that the widow was entitled to dower {a). Curtefyrot § '^i. It has, however, been determined, that a te- barred by a Term. nant by the curtefy fliall have the aid of equity, againft Siiell V. Clay, ^ (-v.y(|- tei-j-p affigned in trull to attend the inheritance. 2 Vern. 324. . . and fet up againfl him by the heir at law. Where an ^ ^2. In confequence of the dcclrine ftated in ch. 2. ontltanding "^ "^ ^ T-rrm is a § 32. it was formerly held, that if a defendant in ejeft- mer.t" '^^ " nient could fhew that there was an outflanding term for years veiled in a third perfon, to the pofTeffion of which the plaintiff was not entitled, fuch plaintiff could not recover. {a) I am indebted to the poh'tcnefs of Mr. Vefey for the perufal of his ncte of lliis cafe, from which ihe above abiirad has been taken. In Titif Xll, Trujl, C/j.iii: § 32— 35. 537 In the fame manner, where a defendant could fhew that there was an outflanding term, of which the trufts were not completely fatisfied, this would alfo operate as a. bar to the plaintiff, •-. § 33. But in a modern cafe, it was determined by DoecxDcm. Lord Mamfield^ that, although there was an unfaiisfied Briliowe, V. Pcjrg, uotftanding term, yet, if the plaintift' admitted the ' • ''''^ ^'^• charge for which the term was created, and claimed fubjeft to the charge, the truftees not afferting their title, he ihould recover. 5 34. This doiStrine has, however, been altered by DoccxPem, a fubfequent determination, in which it was refolved, v. Staple-, that a fatisfied term may be prefumed to be furrender- \2 ^^'" ed ; but that an unfatisfied term, raifed for the purpofe of fecuring an annuity, may be fet up, during the life of the annuitant, as a bar to a plaintiff in ejeftment, even though he claims fubjedt to the charge. % "^S- In another modern cafe. Lord Kenyon directed Doc v. a jury to prefume that an old fadsfied term was fur- ^ Term Rep, rendered to the cejiuique ufe. Saying, that he hnd 2. \ 10. grounded himfelf upon the dodrine laid down by Lord Mansfield in the cafe of Lade\, Holford^ which was r-nller'sN.P. not, as had been fuppofed, that an ejedment might be maintained upon a mere equitable title, which would remove antient land marks in the law, and create great confufion ; but that, in all cafes where truflees ought to convey to the beneficial owner, he vv^ould leave it to the jury to prefume, where fuch prefumption might be reafonably made, that they had conveyed accords ingly, 538 Title XII. Tnt^. Ch. iii. § 35, 36. ingly, in order to prevent a jufl title from being de- feated by a matter of form. Goodtitle § 36. But, in a fubfequent cafe, it was faid, that V. Jones, 7 Term R. although, under certain circumftances, a jury may ^'^' prefume a fatisfied term to have been furrendered to the cejiuique ufe, yet, if no fuch prefumption be made, and it appears in a fpecial verdid in ejectment that fuch a term is ftill outflanding in a truftee, who is not joined in bringing the ejedtment, the cejiuique ufe can- not recover. TITLE ( 539 ) TITLE XII. TRUST, I I. 6. 8. 9- II. 3' 32 33 CHAP. IV. Of the EJlate and Duty of Trujiees. Ejlate of Tntjlees. No Acl of a Trvjlee fiall pre]i:d'ice the Iriijl. Exceptions. Conveyance iv'ithout Notice. Where Ptirchafcrs from Trujlecs are liable to the Trufts. JttainiJer of the Truflee. Death of the Trujlee with- out Heirs. Truflees have equal Power. 34. Not to derive' any Benefit from the Trifi. 35- 43- 47- 49. 52. 53- Where a Truflee may pur- chafe the Trujl Eflate. Bound to re'imhurfe the Cef- tiiique Trtifl. Not alloivedfr Trouble. But allowed for Co/Is. Where a Truflee nfufes to accept a Truji he mujl releafe. Truflees (Jfcharjed and others appointed by the Court of Chancery. Seftion i. A TRUST eflate being now confidered, in feme Eftate of "^ refpefts, as fimilar to what a ufe was before the ftatute 27 Hen. 8., it follows that truflees are now in tjie fame fituation as feoffees formerly were. And, therefore, it is flill held, in conformity to the antient doftrine of ufes, that pernancy of the profits, execution of eftates, and defence of the land, are the three great properties of a trufl. So that the Court of Chancery will compel truflees, ifl, To permit the ce/iuique trufl to receive the rents and profits of the land. ?dly, To execute fuch conveyances as the cejinique trufl fhall dire^to 540 Title Xll. Truji, Cb.YV, § i— 5. direft. And, 3dly, To defend the title in a court of law or equity. § 2. The neceflity that the truftee fliould execute conveyances of the land arifes from this circumftance ; that as the legal eftate is vefted in the truflee, who is <:onfidered, in a court of law, as the real owner of the land, it follows that, although the cejiuique trull can alone difpofe of his equitable intereft, yet he cannot convey the legal eftate in the land, without the afliftance of the truflee ; and, therefore, where the ccjiuiqiie trull has the abfolute intereft in fee-fimple in the truft, he can compel the truflee to convey the legal eftate, either to himfelf or to any other perfon, 2 P. Wms. § 3. The cejiuique truft is only entitled to a convey- *^^' ance where the whole of the truft belongs to him. But if lands are devifed to truftees, in truft to pay an- nuities, and fubjed thereto in truft for A. B.^ the legal eftate cannot be taken from the truftees, while the an- nuities are fubfifting. I Ab. Eq. § 4. Where there is a cejiuique truft in tall, he may Wn*s. I xL ^"^ ^^ ^^ truftee to convey the legal eftate to him ; Boteler v. and no one can afterwards prevent him from levvinG: Alhngton, . ^ ^ ^ t Bio. Rep. a fine or fuffering a recovery. Vide Tit, 32. § 5' Infant truftees are enabled, by a modern aft of parliament, to convey lands whereof they are feifed in truft under the diredion of the Court of Chancery. § 6. If 35- 7///^ XII. Truji. C/^. iv. §6— 9. 541 § 6. It is a rule in equity, that no act of a truftee No Aa of a fhall prejudice the f£/?«/^«(? trufl. And, therefore, if prejudice the a truftee conveys away the truft eftate, for a full con- '^'^"^• fideration, to a perfon who has notice of the truft, the ^ "g^ ' ^' purchafer will be confidered in equity as a truftee for the cejiuique truft. Nor fliall the forbearance of truf- 3 P. Wms. • • • . 2 1 c. tees, m not doing what it was their office to have done, prejudice the cejiuique trufts ; fince, at that rate, it would be in the power of truftees, either by doing Banks v, or delaying to do their duty, to affefl: the rights of Wms. 706," other perfons. Wherefore the rule in all fuch cafes is, that what ought to have been done, fhall be taken Allen v. as done; and a rule fo powerful it is, as to alter the Tit^c very nature of things— to make money land, and, on ^^^' ^^ the contrary, to turn land into money. § 7. One of the principal inconveniencies of ufes was, that the eftate of feoffees to ufes became fubjeifl to all their legal incumbrances. But, upon the i P. Wms, eftablifhment of trufts, it was fettled, that a truft eftate \^ii ^,g fhall not be fubjed to the debts or other incumbrances ^°^^^ ^'• of the truftee, to the dower of the truftee's wife, or to 2 Freem. R. the curtefy of the truftee's hufband. ^^" § 8. There are, however, fome exceptions to the Exccptioug, rule, that a truftee cannot, by any ad of his, preju- dice the intereft of the cejiuique truft, in the eftate. § 9. Thus, if the truftee be in the adlual pofTefHon Conveyance of the eftate, (which fcarce ever happens), and conveys Notice. it for a valuable conOderalion to a purchafer, who has p n ^ ' rye v. Gorge, no notice of the truft, fugh purchafer will be entitled to i P- Wms. . hold "'• 542 Title XJI. Tritjl. Ch.'vr. §9 — 12. hold the eftate againfl the cejiidque truft ; becaufe it is a rule in equity, that an innocent purchafer Ihall in no cafe have his title impeached. But the truflee will be compelled, in equity, to make a full compenfation to the cejiuique truft. 1 P. V/ms. § 10. If a truftee mortgages the eflate to a perfon 278 who has no notice of the truft, fuch mortgagee will be allowed to hold againft the cejiiiiqiie truft ; becaufe mortgagees are confidered as having a fpecific lien on the eft ate : whereas, it has been obferved, that eftates held in truft, are not fubjed to the judgment or fpeci- alty debts of the truftee, becaufe creditors of this latter kind have only a general lien. Where Pur- §11. We have feen, that a purchafe from' a truftee, Truilees are ^^^h notice of the truft, is a fraud, even though the Imbletothe purchafer fhould pay a valuable confideration. But where a truftee is authorized to fell, fuch a purchafe is not fraudulent. There are, however, many cafes, in which a purchafer, with notice of a truft eftate, is an- fwerable for a truftee, and, therefore, bound to fee that his money is applied in execution of the truft. Dunchv. § 12. Thus, where a perfon conveys or devlfes his I Vern. 260. eftate to truftees, upon truft to fell, for payment of Shalmof ''* certain debts fpecified in the deed or will, or in any iVcrn.301. fchedule annexed thereto, a purchafer is bound to fee that his money is applied in payment of thofe debts. § 13. Where Title Xll. Truji. C/;.lv. S 13— 17. 543 § 13. Where a decree was made, and direftlons for Lloyd v. nil! Baldwin, a fale or mortgage, and that the money mould be ap- j Vef. 173. plied in payment of debts, which were afcertained by a report of the Mafler, Lord Hardwicke decreed, that a purchafer under that decree was bound to fee to the application of his money. § 14. On the other hand, it has long been fully i Vef. 173. eflabUlhed, that where lands are directed to be fold q,,^.^^ for payment of debts generally, without any fpecifica- iBro. Il_i86. tion of fuch debts, a purchafer is not bound to fee to v. Curtis, the application of his purchafe money. 3 ro. x . 9 . 515. Legacies Hand upon the fame ground as fpe- cified or fcheduled debts ; and therefore a purchafer fhould fee that his money is applied in payment of them. But where a truft is created for payment of debts and legacies, a purchafer is not bound to fee that his money is applied in payment of the legacies. § 16. Thus, where a perfon devifed his real eftates Rogers v. . to truftees to fell and pay his own and his father's debts ^i^b.^igs^.* and legacies, Lord Hardwicke faid, — " The fubje6ling " the eflate to the payment of legacies, will not make " the purchafer anfwerable for the difpofition of the " money, becaufe the legacies cannot be paid without " the debts, and they are not fpecified.'* § 17. In the cafe of Jebb v. Jbbetf, Lord Thurloiv i Bro. Rep. , , - . - __._, , , , , . 1S6. n. 2d is reported to have faid, — " Where debts and legacies g^;^^ " are charged on lands, the purchafer will hold free 8 " from 544 ^^^^^ ^^' '^ruft, Ch. iv. § 17—20. ** from the claim of the legatees ; for, not being bound " to fee the difcharge of debts, he cannot be expe£ted " to fee the difcharge of legacies, which cannot be paid " till after the debts." Id. And in the cafe of Beyon v. GoIIins, the bill was dif- mifTed as to the purchafers, with cofls, they not being bound under the charge, to fee to the application of the purchafe money. Cdpepcr V. § 1 8. Where a po-fon devifed his real eflate to his Ca'^iic. ' executors, to be fold for payment of debts, in cafe his perfonal eflate Ihould be deficient, n was held, that a purchafer was not bound to inquire whether there w^as a deficiency of the perfonal eflate or not, for, if the perfonal eflate was fufficient, yet he fhould hold the lands purchafed againft the heir j and the heir fhould have his remedy againfl the executor. But if there be a lis pendens between the hqjr and executor, to have an account, it is fufficient notice in law, without aclual notice of the fuit, fo that a purchafer takes at his peril. . § 19. Where a perfon charges a chattel real with the payment of a particular debt, or bequeaths it fpe- cifically, this will not fubjeft a purchafer of fuch chat- tel to fee to the application of his purchafe. Ewer V. § 20. One pofTefTed of a term for years, devifed it Wm ^'i'lR ^^ ^"> ^^^ ^^^^ indebted, having made B. executor. B. fold the term, upon which A. brought a bill againfl c " the Wm. 14.8. Title XII. Triijl. Ch. iv. § 20. 545 tlie purchafer, infifting, that the term being devlfed to him, the executor was but a truflee for him ; and, that the purchafer mufl hr.ve notice of this trufl, and confcquently mufl take fubjcft to the truft. Sir J. Jekyll, M. R.— " I remember it to have been " once ruled, that an executor could not make a good " title to a term to a purchafer ; and that was in the 2 Vern. 444. « cafe of Major Bill y. Humble. But, fmce that, I ^^'j^'^^'pl ^.^* " take it to have been refolved, and with great reafon, Savage v. -, , , , r 11 Humble, " that an executor, where there are debts, may lell a 3. C. " term ; and the devifee of the term has no other re- " medy, but againft the executor, to recover the *' value thereof, if there be fufficient aifets for the " payment of debts. As for the notice of the will, " and of the devife of the term to a third perfon, that " is nothing, for every perfon buying of an executor, " where he is named executor, mud, of neceffity, \ '^ have notice ; fo that, if notice mufl be an hin- *« drance, then, of confequence, no executor might " fell. *^ It is not reafonable, to put every purchafer of a " leafe from an executor to take an account of the " teftator's debts j nor has he any means to difcover " them. ■• " On the contrary, as the whole perfonal eftate of " the tellator is liable to the debts, this leafe mufl, - *' inter alia, of neceOity be' liable, and therefore, " may be fold by the executor. If equity were " otherwlfe, it would be a great hindrance to the pay- VoL. L N n " men: _54.6 TiikXll. Trujl. Ch.'iv. § 20 — 22, " ment of debts and legacies ; and would lay an " embargo upon all perfonal eflates in the hands of " executors and admlniftrators, which would be at- " tended with great inconveniencies." The bill w^as difmifled. Gili)^rd ^' §21. Even an aflignnient of a term for years, by I Atk. 463. ^Yi executor, as a fatisfaction for a debt due to the affignee of the term from the executor himfelf, is good againft the creditors of the teftator : for, (fays Lord Hardzuickc), " at law, the executor has a power to *' alien the afiets of his teftator ; and . when they are " aliened, no creditor can follow them, for the de- " mand of a creditor is only a perfonal demand againfl ^ " the executor, in refpecl to the afl'ets come to his *' hands, but no lien on the aflets. The Court of " Chancery will indeed follow aflets upon voluntary *' alienation, by coUufion of the executor : but, if the *•• alienation is for valuable confideration, unlefs fraud *' is proved, the Court of Chancery fuffers it as well " as at law, and will not controul it j for a purchafer " from an executor has no power of knowing the " debts of the teftator : and if the Court of Chancery, " upon the appearance of debts afterwards, would " controul fuch purchafers, nobody would venture to *' deal with executors." Ante. § 22. It is fald by the Mailer of the Rolls in the cafe of Ewer v. Corbet, that if an executor fliould fell a term to one who has notice that there are no debts, or that all the debts are paid, this might be another confidera- • tion : TMe XII. Truji: Ch. Iv. § 22—25. 547 \j.on ; that is, the purchafcr would be anfwerable for his purchafe or mortgage moneys § 23. It is faid in FJIiot v. Merry man. Barn. 78., that where lands are charged with the payment of an- nuities, thofe lands will be liable in the hands of a purchafer : becaufe it was the very purpofe of milking Wynn v. 1 • n 1 J 1 V/Illiams, the lands a fund for that payment, that it Ihould be a ^ Vef, jun. conftant and fubfifting fund. ^^°' § 24^ It has been long fettled, that where lands are i Vern. 303. conveyed to trudees in truft to fell and pay debts, if more is fold than is fufTicient to pay the debts, that fliall not turn to the prejudice of the purchafer, for he is not obliged to enter into the account, and the truf- tee cannot fell juft fo much as is fuificient to pay the debts* ^ 2 c. In a cafe where lands were by will direfted to I.utwycii v. be fold for payment of debts, and a decree niade m ^ Bro. R. Chancery j that the eft ate ihould be fold for payment 248. of debts, a purchafer under the decree- excepted to complete his purchafe, becaufe more of the eftate was fold than was neeelfary. Lord TImrlozu faid,—" If the mader-, in felling the ** whole, has confulted the convenience of the eftate> " he has a6led right j the power given to the truliees " was, to fell the whole, or fuch part as might be " expedient. The court has decreed in the fame way, " and the mafter, with the confent of the parties in- N n ii " terefted. 54? Title XII. TriiJ}. Ch. iv. § 25—29. '* terefled, has fold the whole, a purchafer cannot *' come in to objeO: to it." The exception was over- ruled. § 26. Where ellates are conveyed or devifed to truftees, upon trull to (ell and apply the money for any particular or fpecific purpofe, a purchafer of the eflate, with notice of the trull, is bound to fee to the application of the money, for the purpofes mentioned in the deed or will ; for if thofe purpofes are not fulfilled by the truflee, the eftate purchafed will dill be liable to them, in the hands of the purchafer. Cottrell V. §27- Thus, where lands were veiled in truftees by Hampfon, ^q. ^^ parliament, to be mortgaged for the raifmg a fum of money to rebuild a printing-houfe, it was de- creed, that the mortgagee was bound to fee the money applied accordingly. 4Vef.jun. § 28. l^oxdi Keny on, when mailer of the rolls, in- 99- clined ftrongly to the opinion, that where truftees have power to fell, they muft have the power incident to the charadter, 'uiz. the power to give a difcharge for the purchafe money : but this point was not decided. 5 29. It is the ufual pradlice to infert a claufe in all deeds by which truftees are direded to fell lands, declaring that their receipts ftiall be a fufficient dif- charge to the purchafers, who fhall not be anfwerable or accountable for the mifapplication or nonapplication of the purchafe money. And it is fully eftablifticd, that Title XII. Truji. Ch. iv. § 29, 30. 549 that where a claufe of this kind is inferted in a deed or will, by which trufts are created, truftees may make a good title to a purchafer. But, in a cafe of this kind, all the truftees who accept the trufl, mufl join in the receipt. § 30. Mrs. Cr^W(? conveyed real eflates to the ufe of Crewe v. herfelf for life, remainder to three perfons, their heirs 4 Vef. j'm. and alTignSj in trufl to fell, with a provifo, that the ^^* receipts of thofe three perfons Ihould be a fufficient difcharge to the purchafers, who Ihould not be anfwer- able for the application of the purchafe money. One of the truftees died, another being unwilling to a6l in the trufb, conveyed the premifes to the remaining truf- tee, who fold them. The purchafer refufed to take the conveyance, unlefs the truftee who had conveyed his intereft would join in the receipt for the purchafe money, which he declined. A bill was filed to compel a fpecific performance of the agreement. The defendant fubmitted, that the receipt for the purchafe money ought to be figned by both the furviving truflees. Lord Loughborough. — " I do not feel it is pofTible to " help the plaintiff. If he had renounced, as in that " cafe that has been put, {Smith v. Wheeler, i Vent, Infra. " 130.), he might diffent, when no eftatepaffes. The " whole eflate would have been in the plaintiff, exa6tly " as if the two other truflees had died in the life of " the teftator, he would have been the only perfon ; N n 3 " but. ^^3 Title XII. TniJI, Cb. iv. 5 3°^— 33- *' but, according to the way they have managed it, ^' he has accepted the trufl, and conveyed away the " eftate ; that part of the trufl that confifts in the ap- *" phcation of the money, he could not convey away. '' The hazard, probably, is not great ; but I do not " know how to make the purchafer run the hazard. ** Taking the title with the knowledge of the trufl, he ^' would be bound to fee the application of the money. *' I do not feel that I can make the purchafer pafs over " this objedion." Attainder of § 3^' ''^''^here a truflee is attainted of treafon or fe- Iruitee. lony, the legal eftate becomec forfeited to the crown : Treat, of r.q. ^Xid. it havinfT been formerly eflabliflied, that the kin^ h.z. C.7. f.i. ^ . . ^ could not be feifed to a ufe, it was held in analogy to that principle, that the king is not bound to execute a trufl in equity : and, therefore, in a cafe of this kind, the cejiuiqiie trufl mufl loofc his eflate. Death of the § 32. Where a truflee dies without heirs, by which Trulltewith- j.^ j^^^g ^f^j^,^^ ^-^her to the king, or to the lord cf put Heirs. '^ -^ ivhom the lands are held, the cejlidque trufl cannot com- pel the lord to execute the trufl. The king is autho- rized by the flatute 39 and 40 Geo. 3. c. 88. f. 12., to execute a trufl where the legal eftate becomes vefted in the crown, by the death of the truftee without heirs. But there is nothing in the a£l to oblige the crown to execute tiie trufl. Truftees ^ ZZ' Truftces have all equal power, intereft, and Powc??&l-. authority, and cannot a£l feparately, but muft all join, TitleTil. Tnift. C>6. iv. § 33— 36. 551 both in conveyances and receipts. It fhould, however, Vide i I\ be obferved, that although two truflces join in a re- ^ Bro. Rep.* ceipt, where the money is in fad paid to one of them, ^-^°* yet the truftee who actually received the money will only, in general, be accountable. And in ail deeds by which trufls are created, a claufe is inferted, that each truilee fiiail only be accountable for fuch fums of money as fhall adually come to his hands. And it has Bartlett v, been determined in a modern cafe, that this does not ^ Tcr !i" 11 bind the truflees as a covenant, but is a claufe of in- 42- demnity, and the fenfe of it is tliis, that the truflees, and their heirs, fhall not be accountable for more than they receive. They are accounta.bIe for what they ac- tually receive, but not as under a covenant. § 34. The Court of Chancery v»dll not, in any cafe. Not to de- permit a truftee to derive a benefit from his truft ; and, '"'^^ ^r^ ^^" * ^ ' ' netit from therefore, if a truftee compounds a debt, or buys it a 7>uiL for lefs than is due on it, he fliall not derive any ad- 3 r*. Wms. vantage to himfelf from fuch a tranfaelion. But where Forbes "v. a trullee releafes or compounds a debt, if it appears to 1^°*^^' ' ^''°* \ ^ ^ Rep. 130. have been done for the benefit of the trufl eflate, the truilee will be excufed, 5 Tj^. It was formerly held, that the Court of Chan- where a eery would not permit a truflee to purchafe anv part ^ ru[\tt^ may •' purclufe the of a trufl eflate for himfelf, on account of the dan- 'ivJX £ftaie. gerous confequences that might enfue from fuch a pradice. § 36. It was declared by Lord Hardwlcke^ that the Davlfon v. court will not fuffer a truilee to purchafe the eflate of ^'^^"^ "'^''' , ^ * rorrelt. P.'l o, Nn4 the?-.cp. 1745. 552 rule XII. Triift, Ch. iv. § 36—39. the cejluique trufl during his minority, though the tranfafliion be fair and hcnefc, and as high or higher a price given than any other perfon would give. But this the court has always difcountenanced, upon account of the general inconvenience that might happen from bargains of this kind. But where there is a decree for fale of the ceftuique trufl's eftate, and an open bidding before the mailer, there the court has permitted the truftee to purchafe, for that is an open auction of the eftate. But, at the fame time, his lordfhip declared the rule of the court againfl truflees purchafmg, did not extend to trufls for perfons of full age. whelpdale v. g ^7. On devife for payment of debts, the truftee I Vef. 9. hlmfelf purchafed part : Lord Hardvjicke faid he would not allow it to (land good, although another perfon, being the bed bidder, bought it for him at a public fale, for he knew the dangerous confequence : nor is it enough for the truflee to fay you cannot prove any fraud, as it is in his own power to conceal it ; but if the majority of the creditors agreed to allow it, he fhould not be afraid of making the precedent. Killick V. § 38. A truftee, who had aded improperly in other 4 Bro. R. refpedts, bought a leafe, which was part of the truft ' '• property, at an appraifement, and afterwards renewed it in his own name, and bought part of the ftock. Decreed, that he ftiould be a truftee only, and account for what he purchafed. § 39. In a fubfequent cafe it was held, that there is no general rule that a truftee to fell ftiall not be him- felf Tttle'S.lL Truji, C/;. iv. § 39— 41. SS?> fclf the purchafer ; but he fhail not thereby acquire a profit, § 40. An eflate was conveyed to fix perfons, in trull Whichcote v. to fell for the benefit of creditors. The eftate was put - Vef."km. up to auftion, and purchafed by one of the truftees, 74°- who afterwards fold it at a profit. Upon a bill filed by fome of the creditors, praying that this purchafe by the truftee might be for the benefit of the creditors. Lord Loughborough faid, it was a plain point of equity, and a principle of clear reafoning, that he who under- takes to ad for another in any matter, fhall not, in the fame matter, a6t for himfelf; therefore a truftee to fell fhall not gain any advantage by being himfelf the perfon to buy : he is not afting with that want of in- tereft, that total abfence of temptation, that daty im- pofed upon him, that he fhall gain no profit. The confequence is beyond doubt that, in whatever fhape that profit redounds to him, whether by management, which is the common cafe, or by fuperior good fortune, it is not fit that benefit fhall remain to him : it ought to be communicated to thofe whofe interefls, being put under his care, afforded him the means of gaining that advantage. The trullee was decreed to account for the profits with cofls* § 41. In the laft cafe which arofe on this point it was determined, that where a truflee purchafes the trufl eflatCj however fair the tranfaftion, it muft be fub- jea 554 Title XIL rrtijl, Ch.iv, §41—44. jed to an option in the cejiuique truft, if he comes in a reafonable time to have a re-fale. Campbell V. Walker, 5 Vef. jun. 678. Bound to reimburfe theCeftuique Truft. Board man v. MofTman, 3 Bro. R. 68. I Ab. Eq. 384. n. § 42. A perfon devifed his eftates to two trullees, upon trufl to fell. One of the truftees purchafed part of the eftates at auftion. A bill was filed by the re- fiduary legatees, praying that the fales might be fet afi^e, and the premifes re-fold. It appeared, upon the evidence, that the fales were perfectly fair and open. The Mafter of the Rolls faid, he would lay it down as a rule, that any truftee, purchafing the truft property, is liable to have the purchafe fet afide, if, in any reafon- able time, the cejiuique truft choofes to fay he is not fatisfied with it : the truftee purchafes fubjed to that equity. It was referred to a mafter to enquire whether it was for the benefit of the plaintiffs that the premifes ftiould be re-fold ; and if the mafter fhould be of opinion that it would be for their benefit, then it was declared that they fliould be re-fold. § 43. Whenever truftees are guilty of a breach of truft, the Court of Chancery will compel them to re- imburfe the cejiuique truft for any lofs which he may have fuftalned. And if a truftee conceals any ad; done by his co-truftee, which amounts to a breach of truft, he will thereby make himfelf equally liable. § 44. Lord Hobart is reported to have been of opinion, that an adion at lavv might be maintained againft a truftee rule XII. Triiji. Ch. Iv. § 44—46. $55 truflee for a breach of truft. But this opinion is In- Sturt v. confiflent with Lord Hardwicke's definition of a truft, ^Atk. 612. which is, that it is fuch a confidence between parties, that no adion at law will lie j but that it is merely a cafe for the confideration of a court of equity. It is, however, cbfervable, that even in equity the ccjluiaue truft is confidered but as a fimple contrad creditor, in refped of fuch breach of truft ; unlefs the 2 Atk. 119. truftee has acknowledged the debt to the truft eftate under hand and fcal. § 45. And although a truftee for the purchafer of land, ftiould buy land, it will not be liable to the truft, unlefs there are circumftances affording a prefumption, that it was purchafed with the truft money. 4 Vcf, juQ". § 46. Thomas Lockyer, being a devifee of confider- Perry v. able eftates, in truft to lay out the produce thereof in \\{'\ the purchafe of lands, did purchafe feveral eftates, but io3. died without perfonal aifets, A bill was filed by the cejiuiqiie truft, praying that the deficiency of the perfonal eftate of Thomas Lockyer {liould be made good out of the real eftates which he had purchafed. There was no evidence that the lands were purchafed with the truft money. It was contended on the behalf of the plaintiffs, that y;here a man is bound to do an aft, and does what niay enable him to do it, he fhall be taken to do that in ^S6 Title XII. Truji, Ch, iv. § 46—48. in performance of what he is bound to do, and that between reprefentatives. The court held, that the plaintiffs had no lien on the efiates purchafed by Thomas Lockyer^ being creditors by fimple contrad only. If there had been any ground to prefumc that the purchafes had been made with the truft money, it would have been othermife. Not allowed ^ 47. It is an eftabUrned rule, that a truftee fhall have no allowance for his care and trouble ; for, on k7.^c.7. r.3*. "pretences of this kind, the truft ellate might be im- pcverifhed. Befides the great difficulty there might be in adjufting the quantum of fuch allowances ; efpe- pecially as one man's time may be more valuable than another's : and there can be no hardfhip in this, re- fpeding any truftee, who may choofe whether he will accept the truft or not. £nifon T. § 48. But in a cafe where there was a direction in ^'IPr a will that the truftees lliould be paid for their trouble as well as expence ; and it was objefted that this might \ be of general prejudice. Lord Hardwicke faid this was a legacy to the truftees, to whom the teftator may give fatisfaftion if he pleafes. And in Serjeant Hall's, will. Sir Richard Hopkins', and in the cafe of the Duchefs of Marlborough, there was a great allowance made for their trouble ; and no inconvenience, becaufe it can cany it no farther than where there are particular di- reaions. The mafter was therefore diredled to enquire what the truftees might reafonably deferve for their trouble. _ 4 S 49- -^ truftee Title XII. Trufl. Ch. Iv. § 49—53. 5S1 § 49. A truftee will, however, be allowed all cofts Eut allowed and expences which he has been put to in the execu- ^ * „ ^ _ Treat, of Eq. tion of his trufl, unlefs he has been guilty of improper b.2. c.7. f.3. conduct. ^ CO. Thus, if a truftee fues in Chancery for the ^n^and v. ^ -' ' . . ^ Bradburn, truft eftate, and obtains a decree with cods, and, af- 2 Cha. Ca. terwards, the cejiuique truft exhibits a bill for an ac- ^^ * count of the truft eftate, the truftee will be allowed, Trott v. in his dift)urfements, his full cofts, and will not be j p^ ^/ms. concluded by the cofts that were taxed. 780. § 51. It is alfo a rule, that the ccjlulq^iie truft ought 2 P. Wr.^s. to fave the truftee harmlefs as to all damages relating ^^^' to the truft. * § 52. Where a truftee reiufes to accept a truft, the Where a ufual practice is, to procure him to releafe all his eftate fufes to ac- and intereft to the other truftees. For although a per- "P*^ ^ J""" fon to whom an eftate of freehold is limited may dif- releafe. claim it in a court of record, and if it is only a chattel, 3 Rep. 26 b. T^ , . . . . . . (. , . Smith V. may diiclaim it in pais^ yet it is round more conveni- whcelcr, ent, that a truftee ftiould releafe his intereft.. \y.^^}:.}^°' ' Vide Tit. 32. § 53. We have feen, that the Court of Chancery Truftees dlf- will not fufter a truft to fail for want of a proper truf- ot^^'^fJap^" tee ; and, therefore, if a truftee refufes to accept a poi"ted by /the Court of truft, the court will interpofe, and either appoint a Chancery, new truftee, or take upon itfelf the execution of the Ch, i. f. 69. trufl. § 54. A per- 558 Travel v. Danvers, Rep. Temp. Finch. 380. Title Xir. Truji. Ch. Iv. § 54—58. § 54. A perfon, by will, gave all his lands of inhe- ritance to two truflees, upon trufl to fell, and pay his debts, One of the truftees defired to relinquifh the truft, and the other was willing to accept it. Decreed, that the truftee who defired to relinquifii, fliould releafe to the other. Uvedale v. Ettrick, 2 Cha. Ca. 20. § ^K,. In a fubfequont cafe, the Court of Chancery removed a truftee, though he was willing to aft, the other truflees having refufed to join with him in the execution of the truft. Laiie V. De Lambert, 4 Vef. jun. 592. § 56. In a modern cafe, a decree was made, that a woman who was a truftee, but who had married a foreigner, flrould be difcharged from the truft, though flie denied an intention of quitting the kingdom, and deftred to continue in the truft ; but the court faid, that there was a great inconvenience in a married wo- man's being a truftee. § ^j. In all modern deeds of truft, there is a provlfo, that in cafe of any truftee dying, or being defirous of relinquifliing the truft, a new truftee ftiall be appointed, either by the ceftuique truft, or the old truftees ; and the property fhall be conveyed to fuch new truftee jointly with the remaining truftees. But w^here this claufe Is omitted, the Court of Chancery will appoint a new truftee. BucTianan v. Hamilton, 5 Vef. JuQ, § 58. By a private ad of parliament, eftates were vefted in three truftees, upon truft to fell, '<^c. ; but there Title XII. Trttfl, Ch, Iv. § 58. 559 there was no provifion made for the change of truflees. Mr. Scott, one of the truflees, being appointed At- torney General of Upper Canada, executed a releafe : a bill was filed againft the two remaining truflees, praying a reference to the mafler to appoint a new truflee. It was faid to be a common cafe, and the court referred it to a mafler to appoint a new truflee. END OF THE FIRST VOLUME. Printed by A. StMhan, Law-Printer to Hi> Majefty, Printers- Street. UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 743 781 7